A marshal of the United States is not entitled to commissions on
disbursements for the support of a penitentiary made under
Rev.Stat. § 1892.
This was a petition by the marshal of the United States for the
Territory of Idaho for fees earned in executing warrants of
commitment of certain prisoners to the penitentiary at Boise City,
and also for commissions upon disbursements for
Page 150 U. S. 55
the support of such penitentiary. In connection with the latter
claim, the court made the following findings of fact:
"IV. He also, as such marshal, disbursed the sum of fifty-four
thousand four hundred and twenty dollars and fifteen cents
($54,420.15), funds of the United States, for the use of the
penitentiary of said territory. For such penitentiary disbursements
he claimed a commission at the rate of two percent, amounting to
one thousand and eighty-eight dollars and forty cents ($1,088.40),
and his account for the same was likewise approved by said District
Court for the First District of Idaho."
"V. The only reason why no commission was allowed him on such
disbursements appears to have been that he was allowed compensation
for the services required by section 1893 in the government of such
penitentiary, which said compensation was fixed by the Attorney
General, in accordance with said section at the rate of one
thousand two hundred dollars ($1,200) a year."
Upon this finding, the court rendered judgment in his favor upon
the last item for $1,088.40, and the United States appealed.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Plaintiff having withdrawn the claim for mileage in executing
warrants of commitment in consequence of the ruling of this Court
in
United States v. Tanner, 147 U.
S. 661, it only remains to consider his claim for
commissions for disbursements for the support of the
penitentiary.
This claim is based upon the general fee bill, Rev.Stat. §
829, which allows to the marshal, "for disbursing money to jurors
and witnesses, and for other expenses, two percentum."
Page 150 U. S. 56
The practice has been to make this allowance for all
disbursements made by the marshal in his official capacity.
But by Rev.Stat. § 1892, another anomalous and
extraordinary duty is imposed upon certain territorial marshals
of caring for and controlling "any penitentiary which has
been, or may hereafter be, erected by the United States in an
organized territory," and by section 1893 it is provided as
follows:
"The Attorney General of the United States shall prescribe all
needful rules and regulations for the government of such
penitentiary, and the marshal having charge thereof shall cause
them to be duly and faithfully executed and obeyed, and the
reasonable compensation of the marshal and of his deputies for
their services under such regulations shall be fixed by the
Attorney General."
The compensation of the commissioner for these services was
fixed by the Attorney General at $1,200 per annum.
It is evident from this statement that petitioner held
practically two distinct offices -- namely, marshal of the
territory, for which he received the fees of the office, and also
keeper of warden of the territorial penitentiary, for which he
received a compensation of $1,200 per year. There was no necessary
connection between these two offices. If the custody of the
penitentiary had been by law assigned to a different person, with a
salaried compensation, it would never be claimed that he would be
entitled to a commission for the money expended for its support.
The case is not altered by the fact that the marshal was assigned
to this duty. The very language of section 829 indicates that the
marshal's commission extends only to disbursements "to jurors and
witnesses, and for other expenses," to the definition of which
"other expenses" the rule of
ejusdem generis applies.
Upon the other hand, if "the reasonable compensation of the
marshal and of his deputies for their services under such
regulations . . . for the government of such penitentiary" did not
extend to his services in paying the bills of the penitentiary, it
is difficult to see what is meant by the statute. The duties of the
marshal are those of supervision, of hiring guards, feeding and
clothing prisoners, and supplying the prison with
Page 150 U. S. 57
fuel, lights, and furniture, and paying for the same, and it is
impossible to make a distinction between these classes of services.
Payment is a necessary incident to hiring and purchasing, and one
is as much a service under the regulations for the government of
the penitentiary as the other.
The judgment of the court below must be
Reversed, and the case remanded with directions to dismiss
the petition.
