Opinion
Nos. 142, 195.
Submitted December 18, 1902. Decided March 2, 1903.
1. Under sec. 829, Rev. Stat., a United States marshal may elect to be reimbursed his actual travelling expenses incurred in serving writs, but there is no authority in law for allowing him mileage in excess of the distance from the place of arrest to the place of receiving the writs, even if the travel is in a new and unsettled Indian country and there are exceptional difficulties to overcome. 2. Where a United States court is opened for business by order of the judge, it is the duty of the marshal to attend and he is entitled to his per diem fee therefor whether the judge be present or not. 3. A general act is not to be construed as applying to cases covered by a prior special act on the same subject. The marshal for the District of Oklahoma is entitled to fees for transportation of prisoners arrested under warrants issued by United States commissioners as fixed by the statute providing a temporary government for the Territory of Oklahoma, notwithstanding the provisions of the act of Congress of August 19, 1894, applicable to marshals generally throughout the country. The fact that a marshal's accounts have been approved by a district judge is sufficient to cast upon the government the burden of showing any error of fact in his account. 4. Where the marshal charged for travel in transporting a prisoner who escaped from his custody, and there was no finding, either by the district judge in approving his accounts, or by the Court of Claims, of due diligence on the part of the officer to prevent the escape, the item was held to be properly disallowed, the presumption being that the prisoner escaped by negligence.
Mr. Assistant Attorney General Pradt and Mr. Assistant Attorney Brannigan for the United States.
Mr. Frank B. Crosthwaite and Mr. Franklin H. Mackey for Nix.
Item 2 of the third finding, namely, "travelling 1153 miles in going to serve warrants of arrest, at six cents per mile, $69.18," involves the question whether travel in excess of the distance from the place of service to the place of receiving the writs can be allowed, in view of the fee bill for marshals. Rev. Stat. sec. 829, provides "for travel, in going only, to serve any process, warrant, attachment, or other writ, including writs of subpoena in civil or criminal cases, six cents a mile, to be computed from the place where the process is returned to the place of service." This has always been interpreted to mean by the usual travelled route, Hitch v. United States, 66 F. 937, the length of which is not given in the finding. The excuse for not pursuing the route in this case is that it was a new and unsettled Indian country; that defendants were moving about from place to place to avoid arrest, and it was necessary to travel a circuitous route; and that, in the absence of bridges, the deputies had to find fordable places to cross the river to locate the defendants.
However equitable the charge may have been in this particular case, there is no authority of law for its allowance. There is, however, a special provision in the last clause of sec. 829, by which "in all cases where mileage is allowed to the marshal he may elect to receive the same or his actual travelling expenses, to be proved on his oath, to the satisfaction of the court." This seems to contemplate the very contingency which arose in this case, of a number of miles actually and necessarily travelled in excess of the direct route from the place where the process was returned to the place of service. It reimburses the marshal his expenses but denies him a profit upon them. This item must be disallowed.
(2.) Item 10. "For attendance of the marshal at court by deputy, 20 days at $5 per day, $100." The fact that it did not appear whether business was transacted in court on these days, or whether the judge was present in court, was immaterial, in view of the fact that the court was opened for business by order of the judge. United States v. Finnell, 185 U.S. 236; McMullen v. United States, 146 U.S. 360. For aught that appears, the attendance may have been under the circumstances in which a similar charge was allowed in United States v. Pitman, 147 U.S. 669. Where the court is opened for business by order of the judge, it is the duty of the marshal to attend, and there is no reason why he should not receive his per diem therefor as if the judge were actually present. This claim is not contested by the government, and should be allowed.
(3.) Item 12, for the transportation of prisoners arrested under warrants issued by United States commissioners, involves two questions: first, whether travel should have been charged from the place of arrest to the nearest Circuit Court commissioner, or to the office of the commissioner nearest to the place where the crimes with which the prisoners were charged were committed; second, whether, assuming the position of the claimant in this particular to be correct, as matter of law, there was sufficient evidence of the number of miles travelled to entitle him to the charge of $5135.50.
By "An act to provide a temporary government for the Territory of Oklahoma," 26 Stat. 81, a certain portion of the Indian Territory was set off as a territorial government under the name of Oklahoma. By section 9 the judicial power of the Territory was vested in certain courts, and the usual executive and judicial offices created. By section 10, "persons charged with any offence or crime in the Territory of Oklahoma, and for whose arrest a warrant has been issued, may be arrested by the United States marshal or any of his deputies, wherever found in said Territory, but in all cases the accused shall be taken, for preliminary examination, before a United States commissioner, or a justice of the peace of the county, whose office is nearest to the place where the offence or crime is committed. All offences committed in said Territory, if committed within any organized county, shall be prosecuted and tried within said county." By section 28, "the Constitution and all the laws of the United States not locally inapplicable shall, except so far as modified by this act, have the same force and effect as elsewhere within the United States."
This is the act upon which the claimant relies for his right to travel, while, upon the other hand, the government contends that this act was repealed by a general act of August 18, 1894, 28 Stat. 372, making appropriations for sundry civil expenses for the year 1895, one of the clauses of which, under the head of "Judicial," provides that "it shall be the duty of the marshal, his deputy, or other officer, who may arrest a person charged with any crime or offence, 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 no mileage shall be allowed any officer violating the provisions hereof."
The object of this statute was manifestly to amend Rev. Stat. sec. 829, which provided that the mileage of the marshal for transportation of prisoners should be computed from the place where the process was served to the place where it was returned. This statute provides that he shall be taken to the Circuit Court commissioner nearest the place of arrest, regardless of the fact by whom the warrant was issued. Inasmuch as the later act is a general one, applicable to marshals generally throughout the country, we do not think it was intended to repeal or interfere with the former act, providing specially for persons charged with any offence or crime in the Territory of Oklahoma, and that in all cases, whether the crime was committed against the Territory or the general government, the accused shall be taken before a commissioner, whose office is nearest to the place where the offence or crime was committed.
The rule of statutory construction is well settled that a general act is not to be construed as applying to cases covered by a prior special act upon the same subject. On this principle we held in Townsend v. Little, 109 U.S. 504, that special and general statutory provisions may subsist together, the former qualifying the latter. See also Churchill v. Crease, 5 Bing. 177; Magone v. King, 51 F. 525, and cases cited; State v. Clarke, 25 N.J.L. 54.
It would seem that this construction works no particular hardship upon the government, since in all cases where the criminal is unable to give bail he is required to be ultimately transported for trial to the county wherein the crime was committed.
The second question connected with this item is whether the marshal produced sufficient evidence of the number of miles travelled. His claim was for 51,350 miles at ten cents per mile. He was unable to prove, of his own knowledge, more than 11,433 miles. As to the remainder he could not testify of his own knowledge, because that travel had been performed by certain of his deputies who were not then in the Territory, and who, he supposed, were in Alaska or the Philippine Islands. The depositions of those deputies were not taken. He showed, however, that his accounts had been allowed by the district judge. That was sufficient to cast upon the government the burden of showing any error of fact in his account. United States v. Fortes, 134 U.S. 483. In that case we held that the approval of the commissioner's account by a Circuit Court of the United States, under the act of February 22, 1875, 18 Stat. 333, was prima facie evidence of the correctness of the items of that account, and, in the absence of clear and unquestionable proof of mistake on the part of the court, it should be conclusive. We adhere to that view. It would be an insupportable burden upon the officers of courts if, every time a question was made before the accounting officers of the Treasury of the correctness of their account, they were required to produce affirmative evidence of every item. This was evidently not contemplated by the statute. Notwithstanding this, however, there is no doubt that the account may be impeached for error of law. McMullen v. United States, 146 U.S. 360. This item should have been allowed in full, less the amount paid.
(4.) Item 24, for actual expenses in transporting a prisoner from Springfield, Ohio, to the penitentiary at Brooklyn, New York, under a warrant of commitment, is the only other one contested. The prisoner with a deputy and guard arrived in New York too late for the prisoner to be received at the Brooklyn penitentiary on the same day, and that night he escaped from the custody of the deputy while they were going to supper in the hotel where they were staying.
As there is no finding, either by the district judge in approving his accounts or by the Court of Claims of due diligence on the part of the officer to prevent the escape, the item was properly disallowed. The presumption is that he escaped by negligence. State v. Hunter, 94 N.C. 829; State v. Lewis, 113 N.C. 622; Shattuck v. State, 51 Miss. 575.
The judgment of the Court of Claims will therefore be reversed and the case remanded to that court for further proceedings in conformity with this opinion.