For the purpose of determining the amount of compensation to be
paid to a marshal of the United States for attending circuit and
district courts, under Rev.Stat. § 829,
held that the
court is "in session" only when it is open by its order for the
transaction of business, and that if it be closed by its own order
for an entire day or for any given number of days, it is not then
in session, although the current term may not have expired.
The allowance of a marshal's account by the court does not
preclude a revision of it by the proper officers in the Treasury,
nor justify its payment when it appears that such allowance was
unauthorized by law.
The appellant was United States Marshal for the District of
Delaware from February 1, 1850 to July 24, 1885. The terms of the
district court for that district began on the second Tuesdays in
January, April, June, and September in each year, and continued
until the Friday or the day preceding that for opening the next
succeeding term. The terms of the circuit court began on the third
Tuesdays in June and October in each year and continued until the
Tuesday or the day preceding that for opening the next succeeding
term.
It is found by the Court of Claims (Finding II) that the
appellant, as marshal, "attended the circuit and district courts
when in session, during the terms of said courts, nine hundred and
five days;" that those days were charged by him in his account at
$5 per day; that the account, being verified, was approved by the
court as just, and in accordance with law, but its payment was
refused at the Treasury Department, and that appellant's whole
compensation, if the above charges were added, would not have
exceeded in any one year the maximum of $6,000.
Finding VII was in these words:
"Claimant has been paid in full at the rate of $5 per day for
every day whilst the Circuit and District Courts of the United
States in the State of Delaware
Page 146 U. S. 361
were sitting or in session, from and including October term,
1879, to and including June term, 1885. The 905 days referred to in
Finding II were days occurring between sessions of the courts."
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
We are somewhat embarrassed by the obscurity of the findings of
fact. The second one states that appellant attended the circuit and
district courts, "when in session," during the terms of those
courts, 905 days, while the seventh states that those were days
occurring "between sessions of the courts." But we assume that the
question intended to be presented, and which was determined below,
involved the right of a marshal to compensation at the rate of five
dollars per day for each day of a term, whether the court was or
was not actually in session or sitting on each day so charged. We
understand the words "between sessions of the courts" to imply that
there were intervening days between those sessions when the court,
by its own action, was not open or did not sit for the transaction
of business.
This question depends upon the construction to be given to that
clause of section 829 of the Revised Statutes, fixing the
compensation to be taxed and allowed to a marshal for different
kinds or service, which provides that he shall be allowed
"for attending the circuit and district courts, when both are in
session, or either of them when only one is in session, and for
bringing in and committing prisoners and witnesses during the term,
five dollars a day."
When the court is open, by its order, for the transaction of
business, it is in session within the meaning of this section. If
the court, by its own order, is closed for all purposes of business
for an entire day or for any given number of days, it is not in
session on that day or
Page 146 U. S. 362
during those days, although the current term has not expired. It
is made by statute the duty of the marshal of each district "to
attend the district and circuit courts when sitting therein."
Rev.Stat. § 787. Within its meaning, the court cannot be said
to be sitting on any day when it is closed by its own order during
the whole of that day for purposes of business.
In support of his position, appellant relies upon the decision
in
United States v. Jones, 134 U.
S. 483,
134 U. S. 488,
where it was held that the approval of a commissioner's account by
a circuit court of the United States, under the Act of February 22,
1875, 18 Stat. 333, c. 95, regulating fees and costs, was
prima
facie evidence of the correctness of its items, and "in the
absence of clear and unequivocal proof of mistake on the part of
the court, it should be conclusive." That case is not decisive of
the present one, because it appears that the circuit court, in
approving appellant's account, allowed him, by mistake, for
attending court upon days when the court was not in session.
Besides, the above act, relating to the accounts of various
officers, including marshals, payable out of the money of the
United States, provides that nothing contained in it shall be
deemed in any wise to diminish or affect the right of revision of
the accounts to which it applies by the accounting officers of the
Treasury as exercised under the previous laws in force. So that the
allowance of the appellant's account by the court did not preclude
all revision of it by the proper officers, nor justify its payment
where it appeared, as it does in this case, that such allowance was
unauthorized by law
It results that the claim of the appellant to be compensated at
the rate of five dollars per day for each day "between sessions of
the court" was properly disallowed. 24 Ct.Cl. 394.
Judgment affirmed.
