1. Under sec. 829, Rev.Stat., a United States marshal may elect
to be reimbursed his actual traveling expenses incurred in serving
writs, but there is no authority in law for allowing him mileage in
excess of the distance from the place of arrest to the place of
receiving the writs, even if the travel is in a new and unsettled
Indian country and there are exceptional difficulties to
overcome.
2. Where a United States court is opened for business by order
of the judge, it is the duty of the marshal to attend, and he is
entitled to his
per diem fee therefor whether the judge be
present or not.
3. A general act is not to be construed as applying to cases
covered by a prior special act on the same subject. The marshal for
the District of Oklahoma is entitled to fees for transportation of
prisoners arrested under warrants issued by United States
commissioners as fixed by the statute providing a temporary
government for the Territory of Oklahoma, notwithstanding the
provisions of the Act of Congress of August 19, 1894, applicable to
marshals generally throughout the country. The fact that a
marshal's accounts have been approved by a district judge is
sufficient to cast upon the government the burden of showing any
error of fact in his account.
4. Where the marshal charged for travel in transporting a
prisoner who
Page 189 U. S. 200
escaped from his custody, and there was no finding, either by
the district judge in approving his accounts or by the Court of
Claims, of due diligence on the part of the officer to prevent the
escape, the item was held to be properly disallowed, the
presumption being that the prisoner escaped by negligence.
This is a petition for marshal's fees for the District of
Oklahoma, upon which the Court of Claims made the findings of fact
set forth in the margin.
*
MR. JUSTICE BROWN delivered the opinion of the Court.
Item 2 of the third finding, namely, "traveling 1,153 miles
Page 189 U. S. 201
in going to serve warrants of arrest at six cents per mile,
$69.18," involves the question whether travel in excess of the
distance from the place of service to the place of receiving the
writs can be allowed, in view of the fee bill for marshals.
Rev.Stat. sec. 829 provides
"for travel, in going only, to serve any process, warrant,
attachment, or other writ, including writs of subpoena in civil or
criminal cases, six cents a mile, to be computed, from the place
where the process is returned to the place of service."
This has always been interpreted to mean by the usual traveled
route,
Hitch v. United States, 66 F. 937, the length of
which is not given in the finding. The excuse for not pursuing the
route in this case is that it was a new and unsettled Indian
country; that defendants were moving about from place to place to
avoid arrest, and it was necessary to travel a circuitous route,
and that, in the absence of bridges, the deputies had to find
fordable places to cross the river to locate the defendants.
Page 189 U. S. 202
However equitable the charge may have been in this particular
case, there is no authority of law for its allowance. There is,
however, a special provision in the last clause of section 829 by
which,
"in all cases where mileage is allowed to the marshal he may
elect to receive the same or his actual traveling expenses, to be
proved on his oath to the satisfaction of the court."
This seems to contemplate the very contingency which arose in
this case, of a number of miles actually and necessarily traveled
in excess of the direct route from the place where the process was
returned to the place of service. It reimburses the marshal his
expenses, but denies him a profit upon them. This item must be
disallowed.
(2) Item 10. "For attendance of the marshal at court by deputy,
20 days at $5 per day, $100." The fact that it did not appear
whether business was transacted in court on these days, or whether
the judge was present in court, was immaterial, in
Page 189 U. S. 203
view of the fact that the court was opened for business by order
of the judge.
United States v. Finnell, 185 U.
S. 236;
McMullen v. United States, 146 U.
S. 360. For aught that appears, the attendance may have
been under the circumstances in which a similar charge was allowed
in
United States v. Pitman, 147 U.
S. 669. Where the court is opened for business by order
of the judge, it is the duty of the marshal to attend, and there is
no reason why he should not receive his
per diem therefor
as if the judge were actually present. This claim is not contested
by the government, and should be allowed.
(3) Item 12, for the transportation of prisoners arrested under
warrants issued by United States commissioners, involves two
questions: first, whether travel should have been charged from the
place of arrest to the nearest circuit court commissioner, or to
the office of the commissioner nearest to the place where the
crimes with which the prisoners were charged were committed;
second, whether, assuming the position of the claimant in this
particular to be correct, as matter of law, there was sufficient
evidence of the number of miles traveled to entitle him to the
charge of $5,135.50.
By "An Act to Provide a Temporary government for the Territory
of Oklahoma," 26 Stat. 81, a certain portion of the Indian
Territory was set off as a territorial government under the
Page 189 U. S. 204
name of Oklahoma. By section 9, the judicial power of the
territory was vested in certain courts, and the usual executive and
judicial offices created. By section 10,
"persons charged with any offense or crime in the Territory of
Oklahoma, and for whose arrest a warrant has been issued, may be
arrested by the United States marshal or any of his deputies
wherever found in said territory, but in all cases the accused
shall be taken for preliminary examination before a United States
commissioner, or a justice of the peace of the county, whose office
is nearest to the place where the offense or crime was committed.
All offenses committed in said territory, if committed within any
organized county, shall be prosecuted and tried within said
county."
By section 28,
"the Constitution and all the laws of the United States not
locally inapplicable shall, except so far as modified by this act,
have the same force and effect as elsewhere within the United
States."
This is the act upon which the claimant relies for his right to
travel, while, upon the other hand, the government contends that
this act was repealed by a general Act of August 18, 1894, 28 Stat.
372, making appropriations for sundry civil expenses for the year
1895, one of the clauses of which, under the head of "Judicial,"
provides that
"it shall be the duty of the marshal, his deputy or other
officer, who may arrest a person charged with any crime or offense,
to take the defendant before the
nearest circuit court
commissioner, or the nearest judicial officer, having jurisdiction
under existing laws, for a hearing, commitment, or taking bail for
trial, and the officer or magistrate issuing the warrant shall
attach thereto a certified copy of the complaint, . . . and no
mileage shall be allowed any officer violating the provisions
hereof."
The object of this statute was manifestly to amend Rev.Stat.
sec. 829, which provided that the mileage of the marshal for
transportation of prisoners should be computed from the place where
the process was served to the place where it was returned. This
statute provides that he shall be taken to the circuit court
commissioner nearest the place of arrest, regardless of the fact by
whom the warrant was issued. Inasmuch as the later act is a general
one, applicable to marshals generally throughout
Page 189 U. S. 205
the country, we do not think it was intended to repeal or
interfere with the former act, providing specially for persons
charged with
any offense or crime in the Territory of
Oklahoma, and that in
all cases, whether the crime was
committed against the territory or the general government, the
accused shall be taken before a commissioner whose office is
nearest to the place where the offense or crime was committed.
The rule of statutory construction is well settled that a
general act is not to be construed as applying to cases covered by
a prior special act upon the same subject. On this principle, we
held in
Townsend v. Little, 109 U.
S. 504, that special and general statutory provisions
may subsist together, the former qualifying the latter.
See
also Churchill v. Crease, 5 Bing. 177;
Magone v.
King, 51 F. 525, and cases cited;
State v. Clarke, 25
N.J.Law 54.
It would seem that this construction works no particular
hardship upon the government, since in all cases where the criminal
is unable to give bail, he is required to be ultimately transported
for trial to the county wherein the crime was committed.
The second question connected with this item is whether the
marshal produced sufficient evidence of the number of miles
traveled. His claim was for 51,350 miles at ten cents per mile. He
was unable to prove, of his own knowledge, more than 11,433 miles.
As to the remainder, he could not testify of his own knowledge,
because that travel had been performed by certain of his deputies
who were not then in the territory, and who, he supposed, were in
Alaska or the Philippine Islands. The depositions of those deputies
were not taken. He showed, however, that his accounts had been
allowed by the district judge. That was sufficient to cast upon the
government the burden of showing any error of fact in his account.
United States v. Jones, 134 U. S. 483. In
that case, we held that the approval of the commissioner's account
by a circuit court of the United States, under the Act of February
22, 1875, 18 Stat. 333 was
prima facie evidence of the
correctness of the items of that account, and, in the absence of
clear and unquestionable proof of mistake on the part of the court,
it should be conclusive. We
Page 189 U. S. 206
adhere to that view. It would be an insupportable burden upon
the officers of courts if, every time a question was made before
the accounting officers of the Treasury of the correctness of their
account, they were required to produce affirmative evidence of
every item. This was evidently not contemplated by the statute.
Notwithstanding this, however, there is no doubt that the account
may be impeached for error of law.
McMullen v. United
States, 146 U. S. 360.
This item should have been allowed in full, less the amount
paid.
(4) Item 24, for actual expenses in transporting a prisoner from
Springfield, Ohio, to the penitentiary at Brooklyn, New York, under
a warrant or commitment, is the only other one contested. The
prisoner, with a deputy and guard, arrived in New York too late for
the prisoner to be received at the Brooklyn penitentiary on the
same day, and that night he escaped from the custody of the deputy
while they were going to supper in the hotel where they were
staying.
As there is no finding, either by the district judge in
approving his accounts or by the Court of Claims, of due diligence
on the part of the officer to prevent the escape, the item was
properly disallowed. The presumption is that he escaped by
negligence.
State v. Hunter, 94 N.C. 829;
State v.
Lewis, 113 N.C. 622;
Shattuck v. State, 51 Miss.
575.
The judgment of the Court of Claims will therefore be
reversed, and the case remanded to that court for further
proceedings in conformity with this opinion.
*
"I. The claimant, Evett D. Nix, was United States Marshal for
the District of Oklahoma from July 1, 1893, to February 24, 1896,
appointed, qualified, and acting."
"II. During said period, the claimant, as such marshal, by his
deputies, performed services and travel and incurred expenses in
behalf of the United States, and his accounts therefor, verified by
his oath and approved by the court in accordance with the law, were
finally acted upon by the accounting officers of the Treasury
Department, and part thereof was allowed and paid, but a part
thereof, as more specifically set forth in finding 3, was
disallowed, and no portion thereof has been paid to the
claimant."
"III. Item 2. To travel, 1,153 miles in going to serve warrants
of arrest at six cents per mile, $69.18, being for travel in excess
of the distance from the place of arrest to the place of receiving
writs. The travel charged for was in a new and unsettled Indian
country, without post offices, post routes, or section lines. The
defendants were moving about from place to place to avoid arrest,
and it was necessary to travel a circuitous route. The deputies had
to find fordable places to cross the river to locate the
defendants, there being no bridges. After arrest, the defendants
were taken by the most direct routes to commissioners for
examination."
"Item 10. For attendance of the marshal at court, by deputy, for
twenty days at $5 per day, $100.00."
"It does not appear whether business was transacted in the court
on said days, although the court was opened for business by order
of the judge. It does not appear that the judge was present at
court on any of these days."
"Item 12. This item was charged in claimant's accounts as
transportation of prisoners, deputies, and guards from the several
places of arrest, for hearing before the United States
commissioners whose offices were nearest the places where the
crimes for which the prisoners were arrested were committed. The
number of miles charged in claimant's accounts for this travel was
fifty-one thousand three hundred and fifty-five miles miles at ten
cents a mile, amounting to five thousand one hundred and
thirty-five dollars and fifty cents."
"Those accounts were submitted to the United States District
Court for Oklahoma under the provisions of the Act of February 22,
1875, 18 Stat. c. 95, 333, and the said accounts, including this
item, as above charged, were approved by that court. When the
accounts so approved were submitted to the accounting officers, all
the charges for travel included in that item were disallowed by
them under the provisions of the Sundry Civil Appropriation Act of
August 18, 1894, 28 Stat. 372-416, which made it the duty of the
marshal to take the defendants before the nearest circuit court
commissioner or the nearest judicial officer having jurisdiction
under existing laws, for a hearing, commitment, or taking bail for
trial. Subsequently the accounting officers allowed and paid
claimant of this item twenty-seven dollars."
"After suit was brought in this court, the claimant's deposition
was taken in respect to this item, and he proved that, of his own
knowledge, eleven thousand four hundred and thirty-three miles were
traveled in the transportation of said prisoners, deputies, and
guards. As to the remainder of the travel, he could not testify of
his own knowledge, because that travel had been performed by
certain of his deputies who were not then in the territory, and
who, he supposed, were in Alaska or the Philippine Islands. The
depositions of those deputies were not taken. No other evidence was
offered by the claimant to establish the number of miles actually
traveled than the approval of the District Court for Oklahoma and
his own deposition subsequently taken, as above stated. If the
approval of his account by said district court is competent
evidence to establish the number of miles actually traveled, this
Court finds the ultimate fact that he traveled 51,355 miles. If
such approval of the district court is incompetent to establish the
number of miles actually traveled, this court finds that the number
of miles so traveled was 11,433 in the transportation of prisoners,
deputies, and guards, as before set forth."
"Item 16. For service of a capias and transportation (mileage)
of a deputy, prisoner, and guard. The capias was issued by the
clerk of the United States District Court at Topeka, Kansas, on an
indictment found by the grand jury at Topeka. The capias was
received by the claimant in Oklahoma City, and was executed by
arresting the prisoner named in the capias, who was transported to
the United States District Court at Wichita, Kansas."
"The claimant charged six cents a mile for going sixty-two
miles, from Oklahoma City to Perry, to serve the writ, two dollars
for the service of the writ, and ten cents per mile each for the
deputy, prisoner, and guard for 111 miles, $33.30, from Perry,
Oklahoma, to Wichita, Kansas, and one meal for the prisoner, 75
cents, making a total of $39.77."
"Item 24. For actual expenses for transporting a prisoner from
Springfield, Ohio, to the penitentiary at Brooklyn, New York, under
a warrant of commitment. The warrant of commitment was issued at
Oklahoma, and the marshal transported the prisoner on that warrant
to Springfield, Ohio, where the prisoner was temporarily detained
as a witness for the United States in a counterfeiting case. The
prisoner having been discharged as a witness in that case at
Springfield, the marshal continued his transportation from
Springfield to New York City on the original warrant of commitment.
The prisoner, with a deputy and guard, arrived in New York City too
late for the prisoner to be received at the Brooklyn penitentiary
on the day of arrival in New York, and he escaped from the custody
of the deputy on the night of the same day while they were going to
supper in the hotel where they were stopping. The marshal made
every effort to retake the prisoner, and failed. $90.50."
"
Conclusion of Law"
"Upon the foregoing findings of fact, the court decides as a
conclusion of law that the claimant recover judgment of and from
the United States in the sum of one hundred and eight dollars and
ninety-five cents ($108.95) on items 2 and 16 of finding III."
"All other items disallowed."