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be docketed. While it is true that a criminal cause is begun in the commissioner's office by the filing of a complaint and the issuing of a warrant, it is equally true that there is no 'cause' in the district or circuit court, within the meaning of the law, until an indictment or information is filed. Copies of the process before the commissioner are required by section 1014 to be returned as speedily as may be into the clerk's office of the court, together with the recognizances of the witnesses, etc. The filing of such transcript, however, is not the institution of a suit. The object of the provision seems to be to inform the district attorney of the fact that the defendant has been held to bail or committed to await the action of the grand jury-a proceeding which may be very necessary where the commissioner resides at a distance, and to enable him to prepare an indictment. For filing such papers we have held the clerk to be entitled to a fee, but it is not usual or proper to docket cases as such until the grand jury or district attorney has taken affirmative action in regard to them” (p. 174).
If a clerk is not entitled to receive the fees for docketing a criminal case until an indictment has been found by the grand jury, because until that time there is no “cause” which should be docketed, it seems difficult to see how a district attorney is entitled to fees for discontinuing such a “cause,” for, as held by Judge Shipman in Stanton v. United States, supra
"The judgment and discontinuance fees (of district attorneys) in section 824 refer, in my opinion, to fees for services in the circuit or district courts.”
The decision in United States v. Van Duzee, supra, which has been followed in United States v. Payne (147 U, S., 687) and United States v. McCandless (147 U. S., 692), while rendered in a case involving the fees of the clerk of the court, in principle covers the fees of the district attorney, and the action of the Auditor is therefore affirmed.
2. Docket fee in cases where the jury failed to agree. This action was taken by the Auditor under the authority of United States v. McCandless (147 U. S., 692; par. 3, p. 694), wherein it was held that a clerk was not entitled to docket fees—
For making dockets and indexes, taxing costs, and all other services, in a cause where issue is joined and testimony given, three dollars.
In cases where a trial was had and the jury failed to agree, and the case was continued, as such fees are not taxable until the case is finally disposed of, the difference in the language providing for the docket fee of a clerk under the clause above quoted and that in section 824 providing for the docket fee of a district attorney is such that the decision in United States v. McCandless does not necessarily apply to a district attorney. Paragraph 1 of section 824, providing a docket fee for a district attorney “on a trial before a jury,” is as follows:
“On a trial before a jury, in civil or criminal causes or before referees, or on a final hearing in equity or admiralty, a docket fee of twenty dollars.” * *
In Hilborn v. United States (27 C. Cls. R., 547) it was held that a district attorney was entitled to the docket fee of $20 in cases where the jury failed to agree. This case was subsequently referred to the accounting officers of the Treasury for the adjustment of the district attorney's emolument accounts (see 28 C. Cls. R., 237), and has since been, at the request of the then First Comptroller, appealed to the Supreme Court where it is still pending, the accounting officers not having been satisfied with the decision of the Court of Claims.
The same fee was also allowed in Van Hoorebeke v. United States (46 Fed. Rep., 456). It appears that this case was not appealed and that the judgment has been paid. It is, therefore, claimed to be binding authority upon the accounting officers. Why no appeal was taken can not be ascertained. Clause 1 of section 824 has been many times considered by the inferior Federal courts in cases between private litigants, and there are many conflicting decisions upon the fees to be taxed thereunder.
In Strafer v. Carr (6 Fed. Rep., 466) it was held that an attorney's docket fee of $20 could not be taxed in a case which had twice been tried to a jury and the jury had each time disagreed and which was dismissed at a subsequent term, and only the docket fee of $5 under clause 3 of section 824 was taxable.
In Huntress v. Town of Epsom (15 Fed. Rep., 732) and in Cleaver v. Traders’ Inourance Co. (40 Fed. Rep., 863) it was held that only one docket fee of $20 was taxable in a case in which two trials were had, the jury disagreeing on the first and the second resulting in a verdict upon which judgment was rendered.
The contrary was held in Schmieder v. Barney (7 Fed. Rep., 451), Williams v. Morrison (32 Fed. Rep., 682), and some other cases. It has been frequently held that a docket fee upon a final hearing in equity or admiralty is only taxable once, although there are also decisions to the contrary.
In Cleaver v. Traders' Insurance Co., supra, Judge Brown discussed the previous decisions and quoted approvingly from the opinion of Judge Deady in Fisk v. Henarie (32 Fed. Rep., 427), that
“Where a jury is discharged without a verdict, the proceeding is properly known as a mistrial; and where a verdict is set aside because it ought not to stand, the result is the same. The proceeding has miscarried, and the consequence is not a trial but a mistrial.”
So far as a careful inquiry can make a question of this kind certain, it appears to have been the uniform practice of the accounting officers not to allow more than one docket fee in any case, and then only upon the final disposition of the case and in accordance with the manner in which the case was disposed of. A clerk in the office of the Auditor who has been in that office since 1853, when the present fee bill for officers of the court was passed, and who has been engaged in the exam. ination of the accounts of such officers since that time, states that he has never known a docket fee of $20 to be allowed in a case upon a trial to a jury where they failed to agree or where the verdict was set aside and a new trial ordered. Some two years ago, when First Comptroller, I investigated the question thoroughly and directed the prevailing practice to continue. After a careful reexamination of the question on the present appeal, and particularly in view of the conflicting decisions, I see no reason why the practice should be changed until the question is finally determined by the Supreme Court. The action of the Auditor is therefore affirmed.
R. B. BOWLER,
EXPENSES OF FREE-DELIVERY SERVICE, POST
In expending the appropriation for “free-delivery service” the Postmaster
General may, in the exercise of his discretion in the management of the postal service, establish within the limits of a post-office a system of free delivery of mail on board of vessels and purchase or otherwise procure the boats and other conveniences necessary to the proper performance of such free-delivery service.
December 30, 1895. SIR: I am in receipt of yours of the 13th instant, inclosing certain vouchers in the account of John J. Enright, postmaster at Detroit, Mich., for the quarter ending September 30, 1895, for which he claims credit for payments classed as “free-delivery expenses.” These vouchers are for the hire of a steam vessel, salaries of engineers and pilots, purchase of rowboats, and for miscellaneous expenses for maintenance of such vessel, repairs, and other matters incidental to the support of what is termed in the account “Marine free-delivery service” at Detroit, Mich. You state that as the items are of a character different from any which have heretofore appeared in any accounts as payable from the appropriations for the free-delivery service you have not felt authorized in allowing the same, and therefore have certified your decision to the Comptroller for his approval, disapproval, or modification, as required by section 8 of the act of July 31, 1894 (28 Stat., 208), said decision making an original construction of a statute. In the mean. time action on said account has been suspended awaiting the decision of the Comptroller.
It appears that the Postmaster-General has established at Detroit, Mich., a substation of the Detroit post-office, at a point on the river front known as - The Marine Station," and that in connection with the establishment of said sub or branch station the Postmaster-General has authorized the postmaster at Detroit to extend the free-delivery system of that post-office in such a manner that letters may be delivered by the letter carriers of the Detroit post office to vessels passing through the Detroit River within the limits of the territory embraced in the delivery of the Detroit post-office. In order to accom plish such delivery the hiring of a steam launch, the employment of pilot and engineer, the purchase of certain boats, and other specified incidental expenses connected with the same, were authorized by the Postmaster-General. It is to the expenditures thus authorized that the vouchers now under consideration relate. From the statements made by the postmaster at Detroit, in letters to the Postmaster-Genera? requesting authority to establish this extension of the freedelivery service, it appears that there existed at Detroit private agencies for the delivery of packages, letters, newspapers, etc., to passing vessels; that much mail matter was directed in the care of these private agencies, and that for various reasons much complaint had been made to the Post-Office Department because of failure to properly deliver letters by these agencies, although it was entirely clear that the fault, if any existed, was not due to deficiencies in the postal service, because after delivery to the agencies the duties of the postal service had been completed It further appears that there passes through the Detroit Channel during the season of navigation on an average one vessel for every seven minutes of the twenty-four hours. It was upon these representations of the postmaster at Detroit that after one consideration the Postmaster-General ordered the extension of the free-delivery system in the manner above described.
Section 396, Revised Statutes, provides :
“Second. To instruct all persons in the postal service with reference to their duties.
“Sixth. To control, according to law, and subject to the settlement of the Sixth Auditor, all expenses incident to the service of the Department.
“Ninth. To superintend generally the business of the Department, and execute all laws relative to the postal service."
From the foregoing it will be seen that large discretionary power has been conferred upon the Postmaster-General in reg. ulating all matters connected with the postal service. It is clear, therefore, that the exercise of his discretion in the matter of the extension of the free-delivery system can not be reviewed by the accounting officers unless the same conflicts with the statutes relating to that service, or unless there is no appropriation from which the expenses authorized by the Postmaster-General may be paid. An examination of the statutes relating to the free-delivery service fails to show in what manner that service shall be conducted, except in regard to the appointment and payment of letter carriers. The number of deliveries and the time when such deliveries shall be made are left entirely to the discretion of the Postmaster-General, and so also apparently is the manner in which such deliveries shall be made. Accordingly, on certain carrier routes mail carts have been furnished by the Department for the carriers.
I see nothing in the laws relating to the free-delivery service wbich would prohibit the Postmaster-General from extending such service to vessels lying in a harbor situated within the territory covered by the delivery of any free-delivery postoffice, nor anything which would prevent him from extending