The "act concerning the District of Columbia," passed 3 March,
1801, does not require the marshal to apply to the district
attorney for executions in all cases of fines levied by the circuit
court and make him liable for neglecting to do so if no execution
issued.
The Levy court of Washington County is not entitled to one-half
of all the fines, penalties, and forfeitures imposed by the circuit
court in cases at common law and under the acts of Congress, as
well as the acts of assembly of Maryland adopted by Congress as the
law of the District of Columbia.
The district attorney is specially charged with the prosecution
of all delinquents for crimes and offenses, and these duties do not
end with the judgment or order of the court. He is bound to provide
the marshal with all necessary process to carry into execution the
judgment of the court. This falls within his general superintending
authority over the prosecution.
Interest is not chargeable on money collected by the marshal of
the District of Columbia for fines due to the Levy Court, the money
having been actually expended by the marshal in repairs and
improvements on the jail, under the opinions of the Comptroller and
Auditor of the Treasury Department that these expenditures were
properly chargeable upon this fund, although that opinion may not
be well founded.
MR. JUSTICE THOMPSON delivered the opinion of the Court.
This was a summary proceeding in the Circuit Court of the
District of Columbia on the application of the Levy Court of
Washington County against the marshal of the district to recover
their proportion of the fines, forfeitures, and penalties collected
or which it is alleged ought to have been collected by the marshal
and paid over to the levy court, under the provisions of the second
section of the act of Congress, supplementary to the act entitled,
"an act concerning the District of Columbia," passed 3 March, 1801.
Burch's Dig. 233.
The account containing the claim on the part of the
plaintiffs
Page 30 U. S. 452
was referred to the auditor to examine and receive testimony
thereon and report to the court. By his first report, a balance of
three $364.46 was found in favor of the marshal. Exceptions were
taken to this report, and the account was again referred to the
auditor with directions to disallow $814.95, which in the first
report had been allowed for the repairs of the jail, and upon the
second report a balance of $613.31 was found against the
marshal.
To this report exceptions were taken by the plaintiffs but
disallowed by the court, and judgment rendered for the balance
reported by the auditor. Upon which a writ of error has been
brought to this Court, and the exceptions taken have been presented
under the following heads:
1. Does not the law require the marshal to apply to the district
attorney for executions in all cases of fines levied by the circuit
court, and make him liable for neglecting to do so if no execution
be issued?
2. Is not the levy court entitled to one-half of all the fines,
penalties, and forfeitures imposed by the circuit court in cases at
common law and under the acts of Congress, as well as the acts of
the assembly of Maryland, adopted as the law of this District by
Congress?
3. Is the marshal liable to pay interest on the money found to
be due from him to the levy court, and which he has or ought to
have collected and paid over?
The decisions of these questions must depend entirely upon the
acts of Congress and the laws of Maryland which have been adopted
as the law of Washington County in this District.
The act of Congress of 1801, before referred to, provides that
the marshal shall have the same power regarding the collection of
the fines, and be subject to the same rules and regulations as to
the payment thereof, as the sheriffs of Maryland are subject to in
relation to the same.
The first point turns upon the question whether it was the
marshal's duty to apply to the district attorney for executions,
and his duty to issue them on such application.
The second section of the Maryland act of 1795, ch. 74,
declares, that it shall and may be lawful for the attorney
general
Page 30 U. S. 453
of this state, or either of his deputies,
ex officio,
and they are hereby directed and required, on the application of
the sheriffs of the respective counties in this state, to order a
writ or writs of
capias ad satisfaciendum to be issued for
the recovery of all fines, penalties, and forfeitures, which have
or may hereafter be imposed by any court of record in this state,
together with the costs accruing thereon. And by the seventh
section, the sheriffs are made answerable for all fines, penalties,
and forfeitures imposed by the judgment of any court where no writ
of execution shall issue for the recovery of such fine, &c.,
unless the sheriff shall make it appear to the satisfaction of the
treasurer that the party on whom such fine, &c., was imposed
was insolvent and unable to pay the same.
This latter section may well admit of the construction that it
applies only to cases where the party is committed by order of the
court, without an execution. But if construed in connection with
the second section, it will still leave the question open whether
the district attorney was bound on the application of the marshal
to issue a
capias ad satisfaciendum in all cases, and if
he was not, it can hardly be pretended that the marshal is made
responsible for not collecting the fine. If this question rested
entirely upon the Maryland laws before referred to, there would be
strong grounds for the conclusion that it was the duty of the
marshal to apply to the district attorney to issue the executions,
and that he was bound to issue them accordingly. But the district
attorney here derives his authority from the acts of Congress, and
not from the laws of Maryland, and his rights and duties are to be
collected from those acts, and although the attorney general in
Maryland might have been bound to issue executions on the
application of the sheriff, it does not follow that the district
attorney is alike subject to the orders of the marshal in this
respect. It becomes necessary, therefore, to inquire whether the
district attorney is bound to comply with the request of the
marshal, if made, and to issue executions in all cases without
exercising his own judgment on the subject. The Act of Congress of
27 February, 1801, Burch 230, provides for the appointment of a
marshal and a district attorney. The former is to have within this
District the same powers and perform the same duties as is by law
directed and provided in the case of
Page 30 U. S. 454
marshals of the United States, and the latter is to perform all
the duties required of the district attorneys of the United States,
and by the 35th section of the Judiciary Act of 1789, 2 L.U.S. 71,
it is enacted that there shall be appointed in each district a meet
person, learned in the law, to act as attorney for the United
States in such district, whose duty it shall be to prosecute in
such district all delinquents for crimes and offenses cognizable
under the authority of the United States, &c.
The marshal of this district is put on the same footing with
respect to his duties and powers as other marshals of the United
States. They are considered as mere ministerial officers, to
execute process when put into their hands, and not made the judges
whether such process shall be issued. And it would require the most
clear and explicit provision to clothe them with such power, so
much out of the ordinary and appropriate powers and duties of the
office. But to give the marshal authority to demand an execution in
all cases is incompatible with the powers given to the district
attorney. He is specially charged with the prosecution of all
delinquents for crimes and offenses, and those duties do not end
with the judgment or order of the court. He is bound to provide the
marshal with all necessary process to carry into execution the
judgment of the court. This falls within his general superintending
authority over the prosecution. And whether an execution shall be
issued or not is more appropriately confided to the district
attorney than it would be to the marshal.
We are accordingly of opinion upon the first point that the law
does not require the marshal to apply to the district attorney for
executions, and that he is not liable for omitting to do so.
The next question will depend upon the construction to be given
to the second section of the Act of Congress of 3 March, 1801,
Burch 233, which declares that all fines, penalties, and
forfeitures accruing under the laws of the States of Maryland and
Virginia, which by adoption have become the laws of this district,
shall be recovered, with costs, by indictment, or information in
the name of the United States or by action of debt in the name of
the United States and of the informer, one-half of which fine shall
accrue to the United States and the other half to the informer, and
the said fine
Page 30 U. S. 455
shall be collected by or paid to the marshal and one-half
thereof shall be by him paid over to the board of commissioners,
&c. (the levy court), and the other half to the informer.
There is certainly some obscurity in the language here used, and
the construction is not entirely free from difficulty. And in this
view of the law various conjectures have been suggested with
respect to the intention of the legislature. It has been said that
no good reason can be assigned why Congress should have made any
discrimination between penalties and forfeitures affixed by statute
to offenses and discretionary fines imposed by the court in cases
at common law. It is not perceived by the Court that any good
reason does exist for such discrimination, but the question is
whether the act of Congress has made such discrimination. And
although the intention of the legislature may be taken into view by
the court in the construction of a statute where the language is so
obscure and doubtful as to admit of different interpretations, yet
we do not think the act in question falls within this rule.
The inquiry is what denomination of fines, penalties, and
forfeitures is referred to in this act. It is more a matter of
description than anything else, and is to be ascertained only by
the act itself. They must be fines, penalties, and forfeitures
accruing under the laws of Maryland which, by adoption, have become
the laws of this district, and which shall be recovered with costs.
This is language appropriate to the prosecution of a suit or action
for some fixed and definite penalty, but is inapplicable to mere
discretionary fines, which may be imposed by the court or not, at
its pleasure. But this is rendered more clear by the direction as
to the mode and form in which such fines, penalties, and
forfeitures are to be recovered. It is to be by indictment or by
information, or by action of debt in the name of the United States
and of the informer. The fine, forfeiture, or penalty must be of
such description that it may be recovered in either of these modes.
If by indictment or information, it must be in the name of the
United States; if by action of debt, it is a
qui tam
action in the name of the United States and the informer. And the
disposition of the money, when recovered, would seem to leave no
reasonable doubt on this question. One half
Page 30 U. S. 456
is directed to be paid by the marshal to the levy court and the
other half to the informer, and this distribution applies as well
to that which is recovered by indictment or information as to that
which is recovered by action of debt. These provisions are entirely
inapplicable to cases where there is no informer who is to take
one-half. Those discretionary fines imposed by the court by way of
punishment for common law offenses cannot fall within the class of
fines designated in the statute, for in such cases there is no
informer. In case of a fine imposed for an assault and battery, for
instance, who is the informer? The law knows of no such character,
and no distribution of the fine could be made as required by the
statute.
There was no error, therefore, in the direction of the court
upon this point.
3. The claim for interest, we think, was properly disallowed. It
appears from the auditor's report that the money was actually
expended by the marshal in repairs and improvements on the jail,
and that, too, under the opinion of the Comptroller and Auditor of
the Treasury Department that these expenditures were properly
chargeable upon this fund. And although that opinion may not be
well founded, it would be unreasonable to charge the marshal with
interest, the money not having remained in his hands or been
applied to his own use, and the appropriation of it, having been
made under the sanction of the Treasury Department, ought to
exonerate him from any charge of negligence or intentional
misapplication of the money.
The judgment of the circuit court is accordingly affirmed
with costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington, and was argued
by counsel, on consideration whereof it is considered, ordered, and
adjudged by this Court that the judgment of the said circuit court
in this cause be and the same is hereby affirmed with costs.