ent writs issued out of a court), is entitled to two or more mileages in such cases as the following:

(1) When he serves two or more writs of capias on the same person accused of different crimes or offenses;

(2) When he serves two or more of such writs on different persons separately charged or indicted;

(3) When he serves such writ of capias on one person, and a subpœna for one or more witnesses to testify in the case against him;

(4) When he serves such writ of capias on one person, and a subpœna for one or more witnesses to testify in a criminal case wherein another person is charged with a crime.

DECISION BY WILLIAM LAWRENCE, First Comptroller.

The questions presented for decision require a construction of sections 823, 829, and 877 of the Revised Statutes, and also of the act of February 22, 1875 (18 Stat., 334, sec. 7). Said section 829 of the Revised Statutes gives a marshal fees, as follow:

For travel in going only, to serve any process, warrant, attachment, or other writ, including writs of subpæna 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, or, when more than one person is served therewith, to the place of service which is most remote, adding thereto the extra travel which is necessary to serve it on the others. But when more than

two writs of any kind required to be served in behalf of the same party on the same person might be served at the same time, the marshal shall be entitled to compensation for travel on only two of such writs; and to save unnecessary expense it shall be the duty of the clerk to insert the names of as many witnesses in a cause in such subpœna as convenience in serving the same will permit. *

Section 877 provides that—

Witnesses who are required to attend any term of a circuit or district court on the part of the United States, shall be subpoenaed to attend to testify generally on their behalf, and not to depart the court without leave thereof, or of the district attorney; and under such process they shall appear before the grand or petit jury, or both, as they may be required by the court or district attorney.

In the subpœna case (2 Lawrence, Compt. Dec., 2d ed., 287) it was decided, as to plural subpœnas for witnesses, that—

The marshal is entitled to but one mileage for all Government witnesses served in one locality or direction at the same time, no matter how many writs of subpoena he may have, or what may be their form. In the same case (Id., 300) it was said that

The act of February 22, 1875 [18 Stat., 334, sec. 7], does not change the rate or mode of computing mileage on writs served by marshals. It prohibits both constructive mileage on writs transmitted to and served by Deputy Marshals, and mileage for travel not necessarily performed.

In United States v. Ralston, tried in the Circuit Court of the United States for the Western District of Virginia, September Term, 1883 (17 Federal Reporter, 895; s. c., 4 Lawrence, Compt. Dec., 507), the question was presented whether a Marshal was entitled to mileage, as follows:

"Item 46. Forty-two miles to Tazewell County, to serve subpœna in United States v. Wallace, disallowed [by the First Comptroller]; the same travel being charged to arrest in the same trip."

Hughes, J., in deciding this question, referred to the decision made by the First Comptroller in Subpoena case (2 Lawrence, Compt. Dec., 2d ed., 286), and said that:

"Although this particular decision of the Comptroller referred only to plural subpoenas for witnesses, it, in principle embraces the disallowance 46 (cited above as an example), and inhibits the charge for mileage in serving a subpoena in any case where, at the same time and in the same journey, mileage has been charged for serving a writ of arrest.

"I am free to say that I entirely concur in the views of the Honorable Comptroller in the decision referred to, so far as it relates to double mileages in cases embraced by the terms of the act of 1875."

And the learned judge cites the act of February 22, 1875 (18 Stat.,. 334, sec. 7) as prohibiting "all duplicate charges of mileage for the same journey." As to the same act the Acting Attorney-General (15 Op. Att. Gen., 109) said that:

"Under this act, in my opinion, there can be but one charge for mileage upon several writs (subpoenas, &c.), in hand at the same time, requiring a marshal to travel to the same place or in the same direction. If a marshal have in hand several writs (subpoenas, &c.) against the same person or different persons living at A, he will charge mileage but once. If he have several writs, &c., against different persons living at either A, B, or C, which are (say) in the same direction, he will charge one mileage only to A, one mileage from A to B, and one mileage from B to C.

No matter how many precepts a marshal may have in his hands requiring him to go to the same place, or in the same direction, he makes but one actual and necessary travel in serving them; for instance, in the second case above the marshal made one actual and nine constructive travels. The act of 1875 puts an end to the notion that the latter are performances for which the marshal is to be compensated."

The principle thus decided by the learned judge, and held by the Acting Attorney-General is, that, within the purpose and meaning of the act of February 22, 1875 (18 Stat., 334, sec. 7), a marshal with several writs in his hands at the same time, in the same or in different cases, requiring him to go to the same place, or in the same direction, makes but one actual and necessary travel in serving them, and, so, is entitled to but one mileage. By a proviso in the first section of the act of June 16, 1874 (18 Stat., 72), it was enacted:

"That only actual traveling expenses shall be allowed to any person holding employment or appointment under the United States, and all allowances for mileage and transportation in excess of the amount actually paid are hereby declared illegal.

This enactment was held to apply to marshals, and, therefore, to supersede the provision in section 829 of the Revised Statutes allowing mileage to those officers (14 Op. Att.-Gen., 681; 16 id., 166).

But, subsequently, by the seventh section of the act of February 22, 1875 (18 Stat., 334), Congress declared:

"That the proviso in [the act of June 16, 1874, cited above] shall not be construed to apply or to have applied to attorneys, marshals, or clerks of courts of the United States, their assistants or deputies. And from and after the first day of January, eighteen hundred and seventy-five, no such officer or person shall become entitled to any allowance for mileage or travel not actually and necessarily performed under the provisions of existing law." (16 Op. Att.-Gen., 166.)

This latter clause of the act of February 22, 1875 (18 Stat., 334, sec. 7), was, thus, clearly intended to impose a limitation on charges for mileage as previously made under section 829 of the Revised Statutes, and especially on charges for all constructive mileage-that is, for travel never, or not necessarily, performed.

When a Marshal with several writs in his hands travels in one direction to serve one of them on the most remote person to be served, it cannot be said that there is any travel "actually and necessarily performed" for serving the others on persons residing at intermediate points along the route. Such Marshal must go to each of the intermediate points in order to reach the most remote person served. The travel, as to the persons served at such points, is entirely constructive, as much so as if the writs were respectively delivered to the Marshal at the intermediate places of service. The same reason and policy which deny the right to constructive mileage on writs sent by mail, equally apply when the writs are served at intermediate points on a trip to serve one at a more remote point. Charges for constructive travel for reaching such intermediate points are as much of an abuse as charges for constructive travel on writs sent by mail. To say that Congress intended to prohibit the latter abuse, but not the former, is, by construction, to limit, beyond the reasonable effect of its words, the operation of a beneficial statute-which is entitled to a liberal construction to effect its object-and is to create a distinction without any difference in principle or purpose. The evil to be remedied and the mischief to be suppressed by the act of February 22, 1875 (18 Stat., 334, sec. 7), were the charges for travel never in fact performed, or not necessarily performed, in serving writs. In Lyde v. Barnard (1 M. & W., 114) it is said that "we must always construe an act so as to suppress the mischief" (Potter's Dwarris, Stat., 185; Hart v. Cleis, 8 Johns., 44; Sedgwick, Construction Stat. and Const. L., 2d ed., 308). Bishop (Written Laws, 192) says that

"The law loves honesty and fair-dealing, so construes liberally statutes to suppress frauds, as far as they annul the fraudulent transaction; and, generally, it employs a liberal interpretation for such written laws as operate beneficially for those whom they immediately concern." See Prescott v. Otterstatter (85 Pa. St., 534).

If the right to such constructive mileage can be said to be doubtful, the statute is to be construed against it. Statutes giving costs, or fees as costs, are, because in derogation of the common law, to be strictly construed (Contempt case, ante, page 255; Meigs's case, 4 Lawrence, Compt. Dec., 628).

The court in taxing costs can make an apportionment of the mileage for serving several writs on one travel in the same direction, so as to do justice to all parties.

The subpana case (2 Lawrence, Compt. Dec., 2d ed., 286) did not involve the precise question or questions presented in this case. The principle decided in that case is, however, substantially the same as that now established. Nothing said in that case is in conflict with the rule applied in this case.

On the several writs in the hands of a Marshal at the same time, requiring him to go to the same place or in the same direction, only one mileage will be allowed. This rule will be applied in all cases, commencing with the current fiscal year, and in all cases in which Marshals have not paid deputies plural mileages under, and on the faith of, any prior usage.

TREASURY DEPARTMENT,

First Comptroller's Office, July 14, 1884.

IN THE MATTER OF THE STATEMENT OF THE ACCOUNTS OF THE DISBURSING CLERK OF THE POST-OFFICE DEPARTMENT, AND OF THOSE OF THE SAME PERSON AS SUPERINTENDENT OF THE POST-OFFICE BUILDING.—BURNSIDE'S CASE.

1. The First Auditor has jurisdiction of all accounts not specifically, or by reasonable inference, assigned by statute to some other Auditor. Sister Elizabeth's case (2 Lawrence, Compt. Dec., 2d ed., 120) followed and approved.

2. The accounts of the disbursing clerk of the Post-Office Department, for disbursements of appropriations to pay salaries of officers and employés in the Post-Office Department, are to be settled by the First Auditor and First Comptroller; the accounts for disbursements of contingent expenses in said Department are to be settled by the Fifth Auditor and First Comptroller.

3. The practice stated, as to advances of public money to the disbursing clerk of the Post-Office Department, and as to requisitions therefor.

4. Section 3622 of the Revised Statutes recognizes, and, so, requires, an examination by proper authority in the Post-Office Department, of the monthly accounts, and vouchers in support thereof, of the disbursing clerk of said Department, before they "shall be passed to the proper accounting officer of the Treasury [Department] for settlement."

5. The [Sixth] Auditor of the Treasury for the Post-Office Department has the sole authority to settle and adjust the accounts of the Superintendent of the PostOffice building for waste paper and other old materials sold by him; to certify a balance against him in favor of the United States; and to superintend the collection of the same.

6. The effect of the account so settled, when offered as evidence in court, considered. 7. The Postmaster-General has authority to devolve on the Superintendent of the Post-Office building the duty of selling waste paper and other old material.

8. Sections 161, 183, 193, 236, 273, 277, 292, 293, 298, 317, 362, 368, 369, 371, 388, 397, 444, 651-656, 666, 1241, 3618, 3622, 3648, 3660–3665, 3668, 3669, 3672-3674, 3677, 3692, 4050, of the Revised Statutes examined and construed.

February 2, 1875, James O. P. Burnside, having been appointed disbursing clerk of the Post-Office Department, and Superintendent of the Post Office building, gave bonds to the United States with H. M. Hutchinson, Wm. Rutherford, E. C. Ingersoll, Wash. B. Williams, and John Coughlin, as sureties, in a penalty of $40,000, conditioned as follows:

"If the said James O. P. Burnside shall, truly and faithfully, execute and discharge all the duties of said office of Superintendent of the PostOffice building and disbursing clerk according to the laws of the United States, and shall truly and faithfully keep safely, and disburse and pay out all sums of public money placed in, or coming into his hands, from time to time, without loaning, using, depositing in bank, or exchanging for other funds than as by law allowed, and shall do and perform all other duties as Superintendent of the Post Office building and disbursing clerk which may be imposed on him by any act of Congress, or by any regulation of the Post Office Department, made in conformity to law, then this obligation to be void and of none effect; otherwise it shall abide and remain in full force and virtue."

October 2, 1875, said Burnside gave another bond of like tenor and effect in a penalty of $40,000, with H. M. Hutchinson, N. S. Jeffries, and E. C. Ingersoll, as sureties. May 28, 1884, Burnside was removed from said office. June, 1884, on the settlement, in the office of the First Comptroller, of the accounts of the said disbursing clerk, to May 28, 1884, it was ascertained that he was in arrears to the United States in the sum of $45,734.63, the deficiency commencing in the calendar year 1882, and continuing up to the time of his removal. During each year Burnside was in office, he, as Superintendent of the Post-Office building, in pursuance of a long continued usage approved by the Postmaster-General (Rev. Stat., Sec. 161), sold waste paper and other old material (Rev. Stat, Sec. 3618, 3672, 3692, 4050). No account was kept in the Post Office Department of such sales, or of the moneys deposited in the Treasury and arising therefrom, unless it were kept by said Burnside, and, if so, it cannot be found.

A statement, made up in the Post-Office Department from original sources of evidence as nearly correct as practicable, shows Burnside to be in arrears on account of such sales and deposits to the amount of $29,649.45, the deficiency commencing in November, 1876, and increas ing each year since.

June 28, 1884, the Postmaster General addressed a letter to the Secretary of the Treasury, requesting "that the account of J. O. P. Burnside, late disbursing clerk and superintendent * be charged

in the sum of $29,312.63, for old material, waste paper, &c., sold, which he has failed to account for, as per statement enclosed herewith." This letter was informally submitted to the First Comptroller for an opinion.