United States v. Colman · 303, 304

Court

Circuit Court of the United States for the Eastern District of Wisconsin

Decided

Oct 5, 1896

Judge

WOODS, Circuit Judge

Posture

Judgment on a petition for sums due for services as United States attorney, with partial allowance of demands

Defendant/Claimant (1)

Elihu Colman

Elihu Colman, per se

Plaintiff/Respondent (1)

United States

J. H. M. Wigrnan

Overview

The judgment of the trial court is set aside, and a new judgment in favor of Elihu Colman in the sum of $1,202.40 is ordered.

Case summary

Elihu Colman, former United States attorney for the Eastern District of Wisconsin, petitioned for payment for services rendered from 1890 to 1892. The trial court partially allowed his demands, and both parties appealed. The Circuit Court of Appeals addressed multiple issues regarding per diem and mileage allowances under Rev. St. § 824. The court held that per diem is not authorized for preliminary examinations without formal accusation, mileage may be allowed for successive days before the same commissioner if necessary, but multiple per diems for same-day attendance before one commissioner are not permitted. The court affirmed allowances for court attendance without proof of actual presence but disallowed certain expenditures and mileage claims. The total allowance was reduced by $578.40, and a new judgment for $1,202.40 was ordered.

Abstract

A former United States attorney petitioned for payment of services including per diem and mileage allowances for work from preliminary examinations to court attendance. The appellate court held that per diem is not authorized for preliminary examinations without formal accusation, allowed mileage for necessary successive days before the same commissioner but not multiple per diems for same-day attendance, and affirmed allowances for court attendance without proof of actual presence while disallowing certain expenditures. The trial court's judgment was set aside, reducing the total allowance and ordering a new judgment for the petitioner.

Opinion of the court

Majority
opinionWOODS, Circuit Judgejoined by JENKINS, 8H0WALTEE

Rev. St. § 824 requires formal accusation for per diem allowances
Mileage for successive days before same commissioner may be necessary
Multiple per diems for same day before one commissioner not allowed
Court attendance allowances valid without proof of actual presence
Expenditures disallowed without showing propriety and necessity
Mileage disallowed for court attendance following commissioner attendance at same place

Jurisdiction

not challenged

Subject matter

Appeal from the Circuit Court of the United States for the Eastern District of Wisconsin

Jurisdictional facts

Writ of error prosecuted by each party from the Circuit Court's judgment on a petition for sums due for services as United States attorney

Procedural posture

Posture at trial

Judgment on a petition for sums due for services as United States attorney, with partial allowance of demands

Posture on appeal

Direct appeal via writ of error

Preserved issues

Allowance of per diem for attendance before commissioners without formal accusation
Allowance of mileage for attendance on successive days before same commissioner
Allowance of multiple per diems for attendance before one commissioner on same day
Allowance for attendance in court without showing actual attendance
Disallowance of expenditures for printing and stenographer's services
Disallowance of mileage for court attendance following commissioner attendance at same place

Subsequent history

Petition for rehearing

not filed

Legal categories

Business

Case record

Full case name

UNITED STATES v. COLMAN. COLMAN v. UNITED STATES.

Docket number

Nos. 303, 304

Court

Circuit Court of Appeals, Seventh Circuit

Trial court

Circuit Court of the United States for the Eastern District of Wisconsin

Decided

Oct 5, 1896

Opinion author

WOODS, Circuit Judge

Opinion type

published

Precedential status

precedential

Judges on panel

WOODSJENKINS8H0WALTEE

Issues & holdings

Issues raised

reversed

affirmed

Holdings

Whether Rev. St. § 824 authorizes per diem and mileage for preliminary examinations before commissioners where no formal accusation has been made and witnesses are not examined

reversed

Standard of review

de novo

Disposition rationale

The statute does not apply to such preliminary examinations; formal accusation required

Preservation

Issue preserved for review

Whether mileage can be properly allowed for attendance on successive days before the same commissioner

affirmed

Standard of review

clearly erroneous

Disposition rationale

Mileage may be necessary even for successive days unless necessity for next day's presence is known before departure

Preservation

Issue preserved for review

Whether Rev. St. § 824 authorizes multiple per diem charges for attendance before one commissioner in different cases on the same day

reversed

Standard of review

de novo

Disposition rationale

Statute does not support multiple charges for same day attendance before one commissioner

Preservation

Issue preserved for review

Whether per diem can be allowed for attendance in court on days court is open, without showing actual attendance

affirmed

Standard of review

de novo

Disposition rationale

Allowed under precedent U. S. v. Smith

Preservation

Issue preserved for review

Whether expenditures for printing and stenographer's services can be disallowed when not shown proper and necessary

affirmed

Standard of review

clearly erroneous

Disposition rationale

Disallowance proper without showing expenditures were proper and necessary

Preservation

Issue preserved for review

Whether mileage can be disallowed for court attendance on a day following commissioner attendance at same place

affirmed

Standard of review

clearly erroneous

Disposition rationale

Travel not necessary if already present at same location

Preservation

Issue preserved for review

Holdings of the court

Per diem for preliminary examinations without formal accusation

Rev. St. § 824 does not authorize per diem and mileage for preliminary examinations where no formal accusation has been made and witnesses are not examined

Based on U. S. v. Patterson and U. S. v. Stanton, a criminal charge requires formal written complaint; preliminary examinations to determine whether to make charges are not covered

unanimousbinding precedent

Mileage for successive days before same commissioner

Mileage may be properly allowed for attendance on successive days before the same commissioner if necessary, unless necessity for next day's presence is known before departure

U. S. v. Shields distinguished; necessity is a factual determination

unanimousbinding precedent

Multiple per diems for same day attendance before one commissioner

Rev. St. § 824 does not authorize multiple per diem charges for attendance before one commissioner in different cases on the same day

Statute allows per diem 'for the time necessarily employed'; multiple charges for same day before one commissioner not supported by language or precedent U. S. v. Erwin and U. S. v. King

unanimousbinding precedent

Per diem for court attendance without showing actual attendance

Per diem can be allowed for attendance in court on days court is open, even without showing actual attendance

Follows U. S. v. Smith

unanimousbinding precedent

Disallowance of expenditures for printing and stenographer's services

Expenditures for printing and stenographer's services properly disallowed when not shown to be proper and necessary

Without finding of propriety and necessity, as in U. S. v. Stanton, disallowance is correct

unanimousbinding precedent

Disallowance of mileage for court attendance following commissioner attendance

Mileage properly disallowed for court attendance on a day following commissioner attendance at same place

Travel not necessary if already present; consistent with U. S. v. Stanton

unanimousbinding precedent

Error analysis

Allowance of per diem for preliminary examinations without formal accusation — statutory · error foundError affected total allowance amount · not harmless
Allowance of multiple per diems for same day attendance before one commissioner — statutory · error foundError contributed to excessive total allowance · not harmless

Statutory interpretation

Statute

Rev. St. § 824

Question

Whether it authorizes per diem and mileage for examinations 'before a judge or commissioner of persons charged with crime'

Court's reading

Requires formal accusation; does not apply to preliminary examinations without formal charge

Canons applied

Plain meaningPrecedent-based interpretation

Burden of proof

Prosecution burden

Not applicable (civil claim for compensation)

Defence burden

Colman bore burden to show entitlement to compensation under statute

Burden met

false

Standards of review

Interpretation of Rev. St. § 824 for per diem allowances — de novo Statutory interpretation reviewed de novo
Factual findings on necessity of mileage and expenditures — clearly erroneous Trial court's factual findings reviewed for clear error

Timeline

Events

2,422

Days, incident to ruling

Feb 17, 1890 — Oct 5, 1896

Span

Feb 17, 1890factual eventcited in opinion

Elihu Colman begins service as United States attorney for the Eastern District of Wisconsin

Start of period for which compensation is claimed

Elihu Colman

Apr 24, 1892factual eventcited in opinion

Elihu Colman ends service as United States attorney for the Eastern District of Wisconsin

End of period for which compensation is claimed

Elihu Colman

Oct 5, 1896appeal eventcited in opinion

Circuit Court of Appeals issues opinion on cross-appeals, setting aside judgment and ordering new judgment

Outcome: Judgment set aside and new judgment ordered for $1,202.40

Final disposition of the appeal

WOODS · JENKINS · 8H0WALTEE appellate court

Facts & evidence

Key facts

4 facts

Elihu Colman served as United States attorney for the Eastern District of Wisconsin from February 17, 1890, to April 24, 1892
He petitioned the United States for payment for services rendered
The trial court made a special finding of facts and conclusions of law under statute 24 Stat. 505
The court allowed some items and disallowed others, leading to cross-appeals

Procedural history

3 steps

Colman filed petition against United States for services rendered
Trial court partially allowed demands
Both parties prosecuted writs of error to the Circuit Court of Appeals

Evidence in the record

Documentary

Special finding of facts and conclusions of law by trial court under 24 Stat. 505
Former accounts duly allowed

Challenged

Evidence type: Per diem allowances for attendance before commissioners · Challenge basis: Statutory authority under Rev. St. § 824 · Trial court ruling: admitted · Reasoning: Allowed in part for examinations where warrants issued · Challenged on appeal: true · Appellate outcome: reversed
Evidence type: Mileage allowances for attendance before commissioners · Challenge basis: Necessity under Rev. St. § 824 · Trial court ruling: admitted · Reasoning: Found necessary by trial court · Challenged on appeal: true · Appellate outcome: affirmed

Sentencing

Sentence imposed

Judgment for $1,202.40 in favor of Colman

Sentence type

discretionary

Sentence challenged on appeal

false

Authorities

Cited authorities (7)

U. S. v. Patterson, 150 U. S. 65, 14 Sup. Ct. 20

followedquotedprecedent

Cited for proposition that criminal charge requires formal written complaint

U. S. v. Stanton, 17 C. C. A. 475, 70 Fed. 890

followedquotedprecedent

Cited for holding that Rev. St. § 824 requires formal accusation for per diem allowance

U. S. v. Shields, 153 U. S. 88, 14 Sup. Ct. 735

distinguishedprecedent

Distinguished regarding mileage for continuous sessions vs. successive days before commissioner

U. S. v. McMahon, 13 C. C. A. 257, 65 Fed. 976

criticizedprecedent

Disagreed with regarding allowance of multiple per diems for same day attendance before one commissioner

U. S. v. Erwin, 147 U. S. 685, 13 Sup. Ct. 443

distinguishedprecedent

Cited for allowing per diem for commissioner and court attendance on same day, but not for multiple per diems before one commissioner

U. S. v. King, 147 U. S. 676, 13 Sup. Ct. 439

distinguishedprecedent

Cited for allowing per diem for clerk and deputy at different places, but not for multiple per diems before one commissioner

U. S. v. Smith, 158 U. S. 346, 352, 15 Sup. Ct. 846

followedprecedent

Cited for allowing per diem for court attendance without showing actual attendance

Related cases (7)

U. S. v. Patterson, 150 U. S. 65, 14 Sup. Ct. 20

precedent

Held that criminal charge requires formal written complaint

U. S. v. Stanton, 17 C. C. A. 475, 70 Fed. 890

precedent

Held section requires formal accusation for per diem allowance

U. S. v. Shields, 153 U. S. 88, 14 Sup. Ct. 735

precedent

Distinguished regarding mileage for continuous sessions

U. S. v. McMahon, 13 C. C. A. 257, 65 Fed. 976

precedent

Disagreed with regarding multiple per diems for same day

U. S. v. Erwin, 147 U. S. 685, 13 Sup. Ct. 443

precedent

Held per diem allowed for commissioner and court attendance on same day

U. S. v. King, 147 U. S. 676, 13 Sup. Ct. 439

precedent

Held per diem allowed for clerk and deputy at different places

U. S. v. Smith, 158 U. S. 346, 352, 15 Sup. Ct. 846

precedent

Held per diem allowed for court attendance without showing actual presence

Statutes

Rev. St. § 824 (per diem and mileage for examinations before judge or commissioner)
24 Stat. 505 (authority for special finding of facts)

Standards & doctrines

De novo review for statutory interpretation
Clearly erroneous review for factual findings

Legal principles applied

Statutory authority required for compensation of government officers
Precedent-based interpretation of Rev. St. § 824

Notable quotes

““the inquiry is never limited to the fact or character of services, but always extends to the statutory authority for compensation””

majority — Citing U. S. v. Patterson regarding statutory authority for per diem allowances

Emphasizes that entitlement to compensation depends on statutory authorization, not just service rendered

““a criminal charge, strictly speaking, exists only when a formal written complaint has been made against the accused, and a prosecution initiated””

majority — Quoting U. S. v. Patterson to define when a person is charged with crime under Rev. St. § 824

Key definition limiting per diem allowances to formal accusations

Index terms58

Summary terms

Legal mechanisms

Various actions

Various actors

Legal concepts

Legal outcomes

Legal issues

Legal procedures

Legal remedies

Legal evidence

Legal arguments

Legal defenses

Legal penalties

Legal procedural steps

Judges

Attorneys

Procedural terms

Entities and documentation

Legal actions

Action type

reversed and remanded

Target

trial court judgment on per diem allowances for preliminary examinations without formal accusation

Appealed from

Circuit Court of the United States for the Eastern District of Wisconsin

Context

Court reversed allowance of per diem for preliminary examinations under Rev. St. § 824, holding formal accusation required

Scope

in part

Further instructions

New judgment to be entered recalculating total allowance

Disposition vote

unanimous

Action type

affirmed

Target

trial court allowance of mileage for successive days before same commissioner

Appealed from

Circuit Court of the United States for the Eastern District of Wisconsin

Context

Court affirmed mileage allowance, finding it may be necessary unless necessity for next day's presence known before departure

Scope

full

Disposition vote

unanimous

Action type

reversed

Target

trial court allowance of multiple per diems for same day attendance before one commissioner

Appealed from

Circuit Court of the United States for the Eastern District of Wisconsin

Context

Court reversed allowance, holding Rev. St. § 824 does not authorize multiple charges for same day before one commissioner

Scope

in part

Further instructions

Item disallowed in new judgment

Disposition vote

unanimous

Action type

affirmed

Target

trial court allowance for court attendance without showing actual attendance

Appealed from

Circuit Court of the United States for the Eastern District of Wisconsin

Context

Court affirmed allowance based on U. S. v. Smith

Scope

full

Disposition vote

unanimous

Action type

affirmed

Target

trial court disallowance of expenditures for printing and stenographer's services

Appealed from

Circuit Court of the United States for the Eastern District of Wisconsin

Context

Court affirmed disallowance, as expenditures not shown proper and necessary

Scope

full

Disposition vote

unanimous

Action type

affirmed

Target

trial court disallowance of mileage for court attendance following commissioner attendance

Appealed from

Circuit Court of the United States for the Eastern District of Wisconsin

Context

Court affirmed disallowance, as travel not necessary if already present at same location

Scope

full

Disposition vote

unanimous

Action type

set aside and ordered new judgment

Target

trial court judgment total allowance

Appealed from

Circuit Court of the United States for the Eastern District of Wisconsin

Context

Court set aside judgment and ordered new judgment for $1,202.40 after reducing total by $578.40 due to errors

Scope

full

Further instructions

Enter new judgment in favor of Colman for $1,202.40

Disposition vote

unanimous

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