The fees to which a marshal is entitled, under Rev.Stat. §
829, for attending criminal examinations in separate and distinct
cases upon the same day and before the same commissioner, are five
dollars a day, but when he attends such examinations before
different commissioners on the same day, he is entitled to a fee of
two dollars for attendance before each commissioner.
A special deputy marshal, appointed under Rev.Stat. § 2021,
to attend
Page 164 U. S. 82
before commissioners and aid and assist supervisors of
elections, is entitled to an allowance of five dollars per day in
full compensation for all such services. The marshal of the
Southern District of New York, who transports convicts from New
York City to the state penitentiary in Erie County in the Northern
District of New York, is entitled to fees at the rate of ten cents
per mile for the transportation, instead of the actual expense
thereof. A marshal is not entitled to a fee of two dollars for
serving temporary and final warrants of commitment.
These were writs of error sued out by both parties to review a
judgment of the Circuit Court of Appeals for the Second Circuit
affirming, except in one particular, a judgment of the Circuit
Court for the Southern District of New York for $4843.60 in favor
of the petitioner McMahon, for fees and disbursements as marshal
for that district from July 7, 1885, to January 12, 1890. The
opinion of the court of appeals is found in 26 U.S.App. 687.
MR. JUSTICE BROWN delivered the opinion of the Court.
In these cases the government assigns as error --
1. The allowance of a charge of two dollars per day for
attending criminal examinations in separate and distinct cases upon
the same day, these examinations being on some days all before the
same commissioner, and on others before different commissioners.
The evidence does not disclose how much of this amount is
applicable to each class of cases.
By Rev.Stat. § 829, the marshal is allowed "for attending
the Circuit and district courts, . . . and for bringing in and
committing prisoners and witnesses during the term, five dollars a
day," and
"for attending examinations before a commissioner, and bringing
in, guarding and returning prisoners
Page 164 U. S. 83
charged with crime and witnesses two dollars a day, and for each
deputy, not exceeding two, necessarily attending, two dollars a
day."
If the fee were two dollars for attending examinations simply,
it might well be held that he was entitled to that amount for each
examination, though there were a dozen in a single day; but as the
allowance is not for each examination, but for each day, we think
it clear that the marshal is only entitled to a single fee. It is
scarcely possible to suppose that he would be allowed but five
dollars for attending court, irrespective of the number of cases
disposed of or of the number of prisoners brought in and committed,
and yet be allowed separate fees in each case before a
commissioner, which, in the aggregate, might be double the amount
allowed for attending court.
McCafferty v. United States,
26 Ct.Cl. 1.
But when a marshal attends examinations before two different
commissioners on the same day, we think he is entitled to his fee
of two dollars for attendance before each commissioner. In the case
of
United States v. Erwin, 147 U.
S. 685, we held that a district attorney was entitled to
charge a
per diem for services before a commissioner upon
the same day that he was allowed a
per diem for attendance
upon court, and the argument controlling our opinion in that case
is equally applicable here. It is true that in that case, the
charge was for attending before the court and before a single
commissioner upon the same day, but where the officer attends
before two or more commissioners, who may hold their sessions at a
distance from each other, we see no reason why he should not be
entitled to a fee in the case of each commissioner.
2. The allowance of two dollars per day to special deputy
marshals for attendance before a commissioner on November 2, 1886,
"said day being an election day." The finding is that for his
service upon this day each deputy marshal received a
per
diem of five dollars. It is not directly found by the circuit
court that these special deputies were appointed pursuant to
Rev.Stat. § 2021, Tit. XXVI, but as it is so admitted in the
briefs of counsel, and as this title makes the
Page 164 U. S. 84
only provision for the appointment of special deputies, we may
assume that to be the fact. The duties of such special deputies,
who are appointed by the marshal to aid and assist the supervisors
of election, are fixed by §§ 2021-2023. They are in
general to keep the peace, support and protect the supervisors of
the election in the discharge of their duties, preserve order, to
arrest and take into custody any person offending against the law,
when (§ 2023) "the person so arrested shall forthwith be
brought before a commissioner . . . for examination of the offenses
alleged against him." By § 2031,
"there shall be allowed and paid to . . . each special deputy
marshal who is appointed and performs his duty under the preceding
provisions, compensation at the rate of five dollars per day for
each day he is actually on duty, not exceeding ten days."
As it appears by these sections that the attendance of the
deputy before the commissioner is incidental to his service in
arresting the fraudulent voter and taking him before the
commissioner, we think it is covered by the
per diem
provided by § 2031. The allowance of five dollars per day was
evidently intended to be full compensation for all services
performed by him as such deputy. The assignment is well taken.
3. Exception is also taken to the allowance of fees at the rate
of ten cents per mile for transporting convicts from New York City
to the state penitentiary in Erie County, in the Northern District
of New York, instead of the actual expense of such transportation.
By Rev.Stat. § 829, the marshal is allowed "for transporting
criminals, ten cents a mile for himself and for each prisoner and
necessary guard," with the following exception:
"For transporting criminals convicted of a crime in any district
or territory, where there is no penitentiary available for the
confinement of convicts of the United States, to a prison in
another district or territory designated by the Attorney General,
the reasonable actual expense of the transportation of the
criminals, the marshal and the guards, and the necessary
subsistence and hire."
It appears that no prison in the State of New York has been
expressly designated by the Attorney General for the
confinement
Page 164 U. S. 85
of federal convicts, but by the state law, it is the duty of the
keepers of state prisons to receive and keep such convicts when
sentenced to imprisonment therein by any court of the United States
sitting within the state. Literally, the service charged for in
this case does not fall within the second paragraph of the above
section, since it does not appear that there is no penitentiary
available within the Southern District of New York, nor does it
appear that the penitentiary in Erie County has been designated by
the Attorney General for the confinement of federal convicts.
There are other provisions of law, however, which it is
necessary to consider in this connection. By Rev.Stat. § 5540,
originally enacted in 1856,
"where a Judicial District has been or may hereafter be divided
[New York was originally a single district, Act of September 24,
1789, c. 20, 1 Stat. 73], the circuit and district courts of the
United States shall have power to sentence any one convicted of an
offense punishable by imprisonment at hard labor to the
penitentiary within the state, though it be out of the Judicial
District in which the conviction is had."
Moreover, by Rev.Stat. § 5541, originally enacted in
1865,
"in every case where any person convicted of any offense against
the United States is sentenced to imprisonment for a period longer
than one year, the court . . . may order the same to be executed in
any state jail or penitentiary within the district or state where
such court is held,"
etc., and by Rev.Stat. § 5542, a similar provision is made
where the convict is sentenced to imprisonment and confinement to
hard labor.
By a subsequent Act of July 12, 1876, c. 183, 19 Stat. 88,
amending Rev.Stat. § 5546, convicts
"whose punishment is imprisonment in a district or territory
where at the time of conviction, . . . there may be no penitentiary
or jail suitable for the confinement of convicts, or available
therefor, shall be confined . . . in some suitable jail or
penitentiary in a convenient state or territory to be designated by
the Attorney General,"
in which case the marshal is only allowed the reasonable actual
expenses of transportation, etc.,
"but if, in the opinion of the Attorney General, the expense of
transportation
Page 164 U. S. 86
from any state . . . in which there is no penitentiary will
exceed the cost of maintaining them in jail in the state, . . .
then it shall be lawful so to confine them therein for the period
designated in their respective sentences."
We see no reason to suppose that this act was intended to repeal
Rev.Stat. §§ 5540-5542, since the act is a mere
reenactment of original § 5546, enacted in 1864 (one year
before § 5541), except that it permits the place of
confinement of the convict to be changed whenever the penitentiary
to which he is sentenced becomes unsuitable or unavailable at any
time during the term of imprisonment, and by a further clause
permission is given the Attorney General to change the place of
imprisonment whenever it is necessary for the preservation of the
health of the prisoner, or the place of confinement becomes
insecure, or the prisoner is cruelly or improperly treated.
Upon the other hand, it appears to us that it was the intention
of Congress that these several provisions should be read together,
and that the restriction of the marshal to his expenses of
transportation was only designed to apply where the Attorney
General has found that there is no available penitentiary within
the district, and has designated a prison in another district for
that purpose. It does not necessarily follow that, because a
portion of his travel was outside his district, he is limited to
his expenses, since the first paragraph of § 829, above
quoted, is a general provision allowing him mileage with the
exception provided for in the next paragraph. As the travel was
actually made, the marshal is presumed to have earned his mileage,
and the burden is upon the government to show that the
transportation falls within the excepted clause. While the
authority of the marshal, as such, is confined to his district, it
may be lawfully extended by the United States to other districts
for special purposes -- such, for instance, as the service of a
subpoena, for which it has usually been held the marshal was
entitled to mileage, though the service was made outside his
district.
Sections 5540-5542 were apparently designed to apply to cases
where the state contains more than one district, while
Page 164 U. S. 87
§ 5546 was probably intended, notwithstanding the use of
the words "district or territory" in the first clause, to apply to
the not infrequent cases where there is no suitable penitentiary
within the state, in which case the court is authorized to commit
the convict to some suitable penitentiary "in a convenient state or
territory, to be designated by the Attorney General." This power
has been frequently exercised by courts of the Western states by
committing prisoners to penitentiaries in the Northern or Eastern
states. Where the penitentiary is located in the same state, it
would seem reasonable that the marshal should be entitled to his
mileage though the state prison may happen to be in another
district, since it may be in fact quite as near to the place where
his court is held as it is to the place where the court is held in
the district of its actual location.
Why these convicts were sent to a penitentiary outside the
district in which they were tried does not appear, but we are bound
to presume that the action of the court in that particular was
taken for a good and sufficient reason, and was dictated by what it
conceived to be the best interests of the government. As under
§§ 5541 and 5542 it was within the discretion of the
court to sentence the convicts to any penitentiary within the
state, the mileage was properly allowed.
4. The last item to which exception is taken by the government
is to a charge of two dollars for serving temporary and final
warrants of commitment. As the court had previously disallowed a
charge of $503 for serving temporary warrants of commitment, the
allowance of this item was probably an oversight. In
United
States v. Tanner, 147 U. S. 661, we
held that the marshal was not entitled to charge for mileage in
serving warrants of commitment, upon the ground that he was allowed
ten cents mileage for his own transportation and that of his
prisoner, and that the delivery of such warrants to the warden of
the penitentiary was not a "service," within the meaning of §
829. We have seen no reason to change our views in that particular.
The word "service" in this connection, ordinarily implies something
in the nature of an
Page 164 U. S. 88
act or proceeding adverse to the party served, or of a notice to
him, and, we think, was not intended to cover the case of a warrant
deposited with the warden of a penitentiary as a voucher or
authority for detaining the prisoner. Moreover, it is scarcely
possible that Congress could have intended to allow the marshal ten
cents a mile for his own travel when accompanying a prisoner, and
at the same time to allow him six cents for carrying the warrant of
commitment with him, or to allow him fifty cents for a commitment
of the prisoner and also two dollars for serving a warrant of
commitment, when the commitment would not be valid without the
warrant, and the commitment and service of the warrant are
contemporaneous acts. As the
per diem of the marshal for
attendance before the court or commissioner includes "the bringing
in, guarding, and returning prisoners charged with crime," and as,
by § 1030,
"no writ is necessary to bring into court any prisoner or person
in custody, or for remanding him from the court into custody, but
the same shall be done on the order of the court or district
attorney, for which no fee shall be charged by the clerk or
marshal,"
and no such warrant appears to be necessary under the practice
in the State of New York, the issue of such warrants, except
perhaps the first one, appears to be unnecessary.
In the case of the writ sued out by McMahon, the plaintiff
assigns as error the action of the court of appeals in rejecting a
charge for serving temporary warrants of commitment issued by a
commissioner; but, as this is covered by the point last decided, it
is unnecessary to consider it.
It results that in the case of United States v.
McMahon,
the judgment of the court of appeals must be reversed,
and the case remanded for a new judgment in conformity with this
opinion.