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mileage, although, as the marshal no doubt knew that 5 cents a mile is tbe legal rate, he might have ascertained the correct. ness of the taxation by verifying the calculation of the clerk.
While it is clearly the duty of the marshal as an officer of the United States to protect the Government in all cases where he sees tbat money is being unlawfully allowed to anyone, and when he sees that an erroneous taxation has been made by the clerk he should have the clerk correct same before payment; yet, in the present case, where the marshal bias in fact paid the amount taxed by the clerk in good faith and without having detected the mistake, he seems clearly to be protected by the provisions of section 846, Revised Statutes.
The amount disallowed by the Auditor will therefore be allowed on this revision.
R. B. BOWLER,
IN RE APPEAL OF J. S. WILLIAMS, UNITED STATES MARSHAL FOR THE EASTERN DISTRICT OF
TEXAS. Under the act of August 18, 1894, requiring a marshal to take his prisoners
before the circuit court commissioner nearest to the place of arrest, the question as to which of two or more officers is the nearest within the meaning of the act is one of fact for determination in each par
ticolar case. The "nearest commissioner," within the meaning of the act of August 18,
1894, is not necessarily the one who is nearest by geometrical measurement, but may be one who is nearest by the most practical and usually
traveled route. When a marshal claims mileage for taking a prisoner before a commis
sioner who is not the nearest in a straight line from the place of arrest, the burden is upon him to show that such officer was the nearest within the meaning of the act of August 18, 1894.
January 16, 1896. Mr. J. S. Williams, United States marshal for the eastern district of Texas, appeals from the settlement by the Auditor for the State and other Departments of his account for the quarter ending June 30, 1895. Among the items disallowed by the Auditor were all charges for transportation, because the defendant was not taken before the circuit court commissioner nearest to the place of arrest, as provided by the act of August 18, 1894 (28 Stat., 416), which provides:
- Provided, That it sball 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 upon the arrest of the accused, the return of the warrant, with a copy of the complaint attached, shall confer jurisdiction upon such officer as fully as if the complaint had originally been made before him, and no mileage shall be allowed any officer violating the provisions hereof."
In the Indian Territory there are no judicial officers having jurisdiction to hear such cases excepting commissioners, and therefore the clause of the above quoted statute in regard to taking the defendant before the nearest judicial officer, other tban a commissioner, has no application.
It appears in these various cases that the arrests were made from 10 to 30 miles or more east of Talihina in the Indian Territory; that there was a commissioner at Garvin who was, in fact, the nearest commissioner, measuring the distance by an air line from the points of arrest to Garvin, but that the marshal after making the arrest took the defendant back to Talihina and by rail to Paris. In explanation the marshal states that the country between the points of arrest and Garvin is mountainous and impassible by ordinary means of conveyance; that the only practicable route from the place of arrest to Garvin would have been very circuitous, requiring the marshal to take his prisoner outside of the district for which he is marshal and into the State and districts of Arkansas and wholly by wagon, the actual distance by such route not being given, but being probably somewhat less than the distance traveled in order to take the defendant to Paris. It appears from the statements made by the marshal, after careful inquiries made by him, that the usual mode of travel from the points where the arrests were made to Paris was taken by the marshal with the various defendants.
Under the explanations made by the marshal I am of the opinion that he complied with the provisions of the act of August 18, 1894. The clause in said act was evidently enacted in order to prevent marshals from making unnecessary mileage, and in order that the prisoners and witnesses might not be obliged to travel farther from their homes than necessary to the proper execution of justice.
That the nearest commissioner by geometrical measurement is not the nearest commissioner within the meaning of the act seems clear both upon principle and authority. In Shaw v. Cade (54 Tex., 307), it was held, under a statute which provided that “a cause shall be removed to some adjoining county the court-house of which is nearest the county in which the suit is pending,” that the nearest court-house within the meaning of the statute is not necessarily the one nearest by geometrical measurement, but may be the one most convenient of access and nearest by the usually traveled route. See also Williams v. Niagara Fire Insurance Company (50 Iowa, 561–565).
In making the travel necessary a marshal or other officer of the Government is entitled to make such travel, and to receive mileage therefor, by the most practical and usually traveled route. If, therefore, a commissioner in an air line from a place of arrest were nearer to the place of arrest than another commissioner situated at a point through which it would be necessary for the marshal to travel in order to reach the firstnamed commissioner, the latter and not the former would be the nearest commissioner within the meaning of those words in the act of August 18, 1894. Upon the same principle it follows, therefore, that where there are two commissioners, one of whom can be reached by a practically traveled route, mostly by rail, and the other of whom can only be reached by a circuitous wagon road and the difference in distance is not material, that the commissioner who would ordinarily be selected by an individual in case it was necessary for the transaction of his own private business, although somewhat farther than the other commissioner, is also within the meaning of the act of August 18, 1894, the nearest commissioner. In cases like those now under consideration, who is the nearest commissioner is always a question of fact to be determined upon the circumstances of each particular case. Under the circumstances of the cases now under consideration, as above stated, I am of the opinion that the commissioner selected by the marshal at Paris was the nearest commissioner within the meaning of the act of August 18, 1894. The transportation disallowed by the Auditor will be allowed upon this revision.
R. B. BOWLER,
SHELTER FOR PNEUMATIC GUNS.
Appropriations made for the purchase of pneumatic dynamite guns “ready
for military use" may be used for the erection of the shelter necessary to keep the guns in serviceable condition, the expense being necessarily incident to the accomplishment of the purpose for which the appropriations are made.
January 18, 1896. SIR: I am in receipt by your reference of the communication of Brig. Gen. D. W. Flagler, Chief of Ordnance, of January 14, 1896. The question raised is whether under the appropriations made for pneumatic dynamite guns, any part thereof can be utilized in building such shelter as is necessary to maintain the guus in question in a serviceable condition.
The provisious for the purchase of the dynamite guns are as follows:
“For the purchase by the Secretary of War of pneumatic dynamite guns of different calibers, and the necessary machine ery to fire and handle the same, ammunition and carriages for the same, all complete and mounted in place ready for military use, four hundred thousand dollars, or so much thereof as he may deem proper.” (Act September 22, 1888, 25 Stat., 488.)
“For the purchase by the Secretary of War of three pneumatic dynamite guns of tifteen-inch caliber and the necessary machinery to fire and handle the same, ammunition and carriages for the same, to be placed and mounted ready for use, free of cost to the Government, at such point or points on the Pacific Coast as may be designated by the Secretary of War, one hundred and eighty-seven thousand five hundred dollars, or so much thereof as he may deem proper.” (Act March 2, 1889, 25 Stat., 832.)
In view of the language of the above appropriations, I am of the opinion that it was the intention of Congress to author ize the expenditure of these two sums appropriated for any purpose necessary for the purchase and arrangement of the dynamite guns in such a condition that they should be ready for military use.” It is evident that if such guns as these were rendered unserviceable by exposure to the elements, they are not ready for military use, and therefore the cost of the construction of such shelter as is necessary to accomplish this object is properly payable out of these appropriations.
It should be observed, however, that the appropriation for dynamite guns on the Pacific Coast, being specific in its nature, is only available for the construction of shelter for the guns there located. Respectfully, yours, EDW. A. BOWERS,
Assistant Comptroller. The SECRETARY OF WAR.
IN RE CLAIM OF DAN. E. LITTLE FOR REIMBURSEMENT OF EXPENSES OF LAST SICKNESS AND BURIAL OF DECEASED PENSIONER.
Where the assets of a deceased pensioner consist solely of a homestead
which the law of the State where he resided exempts from execution. causing descent to the heirs free from charges for funeral and burial expenses, it is held that decedent left no assets within the meaning of the act of March 2, 1895.
January 20, 1896. Dan. E. Little, of Nashua, Iowa, appeals from the action of the Auditor for the luterior Department, as evidenced by his decision No. 3024 of November 12, 1895.
The clain is for $39 for reimbursement of funeral and burial expenses of Sarah Bean, a pensioner under certificate No. 202815, and was disallowed by the Auditor for the reason that the decedent left real estate valned at $100.
Now comes the claimant and sliows that the real estate in question consisted of a homestead where the decedent, a widow, resided at the time of her death, and contends that there were no assets within the meaning of the act of March 2, 1895 (28 Stat., 964).
The Revised Statutes of Iowa, sections 1988 and 1999, provide that the homestead of a widow shall be exempt from execution for debts not contracted prior to acquiring title to said estate. This law has been passed upon by the supreme court of Iowa in a decision in case of Knor v. Hanlon (48 Iowa, 252), in which it was held that the homestead left by a widow descended to the heirs without charge for funeral and burial expenses.
As the property left by the deceased pensioner in this case consisted solely of a homestead not liable for burial expenses,