The decision of a commissioner of a Circuit Court of the United
States upon a motion for bail and the sufficiency thereof, and his
decision upon a motion for a continuance of the hearing of a
criminal charge, are judicial acts in the "hearing and deciding on
criminal charges" within the meaning of Rev.Stat. § 847, providing
for a
per diem compensation in such cases.
The approval of a commissioner's account by a Circuit Court of
the United States is
prima facie evidence of its
correctness, and, in the absence of clear and unequivocal proof of
mistake on the part of the court, should be conclusive.
This was an appeal from a judgment rendered by the Court of
Claims against the United States in favor of Richard M. Jones, for
services rendered by him as a commissioner of the Circuit Court of
the United States for the Western District of North Carolina.
The material facts of the case, as found by the court upon the
evidence, were that the claimant had been a commissioner of the
said court from 1883 to the bringing of the action; that from
December 3, 1885, to June 30, 1886, as such commissioner, he issued
warrants in six cases in which issue was joined and testimony
taken; in three cases in which issue was joined and no testimony
was taken, and in three cases in which issue was not joined, the
defendants discharged, and no testimony taken, and that he duly
made his docket entries in each and all of those cases by order and
authority of the court, and in the manner required by its
rules.
His accounts for fees and for keeping his dockets were verified
by oath, and presented to the court in the presence of the district
attorney, and approved by the court in due form. For those accounts
thus approved he was allowed a fee of three dollars in each case
where issue was joined and testimony taken, two dollars where issue
was joined but no testimony taken, and one dollar where issue was
not joined,
Page 134 U. S. 484
and the defendant discharged. His account also showed charges on
eleven different days from March 12, 1884, to September 15, 1887,
in as many criminal cases, each of which charges was either "for
hearing and deciding on criminal charges, in deciding on amount of
bail and sufficiency thereof," or " for hearing and deciding on
criminal charges, in hearing and deciding on motion for
continuance." These charges were approved by the Circuit Court, but
not paid.
The court found as a conclusion of law that the claimant was
entitled to $55 for these last eleven cases, and entered a judgment
in his favor for $76. From that judgment, the United States brought
this appeal.
The only assignment of error presented by the government in this
appeal was that the court erred in finding that claimant is
entitled to $55 for hearing and deciding on amount of bail and
sufficiency thereof in four cases, and for hearing and deciding on
motion for continuance in seven cases.
Page 134 U. S. 486
MR. JUSTICE LAMAR, after stating the facts as above, delivered
the opinion of the Court.
A brief reference to the powers and duties of a commissioner as
an examining and committing magistrate will be sufficient to
dispose of the only question presented by this appeal. Section 1014
of the Revised Statutes of the United States provides that
"for any crime or offense against the United States, the
offender may, by . . . any commissioner of the circuit court to
take bail, . . . be arrested and imprisoned, or bailed, as the case
may be, for trial before such court of the United States as by law
has cognizance of the offense. Copies of the process shall be
returned as speedily as may be into the clerk's office of such
court, together with the recognizances of the witnesses for their
appearance to testify in the case,"
etc.
By section 1015 it is further provided that "bail shall be
admitted" by such commissioner "upon all arrests in criminal cases,
where the offense is not punishable by death."
By section 1982, such commissioner are vested with the power to
institute proceedings against persons violating any of the
provisions of chapter 7 of the title "Crimes."
Section 1983 provides for the increase of the number of
commissioners, "so as to afford a speedy and convenient means for
the arrest and examination of persons charged with the crimes
referred to in the preceding section."
By section 1984, these officers are vested with other important
powers, and by section 1985 every marshal and deputy marshal is
required to obey and execute all warrants or other process that the
commissioners may issue in the lawful performance of their
duties.
By other sections, numerous duties of a purely clerical and
ministerial character are attached to this office. The compensation
of a commissioner is clearly prescribed and classified by section
847 of the Revised Statutes according to the character of the
services performed. For acts purely clerical and ministerial, such
as administering oaths, taking acknowledgments, taking and
certifying depositions to file, or furnishing a copy
Page 134 U. S. 487
of the same, specific fees are provided, and for issuing writs
or warrants or other services he has the same compensation as is
allowed to clerks for like service. For acts not merely clerical,
but which are performed by the commissioner in his judicial
capacity, his fees are regulated on a basis of
per diem
compensation. Among the provisions of this kind is the one upon
which this controversy has arisen,
viz.: "For hearing and
deciding on criminal charges, five dollars a day for the time
necessarily employed."
It is admitted that from March 12, 1884, to June 20, 1888, the
period covered by the claim in dispute, there came before the
appellee, in his capacity as commissioner, on eleven different
days, eleven separate cases to be heard and decided against various
persons, each charged with a crime against the laws of the United
States; that in four of these cases, he heard and decided motions
upon bail and the sufficiency thereof, and in the other seven,
motions for continuance were heard and decided by him.
There can be but one answer, in our opinion, to the question
whether the commissioner should be allowed a fee of five dollars a
day for his services on those eleven days. The decision upon a
motion for bail and the sufficiency thereof is a judicial
determination of the very matter which the statutes authorize and
require him "to hear and decide," to-wit, whether a party arrested
for a crime against the United States, when brought before him for
examination, shall be discharged, or committed on bail for trial,
and in default thereof imprisoned. With respect to motions for
continuance, the granting or refusal of them is unquestionably a
necessary incident to and a part of the hearing and determining of
criminal charges, and the exercise of that power in such criminal
proceedings is indispensable to the right of the accused to have a
fair and full investigation of the offense charged against him and
to a sufficient time for the summoning of his witnesses, as well as
for employing and consulting with counsel to aid him in his
defense.
It is contended by the Assistant Attorney General that the
per diem fee in such case is not only intended for the
service specified, but that the "time actually employed is also an
element
Page 134 U. S. 488
to be considered." A sufficient answer to this objection is
furnished in the findings of the court below that the account of
the commissioner for the fees charged for the services in question
was verified by oath and presented to the United States court of
which he was the commissioner in open court, in the presence of the
district attorney, approved by the court, and an order approving
the same, as being in accordance with law, and just, was entered
upon the records of the court. 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, is
prima facie evidence
of the correctness of the items of that account, and in the absence
of clear and unequivocal proof of mistake on the part of the court,
it should be conclusive.
We think the authorities cited by the attorney for the appellee
in support of the claim in question are directly in point.
The judgment of the Court of Claims is
Affirmed.
