Dill v. United States

BUTLER, District Judge. The facts involved are agreed upon by the0 parties as appears by their statement filed. I will not discuss the questions presented by these facts, at length. ■ As respects the item of $328 specified in the petition, “amount earned and not received for attending by deputy at examination before a commissioner during the years 1887 and 1888,” I see no room for controversy. The question raised respecting this item, has been repeatedly passed upon by the courts and decided in favor of the plaintiff. Such claims, arising under similar circumstances, were uniformly paid by the treasury, without objection, until in 1887, when some especially astute clerk appears to have suggested a doubt on the subject, in consequence of which, this plaintiff’s claims, as well as others, were rejected. After the expiration of a couple of years the treasury department appears to have changed its mind, and has from that time forward paid such claims. This ■claim, however, having been rejected, the department does not now feel itself warranted in paying it without suit. This item is allowed. As respects the item of $141.18, “amount earned and not received for travel in going only to serve warrants of removal and warrants of commitment during the years 1887, 1888, 1889 and 1890,” much the same may be said. Such services were uniformly paid without objection, up to the date before stated, and this item in this claim was passed upon by the district attorney and approved by h'i'm for' the United States, and allowed by the court accordingly, in the marshal’s several accounts, as they were presented to the .court for approval. The validity of this item of claim is covered fully, by Harmon v. U. S., 43 Fed. 560. As respects the item of $60, for “serving warrants of commitment in 1887, 1888 and 1889,” I feel no hesitation in allowing it. Such Services were always allowed prior to the date referred to, •and such allowance seems to be fully warranted by the language -of the statute and the discussions of the courts, notably Saunders v. U. S., 73 Fed. 782. As" respects the item of $6.36, “traveling expenses or fees for .serving warrants,” the charge seems to be proper, and should be ■allowed. The travel here was actually necessary and the claim is •clearly within- the spirit, if not within the strict letter, of the statute. As respects the item $24.82, “for mileage in serving jury summons in 1887 and 1888,” nothing need be added to what has already been, said in speaking of other items of the plaintiff’s claim. See, also, Saunders v. U. S., 73 Fed. 782. As respects the item of $5, “for marshal’s attendance upon U. S. district court on. 16th day of October, 1887,” there is no valid [619] objection to its allowance. The services were rendered, and the charge is in strict pursuance of the statute. It appeal's to have1 been stricken out of the account by the department because the 16th was a Sunday. This fact is immaterial. The attendance was necessary, and the marshal was required to perform the service. As respects the item of $92, "amounts actually paid guards of the United States prisoners while attending court,” it is admitted for the United States that this money was paid for guards at a time when no provision existed for confining prisoners in the court apartments or anywhere nearer than the Philadelphia prison, which is two miles distant, and that the guards were, therefore, necessary. I think a liberal and just construction of section 830 of Revised Statutes covers this item and that justice requires such a construction to he made. As respects the item of $6, for “amount earned and not received for serving warrants to apprehend,” the objection is founded on the fact that two warrants were served on each of the individuals arrested. The amount claimed for the service of each warrant conforms to the terms of the statute, and as the statute provides this compensation for the service of warrants, without reference to the number which may he issued against the same individual, I do not see any force in the objection. If several such are issued the marshal must serve them separately, and when he does so he is entitled to the compensation provided for each service. This question appears also to have been passed upon in Harmon v. U. S., 43 Fed. 560. As respects the item of $3.30, “amount of actual expenses incurred in endeavors to arrest,” I think the department is right in disallowing it. The charge was in excess of the sum named in the statute for such expenses and the plaintiff was consequently allowed $2 as the statute provides. Fie might possibly have sustained a charge for services and travel in endeavoring to make the arrest, then contemplated, but he has not presented such a charge. As respects item $34.70, “amount earned for serving warrants, etc., on indigent convicts,” the same is allowed as just and proper and is sustained by Saunders v. U. S., supra. As respects item $52.80, charged for “making 132 returns (at 40 cents) of nihil habet,” I do not find, in the statute, any language which is directly applicable to this subject. If the process had been served the marshal would have been entitled, under the statute, to a charge of $2. No provision is made for an unsuccessful effort to serve and a return of nihil habet. The practice of treating two returns of nihil habet as equal to a service is peculiar to this state, and the national fee hill does not, therefore, contemplate such cases; but inasmuch as the ineffectual efforts to serve and the consequent returns are treated as equal to a service, and as the marshal must make these efforts and returns without compensation unless he is paid as for a service, it seems allowable and just, so to pay him, and I think therefore, the marshal might have charged $2 as for a service and return instead of 80 cents, as he has done. Since the rejection of this item, the department, on éx620 planation of the practice in this state and the effect of two such returns here, allowed $2 for this service and the returns and have continued to do so ever since. The item is, therefore, allowed as charged. And now, to wit, February 12, A. D. 1897, a judgment is awarded plaintiff in above case for $754.86, the aggregate of items of claim allowed as above, together with costs.