custody of the United States marshal.

The allowance of this item, amounting to $2, by the circuit court, we think should be sustained. The warrant was issued by the court. The marshal was bound to serve it, and was entitled to the fee charged for the service."

All items in Schedule D have been fully passed upon on demurrer. Schedule E, item 1, arose through a mistake of the accounting officer of the treasury, and hence should be allowed.

Item 2, Schedule E: This item is for a per diem before a commissioner on a hearing on criminal charge. Disallowed because the marshal had charged a per diem in the circuit court on the same day. In U. S. v. McMahon, 164 U. S. 81, 17 Sup. Ct. 28, the court says:

"But, where a marshal attends examination before two different commissioners on the same day, we think he is entitled to his fee of $2 for the attendance before each commissioner. In the case of U. S. v. Erwin, 147 U. S. 685, 13 Sup. Ct. 443, we held that a district attorney was entitled to charge a per diem for services before a commissioner upon the same day that he was allowed a per diem for attendance upon the court, and the argument controlling our opinion in that case is equally applicable here. It is true that in that case the charge was for attending before the court and before a single commissioner upon the same day; but where the officer attends before two or more commissioners, who may hold their sessions at a distance from each other, we see no reason why he should not be entitled to his fee in the case of each commissioner."

The court in this case held that the principle applicable to the allow. ance of double per diem to district attorneys is "equally applicable" to the allowance of a double per diem to the marshal; and in this case the court went even further than the contention here, in allowing the marshal not only a per diem for attendance on court and a commissioner, but that he was entitled to a per diem in two commissioners' courts on the same day. This decision has been rendered since this disallowance, and the department did not have this authority to follow. There can be no question, under this decision, as to its propriety.

Item 3, Schedule E: This item involves the question as to whether a deputy is entitled to a per diem for attendance before a commissioner as for a hearing, when the case was set for trial on that day, but the defendant failed to appear, and his bond was estreated, and an attachment issued. "A hearing on a question of admission to bail, or on a motion to adjourn, or on arraignment or commitment, constitutes a 'hearing and deciding,' for the attendance upon which the marshal is entitled to a fee." Kinney v. U. S., 54 Fed. 313. The circumstance that the accused did not appear, and was in default, did not defeat the right to charge this fee. The deputy was required to attend, supposing, as he had a right to, that the defendant would appear as he had obligated himself to do; and the commissioner's court was open in order to determine the question of default. This was necessary, and thereupon, and by virtue of such determination, the case was continued, and an attachment issued. This seems such a hearing as the statute contemplates.

Schedule F: The questions here involved have been fully passed upon on the demurrer.

Schedule G: For discharging defendants on temporary bond. "The marshal is entitled to charge for release on bail before the com

missioner, where such release involves the taking of a bail bond." Kinney v. U. S., 54 Fed. 313. Paragraph 19, § 829, Rev. St., allows the marshal, "for every commitment or discharge of a prisoner, fifty cents." It appears in this schedule that each discharge was upon a new and separate bail bond, and hence a correct charge.

Schedule H: The questions here involved have been fully passed upon on the demurrer.

Schedule I: The questions here involved have been fully passed upon on the demurrer.

Schedule J: This schedule includes a number of items representing all the fees earned in four criminal prosecutions, and were disallowed by the accounting officers as unnecessary and excessive. It is shown by the evidence that after the issuance of the warrants, and before the arrest, the defendants attended before the same commissioner as witnesses in other cases; but the deputy to whom the warrants had been issued did not have the same in his possession at the time the said persons attended as witnesses, and hence no legal arrest could have been effected. The mere fact that after the issuance of the warrants the defendants attended before the commissioner as witnesses would not authorize either the commissioner or the deputy to arrest them without duly-issued process, which the deputy did not then have. It seems clear that this fact alone, without the showing of some bad faith on the part of the marshal or his deputy, would not defeat this claim for fees. There is no legal right for the accounting officers to determine in such a summary manner whether services are unnecessary and excessive. The services were actually rendered, at a large expense to the marshal, and the court has approved his accounts therefor.

Schedule K: This schedule represents items which were suspended for explanations, but after full explanation by the marshal they were neglected by the treasury, and have never been paid. Under paragraph 20, § 829, Rev. St., the marshal is entitled to 10 cents per mile for transportation of guard. The items therefor appear correct.

Schedule L: The questions here involved have been fully passed upon on demurrer. The same is true of Schedule M.

Schedule N: This schedule represents certain sums disbursed to bailiffs employed under specific order of the circuit and district courts, sitting in the same room, and presided over by the same judge. All amounts in excess of that paid to three bailiffs were disallowed. Section 715, Rev. St., reads:

"The circuit and district courts may appoint criers for their court, and the marshals may appoint such number of persons, not exceeding five, as the judges of their respective courts may determine, to attend upon the grand and other juries, and for other necessary purposes, who shall be allowed for their services the sum of two dollars per day, to be paid by and included in the accounts of the marshal, out of any money of the United States in his hands. Such compensation shall be paid only for actual attendance, and, when both courts are in session at the same time, only for attendance on one court."

The sundry civil appropriation act (August 18, 1894) provides, "For pay of bailiffs and criers, not exceeding three bailiffs and one

crier in each court,

$150,000;" and the acts of March 2, 1895, and June 11, 1896 (sundry civil appropriation acts), have exactly the same wording relative to the employment of bailiffs. It thus appears that this proviso is attached to each appropriation bill. Does this lead to the conclusion that congress intended to give this the general effect of a law? If so, then why the yearly repetition? Its insertion in these acts only gives it the effect of a proviso, and it clearly can have no effect as general legislation, within the meaning of the language of the court in U. S. v. Ewing, supra:

"In the case under consideration, if the proviso had been simply that commissioners should not be entitled to any docket fee, we should have little doubt that it would be held as applying only to the $50,000 appropriated in the bill."

The general provision of law, which stands unrepealed by this proviso in the appropriation bill, makes the employment of five bailiffs legal. There is a concluding fact relative to this item which has been overlooked by the government. The language of the act refers "each court," and when, incidentally, the business of both courts is crowded upon one judge, it does not follow that the work is therefore thrown upon one set of three bailiffs. The marshal is entitled in such instances to three bailiffs in each court, and, as there were only five for which he claims compensation in his account, he has confined himself to the number prescribed by this proviso. There is no contention that he did not comply with the law relative to their appointment. But, on the other hand, the employment was under the express order of the court, requiring this number, and was made only after the court had found that the business then before it could not be dispatched economically or satisfactorily without the assistance of five bailiffs, distributed with regard to the relative business of the two courts.

The answer admits that this court approved each of the said items in the current quarterly accounts as presented, and which now form part of the files and records of this court; and, as such order is prima facie evidence of their correctness, in the absence of clear and unequivocal proof of mistake on the part of the court, it should be conclusive. U. S. v. Jones, 134 U. S. 483, 10 Sup. Ct. 615; Kinney v. U. S., 54 Fed. 313.

A further finding of facts is, in my judgment, deemed unnecessary, owing to the complete stipulation, covering all matters relative to the items in controversy; and a judgment for the petitioner may be entered for the amount claimed, after deducting the several amounts admitted in the replication to have been paid.

88 F.-62

DREYER v. PEASE.

(Circuit Court, N. D. Illinois. July 28, 1898.)

1. HABEAS CORPUS-CONSTITUTIONALITY OF STATUTE.

When the constitutionality of a state statute has already been sustained by the state courts, a prisoner arrested by virtue of such statute has a right to have its validity under the federal constitution passed upon by the federal courts in a habeas corpus proceeding.

2. INSOLVENT BANKS-RECEIVING DEPOSITS-EMBEZZLEMENT.

The act of Illinois, providing that any banker receiving a deposit after insolvency shall be guilty of embezzlement, does not deprive any person of liberty or property without due process of law, or deny any person the equal protection of the law, in violation of Fourteenth Const. Amend. U. S. § 1.

Moran, Kraus & Mayer, for petitioner.

C. S. Deneen and A. C. Barnes, for respondent.

SHOWALTER, Circuit Judge. The petitioner, Edward S. Dreyer, together with one Robert Berger, was formerly engaged in the business of banking in Chicago. He is produced here by the respondent, the sheriff of the county, in obedience to a writ of habeas corpus. He was held by the sheriff to answer an indictment against himself and said Berger framed on the following statute of the state:

"Be it enacted by the people of the state of Illinois, represented in the general assembly, that if any banker or broker or person or persons doing a banking business, or any officer of any banking company or incorporated bank doing business in this state, shall receive from any person or persons, firm, company or corporation, or from any agent thereof, not indebted to said banker, broker, banking company or incorporated bank, any money, check, draft, bill of exchange, stocks, bonds or other valuable thing which is transferable by delivery, when, at the time of receiving such deposit, said banker, broker, banking company or incorporated bank is insolvent, whereby the deposit so made shall be lost to the depositor, said banker, broker or officer so receiving said deposit shall be deemed guilty of embezzlement, and upon conviction thereof shall be fined in a sum double the amount of the sum so embezzled and fraudulently taken, and in addition thereto may be imprisoned in the state penitentiary not less than one nor more than three years. The failure, suspension or involuntary liquidation of the banker, broker, banking company or incorporated bank within thirty days from and after the time of receiving such deposit shall be prima facie evidence of an intent to defraud, on the part of such banker, broker or officer of such banking company or incorporated bank." Laws 1879, p. 113.

It is insisted on behalf of the petitioner that this statute is void, as against that portion of the first section of the fourteenth amendment to the national constitution which declares that no state shall "deprive any person of liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." It is contended by the state that the proceeding in this court is premature, and that the petitioner should be remanded without inquiry here into the validity of the statute. Clearly, if the statute be unconstitutional, as claimed, the petitioner is unlawfully held, and should be discharged. If the validity of the statute were an open question in the courts of Illinois, then this court would, under the rul

ings of the supreme court of the United States, be excused from consideration of the question at this time. But the supreme court of Illinois in Meadowcroft v. People, 163 Ill. 56, 45 N. E. 303, declared this law constitutional and valid. The question in the courts of the state is therefore foreclosed. In Crowley v. Christenson, 137 U. S. 86, 11 Sup. Ct. 13, Christenson had been arrested by the chief of police of San Francisco on a warrant issued by the police court of that municipality for violation of an ordinance with respect to the sale of liquors. He applied to the supreme court of California to be discharged from imprisonment, on the ground that said ordinance was unconstitutional and void. That court ruled against him, declaring the ordinance constitutional and valid. He was again arrested upon a similar complaint for a violation of the same ordinance. After the decision by the supreme court of California, and as a means of relief from the second arrest, he applied for a writ of habeas corpus to the circuit court of the United States for the Northern District of California. The judge holding that court granted the writ, and, being of opinion that the ordinance in question was in violation of the constitution of the United States, discharged the prisoner. From this order of discharge an appeal was taken to the supreme court of the United States, and that court entertained the appeal, and passed upon the question as to the constitutionality of the ordinance. Baker v. Grice, 169 U. S. 285, 18 Sup. Ct. 323, was also an appeal in a habeas corpus case, but there the supreme court of the United States refused to consider the constitutionality of the statute upon which Grice had been indicted, on the ground that this question was still open in the courts of Texas, from one of the districts of which state the appeal had been taken. In other words, the ruling of the district judge in Texas was reversed, with the direction that the prisoner be remanded, merely because, in the judgment of the supreme court of the United States, the consideration of the question was premature in the federal courts. I understand the California case to be a precedent for the position taken by this petitioner that this court cannot be excused from considering the constitutionality of the statute here in question, since the supreme court of the state has already passed upon the point. In view of Crowley v. Christenson, and of the absence of any holding by the supreme court of the United States that a federal judge may decline to entertain a proceeding of this kind under such circumstances, I think the merits of the present application must be considered.

Where a banker, being in fact insolvent, but still pretending solvency, receives money as a deposit from one who, in making such deposit, is misled by the pretense of solvency, and such banker is afterwards prevented by such insolvency from repayment on demand, and fails or suspends, so that repayment on demand is lost to the depositor,-where, in other words, a banker obtains money on the false pretense of solvency, and by the want of such solvency repayment on demand is lost to the depositor,-the offense appears to be complete. Failure or inability, through insolvency to pay on demand, does not make the offense. Such default must result from the undisclosed insolvency. The depositor must be deprived of something of value as