V. UNITED STATES.

23

which called for explanation from the petitioner, if the commis· sioner had intimated that, for any reason, he did not credlt the pe· titioner's witness, the rule might be different. But the judgment of the commissioner, in effect, declares that after a Chinese person has proved himself a citizen of the United States, unless he goes upon the witness stand, at the request of his prosecutors, the court will find that he is not a citizen and must be deported. I am familiar with no such rule of evidence and no authority has been cited war· ranting such a course. If not a criminal statute the act of 1892 is, concededly, a most drastic and summary law. Its machinery should not be set in motion by straining the evidence so as to convict those who, becau!!le of their ignorance of our language and institutions, are peculiarly helpless and unable to protect themselves. It is one of the safeguards of our organic law that no one shall be compelled to incriminate himself and the courts have gone to the greatest lengths in enforcing this principle by a broad and liberal interpre· tation. It has never been construed in a narrow or illiberal spirit or relaxed so as to endanger civil freedom or oppress one, no mat· ter how lowly, whose liberty is threatened. A Chinese person is entitled to demand that the· judgment of deportation against him shall be based on legal evidence. The petitioner is discharged.

NIXuN T. UNITED STATES.

(District Court, E. D. Tennessee.

L

May 8, 1897.)

UNITED STATES MARSHALS-"ENDEAVOR EXPENSES"-VOUCHERS.

A marshal cannot recover In a suit against the government a charge ot two dollars a day, under Rev. St. § 82'J, allowing him the sum actually expended In endeavoring to make an arrest under process, not to exceed two dollars a day, in addition to his compensation for service and travel, where his claim is not supported by vouchers or an' itemiZed statement, and was for that reason disallowed by the comptroller.

2.

SAME - MILEAGE-SERVING. SUBP(ENA IN CRIMINAL CASES BEFORE COMMIS' SIONERS.

Where a United States commissioner, on issuing the warrant for the ar· rest of a person charged with the violation, of the internal revenue laws, at the same time issued subprenas for witnesses to be used to sustain such ,charge, which subprenas were left blank as to time and place of return until return was made, the practice being for the marshal to serve such subprenas only In case the arrest was made, the marshal is entitled, under Rev. st. § 829, to mileage on such subprenas, when served, trom the place of return to the place of service, the same as though issued after the. warrant had been served and returned. Where a defendant committed by a United States commissioner is confined in the neareest jail to await the action ot the grand j1,lry, and after indictment, on an order to bring him into eourt, is taken fro,m such jail to court, the marshal is not entitled, in addition to the mileage allowed by § 829, "for transporting criminals," t() treat the order as an origina:! Rev. pJ:ocess, and charge thereon two doUars for servIce, and mileage at the rate of six cents from the place of holding court to the jail. A marshal attending criminal examinations in separate ud distinct cases on the same day, before, the saine commissioner,. is not endUed to fees in each case, but only to the two dollars per diem allowed by Rev. 'St. § 829.

B.

SAME'-:'TRANSPORTATION OF PRISONER.

4.

SAME-ATTENDANCE BEFORE COMMISSIONER.

24

82 FEDERAL REPORTER.

:Actionbf W. M.Nixon against the United States to rec()ver fees earned as marshal. Heard on exceptions to master's report. Pritchard & Sizer, for complainant. James H. U. S. Atty. CLARK, District Judge. This suit is brought by the plaintiff against the United States to recover upon an account for fees alleged to be due to plaintiff as United States;marshal for the Eastern district of Tennessee, his term of office extending from August 27, 1887, to ,April 13, 1889. The fe.es claimed are for services of different kinds. The case has been referred to a special master, and the questions are now raised by the exceptions to the master's report. The litigation has been limited by the reference and the exceptions. The fees claimed were disallowed by the comptroller of the treasury, and hence the present suit. These exceptions do not raise any question of fact, but proceed upon the ground that, taking the facts as found by the special master. there is error in the conclusions of the master upon these facts. This renders it unnecessary in this opinion and finding to discuss the facts, and reference to the report of the special master is sufficient. It is well to keep in view, in the examination of the specific exceptions, the general rule of law applicable to fees and costs claimed as against the public, which was stated in U. S. v. Shields, 153 U. S. 91, 14 Sup. Ct. 736, as follows:
"Fees allowed to public officers are matters of strIct law, depending upon the very provisions of the statute. They are not open to equitable construction by the courts, nor to any dIscretionary action on the part of the officials."

This isa rule of internretation of J?;eneral application to costs and fee bills. The first exception js to the ruling of the master in disallowing the claim for certain "endeavor expenses," because not supported by vouchers nor by itemized account. The particular clause of section 829 of the Revised Statutes on which this claim is based is as follows: travel." The master finds that a report bya special examiner of the department of justice was made to the attorney general April 12, 1888, recommending the disallowance of various items in an account of the present petitioner. Among the rea&:llls stated for tpe disallowance was the following: . "Neither has the marshal in a single instance, as far as 1 can learn, furnished
l'Forexpenses while employed in endeavoring to arrest, under process, any PerBoncharged with or convicted of a crime, the sum actually expended, not to exceed two .dollars a day, In addition to his compensation for service and

the department wlth vouchers for these expenses of arrest, whicll should, under the. regulations 01 the treasury department, be attached to charge of such a natut;e. Strict justice would doubtless. strike out every 'endeavor to arrest' and every charge for 'subsistence of prisoners' found in. the marshal's account unless itemized for each day, and only the amount actually expended not exceeding the limit charged foronedlly, viz. two dollars ($2.00). The partment of juStice, in the register of said department, especially calls the attention of officials to this matter in circula.r of 'Instructions a,s to Accounts,' page 243."

l\IXON V. UNITED STATES.

25

'And the master finds that a copy of this report was mailed to the petitioner May 18, 1888, from which it is, of course, found that the marshal had express notice of the ground on which the items in his accounts were disallowed. It would seem to be clear, therefore, that if the comptroller mi?;ht lawfully require specific items or vouchers for items, which make up an account for expenses of this kind, the disallowance of the account for such expense was proper. In U. S. v. Fletcher, 147 U. S. 666, 13 Sup. Ct. 435, the supreme court said:
"'The comptroller. however. had a right to require items of these t!xpenses to be furnished. The smallness of the amount allowable under the. statute' does not affect the principle. unless at least a showing be made that It is impossible to furnish the particulars."

See, also, In re Crittenden, 6 Fed. Oas. 816. If, therefore, as thus decided, the comptroller may require, as a condition of a claim of this character, tbat it shall be supported by an itemized account or vouchers, it necessarily follows that when the. account is disallowed for this or any other le?;ally valid reason, suit cannot be successfully maintained the government with· out .8upportin?; the account with the same character of evidence. The marshal obviously cannot be permitted to present to the treasury for approval an account without items or vouchers required by the treasury officials, and, when the account is disallowed, institute suit and recover the United States upon a lump sum charged, being the maximum amount allowed by law, as done here.. To rule that he may do so would be manifestly inconsistent,.:with the holding that the comptroller may require the items or vouchers for the items of the account. The brief, in support of this exception,. proceeds largely upon the ?;round that the marshal is allowed the absolute or lump sum of two dollars per day, not only for the purpose of covering expenses, but as compensation, to an extent, for the time required in the service. The statute plainly, however, allows only actual expenses,. and provides an express limit beyond which the marshal is not permitted to ?;o in the actual expenses incurred, and no claim for time is allowed by the terms of the statute, or any just inference therefrom. Exception 1 is therefore overruled. Exception 2 raises by far the most serious question in this case. The claim in this item of the account is for mileage for traveling to execute subpoonas in criminal cases instituted before United States commissioners. The facts, as found by the special master, are these: United States commissioners are in the habit of issuing warrants for the arrest of a defendant charged with a violation of the internal revenue law, and, with such warrants, would issue a subpcena for the witness or witnesses whose testimonv was intended to, sustain the charge; and the practice was, in case the marshal should find and arrest the defendant. to proceed to execute the subprena for the witnesses to appear before the commissioner, and before whom the defendant was to be taken. In the event the defendant was not found and the warrant of arrest not executed, the subpoona, of course, could not be executed. and there would be no case set and no trial at which the,.witnesses could appear. The subpoona, in such cases, did not direct the marshal to summon the witnesses before any particular com·

82 FEDERAL REPORTER..

missioner, ;Ji()r to attend at any time or place. lfhe subpcena was necessarily issued in blank in these respects, and was completed on the marshal's return of the subpcena when eXecuted, whereon the time and place of trial and the commissioner and particular case were given. It is certain, therefore, that the command in the subpoona to summons was in fact understood both by the commissioners and the marshal to be a conditional direction, and this process was to be executed only in the event the warrant of arrest should first be executed. The report of the master proceeds upon the ground that a subpoona in the hands of the marshal under such circumstances was not a complete process or authority in fact on which the marshal might lawfully travel, but was only process to bl'l executed on condition, and that no service could have been rendered with respect to this particular process, such as would authorize the mileage charge for its execution, until after the warrant of arrest was executed, when, for the first time, the subp<ena would become a complete authority to the marshal to execute, on which he did or could lawfully travel. It is not disputed that where, in fact, after execution of the warrant of arrest, the marshal traveled further to el:ecute a subpoona, under such circumstances the additional travel was paid for. The contention for the marshal is that miIeaJ.{e IPay be lawfully charged on the subpoona, just as on the warrant of arrest,both being in his hands during the travel; and the case of U.S. v. Harmon, 147 U; 13. 268, 13 Sup. Ct. 327, is relied on to sustain this eontention. The district attorney relies in part upon section 7 of the act of 1875 (18 Stat. 334), providing that "no person shall be entitled toan allowance for mileaJ.{e or travel not actually or necessarily performed"; but in U. S. v.Fletcher, 147 U. S. 666, 13 Sup. Ct. 434, it was said that this provision refers only to cases in which process is sent by mail to a deputy to be served at a place remote from the office whence the process has issued. And this view would make that provision of the statute inapplicable to the present case. Under the existing law, no such practice as that now in question is any longer possible. In the case ()of U. S. v. Harmon,147 U. S. 279, 13 Sup. Ct. 329, the agreed statement of the facts was as follows:
"That In some Instances the officer had In his hands for servIce several precepts against different persons for different causes, and made service of two or more such precepts In the course of one trIp, makIng but one travel to the most remote point of service, but charging full travel on each precept."

that respect concurring in the opinion of Atty. Gen. Devens, 16 Op. Attys. Gen. U. S. 165-169. In U. S. v. Harmon, as will appear from the agreed statement of facts, the writs in the hands of the officers were against different persons, and in different cases, while in the case under consideration the warrant of arrest and subpoona are precepts in the same case, but for different persons; and this fact of the warrant and subpoona being in the same case is the only ground for maintaining a distinction between that case and this, so far as the right to the mileage charge is concerned. And whether that fact does authorize or require a different ruling is a close question. It may

§ 7), in U. S. v.Harmon, 147 U. S. 280, 13 Sup. Ct. 327, the court in

And the same interpretation was put upon this statute (Stat. 1875,

NIXON V. UNITED STATES.

27

be observed just here that according to the very terms of the statute the mileage charge allowed is "six cents a mile, to be computed from the place where the process is returned to the place of service, or, when more than one person is served therewith, to the place of service which is most remote. addinjit thereto the extra travel which is neceslary to serve it on the others." The officer, in the execution of process, therefore, is not entitled to charge mileage on the distance traveled from the place where the warrant is issued or delivered to him unless this is the same place, or the process issued by the same commissioner before whom the case is returned. although it is said that the distance is often comnuted from the place where the precept is issued or delivered to the marshal to that where it is served. Such being the rule prescribed by the statute for computing the mileage, the expense to the government is not different from what it would be if the subpcena for the witness were not in fact issued or served until after the arrest of the defendant and the return of the case before the commissioner. The marshal has not in the account sued on attempted to charge mileage on more than one subprena in the same case in which a similar charjite is made for executing the warrant of arrest. The allowance of six cents a mile for travel in to serve any process includes "writs of aubprena in civil or criminal cases," and the argument of the district attorney is that until execution of the warrant of arrest and return of the case before a commissioner there is no case pending, and that the fee cannot, for this reason, be allowed, aside from other objections; and Southworth v. U. S., 151 U. S. 185, 14 Sup. Ct. 274, is relied on. But that case is clearly not in point The court was considering whether or not the mere filing of a complaint and issue of a warrant were sufficient to entitle a commissioner to the $10, under section 1986 of the Revised Statutes, providing: "And where the proceedings are before a commissioner, he shall be entitled to a fee of ten dollars for his services in each case, inclusive of all services incident to the arrest and examination." It was clear, as the court observed, that where no arrest had been made, and no examination took place before the commissioner, there was no case, within the meaning of section 1986, entitling the commissioner to the fee therein provided. No question is made in the case as to the jurisdiction or power of the commissioner to issue a blank subprena. as was done in these cases, before arrest and return before a commissioner. If it should be held that the process or subprena was for this reason void, this would not, as a rule, help the case of the government as the law was at the time the process in these cases was executed, for, as we have seen, if subprena could not rightfully issue until arrest of the defendant and return of the case, it would then not admit of question that in the separate travel to execute the subprena the marshal would be entitled to the mileage fee allowed by the statute. The exact form of these 8ubprenas, and how far they were complete or incomplete on their face, is not disclosed by anything in this record, and, as stated, no· question is made as to the validity of the subprena in the brief or exceptions. As will be seen, and as has already been intimated, the case, in respect to the point now considered, i.I not distinguishable from U. S.

28

82 FEDERAL REPORTER.

v. Harmon, 147 U. S. 280, 13 Sup.Ct. 327, except in the faet alone that the separate writs here were in the same case, while there the writs were in different cases. The rulinp; in U. S. v. Harmon evident· ly proceeded upon the view that the service of both processes on the same trip was an accidental circumstance, not occurring in the regular course of procedure. And so here the fact that the marshal might be able to serve the subprena and the warrant of arrest on the same trip would depend upon the fact that the defendant and the witness or witnesses might be found at the same place, or on the same trip. It must be noted that the reasoninp; of the special master proceeds upon the ground that the mileap;e fee which the marshal may charge is from the point of issue of the warrant to the place of arrest, whereas it appears from the very terms of the statute that the mileage is computed from the place where the case is returned to the place of service, and this place maybe, and justly should be, the nearest United States commissioner; Indeed. under the present law, the marshal is required to return the case before the nearest commissioner to the place of service, but was not required to do so under the law as it existed at the time the account now in question was made. It is very true that ,Judge Ballard, in the Crittenden Case, above referred to, entertained the opinion that the place where the process was returned was necessarily to the court issuing the process, for otherwise it was said that the court could never know whether its writs had been executed air commanded or not. Of course. under such view as that, the conclusion was reached that the place of return and the place of issue were necessarily the same, and could not be different. Such an opinion, however, could only be sustained by putting proceedings before the United States commissioners on the sanie footing as suits in courts of record of general jurisdiction, and having power to try the merits and administer final justice; and it is under a view such as this that Judge Ballard proceeds in the opinion refeITed to. It is perfectly obvious, however, that United States commissioners, as committing officers, sustain towards courts of the United States the same relation that justices of the peace in the several states sustain towards the state courts of general jurisdiction. The procedure is precisely similarto that before a committinp; magistrate under the common law of England. At the common law. a warrant issued by one of these com· mitting examiners or magistrates might be general, commanding the officer to bring the party before any justice of the peace of the county; or special, to brinp; him before the justice who granted the warrant. If it were general, the election of the magistrate before whom the defendant should be taken lay entirely with the officer making the ar· rest. 4 Cooley's RI. Comm. 291; also 2 Hawk. P. O. 85. In Todd v. U. S., 158 U. S. 282,283,15 Sup. Ct. 890, the court said:
"That a commissioner is not a judge of a court of the United States within the constitutional sense is apparent and conceded. He is simply an officer of the circuit court, appointed and removable by that court. Rev. St. § 627; Ex parte Hennen, 13 Pet. 200; U. S. v. Allred, 155 U. S. 591, 15 Sup. Ct. 231. A preliminary examination before him is not a proceeding in the court which appointed him, or in any court of the United States. Such an examination may be had, not merely before a commissioner, but also before any justice or judge of the United States, or before any chancellor, judge of a state court, mayor of a city,

NIXON V. maTED STATES.

29

justice of the peace, or other state magistrate. Rev. St. § 1014. And It cannot be pretended that one of those state officers, while conducting a preliminary investi· gation, Is holding a court of the United States. Technically, we speak of an examining magistrate, and not of an examining court. The distinction is recognized in the statutes (section 1014), by which sundry judicial officers of the United States and of the states are authorized to conduct an examination, and imprison or bail the defendant 'for trial before such court of the United States as by law has cognizance of the offense.' Also section 911, which prOVides that 'all writs and processes issuing from the courts of the United States shall be under the seid of the court from which they issue, and shall be signed by the clerk thereof.' But a commissioner, like a justice of the peace, is not obliged to have a seal, and his warrants may be under his hand alone. Starr v. U. S., 153 U. S. 614, 14 Sup. Ct. 919."

It is obviously implied thl'oughout in this opinion, and the ground on which it proceeds, that the United States commissioner sustains in the federal system exactly the same relation of the committing magistrate in the state systems and at the common law, and, as has been seen, the warrant issued by such magistrate might be made general, and returned before any magistrate, giving to such magistrate full jurisdiction. It is very clear, therefore, that a warrant issued by a United States commissioner, like one issued by one of these magistrates long known to the common law, might be returned before a United States commissioner other than the one issuing the same. The ground on which the special master proceeds, therefore, gives way, in view of the fact that the marshal cannot, under the statute, charge mileage from the place of issue to the place of service, but only· from the place of return to the place of service. If, therefore, the subprena became perfect process on which the marshal might charge after the arrest of the defendant, it seems that the travel to execute the subpama between the place of return and the place of service could be claimed upon the same ground and equally with the fee for travel on the warrant of arrest. It may be true that the result in particular cases, and also generally, may be inequitable as against the government, but, if the statute in terms allows the charge, the court would be without authority to deny it on equitable grounds. In the effort to reach an equitable result, the power of interpretation must not be permitted to trench upon the province of legislation. The distinction between the legislative and judicial function must be preserved. Interpretation may make ifest that a change of law is necessary, but it must not make that change itself. It was recognized at once that the ruling which the court thought the express language of the statute required in U. S. v. Harmon was unjust to the government, and that decision was promptly inet by proper legislation changing the law in that respect, and making such a result no longer possible. This case, however, is controlled by the previous law as announced in U. S. v. Harmon, provided the facts here do not substantially distinguish this case from that; the only difference being that the writs here, while against separate persons, were issued and served in the same case. I am not, by any mode of reasoning satisfactory to myself, able to see that there is any such substantial legal distinction as justifies a different judgment from that pronounced in U. S. v. Harmon upon the facts in that case, and I therefore feel constrained, in obedience to the authority of that case, to sustain the exception to the special