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to jail to wait the action of the United States grand jury. (United States v. Jones, 134 U. S., 483.) Hence I recharge the same."

The per diem fee claimed is found in section 847, Revised Statutes, relating to commissioners' fees, and is "for hearing and deciding on criminal charges, five dollars a day for the time necessarily employed." In order to earn the fee the serv. ice must have been rendered in connection with the "hearing and deciding on criminal charges," as required by the statute. In the Jones case it appears that in the course of a proceeding actually before the commissioner on a criminal charge the only service rendered on a particular day was deciding as to the sufficiency of bail, and for that service the commissioner was allowed the per diem fee of $5 as part of the "hearing and deciding" of a criminal charge which he had undertaken. That case was not deemed authority by the Comptroller's office, however, for an allowance of this fee in a case where the only service rendered by the commissioner was the taking of a bail bond when a prisoner was brought before the commissioner on a capias from the court, the amount of the bail having been fixed in the capias, on the ground that there was no such "hearing and deciding on criminal charges" as was contemplated by the statute. (Bowler's First Comp. Dec., 172.)

The principle of that decision seems applicable to the pres ent case. Although fixing the amount of bail and passing on the sufficiency of the sureties may be judicial acts, as claimed by Mr. Silsby, yet, as stated by Mr. Justice Brewer in United States v. Patterson (150 U. S., 69), "it was not intended to hold that for every act of a judicial nature, any more than for every act of a clerical nature, a commissioner was entitled to compensation." In order to become entitled to the compensation of $5 a day, provided for by section 847, he must in fact be engaged in "hearing and deciding on criminal charges." It seems to me he is no more engaged in such a service after the final disposition of the case when the prisoner is brought before him to renew bail than he would be in rendering services before the defendant was arrested, and for such services he is not entitled to receive per diem fees. (United States v. Patterson, supra.)

It is claimed that these fees were allowed in United States v. Allred (155 U. S., 591). In that case the following item, “For hearing and deciding on criminal charges in various cases where

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the proceedings consisted of taking bail and passing on the sufficiency thereof, six days, at $5 per day, $30," was allowed by the court below and was not objected to by the Government before the Supreme Court. There is nothing to show what the character of the services rendered by the commissioner in the cases then before the court were, and it may be that they were of a similar character to those in United States v. Jones. However, the case can not, under the circumstances, be treated as authority for allowing per diem charges in all cases where the only services rendered were the taking of bail and the passing on the sufficiency thereof. (See Bell v. United States, 28 C. Cls. R., 65.) The action of the Auditor as to this item will be affirmed.

2. Another item disallowed by the Auditor was separate certificates of attendance of witnesses. The commissioner in

explanation makes the following statement:

"United States commissioners entitled to fees for issuing certificates to witnesses for payment by the marshal of their fees for attendance before him as commissioner, charged at 15 cents each (55 Fed. Rep., 924; United States v. Barber, 140 U. S., 164, 167). In fact, if this were not the law, there would be no way for the marshal to know what amount to pay each witness in each case."

It appears that in addition to these separate certificates the commissioner charged and was paid for the following: "Order (in duplicate) for marshal to pay United States witnesses, 4 folios, at 15 cents per folio, 60 cents." This order is the authority of the marshal to pay the witnesses the amount taxed by the commissioner, and is made, by section 846, Revised Statutes, when paid by the marshal, the exclusive evidence of the correctness of the payment by the marshal. A separate certificate to each witness of the same fact answers no legal purpose, is not the authority upon which the marshal can pay the witnesses, and is unnecessary. The action of the Auditor in disallowing the same is therefore affirmed.

11268-VOL 2- -5

R. B. BOWLER,
Comptroller.

IN RE APPEAL OF JAMES C. DRAKE, UNITED STATES MARSHAL FOR THE DISTRICT OF WASHINGTON.

Although witnesses attending before United States commissioners may not be entitled to the 15 cents a mile provided by the act of August 3, 1892, yet when such mileage has been paid by the marshal upon the order of the commissioner such payments, if erroneous, must be allowed to the marshal in the settlement of his account. (Section 846, Rev. Stat.) TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

August 2, 1895.

John C. Drake, United States marshal for the district of Washington, appeals from the settlement by the Auditor of his accounts for disbursements under the appropriation "Fees of witnesses, United States courts." Certain United States commissioners, in cases pending before them, taxed the mileage and per diems of United States witnesses, and upon these pay rolls, properly approved by the commissioners, the marshal paid to the several witnesses the amount so taxed by the commissioner. Many of the witnesses were allowed mileage at 15 cents a mile under the following act approved August 3, 1892 (27 Stat., 347):

"That jurors and witnesses in the United States courts in the States of Wyoming, Montana, Washington, Oregon, California, Nevada, Idaho, and Colorado, and in the Territories of New Mexico, Arizona, and Utah, shall be entitled to and receive fifteen cents for each mile necessarily traveled over any stage line or by private conveyance and five cents for each mile over any railway in going to and returning from said courts." *

The mileage at 15 cents was in each case reduced by the Auditor to 5 cents, on the ground that the act applied only to the courts of the United States and not to hearings before commissioners.

In the case of Todd v. United States (158 U. S., 278), decided May 20, 1895, it was held, in connection with the powers and duties of a commissioner, that "A preliminary examination before him is not a proceeding in the court which appointed him, or in any court of the United States." It follows that the act of August 3, 1892, does not apply to witnesses attending before commissioners.

But the only question for decision in this case is whether, payment having been made by the marshal, the amount erroneously paid by him can be disallowed in the settlement of his

accounts. The last clause of section 846 of the Revised Statutes is as follows:

"Provided, That no accounts of fees or costs paid to any witness or juror, upon the order of any judge or commissioner, shall be so reexamined as to charge any marshal for an erroneous taxation of such fees or costs."

In United States v. Hillyer (58 Fed. Rep., 678), where the marshal had paid witness fees on the order of the court to Government witnesses who were, under section 850, Revised Statutes, entitled only to necessary expenses, after referring to the case of McMullen v. United States (146 U. S., 360), it was said:

"That decision does not affect the construction to be given to the last clause of the section, the plain purport of which, as we construe it, is that no marshal shall be charged for erroneous fees paid by him to witnesses or jurors under the order of the court."

Section 846 by its very terms applies as well to fees paid upon the order of a commissioner as to those paid upon the order of a judge, and in the absence of fraud the accounting officers are not authorized in disallowing payments made to witnesses and jurors when such payments have been made by the marshal upon the order of the judge or commissioner.

The items disallowed by the Auditor will be restored to Marshal Drake's credit.

R. B. BOWLER,

Comptroller.

IN RE APPEAL OF R. A. MOSELEY, JR., UNITED STATES COMMISSIONER, NORTHERN DISTRICT

OF ALABAMA.

A United States commissioner is entitled to fees for making a transcript of proceedings in a case where the defendant is discharged as well as in a case where he is held, when the rule of court requiring the transcript, and the practice thereunder, requires the making of the transcript in both cases.

A United States commissioner is entitled to the fees for drawing two recognizances when the prisoner admitted to bail is charged with two separate offenses in different cases.

A United States commissioner is entitled to fees for but one recognizance in a case where there are several defendants, with the same sureties, who might have been joined in one recognizance.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY, August 5, 1895. Mr. Moseley, United States commissioner for the northern district of Alabama, appeals from the settlement by the Auditor of his accounts for the quarters ended September 30 and December 31, 1894.

1. The Auditor disallowed fees for transcript of proceedings in cases where the defendants were discharged, under the authority of Daries v. United States (23 C. Cls. R., 468), wherein it was held that a commissioner is not required to return copies of process when defendants are not held to appear for trial, and under United States v. Barber (140 U. S., 164), that "transcripts of proceedings" are similar to "copies of process." It appears, however, that there is a rule of court in the northern district of Alabama which provides: "After the close of each examination the commissioner shall forward to the clerk of the United States circuit court for the proper district all the papers in the case, with a proper transcript of the proceedings, in which he shall schedule the papers forwarded." The language of that rule does not specifically require a transcript of the proceedings in a case where the defendant has been discharged, but is broad enough to include a requirement for a transcript in such

a case.

In Hallett v. United States (63 Fed. Rep., 817, 824) similar charges were allowed in cases where the defendants were discharged, under a rule of court which read as follows:

"After the final disposition of each case before him, the commissioner shall forward to the clerk of the court of the United States for this district having cognizance of the offense charged, copies of all the papers, together with all recognizances taken by him in the case, with a proper transcript of the proceedings, in which he shall schedule the papers forwarded, and to which he shall add a statement of all the fees accruing in the case, including his own fees."

The language of the rule in the Hallett Case is substantially similar to the language of the rule in the northern district of Alabama, and under the authority of that case I think the rule should be construed, in the absence of evidence of a practice to the contrary, to require a transcript of proceedings in all cases. The amount will therefore be allowed.

2. The Auditor disallowed a charge for one recognizance and acknowledgment by the defendant, as one was sufficient, this

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