United States v. Tanner/Opinion of the Court

by Henry Billings Brown

United States Supreme Court

147 U.S. 661

United States  v.  Tanner

This is a claim by a marshal for travel fees in serving warrants of commitment to a penitentiary. The claim is made under that clause of Rev. St. § 829, which allows '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, 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.' An allowance had already been made to petitioner under another clause of section 829, 'for transporting criminals, ten cents a mile for himself, and for each prisoner and necessary guard.' The effect of the allowance would be to give the marshal 16 cents per mile for his own travel for going from the place where the court is held to the penitentiary. The delivery of a warrant of commitment to a warden of a penitentiary is in no sense a service of a process, warrant, attachment, or other writ, within the meaning of the clause first above cited. The word 'process,' as used in that clause, evidently refers to process for bringing persons or property within the jurisdiction of the court, and not to warrants of commitment, by virtue of which criminals are transported from the court to the place of commitment. This is evident, not only from the inclusion of 'writs of subpoena in criminal or civil cases,' but from the provision that, 'where more than one person is served therewith,' travel is allowed 'to the place of service which is most remote, adding thereto the extra travel which is necessary to serve it on the others.' If a warrant of commitment can be said to be served at all upon any person, it is upon the criminal himself, who is transported by authority of such process, rather than upon the jailer, with whom it is simply deposited, and the fees of the marshal therefor are manifestly covered by the allowance for the travel of himself, his prisoners, and guards. Not only does the transportation of a prisoner imply a travel in company with him, but section 829 expressly allows a fee of fifty cents for 'every commitment * * * of a prisoner,' which implies the deposit of a warrant of commitment with the jailer. In some jurisdictions the prisoner is committed and held under a certified copy of the sentence, and no commitment at all is used.

This question was not involved in the decision of this court, or of the court below, in the case of U.S. v. Harmon, 147 U.S. 268, 13 Sup. Ct. Rep. 327, 43 Fed. Rep. 560.

If it were a question of doubt, the construction given to this clause prior to October, 1885, might be decisive; but, as it is clear to us that this construction was erroneous, we think it is not too late to overrule it. U.S. v. Graham, 110 U.S. 219, 3 Sup. Ct. Rep. 582; Swift Co. v. U.S., 105 U.S. 691. It is only in cases of doubt that the construction given to an act by the department charged with the duty of enforcing it becomes material.

The judgment of the court below must, therefore, be reversed, with directions to dismiss the petition.

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