MAY 27, 1924, 3 COMP. GEN. 898

MAY 27, 1924, 3 COMP. GEN. 898

FEES OF UNITED STATES COMMISSIONERS - WARRANTS OF ARREST WHERE DEFENDANTS IN CUSTODY OF LOCAL STATE AUTHORITIES A UNITED STATES COMMISSIONER IS NOT ENTITLED TO FEES FOR ISSUING WARRANTS OF ARREST, ENTERING RETURNS ON SAME, AND MAKING COPIES OF COMPLAINTS IN CASES WHERE THE DEFENDANTS WERE IN THE CUSTODY OF THE LOCAL STATE AUTHORITIES AT THE TIME THE WARRANTS WERE ISSUED AND THE COMMISSIONER HAD KNOWLEDGE OF THAT FACT IN THE ABSENCE OF ANY SHOWING THAT THE STATE OFFICERS MAKING THE ARRESTS COULD NOT LEGALLY HAVE BROUGHT THE PRISONERS BEFORE HIM, OR THAT THE STATE REFUSED OR WAS UNWILLING TO SURRENDER THEM.

COMPTROLLER GENERAL MCCARL TO THE UNITED STATES COMMISSIONER W. T. DIXON, MAY 27, 1924:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 22, 1924, REQUESTING REVIEW OF SETTLEMENT NO. 016750-J, DATED MARCH 14, 1924, DISALLOWING AN ITEM IN YOUR ACCOUNT FOR THE QUARTER ENDING DECEMBER 31, 1923, IN THE AMOUNT OF $4.50, REPRESENTING CHARGES FOR ISSUING WARRANTS OF ARREST, ENTERING RETURNS ON SAME, AND MAKING COPIES OF COMPLAINTS IN CASES WHERE THE DEFENDANTS WERE IN CUSTODY AT THE TIME THE WARRANTS WERE ISSUED.

THE CHARGES ARE AS FOLLOWS:

PP. 22, 24, 27, AND 28. CHARGES FOR COPIES OF COMPLAINTS, ISSUING WARRANTS OF ARREST, AND ENTERING RETURNS. TOTAL, $4.50.

IT APPEARS IN EACH OF THE ABOVE CASES THAT THE DEFENDANTS WERE APPREHENDED BY THE SHERIFF'S FORCE, SOMETIMES ALONE AND AT OTHER TIMES WITH THE AID OF FEDERAL PROHIBITION AGENTS WITHOUT THE SERVICE OF WARRANT. THE OFFENDERS WERE THEN PLACED IN JAIL AND COMPLAINTS WERE LATER FILED BEFORE YOU BY AN OFFICER WHO MADE, OR ASSISTED IN MAKING, THE ARREST. WARRANTS WERE THEN ISSUED AND IT IS EXPLAINED BY YOU THAT AT THE TIME WARRANTS WERE ISSUED YOU WERE COGNIZANT OF THE FACT THAT THE DEFENDANTS WERE ALREADY IN CUSTODY.

IT HAS BEEN REPEATEDLY HELD THAT THE OFFICE OF THE WARRANT OF ARREST IS TO BRING THE PERSON OR PERSONS AGAINST WHOM IT IS ISSUED WITHIN THE JURISDICTION OF THE ISSUING TRIBUNAL. IT IS IN NO SENSE THE BASIS OR FOUNDATION OF THE PROSECUTION; THAT, IN COMMISSIONERS' COURTS, BEING THE COMPLAINT UPON WHICH THE WARRANT ISSUES, 5 COMP. DEC. 320. THE PURPOSE OF THE WARRANT IS TO OBTAIN CUSTODY OF THE ACCUSED, AND IF HE IS ALREADY IN CUSTODY AND LEGALLY CAN BE BROUGHT BEFORE THE COMMISSIONER WITHOUT A WARRANT, THE WARRANT IS UNNECESSARY AND THE FEES INCIDENT TO THE ISSUANCE THEREOF ARE UNAUTHORIZED.

THE LAWS OF OKLAHOMA PROVIDE FOR AN ARREST WITHOUT WARRANT UNDER CERTAIN PRESCRIBED CONDITIONS, THE CRIMINAL CODE OF THAT STATE PROVIDING AS FOLLOWS:

SECTION 6594. ARREST MADE BY WHOM---

AN ARREST MAY BE EITHER---

1. BY A PEACE OFFICER, UNDER WARRANT.

2. BY A PEACE OFFICER, WITHOUT A WARRANT.

3. BY A PRIVATE PERSON.

SECTION 6603. ARREST WITHOUT WARRANT---

A PEACE OFFICER MAY, WITHOUT A WARRANT, ARREST A PERSON---

1. FOR A PUBLIC OFFENSE COMMITTED OR ATTEMPTED IN HIS

PRESENCE.

2. WHEN THE PERSON ARRESTED HAS COMMITTED A FELONY,

ALTHOUGH NOT IN HIS PRESENCE.

3. WHEN A FELONY HAS IN FACT BEEN COMMITTED AND HE HAS

REASONABLE CAUSE FOR BELIEVING THE PERSON ARRESTED TO

HAVE COMMITTED IT.

4. UPON A CHARGE, MADE UPON REASONABLE CAUSE, OF THE

COMMISSION OF A FELONY OF THE PARTY ARRESTED.

IT IS A WELL-ESTABLISHED RULE THAT COMMISSIONERS MUST CONFORM TO THE PRACTICE PRESCRIBED BY THE STATUTES OF THE STATE WHEREIN THE ARREST IS MADE WITHOUT REGARD TO THE FEES TO BE EARNED BY THEM. SECTION 1014, REVISED STATUTES OF THE UNITED STATES; 5 COMP. DEC. 172; 10 ID. 340; AND PARAGRAPH 1053, INSTRUCTIONS TO COMMISSIONERS.

IT IS STATED BY YOU THAT THE RULING REFERRED TO IN 5 COMP. DEC. 320 IS, NO DOUBT, A CORRECT RULING WHERE THE DEFENDANT IS IN CUSTODY OF THE MARSHAL OR WHEN THE PRESENCE OF A MARSHAL OR DEPUTY MAY BE HAD WITHIN A REASONABLE TIME, BUT THAT NONE OF THE DEFENDANTS MENTIONED IN THE DISALLOWED ITEM WERE IN THE CUSTODY OF THE MARSHAL, THE OFFENDERS HAVING BEEN PLACED IN THE COUNTY JAIL. IN OTHER WORDS, THE CONTENTION SEEMS TO BE THAT THE ISSUANCE OF A WARRANT IS NECESSARY TO GET THE DEFENDANT BEFORE A UNITED STATES COMMISSIONER WHEN HE HAS BEEN CAUGHT IN THE ACT BY STATE OFFICIALS AND PLACED IN A COUNTY JAIL.

IT APPEARS, HOWEVER, THAT THE DEFENDANTS IN THESE CASES WERE ARRESTED AND PLACED IN JAIL, EITHER WITH OR WITHOUT THE AID OF A FEDERAL PROHIBITION AGENT, FOR THE PURPOSE OF BRINGING THEM BEFORE YOU, AND IN ABSENCE OF ANY SHOWING THAT THE OFFICERS MAKING THE ARREST COULD NOT LEGALLY BRING THE PRISONERS BEFORE YOU OR THAT THE STATE REFUSED OR WAS UNWILLING TO SURRENDER THEM, IT MUST BE PRESUMED THAT THE WARRANTS WERE UNNECESSARY. SINCE WARRANTS ARE ISSUED FOR THE SOLE PURPOSE OF APPREHENDING CRIMINALS IT MUST FOLLOW THAT THE WARRANT CAN SERVE NO PURPOSE AS BETWEEN FEDERAL AND STATE AUTHORITIES IN ENABLING THE FEDERAL GOVERNMENT TO SECURE OFFENDERS FROM THE CUSTODY OF THE STATE WHEN THE STATE IS WILLING TO GIVE THEM UP.

IN A SIMILAR CASE DECIDED BY THIS OFFICE JULY 13, 1923, 3 COMP. GEN. 13, IT WAS SAID:

THE PLAIN DUTY OF THE COMMISSIONER, UNDER THE LAW, WHEN COMPLAINANTS APPEARED BEFORE HIM TO SWEAR TO A COMPLAINT AGAINST A CERTAIN OFFENDER, WHO WAS ALREADY IN CUSTODY AND THE COMMISSIONER SO INFORMED, WAS TO DIRECT THE OFFICER TO PRODUCE THE OFFENDER BEFORE HIM FOR A HEARING, INSTEAD OF ISSUING A WARRANT OF ARREST AND DELIVERING THE SAME TO THE MARSHAL FOR SERVICE.

UPON REVIEW OF THE MATTER NO DIFFERENCES ARE FOUND, AND THE SETTLEMENT IS SUSTAINED.