Naval Constructor Du Bose, July 30, 1908 (46 MS. Comp. Dec., 620); Naval Constructor Wright, July 31, 1908 (15 Comp. Dec., 63); and Passed Assistant Paymaster Williams, October 28, 1909 (16 Comp. Dec., 268).

These cases differ from the one under consideration in one important respect from the fact that in all of them the appointments were to new offices and not advancements from one rank to another in the same grade and office. They did not bring themselves within the provisions of the act of June 22, 1874 (18 Stat., 191), which provides:

"That on and after the passage of this act, any officer of the Navy who may be promoted in course to fill a vacancy in the next higher grade shall be entitled to the pay of the grade to which promoted from the date he takes rank therein, if it be subsequent to the vacancy he is appointed to fill."

The Auditor's action is disaffirmed, and the appellant will now be disallowed the difference between the pay and allowances of a lieutenant-commander which he received and those of a lieutenant from July 11, 1908, to July 18, 1908, inclusive, as follows:

Difference in pay, $4,290 and $3,432 per annum, for eight days__ $19. 07 Commutation of quarters, 1 room for eight days---

Total

Amount disallowed by the Auditor.

Difference

3.20

22.27

848.32

826.05

A difference is therefore found from the Auditor's settlement in favor of the appellant of $826.05.

EXPENSES OF OFFICE DEPUTY MARSHALS TRANSPORTING PRISONERS ARRESTED WITHOUT WARRANTS.

When office deputy marshals arrest, without warrants, offenders discovered in the act of operating illicit distilleries and transport the prisoners before a proper judicial officer, such deputies are entitled to reimbursement for the proper expenses actually and necessarily incurred in transporting such prisoners, including necessary guard hire, said expenses not to exceed the limitations prescribed by the act of February 19, 1909. (35 Stat., 640.)

Comptroller Tracewell to S. G. Victor, United States marshal, April 23, 1910.

I am in receipt of your letter of the 16th instant, as follows:

"I submit herewith for your decision, an account (together with certain correspondence relative thereto) of Office Deputy L. W. Early for expenses amounting to $15.06, incurred by him in the arrest of one S. G. Williams on the charge of operating an illicit distillery. I have refused to pay this account for the reasons, first, that the arrest was made without a warrant, thereby precluding the approval of the complaint by the district attorney, which is required by section 19 of the act of May 28, 1896; second, that the commissioner was without authority to issue a warrant in this kind of case without having first the approved complaint. The deputy claims that he should be reimbursed in the full amount and states as his reason therefor that the defendant was found and arrested in the act of illicit distilling."

The material facts in the case as gathered from the correspondence appear to be that the office deputy, while engaged in the service of civil process came upon an illicit distillery" in the mountains,” and, acting in accordance with what he believed to be his official duty, arrested one S. G. Williams, whom he caught in the act of operating the said illicit distillery, and immediately transported him before the United States commissioner at Hugo, Okla. The claim of the office deputy is for reimbursement of expenses incurred and paid by him arising immediately out of the arrest and transportation of the defendant, including guard hire. Section 9 of the act of March 1, 1879 (20 Stat., 341), provides:

"Where any marshal or deputy marshal of the United States within the district for which he shall be appointed. shall find any person or persons in the act of operating an illicit distillery, it shall be lawful for such marshal or deputy marshal to arrest such person or persons and take him or them forthwith before some judicial officer named in section one thousand and fourteen of the Revised Statutes."

Section 19 of the act of May 28, 1896 (29 Stat., 184), providing for the appointment of United States commissioners, reads in part as follows:

"Warrants of arrest for violations of the internal-revenue laws may be issued by United States commissioners upon

the sworn complaint of a United States district attorney, assistant United States district attorney, collector or deputy collector of internal revenue, or revenue agent, or private citizen, but no such warrant of arrest shall be issued upon the sworn complaint of a private citizen unless first approved in writing by a United States district attorney."

It has been decided that there is no repugnance existing between these statutes and that the latter did not either expressly or by implication repeal the former. (4 Comp. Dec., 339.) The act of 1879 is simply declarative of the common law, and gives the marshal and his deputies authority, when they come upon any person in the act of operating an illicit distillery, to arrest such offender and take him forthwith before a judicial officer to be dealt with according to law. The effect of the act of 1896 is to prescribe and limit the jurisdiction of United States commissioners in internalrevenue cases in the matter of the issuance of warrants.

It is well settled that a field deputy marshal who arrests an offender caught in the act of operating an illicit distillery, while not entitled to fees for the service of a warrant, where a warrant has not issued in accordance with the requirements of the act of 1896, is nevertheless entitled to mileage for self, prisoner, and necessary guard, from the place in his district where the arrest is made to the place where the nearest commissioner in his district resides, when the field deputy actually transports the prisoner before such commissioner. (4 Comp. Dec., 448; id., 672.)

The construction placed upon the acts of 1879 and 1896, in the decisions cited, is therefore to the effect that a field deputy marshal has authority to arrest an offender caught in the act of operating an illicit distillery, which arrest may be made without warrant, and is entitled to mileage transporting the prisoner before the nearest United States commissioner, or to expenses in lieu thereof, but to no other fees for services rendered at the time or subsequently in the case, unless a warrant duly issues in conformity to the act of 1896.

The status of an office deputy marshal is practically the same as that of a field deputy marshal so far as the authority to make arrests is concerned, but the former is not entitled to any share of fees or mileage, he being allowed instead his actual traveling expenses only, and his necessary and actual

expenses for lodging and subsistence, not to exceed $3 per day, and the "necessary actual expenses in transporting prisoners, including necessary guard hire," when engaged in the service of process, or "when necessarily absent from the place of his regular employment on official business,” as provided by the act of February 19, 1909. (35 Stat., 640.) For his official services an office deputy receives a fixed annual salary.

In view of the foregoing, I am of opinion that you are authorized to reimburse Office Deputy Early for the proper expenses actually and necessarily incurred and paid by him in transporting the prisoner before the nearest United States commissioner in his district, including necessary guard hire, said expenses not to exceed the limitations prescribed by the. act of February 19, 1909, supra, it being understood that said prisoner was caught in the act of operating an illicit distillery in said district and was thereupon arrested by the deputy for that offense without a warrant and forthwith transported as described.

EXPENDITURES INCURRED BY DEPARTMENTAL CLERK IN OBEYING SUBPŒNA ISSUED BY UNITED STATES DISTRICT COURT.

Expenditures incurred by a departmental clerk in obeying a subpœna issued by a district court of the United States are properly chargeable to the appropriation “Fees of witnesses, United States courts," act of March 4, 1909 (35 Stat., 1015), when it is shown that said clerk was summoned for no other purpose than that of an ordinary witness.

Comptroller Tracewell to W. L. Soleau, disbursing clerk, Department of Commerce and Labor, April 27, 1910.

I am in receipt of your letter of the 21st instant, as follows:

"I transmit herewith voucher of J. Henri Wagner, a clerk in the division of naturalization of this department, in the sum of $2.20, covering expenditures made by him in answering a subpoena issued by the district court of the United States for the district of New Jersey in connection with an

action before the grand jury of that court growing out of information furnished by a naturalization examiner to the United States district attorney for that district.

"I will thank you to advise me whether these expenses are properly payable from the appropriation Special examiners, etc., division of naturalization, 1910,' or from the appropriation for fees to witnesses under the control of the Department of Justice."

The facts show that the subpoena referred to was addressed to the chief of the division of naturalization, Department of Commerce and Labor, Washington, D. C., and was issued for the purpose of securing the production before the grand jury of a certain "duplicate declaration of intention" on file in the department; and that Mr. Wagner, a clerk of class 4 in the department at Washington, was directed to attend in answer to this subpoena, which he did, and in doing so he incurred the expenses in question.

It does not appear that Mr. Wagner officially investigated or found out and developed the facts (16 Comp. Dec., 411) upon which the case before the grand jury was predicated, or that it was his official duty under the law or the regulations to aid in the prosecution of this case. In fact, there is nothing to show that this departmental clerk attended otherwise than in the character of an ordinary witness under section 850, Revised Statutes. This section provides for the payment of the necessary and proper expenses of “any clerk

* of the United States * * * sent away from his place of business as a witness for the Government."

I am of opinion that these expenses within the limitations of section 850, Revised Statutes, are properly chargeable to the appropriation "Fees of witnesses, United States courts," act of March 4, 1909 (35 Stat., 1015), which appropriation provides for "fees of witnesses and for payment of the actual expenses of witnesses, as provided by section 850, Revised Statutes," and are payable by the United States marshall for the district of New Jersey upon the order of the court.

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