Counsel for Appellee.

granted and bail taken by commissioner. His power to render such service is admitted. It is recognized that a commissioner exercises functions of the highest importance to the administration of justice. His powers are fixed by law and enumerated by Mr. Justice Field in United States v. Schumann, 2 Abb. (U. S.) 523.

The payment of the commissioner is by prescribed fees and only such fees can be paid for services.

It is not contended that for "hearing and deciding" the commissioner must be employed the whole of one day, but if he hears and decides a number of cases on the same day, payment can only be allowed for one. It therefore follows that the payment is not only intended for the service, but that the "time actually employed" is an element to be considered.

The construction given to a statute by the executive or accounting officers has been held by this court to be entitled to respect. It appears that on this subject there was conflict of opinion. The views of the accounting officers of the treasury were overruled by Assistant Secretary Otto. For a number of years payments were made in accordance with his decision. Since 1883 the accounting officers have required proof of the character of the service before making payments. The construction given by executive officers has, it will be seen, not been uniform.

To evade the construction of the law as given by the accounting officers, the present suit was brought in the Court of Claims without any demand having been made on the treasury. The case was decided by the court below in favor of claimant as coming within the decision in Harper's Case, 21 C. Cl. 56. That case has not been reviewed by this court. Attorney General Black, 9 Opinions Attys. Gen. 170, 171, says: "It is plain to me that examination of the person charged means investigation of the case."

It is submitted that the words "hearing and deciding on criminal charges" do not include taking "bail" and "continuing" cases.

Mr. George A. King for appellee.

Opinion of the Court.

MR. JUSTICE LAMAR, after making the foregoing statement of facts, delivered the opinion of the court.

A brief reference to the powers and duties of a commissioner, as an examining and committing magistrate, will be sufficient to dispose of the only question presented by this appeal. Section 1014 of the Revised Statutes of the United States provides that, "for any crime or offence against the United States, the offender may, by any commissioner of the Cirbe arrested and imprisoned,

cuit Court to take bail,

or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offence. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case," etc.,

etc.

By section 1015 it is further provided that "bail may be admitted" by such commissioner "upon all arrests in criminal cases where the offence is not punishable by death."

By section 1982 such commissioners are vested with the power to institute proceedings against persons violating any of the provisions of chapter seven of the Title "Crimes."

Section 1983 provides for the increase of the number of commissioners "so as to afford a speedy and convenient means for the arrest and examination of persons charged with the crimes referred to in the preceding section."

By section 1984 these officers are vested with other important powers; and by section 1985 every marshal and deputy marshal is required to obey and execute all warrants or other process that the commissioners may issue in the lawful performance of their duties.

By other sections numerous duties of a purely clerical and ministerial character are attached to this office. The compensation of a commissioner is clearly prescribed and classified by section 847 of the Revised Statutes according to the character of the services performed. For acts purely clerical and ministerial, such as administering oaths, taking acknowledgments, taking and certifying depositions to file, or furnishing a copy

Opinion of the Court.

of the same, specific fees are provided, and for issuing writs or warrants or other services he has the same compensation as is allowed to clerks for like services. For acts not merely clerical, but which are performed by the commissioner in his judicial capacity, his fees are regulated on a basis of per diem compensation. Among the provisions of this kind is the one upon which this controversy has arisen, viz.: "For hearing and deciding on criminal charges, five dollars a day for the time necessarily employed."

It is admitted that from March 12, 1884, to June 20, 1888, the period covered by the claim in dispute, there came before the appellee, in his capacity as commissioner, on eleven different days, eleven separate cases to be heard and decided against various persons, each charged with a crime against the laws of the United States; that in four of these cases he heard and decided motions upon bail, and the sufficiency thereof; and in the other seven motions for continuance were heard and decided by him.

There can be but one answer, in our opinion, to the question whether the commissioner should be allowed a fee of five dollars a day for his services on those eleven days. The decision, upon a motion for bail and the sufficiency thereof, is a judicial determination of the very matter which the statutes authorize and require him "to hear and decide," to wit, whether a party arrested for a crime against the United States, when brought before him for examination, shall be discharged, or committed on bail for trial, and in default thereof imprisoned. With respect to motions for continuance, the granting or refusal of them is unquestionably a necessary incident to, and a part of, the hearing and determining of criminal charges; and the exercise of that power in such criminal proceedings is indispensable to the right of the accused to have a fair and full investigation of the offence charged against him and to a sufficient time for the summoning of his witnesses as well as for employing and consulting with counsel to aid him in his defence.

It is contended by the Assistant Attorney General that the per diem fee in such case is not only intended for the service specified, but that the "time actually employed is also an ele

Counsel for Parties.

ment to be considered." A sufficient answer to this objection is furnished in the findings of the court below that the account of the commissioner for the fees charged for the services in question was verified by oath and presented to the United States court of which he was the commissioner, in open court, in the presence of the district attorney, approved by the court, and an order, approving the same as being in accordance with law and just, was entered upon the records of the court. The approval of a commissioner's account by a Circuit Court of the United States, under the act of February 22, 1875, 18 Stat. 333, is prima facie evidence of the correctness of the items of that account; and in the absence of clear and unequivocal proof of mistake on the part of the court it should be conclusive.

We think the authorities cited by the attorney for the appellee in support of the claim in question are directly in point. The judgment of the Court of Claims is

Affirmed.

IN RE THE LOUISVILLE UNDERWRITERS,

Petitioners.

ORIGINAL.

No. 8. Original. Argued March 10, 1890. — Decided March 31, 1890.

The provision of the Act of March 3, 1887, c. 373, § 1, 24 Stat. 552, that "no

civil suit" shall be brought before a Circuit or District Court against any person in any other district than that of which he is an inhabitant, does not apply to cases in admiralty.

A libel in admiralty in personam may be maintained against a corporation in any district by service there upon an attorney appointed by the corporation, as required by the statutes of the State, to be served with legal process.

THIS was a petition for a writ of prohibition. The case is stated in the opinion.

Mr. J. R. Beckwith for the petitioners.

Mr. O. B. Sansum opposing.

Opinion of the Court.

MR. JUSTICE GRAY delivered the opinion of the court.

This is a petition by a corporation of the State of Kentucky for a writ of prohibition to the judge of the District Court of the United States for the Eastern District of Louisiana, to prohibit him from entertaining jurisdiction of a libel in admiralty in personam, filed April 23, 1889, by the Natchez and New Orleans Packet and Transportation Company, also a corporation of Kentucky, against the petitioner, "in a cause of contract civil and maritime," upon a policy of insurance by which the petitioner insured against perils of the seas and rivers and other perils a steamboat of the libellant employed in the navigation of the Mississippi River.

By the public statute of Louisiana of February 26, 1877, c. 21, no insurance company organized under the laws of any other State shall take risks or transact any business through an agent in Louisiana, without having filed in the office of the secretary of State a certified copy of a vote of its directors, appointing such an agent there to transact business and to take risks, accompanied by a warrant of appointment from the company, containing an express consent that service of legal process on him shall be as valid as if served on the company.

By a copy of the record of the proceedings in the District. Court, annexed to the return to the rule to show cause why a writ of prohibition should not issue, it appears that the libellee had filed with the secretary of State of Louisiana a copy of a vote of its directors, as well as a warrant of appointment, appointing William M. Railey its attorney at New Orleans, as required by the statute of Louisiana; that the policy sued on was signed by the libellee's president and secretary at Louisville in the State of Kentucky, was not to be binding until countersigned by its authorized agent at New Orleans, and was countersigned by Railey; that a citation to the libellee was issued by the District Court, and served by the marshal upon Railey in person; that a motion to quash the libel, and an exception to it, upon the ground, among others, that neither party was an inhabitant of the Eastern District of