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the commissioner to forward the papers with a transcript after the close of the examination, so unless the return of the unexecuted warrant constitutes an examination, such cases do not come within the order, or the fee bill.

The examination referred to is evidently the preliminary examination, i. e., “hearing and deciding on criminal charges,” and it is clear that such examination can not be had prior to the arrest and production of the defendant before the commissioner, and indeed there can be no such examination at any time unless the defendant be actually present before the commissioner when it is had. (Fiske's case, 10 Comp., Dec., 294.)

In Fiske's case (8 Comp., Dec., 760), fees were allowed for transcripts in cases wherein warrants of arrest had not been executed, but the rules of court on which they were allowed were much more comprehensive and specific than the rule or order in this case, in that they required commissioners to add to the transcript "a statement of all the fees accruing in the case, including his own fees" (761), and that they should make return of their doings "in all cases where defendants were not arrested or were discharged upon hearing" (762).

I do not think the rule quoted in this case is broad enough to imply "transcripts" in cases wherein defendants have never been arrested, and the Auditor's disallowance of the fees set out in item 2, supra, is also affirmed.

With respect to item 3, supra, I have reached a different conclusion. The proceeding against Stevens was brought under section 727 of the Revised Statutes, which provides:

"The judges of the Supreme Court and of the circuit and district courts, the commissioners of the circuit courts, and the judges and other magistrates of the several States who are or may be authorized by law to make arrests for offenses against the United States, shall have the like authority to hold to security of the peace, and for good behavior, in cases arising under the Constitution and laws of the United States, as may be lawfully exercised by any judge or justice of the peace of the respective States, in cases cognizable before them."

The commissioner's jurisdiction is not questioned, the only question being as to the legality of the per diems and other fees disallowed by the Auditor.

It appears that the threats by the defendant were made and the offense committed on the Oneida Indian Reservation, which is in the eastern district of Wisconsin and in charge of

an Indian agent. Also that the defendant when arrested and brought before the commissioner pleaded not guilty, whereupon the trial was gone into, and May 12 consumed in hearing witnesses for the prosecution, when, at the instance of the defendant the case was continued to May 19, when his (defendant's) witnesses were examined, the cause concluded and the defendant required to enter his bond, with sureties, to keep the peace, which he did.

These proceedings were in strict conformity with the statutes of Wisconsin (secs. 4820, 4821, 4822, 4823, Sanborn & Berryman Annotated Statutes, vol. 2, pp. 2377, 2378). Section 4825 of these statutes provides that if, upon examination, it shall not appear that there is just cause for complaint, the party complained of "shall be forthwith discharged, and if the magistrate shall deem the complaint unfounded, frivolous, or malicious, he shall order the complainant to pay the costs of prosecution," and section 4826, same statutes, provides that in other cases, "when no order respecting the costs is made by the magistrate, they shall be allowed and paid in the same manner as costs in criminal prosecutions;" No such order appears to have been made by this commissioner in the case in which the fees are now claimed, therefore they are payable in the same manner as are fees in other criminal cases heard and decided by him.

* * *

* *


Under the facts and the law, as I understand them, claimant is entitled to the per diems and other fees set out in said item 3, supra, and Auditor's disallowance thereof is overruled.


Where an officer of the Marine Corps was ordered by the Navy Department to report for duty on the U. S. S. Dirie, with the Panama marine brigade, subsequent orders by the brigadier-general of the corps appointing him chief surgeon in the provisional brigade, and ordering him to proceed in the steamer Dixie as a passenger to Panama and there join the brigade, did not have the effect of placing him in the status of a traveler so as to entitle him to reimbursement of traveling expenses while performing said travel.

(Decision by Assistant Comptroller Mitchell, July 22, 1904.)

L. W. Spratling, surgeon, U. S. Navy, appealed, July 2, 1904, from the action of the Auditor for the Navy Depart

ment in disallowing, in settlement dated June 4, 1904, his claim for reimbursement of cost of subsistence as an expense of travel while on board the U. S. S. Dixie, December 28, 1903, to January 7, 1904.

The Auditor disallowed the claim for the reason, stated by him, that

"His orders were to report to the commandant, League Island Navy-Yard, for duty on board the U. S. S. Dixie, with the Panama marine brigade."

Surgeon Spratling's orders, dated December 23, 1903, from the Navy Department, were as follows:

"You are hereby detached from special temporary duty at the naval laboratory, Brooklyn, N. Y., and from such other duty as may have been assigned you; will proceed without delay to League Island, Pa., or to such other port as the U. S. S. Dixie may be, and report to the commandant of the navy-yard at that place for duty on board that vessel with the Panama marine brigade."

He reported to the commandant of the navy-yard December 26, 1903, who ordered him to report to the commanding officer, marine barracks; upon reporting there he was ordered to report to Lieut. Col. L. W. T. Waller; he reported to Lieutenant-Colonel Waller the same day and by an order dated "Headquarters Second Regiment Marines, U. S. S. Dirie, December 26, 1903," was ordered to report to the brigadier-general, United States Marine Corps, and upon reporting to the brigadier-general he received the following order:


'Headquarters provisional brigade United States marines. Reported for duty. Is hereby appointed chief surgeon, provisional brigade, United States marines, and will proceed in the U. S. S. Diarie, as passenger, to Colon, Panama, and there join the brigade."

I am of opinion that under these orders Surgeon Spratling was not in the status of a traveler while on the Dixie. He was ordered by the Navy Department to the Dirie for duty on board that vessel with the Panama marine brigade.

General Elliott's order of December 27, 1903, shows that he reported for such duty, and he remained on the Dirie with the marines until he disembarked January 7, 1904.

I do not think the order of the Brigadier-General Commandant to the claimant to proceed as a passenger had the

effect to entitle him to travel expenses. His orders from the Navy Department called for duty on board the U. S. S. Dixie with the marine brigade, which required the performance of the services which belong to an officer of the Medical Corps. This order fixed his status as that of an officer on duty and not a traveler. The travel was incident to the duty with the brigade just as travel is incident to all sea service, but does not entitle the officer to travel expenses unless he is there for travel merely-in other words, in the status of a traveler. The action of the Auditor is affirmed.


There is no provision of law authorizing enlisted men of the Marine Corps to deposit any part of their pay with a corps paymaster and to receive interest thereon.

(Assistant Comptroller Mitchell to Lieut. Col. George E. Richards, assistant paymaster, Marine Corps, July 22, 1904.)

I have received through the Secretary of the Navy your letter of May 9, 1904, in which you state as follows:

"I have the honor to state that the accounts of Private Andrew David, U. S. Marine Corps, serving at the marine barracks, navy-yard, Mare Island, Cal., are before this office for final settlement upon his discharge from the service by reason of expiration of enlistment to take place on June 18, 1904. Accompanying the usual papers in this case the commanding officer of the above-named barracks forwards deposit book No. 28873, issued to the above-named man by this office on December 5, 1903, and which contains the following, viz: "MARINE BARRACKS, NAVY-YARD,

"Mare Island, Cal., December 5, 1903. "Received this day from Private Andrew David, U. S. M. C., for deposit under act of Congress approved February 9, 1889, sections 1305, 1306, and 1612, R. S., fifty and 00 100 dollars.

“Approved. (Sgd.)



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P. C. POPE,,

Colonel, U. S. M. C., Commanding Officer.


28007-Vol. 11-05-3

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"On the discharge of Private Andrew David on June 18, 1904, the accrued interest on the sum he has deposited, at the rate stated, will be in the amount of one dollar and eight cents. As the propriety of the payment of this item is not free from doubt, the undersigned respectfully requests the opinion of your Office as to whether the sum of one dollar and eight cents heretofore described as interest, together with the sum of fifty dollars principal, in addition to such sums as may be due from other sources, may be lawfully paid to the said Private Andrew David, U. S. Marine Corps, upon his discharge from the service on June 18, 1904."

The answer to the question presented depends upon whether or not there is any law authorizing the deposit by enlisted men of the Marine Corps of any part of their pay and the payment to them of interest thereon, as is provided for enlisted men and appointed petty officers of the Navy by the act of February 9, 1889 (25 Stat., 657), and for enlisted men of the Army by sections 1305, 1306, 1307, and 1308 of the Revised Statutes.

At the request of this Office this question was submitted by the Secretary of the Treasury to the Attorney-General and in response he has given his opinion, dated July 12, 1904, as follows:

"Your letter of May 24, 1904, presents the question whether an enlisted man of the Marine Corps has the right or privilege of making deposits with a paymaster of the Marine Corps.

"The answer to this question depends upon the applicability to the Marine Corps of sections 1305-1308 of the Revised Statutes of the United States, as amended by the act of March 3, 1883, chapter 93 (22 Stat., 456), which provide:

"SEC. 1305. Any enlisted man of the Army may deposit his savings, in sums not less than five dollars, with any Army paymaster, who shall furnish him a deposit book, in which shall be entered the name of the paymaster and of the soldier, and the amount, date, and place of such deposit. The money so deposited shall be accounted for in the same manner as other public funds, and shall pass to the credit of the appropriation for the pay of the Army, and shall not be subject to forfeiture by sentence of court-martial, but shall be forfeited by desertion, and shall not be permitted to be paid until final payment on discharge, or to the heirs or representatives of a deceased soldier, and that such deposit be exempt from liability for such soldier's debts: Provided, That the Government shall be liable for the amount deposited to the person so depositing

the same.

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