had a right to resist by force, using no more than was necessary to resist the unlawful acts of the officer; an officer who acts under a void precept and a person doing the same act who is not an officer stand on the same footing; and any third person may lawfully interfere to prevent an arrest under a void warrant, doing no more than is necessary for that purpose.' It is noted that the marshal in his appeal claims that these "John Doe" warrants are legal writs under the Alabama "prohibition" statutes and practice. In this connection especial attention is called to a further expression of opinion by Justice Gray in the above decision, as follows: "The fourth article of amendment of the Constitution of the United States declares that the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.' "The provision of section 1014 of the Revised Statutes, which authorizes an offender against the laws of the United States to be arrested and imprisoned or bailed, by a judge of the United States or a commissioner of the circuit court, in any State where the offender may be found, and agreeably to the usual mode of process against offenders in such State,' is necessarily subordinate to the declaration of the Constitution that all warrants must particularly describe the person to be seized." In view of the above I am of opinion that the "John Doe" warrants which the office deputies in the present case were "endeavoring" to serve were not legal or valid writs, but were in fact nullities, and I am inclined to think that the deputies, so far as any strictly legal claim to reimbursement for expenses incurred on these raiding trips is concerned are in no better position than they would be if no such papers were in their hands. While the above indicates my views on the general proposition presented by this appeal, and should serve to put an end to the issuance of these illegal warrants and their use as a basis for deputies' claims to expenses while traveling on such papers " endeavoring" to arrest persons whose names or descriptions are unknown at the time to the deputies, still there is an element or feature in the present case that SERVING JOHN DOE WARRANTS. 895 should not be disregarded in passing finally upon the claims of these office deputies to reimbursement, and that is the fact that those so-called warrants were issued by, and under the seal of, the United States commissioner, were turned over to the marshal, duly docketed in his office, and delivered through proper channels to these office deputies with instructions to attempt the service of same, all in accordance with a practice of long standing. It is stated by the marshal that this practice has existed for a very long time in his district, that it was handed down to him through his predecessor in office, and that "tradition says that this procedure was outlined by an inspector, representing the department, to meet an emergency." The marshal further says in this connection: "Since the department has passed with favor upon the execution or endeavor upon this class of warrants for years past, it seems unjust for this office to suffer financial loss by change of policy by the department without being put on notice, especially when such loss falls upon the office deputies, who are in nowise responsible. This office could have no incentive for dispatching a salaried deputy to execute or endeavor upon this class of warrants except to serve the interest of the Government." In view of the facts as stated, it being clearly established that these office deputies were acting in good faith and under instructions of the marshal, I am constrained to regard this case as an emergency case and, in accordance with a rule sometimes, though rarely, invoked, to allow these particular expenses where to do otherwise would work a manifest hardship upon these deputies, who were honestly working in the interests of the Government (the Government receiving the benefit of their assistance in the destruction of illicit distilleries) and who made and claimed no profit on account of these trips. This action by the Comptroller, however, in view of what has been said, should not be taken as warranting the allowance of similar expenses in future cases. Nothing said herein affects in any way a deputy marshal's right to expenses incurred in transporting a prisoner arrested by the deputy, where said person is found "in the act of operating an illicit distillery" and arrested by the deputy at the time on view and without a warrant in conformity to section 9 of the act of March 1, 1879 (20 Stat., 341). GENERAL INDEX. A. Absence: Page. Horseshoers in army, receiving instructions, additional pay of.. 542 630 Leaves of. (See Leaves of absence.) Without leave in navy- Enlisted men discharged by court-martial for, set-off of 566 480 Acceptances: Appointments of army officers to higher vacancies, effect of date 682 Payments, contract, by contractor under protest and with con- 678 Proposal and, merged into subsequent formal contract.. 230 Accident to marine shipment on government bill of lading, pay- 194 Accounting officers: Adjudication of claims by Congress binding on..... 847 Duty of, to follow determination of Attorney-General as to ex- 4 Jurisdiction of— Effect of army regulation upon................... Judgment rendered subsequent to death of claimant.... (See also Auditors and Comptroller of the Treasury.) Disbursing officer of militia, pay of, during time necessary for 707 219 52 Expense, verification of.. 329, 766 Forms of, in Postal Service, jurisdiction of Comptroller to pre- 604 Paymaster of navy, rental of typewriter for use in settlement of.. 798 52888°-VOL 16-1057 897 Accounts-Continued. Paymaster's clerk in navy, pay of, after detachment, including Settlement of, jurisdiction of auditor in, as to deductions by Traveling expense— Agricultural Department employees, fees of United States seal ..... Attorneys, United States, method of payment of.. Additional compensation: Army- Enlisted men of, as horseshoers..... Page. 55, 181 248 329 301 227,542 Officers of, as members of Brownsville court of inquiry, partial payment of.................... 126 Consuls, for medical attendance and services.. 99 Contracts, for more work than estimated.. Court of Claims, chief clerk of, as custodian of building.. 408, 525 48, 570, 584, 823 General Land Office, chief law clerk, detailed as superintend- 584 26 Marine Corps, enlisted man of, holding good-conduct medal and 456 Navy- Enlisted men of, as mail clerks.... 442 Nurses, chief female, while traveling from one station to 698 Postmasters as guards transporting prisoners while on leave of 570 (See also Allowances, Gratuities, and Pay.) Adjustment: Appropriations, by transfer... 161, 265, 604, 750 General average, in case of vessel transporting coal under con- 834 Advances of funds to inspectors: Post-office, disapproval of method of auditor in making, and 604 276 155 Agriculture, Department of: Fees of United States commissioner for swearing traveling ex- 329 Aids. (See Navy.) |