'162
I'EDERAL BEPORTER,
vol. 87.
CALVERT 'IJ. U1qITED STATES. (lXat1'ict (louri,. D. Soutlt (larolina.
Februarv 26, 1889.) 4, 1886.
USITEl>STATES
,A.ctCong. August 4, 1886, (24 St. at Large, 274,) Makin&, appropriations to supply deficiencie's. which expressly declares that COlI).misslOners shall receive no docket fees, amends Rev. St. U. S. §§ 828, 847, authorizing such fees, and takes away the right to them. '
COlmISSIONE:J{ll-DoCXET FEES-ACT CONGo AUG.
AtI-aw. Action by Archibald B. Calvert against the United States for docket fees as United States Commissioner. M. F. Ansel, for plaintiff., H. A. De SaU88Ure, Asst. U. S. Dist. Atty. SIMONTON, J. The plaintiff is a commissioner of the circuit court in this district. He brings his action for docket fees as such commissioner for the period 1st August,1886,to 2d January, 1888,-104 cases, at $3 each, $312. In all these cases issue was joined, and witnesses were examined. The docket was produced in evidence, and is carefully and accurately kept. The claim was duly presented, approved by the district attorney and by the court. It was disallowed by the first comptroller of the treasury; The answer in behalf of the United States sets up some purely formal objections, which are disregarded. If there be any weight inthem, the' objections can be cured by amendment. The real question raised in the answer is that,under the present law, commissioners cannot charge or be allowed docket fees. Section 847 ,Rev, St. gave to commissioners" for issuing any warrant or writ for any other service the same compensation as is allowed to clerks for like services." Section 828 gives to clerks "for making dockets and indexes, issuing venire, taxing Col!lts, and all other services on the trial or argument ofa cause where issue :is joined, or testimony given, three dollars." This entitled the commisaitiner to docket fees. U. S. v. Wallace, 116 U. S. 398, 6 Sup. Ct. Rep. 408. This decision was filed 18th January. 1886. In the act making appropriation's t<> supply deficieney in the appropriations for the fiscal year ending 80th June, 1886, and for prior years, and for other pJlrposes, lIapproved August 4, 1886," we have this provision, (24 St. at Large, 274:) "For fees of commissioners and justices of the peace acting as commissioners, $50,OOO:providt>d that for issuing any warrant or wlit, and for any other n'ecessary lIervice, commissionel'S may be paid the same compensationas is allowed to clerks for like services, but. tbey shall not be entitled to any docket . ;lsthis amendatory ofsootion'847, Rev. St.? Much argnment has beehmade showing that it is not a repeal ofthatsection, there being no repeal of the section in express words; and it is claimed, there being no such repugnancy) that thf.! section and the clause in the statute cannot
UNITED !lTATEs.,
be reconciled. It clearly does not repeal the section. Does it amend the sE'ction? Counself9rplaintiff contend that act of 1886, being a deficiency act, is temporary in its character; that the proviso in question applies only to the appropriation mentioned; that, it being an appropriation act, no new legislation has place in it. It is true that, as a general rule, an appropriation act is temporary in its character; but congress has used such acts for permanent legislation. In the sundry civil act of March 3, 1883, (22 St. at Large, 631,) the sum of $160,000 is appropriated for fees of clerks, with provisos- First, putting the of the supreme court of the District of Columbia under the same tions as to fees with clerks of the United States courts; second, changing the law with regard to fees and emoluments of the clerk of the supreme court of the United States. reducing his compensatiotl greatly; third, repealing section 3, act 28th Feb. 1799, compensating the same clerk for his attendance in court; fourth, empowering the supreme court to prepare a table of fees. It is true that, when new legislation is introduced into an appropriation bill, it may be excluded upon a point of order; but this is a rule of order which can be suspended, disregarded, or waiyed; and if in either event the house consider the amendment, its passage is not repugnant to any provision of the constitution or of the statutes. Did congress intend to make this proviso apply to this appropriation only? There is nothing lin the language of the proviso li.miting its aIr plication. It would seem to have the same force and effect as the proviso in the act of 1883, quoted above. Besides this, we have instances of the language used by congress when its intention is to limit the effect of the proviso, in the sundry civil act of 1887, (24 St. at Large, 541:) "For fpes of United States commissioners, and justices of the peace acting as United States commissioners, $50,000. And no part of any money appropriated by this act shall be used to pay any fees to any United States sions, marshals, or clerks, for any warrant issued or arrest made, or other fees in prosecutions under the internal revenue law unless," ete. The difference is marked. I am of the opinion that this proviso in the act of 1886 amends the law, and takes from commissionel'".! the right to charge docket fees. The court of claims in the case of Faris v. U. S., 23 Ct. Cl. 374, (No. 15,588,) reached the same conclusion. The su\):. ject is discusaedand exhausted in Strong v. U. S., 34 Fed. Rep. 17. In that case tne cases are compared, and the rule laid down which this follow.s and adopts. Let the complaint be dismissed.
FEDERAl. REPORTER,
vol. 37.
\ HEYWARD 11. UNITED STATES. (Di8fJriet (Jourt, D. South (Ja'1'olina.
February 26,
1.
UNITED STATES COMMISSIONERS-FEES-ORDERS OF COMMITMENT AND DISCHARGE.
United States commissioners are entitled to fees for written orders of commitment and discharge of persons necessarily remaining in the custody of the commissioners over night.
2.
SAME-RECOGNIZANCES-AcKNOWLEDGMENTS.
A commissioner is entitled to but one fee for each recognizance acknowledged before him, though each recognizance may be acknowledged by several.
8.
SAME-TRANSCRIPT OF DOCKET.
A commissioner is entitled to a file for a transcript of docket for the circuit court, made under the peremptory order of the court.
At Law. Action by Julius H. Heyward against the United States for fees as commissioner. John R. Bellinger, for plaintiff. H. A. De SaU88ure, Asst. U. S. Dist. Atty. SIMONTON, J. The plaintiff is a commissioner of the courts of the United States in this district. He brings his action on the following account, for the period between 1st January, 1887, and 31st March, 1888; making dockets in 33 cases in which issue was joined, and testimony taken, $99; for making dockets in 5 cases in which no testimony was was taken, $10; for issuing 16 temporary commitments, $20; for issuing 6 orders for discharge of defendants'I$1.50; for taking 24 acknowledgments, $6; for transcript of docket for November term, 1887, of circuit court, 20 folios, $3. The docket has been exhibited in evidence, carefully and accurately kept. The commitments of persons whose examination extended beyond one day have been proved. So, also, with the orders of discharge. The item for acknowledgments is made up of charges for the acknowledgment of recognizances by parties, one charge being made for each name signed to the recognizance, and not for each recognizance. The transcript of the docket was made and sent up under an order of the circuit court passed December 8, 1881, in accordllnce with the request of the attorney general, and precisely in the words requested. The charge for docket fees must be disallowed for the reasons given in Oalvert v. U. S., ante, 762, (just filed.) The charge for temporary commitments is allowed because the commitments are deemed necessary. When the deputy-marshal, under warrant, arrests a person, and brings him before a commissioner, the exigency of the warrant is fulfilled. Thenceforward the person is in the custody and at the disposal of the commissioner. If his examination is not completed in one day, and stands over, the commissioner, for his own protection, as well as in the interest of the la:w, must commit him. He has no place of his own, or, rather, he cannot be required to have a place of his own, in which to imprison persons. Hence, if he is within reach of the jail, he can