Your application, after listing the cases in question, reads as follows:

Each of these items involve the same question, which is as follows: A complaint was filed before me as U. S. Commissioner, warrant issued and the U. S. Marshal returned said warrant marked "unable to locate." Certified copies of complaint and warrant with non est return were forwarded by the U. S. Attorney for the District of Arizona to another District where a fugitive complaint had been filed. The U. S. District Court in another District issued removal order to the District of Arizona. No indictments were returned in the District of Arizona nor informations filed and no proceedings were pending in the U. S. District Court for the District of Arizona. Consequently there was nothing before the U. S. District Court in Arizona to answer. The order of removal directs removal to Arizona that the prisoner may be dealt with according to law. The statute directs removal for trial. The only complaint not disposed of was that pending before the U. S. Commissioner.

The defendants in each of these cases were delivered to the United States Marshal for the District of Arizona to be dealt with according to law and were presented to the U. S. Commissioner at Phoenix as the only court where proceedings were pending. Action was had and claim for services rendered were disallowed. If this procedure had not been followed, the Marshal has no means of holding defendants until such time as Grand Juries could bring indictments, because

(1) Sec. 44-323 of the 1939 Arizona Code provides that a commitment to any jail in this jurisdiction, if the offense is bailable, shall show the amount.

(2) Description of the offense must be embodied in the commitment and described in a term well known to the law by its generic name and any such term as "felony" is not sufficient. Fertig v. State, 1913-14 Ariz. 540, 133 Pac. 99.

(3) A commitment must state the time and place of the alleged criminal act. State v. Gardner (1920) 21 Ariz. 602, 193 Pac. 22.

Warrants of removal do not give this information and cannot be used as a commitment.

Rule No. 30 of the United States District Court for the District of Arizona states that all bonds in criminal cases shall be taken by the U. S. Commissioner unless otherwise ordered by the Court. Therefore, the defendant on being removed from another District should be brought before a U. S. Commissioner for either final commitment or final bond. Hearing and decision is also necessary by Commissioner before executing either such commitment or bond.

On January 2, 1942, complaint was filed before U. S. Commissioner at Phoenix, Arizona, against one James Manganello, charging violation of Sec. 398, Title 18, USCA. Thereafter defendant was apprehended in the State of California and on the 20th day of January 1942, the Honorable Paul J. McCormick, Judge, United States District Court for the Southern District of California, made an order to the effect that the said defendant be delivered to the United States Marshal for the District of Arizona. This was done. Defendant was presented to the U. S. Commissioner at Phoenix, Arizona, and hearing was denied due to previous disallowance of fees in similar cases. On February 4, 1942, counsel for Manganello filed a petition for writ of habeas corpus, charging that defendant was being illegally detained by the United States Marshal without any warrant or commitment issued by any court of competent authority. The court authorized the issuance of writ of habeas corpus and on February 6, 1942, the defendant was brought into the court. Upon hearing, the Honorable Dave W. Ling ordered the defendant released from custody.

In the District of Arizona, the practice of U. S. Commissioner has been to advise defendant in removal cases that the issue rested with the Court in another District and that the matter of identity was the prime factor to be established, as answer to charges must be made in the proper jurisdiction. Waiver of removal is almost invariably signed which admits identity only and has no bearing on the guilt or innocence of defendant.

When an indictment is pending or an information has been filed, a defendant removed to the District for trial, of course, is arraigned thereon, bond fixed and/or mittimus issued by Court. On removal proceedings in such cases, a copy of the indictment and warrant of arrest are prima facie evidence sufficient to authorize removal on establishment of identity. Where the complaint upon which removal proceedings are instituted is that of a commissioner, evidence of probable guilt is required unless a waiver is filed. A waiver is evidence of identity only for removal purposes, and a consent to removal is not a confession of probable guilt nor a waiver of hearing on that issue.

The warrant of removal is to remove a defendant for trial. The only trial possible, when no indictment or information has been filed, is the trial on the merits of the complaint before the commissioner. Defendants cannot secure attendance of witnesses from outside of District where hearing is had. To deny defendant right of hearing in District to which removed is to deny him his right to produce evidence of exculpation and inflict unlawful imprisonment.

The Order of Removal adjudges nothing affecting the merits of the case. Where removal is had without a hearing, on a waiver, conditions of removal are limited by the waiver. If waiver only waives hearing on right of removal, Issue of probable guilt remains to be disposed of by commissioner. Removal for trial under the statute, where the only pending proceeding is pending before a U. S. Commissioner, is removal for trial of complaint before commissioner. Removal on Commissioner complaint is removal for trial before U. S. Commissioner. (295 US 396)

Wherefore, your petitioner prays that the aforesaid decision of the General Accounting Office be reversed and that said fees be allowed.

As an example typical of the cases, your account in the matter of United States v. Studebaker shows that a complaint was made before you on August 25, 1941, by an agent of the Federal Bureau of Investigation, charging Studebaker with the offense of draft evasion, 54 Stat. 894 (50 U. S. C. 311), at Phoenix, Arizona, on April 8, 1941. On the same day-August 25—you issued a warrant of arrest, with certified copy of complaint, to the United States Marshal, who returned it, presumably non est inventus. Thereafter, on December 26, Studebaker was arrested at Oakland, California, and ordered removed to Arizona (whether with or without a hearing does not appear). At Phoenix, your account states, "Arraignment had on instructions of U. S. Attorney and hearing continued to January 6th to secure out of County witnesses. Defendant volunteered for Army service and case dismissed January 6th at request of U. S. Attorney." In the settlement, there was disallowed your claim for a per diem on December 29 for "hearing and deciding on criminal charges" 29 Stat. 184, 186 (28 U. S. C. 597) and for fees in connection with the subpoena of witnesses (December 30 and January 6); and, subsequently, you were advised of the disallowance of fees claimed for issuing and entering the return of temporary commitment on December 29.

The General Accounting Office does not, of course, purport to prescribe the rules of criminal procedure applicable before United States Commissioners; nevertheless, an exact audit of their accounts. is required (Dennison v. United States (1890), 25 C. Cls. 304), in which audit the rule is as stated by the Court of Claims in Davies v. United States (1888), 23 C. Cls. 468, as follows:

A commissioner is entitled to charge only such fees as are prescribed in the statute for such services as he is required or authorized by law to render.

* If he chooses to render service which the law does not require of him he can not recover fees therefor, although a fee is prescribed for like services when rendered by a clerk.

Upon that basis, fees cannot be allowed for proceedings in cases outside the commissioner's jurisdiction, or otherwise clearly not in compliance with the course of action which the acts of Congress

prescribe, as explained and implemented by numerous decisions of the United States Supreme Court and the lesser judicial authorities. Faucett v. United States (1891), 26 C. Cls. 154; 27 Comp. Dec. 928, 930 (1921); 4 Comp. Gen. 1 (1924). The decisions cited were rendered at a time when the commissioners' accounts required the review and approval of the several district courts before their submission to the accounting officers for settlement (act of February 22, 1875, 18 Stat. 333), and must be considered of greater consequence at the present time since the accounts are no longer required to be first approved by the district courts (act of May 29, 1928, 45 Stat. 998, 28 U.S. C. 598).

The items disallowed pertain to the proceedings required after the accused had been removed from the district where he was found; but the determination thereof depends, in part, upon the prior proceedings required under the statute at the place of the arrest. The original statute governing the arrest and detention of those suspected of Federal crimes, and their removal when necessary, was section 33 of the Judiciary Act of September 24, 1789, 1 Stat. 91, which, with only slight variation, became section 1014 of the Revised Statutes and is now 18 U. S. C. 591. Aside for the moment-from the effect of any waiver by the accused of a hearing on the question of probable cause, it appears to be your view that the statute contemplates the hearing to be held after the removal has been completed, instead of before, or that, in other words (as you have advised persons arrested in your own district and brought before you for a removal order), "the issue rests" with the court to which removed and, the defendant's identity being established, "answer to charges must be made in the proper jurisdiction." Upon that subject and upon removals generally, the leading authority is the decision of the Supreme Court in Tinsley v. Treat (1907) 205 U. S. 20, wherein the defendant admitted his identity, but resisted his removal because he had not been allowed, in a hearing prior to the removal order, to establish that there was no probable cause to hold him for trial. In the opinion of Mr. Chief Justice Fuller in that case it is said, in part (pp. 28-30):

Section 1014 of the Revised Statutes reads as follows:

"For any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a circuit court to take bail, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any State where he may be found, and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case. And where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or

witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had."

Obviously the first part of this section provides for the arrest of any offender against the United States wherever found and without reference to whether he has been indicted, but when he has been indicted in a district in another State than the district of arrest, then, after the offender has been committed, it becomes the duty of the District Judge, on inquiry, to issue a warrant of removal. And it has been repeatedly held that in such cases the judge exercises something more than a mere ministerial function, involving no judicial discretion. He must look into the indictment to ascertain whether an offense against the United States is charged, find whether there was probable cause, and determine whether the court to which the accused is sought to be removed has jurisdiction of the same. "The liberty of the citizen, and his general right to be tried in a tribunal or forum of his domicile, imposes upon the judge the duty of considering and passing upon those questions." Mr. Justice Jackson, then Circuit Judge, Greene's Case, 52 Fed. Rep. 104. In the language of Mr. Justice Brewer, delivering the opinion in Beavers v. Henkel, 194 U. S. 73, 83: "It may be conceded that no such removal should be summarily and arbitrarily made. There are risks and burdens attending it which ought not to be needlessly cast upon any individual. These may not be serious in a removal from New York to Brooklyn, but might be if the removal was from San Francisco to New York. And statutory provisions must be interpreted in the light of all that may be done under them. We must never forget that in all controversies, civil or criminal, between the Government and an individual the latter is entitled to reasonable protection. Such seems to have been the purpose of Congress in enacting section 1014, Rev. Stat., which requires that the order of removal be issued by the judge of the district in which the defendant is arrested. In other words, the removal is made a judicial, rather than a mere ministerial, act."

According to Judge Learned Hand, in United States v. Pulver (C. C. A. 2, 1931) 54 F. (2d) 261, the effect of Tinsley v. Treat is to hold that the defendant in the removal proceeding is entitled to his day in court, within the district where he was found, and to a decision as to probable cause based on the evidence he might present. A later Supreme Court decision (United States ex rel. Kassin v. Mulligan (1935) 295 U. S. 396) reaffirms the rule. To the same effect are many of the older cases, which approve and adopt the views expressed by Mr. Justice Miller of the Supreme Court, appearing sub nom., In re Bailey (1869) Fed. Case No. 730. There, removal of an accused was sought to answer to a commissioner's complaint, and it was said:

Nor would any well-informed lawyer hesitate to hold that the act of congress in question was not intended to authorize imprisonment without such preliminary examination by the committing magistrate as should satisfy him that there was enought evidence of the prisoner's guilt to justify a reference of the case to the grand jury of the proper district. Where, then is the preliminary examination to be had?

The most careless reading of the provisions of the act can leave no doubt on that subject.

For any crime against the United States, the offender may be imprisoned, or held to bail, after, as I have shown, an examination by the proper officer of the state or district where he may be found.

If this language left any doubt on the subject, it would be removed by a subsequent provision in the same section, that, if the commitment takes place in a district other than that in which the offense is to be tried, the judge of the district where the delinquent is imprisoned shall make the necessary order for his removal to the proper district for trial. This so clearly contem plates an examination and imprisonment in the district where the offend found, without regard to that in which the offense was committed, tha ment could not make it plainer.

More recently, the Third Circuit Court of Appeals summarized the rule, stating, in United States v. Mathues (1927), 19 F. (2d) 22:

One accused of crime by indictment in a distant district, though liable to trial wherever indicted, cannot be arbitrarily and summarily removed from the district of his residence, but is entitled to a preliminary hearing. Such preliminary hearing is not a preliminary trial. It is had before a committing magistrate, who may be a judge, commissioner, mayor of a city, or justice of the peace, and it is only such as will bring out the probable cause of the charge and make certain the identity of the defendant. These are the two things that must be established before the accused can be lawfully removed. In such a hearing the function of the magistrate is not ministerial but is judicial in the limited sense indicated. He must pass on the question of identity -an issue purely of fact—and also on that of probable cause. The indictment is itself evidence that there was probable cause for finding it. Of this, however, the indictment is not conclusive. Tinsley v. Treat, 205 U. S. 20, 32, 27 S. Ct. 430, 51 L. Ed. 689; its evidential effect is only prima facie. Hence the accused may attack it as not charging a crime and therefore as not showing probable cause.

In the Ninth Circuit-including Arizona-the same rules have been announced. See Unverzagt v. Benn (C. C. A. 9, 1925) 5 F. (2) 492, certiorari denied; Smith v. United States (C. C. A. 9, 1937) 92 F. (2d) 460. In the former case, former Judge Ross, dissenting, went so far as to suggest that a hearing is "essential and jurisdictional" before removal is proper-which, if true, would seem to render ineffective a waiver of hearing or removal. Compare, also, Mr. Justice Brandeis' dissenting opinion in United States ex rel. Hughes v. Gault (1926) 271 U. S. 142, 152, expressing the view that when a commissioner refuses to hear the defendant's evidence bearing upon the question of probable cause, the defendant is deprived of his liberty without due process of law in violation of the Fifth Amendment, because it is a denial of a fair hearing. The rule was summarized in a letter dated March 29, 1937, from the Attorney General to the Speaker of the House of Representatives (House Report No. 1543, 75th Congress), which recommended a change in the code as to appeals from writs of habeas corpus in removal cases. The Attorney General said:

Under existing law (sec. 1014 R. S.; U. S. C., title 18, sec. 591) a person charged with an offense in one judicial district and arrested in another district may not as a matter of course be removed to the district in which the charge originated. A removal proceeding must be instituted for that purpose before a United States Commission [er] or other committing magistrate. A hearing is then granted to the accused on the question as to whether he should be taken to the district in which the complaint was filed or indictment found, as the case may be.

* *

Upon the representations so made, and after examining into the removal process, the Congress passed the particular bill recommended. Act of June 29, 1938, 52 Stat. 1232 (28 U. S. C. 463).

The cases referred to seem to remove any room for doubt that, before directing a removal for the purpose of answering to an indictment, presentment, or information, and particularly in the case of a mere complaint, the commissioner and the judge in the district