There being a dispute between the appellee, a commissioner of a
circuit court of the United States, and the appellant respecting
the official fees of the former for services in criminal cases.
(1) That the law of the state in which the services are rendered
must be looked at in order to determine what are necessary.
(2) That in Tennessee, a temporary mittimus may become
necessary, and a charge for it should be allowed unless there has
been an abuse of discretion in regard to it.
(3) That only one fee can be charged for taking the
Page 140 U. S. 143
of defendants' recognizances, but that one fee can be charged,
as an acknowledgment in such case is necessary.
(4) That charges for drawing complaints and for taking and
certifying depositions to file are proper.
(5) That a charge for" entering returns to process" is
(6) That a charge for "writing out testimony" is allowable.
(7) That the items for fees for dockets, etc., which were
allowed on the authority of United States v. Wallace,
116 U. S. 398
decided at October term, 1885, should have been disallowed, as the
right to make such charges was taken away by the proviso in the
Deficiency Appropriation Act of August 4, 1886, 24 Stat. 274,
which, although a proviso in a annual appropriation bill, operated
to amend Rev.Stat. § 847.
(8) That a commissioner, acting judicially, has the discretion
to suspend a hearing, and that per diem
continuances should be allowed.
This action was brought by the appellee, Swing, in the District
Court of the United States for the Eastern District of Tennessee,
for the recovery of certain amounts claimed to be due him for
services as commissioner of the circuit court for that district
from January 3, 1887, to April 1, 1889. Performance of such
services was admitted as charged, the district attorney relying
upon the illegality of the charges, and judgment was rendered for
the plaintiff for $841.05, from which this appeal was taken by the
United States. The items upon the allowance of which error was
assigned are stated in the opinion of the Court.
MR. JUSTICE BROWN, after stating the facts as above, delivered
the opinion of the Court.
The duties of commissioners of the circuit court are thus
defined in section 1014 of the Revised Statutes:
"For any crime or offense against the United States, the
offender may, by any justice or judge of the United States, or by
any commissioner of a circuit court to take bail, or by any . . .
justice of the peace or other magistrate, of any state where
Page 140 U. S. 144
he may be found, and agreeably to the usual mode of process
against offenders in such state, and at the expense of the United
States, 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 recognizance of the witnesses for their
appearance to testify in the case."
As this section requires proceedings to be taken "agreeably to
the usual ode of process against offenders in such state," it is
proper to look at the law of the state in which the services in
such case are rendered, to determine what is necessary had proper
to be done, and inferentially for what services the commissioner is
entitled to payment. United States v. Rundlett,
41; United States v. Horton,
2 Dillon 94. We have held in
United States v. Jones, 134 U. S. 483
that the approval of the commissioner's account by the 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, although
the approval of such court is not a prerequisite to the institution
of a suit in a Court of Claims, or, since the Act of March 3, 1887,
24 St. 505, c. 359, in a circuit or district court, for the
recovery of the amount claimed. United States v. Knox,
128 U. S. 230
We proceed to the consideration of the several items involved in
1. Items 1 and 2 were for temporary mittimuses, disallowed by
the Comptroller as unnecessary, upon the ground that "the warrant
of arrest is sufficient to hold defendant or commit until
examination." Rev.Stat. § 847, provides that the commissioner shall
have "for issuing any warrant . . . the same compensation as is
allowed to clerks for like services," and § 828 provides that
clerks shall have $1 for this service. So far as these items are
for mittimuses issued after the examination is concluded, to await
the action of the grand jury, no question is made as to the
propriety of their allowance; but it is claimed that, pending the
examination, it is the duty of the marshal to keep the prisoner in
Page 140 U. S. 145
under his warrant of arrest, and that the mittimus is therefore
unnecessary. It appears, however, that under the laws of Tennessee,
upon the subject of criminal procedure, § 5877, the magistrate
"for good cause, adjourn the examination from time to time,
without the consent of the defendant, not exceeding three days at
anyone time, and in such case, if the offense is not bailable, or
if the defendant does not give the bail required, he shall be
committed to jail in the meantime,
or, if the offense is
bailable, the defendant may give bail in such sum as the magistrate
directs for his appearance for such further examination."
As there are no federal jails or other places of temporary
confinement under control of the marshal, such commitments must be
made to state jail, and it follows that a mittimus is proper if not
necessary to authorize the keeper of such jail to detain the
prisoner, as against a writ of habeas corpus from a state court.
Said Mr. Justice Story, speaking for this Court in Randolph v.
9 Cranch 76, 13 U. S. 86
"The keeper of a state jail is neither in fact nor in law the
deputy of the marshal. He is not appointed by nor removable at the
will of the marshal. When a prisoner is regularly committed to a
state jail by the marshal, he is no longer in the custody of the
marshal, nor controllable by him. The marshal has no authority to
command or direct the keeper in respect to the nature of the
imprisonment. . . . For certain purposes, and to certain intents, a
state jail, lawfully used by the United States, may be deemed to be
the jail of the United States, and that keeper to be keeper of the
United States. But this would no more make the marshal liable for
his acts than for the acts of any other officer of the United
States whose appointment is altogether independent."
We do not wish to be understood as holding that a mittimus is
necessary in all such cases to authorize the detention of the
accused, especially if the keeper of the jail be, as is frequently
the case, a deputy marshal of the United States; but that it is
within the discretion of the commissioner to issue such writ, if in
his opinion the safe custody of the prisoner requires this
precaution, and if there be no abuse of such discretion, we do not
feel at liberty to review
Page 140 U. S. 146
his action. Stafford v. United States,
25 Ct.Cl. 280.
Nor do we consider a mittimus necessary every time a prisoner is
taken out and returned to jail, pending his examination, since an
order of the court or the district attorney, under the statute,
would be a sufficient protection to the officer.
It is true that, by § 1030 of the Revised Statutes,
"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 fees shall be charged by the clerk or
This section relates, however, exclusively to the action of the
clerk in entering the order of the court or district attorney, and
to the action of the marshal in transferring the prisoner to and
from his place of detention, and has no reference whatever to his
custody by a state officer pending or following his
No error is assigned by the Attorney General upon the allowance
of the third item.
2. Item 4 is "for more than one acknowledgment for defendant's
recognizances." The exception to this item is well taken. Revised
Statutes § 828, allows a clerk, "for taking an acknowledgment,
twenty-five cents," but the taking of such acknowledgment in a
criminal case by the accused and his sureties is a single act, for
which only one fee can be charged. Churchill v. United
25 Ct.Cl. 1.
3. The exception to the fifth item, which is "for all
acknowledgments to defendants' recognizances," is overruled. An
acknowledgment is necessary to a judicial recognizance.
4. The allowance for drawing complaints, as "for taking and
certifying depositions to file," is a proper charge. While the duty
of a committing magistrate is to take complaints and issue warrants
upon them, which may perhaps imply that they are written by the
person making them, the general, if not the universal, practice is
for the magistrate himself to put them in writing, and the
Tennessee Code evidently contemplates this method of procedure in
enacting as follows, sec. 5845:
"Upon information made to any magistrate of the commission of a
public offense, he shall examine on oath the informant, reduce the
examination to writing, and cause
Page 140 U. S. 147
the examination to be signed by the person making it."
"The written examination shall set forth the facts stated by the
informant tending to establish the commission of the offense and
the guilt of the defendant."
It is eminently proper that the magistrate, who would naturally
be presumed to understand the requisites of a complaint better than
the informant, who is usually unlearned in law, should himself
reduce it to writing. Exception to this item is therefore
5. Item 7, "for entering returns to process," is
unobjectionable; indeed, the Treasury Department seems to have
receded from its action in disallowing this item, and paid a
portion of the charge.
6. Item 8, "for writing out testimony," is clearly allowable.
Not only is this the general practice in every properly conducted
commissioner's office, but the rule of the Circuit Court for the
Eastern District of Tennessee requires that each commissioner
"keep a docket, showing the issuance of warrant, upon whose
complaint the same was issued, the nature of the offense charged,
and the officer to whom delivered for execution. And, when a
warrant is returned, he will in all cases write out substantially
the evidence of each witness as given before him, and return the
same to the clerk of this Court, for the information of the
The local practice of Tennessee also requires the testimony
before the committing magistrate to be reduced to writing. Sec.
5887: "The evidence of the witnesses shall be reduced to writing by
the magistrate, or by his direction, and signed by the witnesses
7. The 9th, 21st, and 22d items for fees for dockets, indexes,
etc., appear to have been allowed upon the authority of United
States v. Wallace, 116 U. S. 398
which case it was held by this Court that, under the provisions of
Rev.Stat. §§ 828, 847, a commissioner, who, by direction of the
court, kept a docket with entries of each warrant issued, and
subsequent proceedings thereon, made on the day of occurrence, was
entitled to the same fees allowed to the clerk of a court for
similar services. This case was decided in January, 1886. In the
deficiency appropriation bill passed in August of the same
Page 140 U. S. 148
year, 24 Stat. 256, 274, c. 903, it was enacted that
"the following sums be, and the same are hereby, appropriated,
out of any money in the Treasury not otherwise appropriated, to
supply deficiencies in the appropriations for the fiscal year
ending June 30, 1886, and for other objects hereinafter stated,
namely: . . . Judicial: . . . For fees of commissioners, and
justices of the peace acting as commissioners, fifty thousand
that for issuing any warrant or writ,
and for any other necessary service, commissioners may be paid the
same compensation as is allowed to clerks for like services, but
they shall not be entitled to any docket fees."
It is insisted that, as this proviso is contained in an
appropriation bill, it should be limited in its application to the
appropriation for that year, and should not be considered as a
general inhibition for all allowances of docket fees. The cases of
United States v.
15 Pet. 141, and Minis v.
15 Pet. 423, are cited in support of
this view. The limitation and effect of provisos in enacting
clauses of a statute is considered in these cases, and the rule
declared in the first of them that
"where the enacting clause is general in its language and
objects, and a proviso is afterwards introduced, that proviso is
construed strictly, and takes no case out of the enacting clause
which does not fall fairly within its terms."
In the case of Minis v. United States,
it is said by
Mr. Justice Story, p. 40 U. S.
"It would be somewhat unusual to find engrafted upon an act
making special and temporary appropriation any provision which was
to have a general and permanent application to all future
appropriations. Nor ought such an intention on the part of the
legislature to be presumed unless it is expressed in the most clear
and positive terms and where the language admits of no other
reasonable interpretation. The office of a proviso generally is
either to except something from the enacting clause, or to qualify
or restrain its generality, or to exclude some possible ground of
misinterpretation of it, as extending to cases not intended by the
legislature to be brought into its purview. A general rule
applicable to all future cases would most naturally be expected to
find its proper place in some distinct and independent enactment.
Page 140 U. S. 149
In that case, an act making appropriations, 4 Stat. 754, c. 26,
contained a proviso that
"no officer of the army shall receive any percent or additional
pay, extra allowance, or compensation, in any form whatsoever, on
account of disbursing any public money, appropriated by law
during the present session,
for fortifications, execution
of surveys, works of internal improvement, building of arsenals,
purchase of public supplies of any description, or for any other
service or duty whatsoever, unless authorized by law."
This proviso was held to be limited to the appropriation for
that year, and not to be permanent in its operation.
In the case under consideration, if the proviso had been simply
that commissioners should not be entitled to any docket fees, we
should have had little doubt that it would be held as applying only
to the $50,000 appropriated in the bill; but as the proviso
contains a substantial reenactment of the clause of Revised
Statutes § 847, fixing the fees for similar services, with the
prohibition against docket fees tacked thereto as an amendment, we
find it impossible to give effect to the whole proviso without
construing it as expressing the intention of Congress to amend that
clause of § 847. The language of that clause is: "For issuing any
warrant or writ, and for any other service, the same compensation
as is allowed to clerks for like services." The language of the
"For issuing any warrant or writ, and for any other necessary
service, commissioners may be paid the same compensation as is
allowed to clerks for like services, but they shall not be entitled
to any docket fees."
The repetition of this language was obviously useless and
nugatory, unless upon the theory that prohibition of docket fees
was intended as an amendment to it, since, by § 847, commissioners
were already to be paid the same compensation as clerks for like
services. Indeed, it seems highly improbable that Congress should
put the fees of commissioners upon the same basis as those of
clerks, with the exception of docket fees, and make it a mere
temporary expedient applicable only to the appropriation for a
single year, when the same reasons would continue to exist for
making it of permanent application. A majority of the courts in
Page 140 U. S. 150
this question has arisen have adopted this view. Faris v.
23 Ct.Cl. 374; Strong v. United
34 F. 17; McKinistry v. United States,
211; Thornley v. United States,
37 F. 765; Calvert v.
37 F. 762; Crawford v. United States,
40 F. 446; Goodrich v. United States,
42 F. 392.
8. Items 10, 11, 12, and 13 are for per diem
various cases where continuances were granted at the request of the
defendant. While it is doubtless the duty of the commissioner to
make as speedy a disposition of cases as is possible, consistent
with a due regard for the interests of the government and the
protection of the accused, we held in United States v.
Jones, 134 U. S. 483
that in hearing and deciding upon criminal charges, he acted in a
judicial capacity, and we have no doubt he is invested with a
discretionary power to suspend the hearing of a case where, in his
judgment, a proper regard for the interests of justice requires it.
This item was properly allowed.
These are all the items to the allowance of which exception was
taken by the government. It is true that a number of items were
rejected by the court below which, upon the authority of United
States v. Jones, 134 U. S. 483
appear to have been properly allowable, but, as no appeal was taken
by the plaintiff from the disallowance of such items, we do not
feel at liberty to consider them. United
States v. Hickey,
17 Wall. 9.
The case will be remanded to the district court, with
directions to vacate the judgment heretofore rendered, and enter a
new judgment in conformity to this opinion.