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stay or suspension in whole or in part of the operation of the order of the Interstate Commerce Commission for not more than sixty days from the date of the order of such court or judge, pending application to the court for its order or injunction, in which case the said order shall contain a specific finding, based upon evidence submitted to the judge making the order and identified by reference thereto, that such irreparable damage would result to the petitioner and specifying the nature of the damage. The Court may, at the time of hearing such application, upon a like finding, continue the temporary stay or suspension in whole or in part until its decision upon the application.1

The principal office of the Commission is in Washington where its general sessions are held; but whenever the convenience of the public or parties is involved, or expense and delay diminished, the Commission is authorized to hold special sessions in any part of the country. One or more of the commissioners may prosecute a special inquiry of this nature.

Judson C. Clements of Georgia is the present chairman of the Interstate Commerce Commission. The other commissioners are Charles A. Prouty of Vermont, Franklin K. Lane of California, James S. Harlan of Illinois, Edgar E. Clark of Iowa, Charles C. McChord of Kentucky and Balthaser H. Meyer of Wisconsin.

Originally the commission had only five members at an annual salary of $7,500 each, with terms of six years after the first appointments had expired. It was then merely an investigating body, but under subsequent amendments it has become largely judicial and of far superior importance to any similar organization under the Federal government. By the terms of the Arbitration Act of 1898, the chairman of the Commission, jointly with the Commission of Labor, is authorized to mediate between a common carrier and its employees in a dispute involving the terms of employment. Agreements for arbitration of disputes are filed in the office of the Commission, and the chairman may be one of the Board of Arbitration.

1 Section 3 of the Mann-Elkins Act (June 18, 1910).

CHAPTER XIII

JUDICIAL OFFICERS-UNITED STATES COMMISSIONERS

ATTORNEYS-MARSHALS-CLERKS

COMMISSIONERS

United States Commissioners are officers of the Federal District Court, to whom are committed some of the duties which must otherwise be performed by the court itself. Commissioners are appointed to facilitate the preliminary work of the court in the cases involving criminal charges in order that offenders may be brought speedily to justice. The court, in the press of business already before it, cannot always make speedy inquiry into cases arising from day to day, hence commissioners are appointed to assist in this important work. Formerly the tenure of office of commissioners was not restricted but the Legislative, Executive and Judicial Appropriation Act of May 28, 1896, which abolished the offices of commissioners appointed by the Circuit Courts made the term four years. A commissioner is not a Federal judge within the constitutional sense nor is he a committing magistrate. He is simply an officer of the court appointed and removable by the court. No marshal or deputy marshal, district attorney or assistant district attorney, jury commissioner, marshal's clerk, bailiff, crier, juror, janitor of any Government building, nor any civil or military employee of the Government, or clerk or employee of a Federal judge may hold or exercise the duties of the office of United States Commissioner. A clerk may, however, hold the office of commissioner as it was decided several years ago "that the offices of clerk and commissioner are compatible and that a person who holds two distinct compatible offices may receive the compensation of each." A clerk may not act as

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1 Legislative, Executive and Judicial Appropriation Act of May 28, 1896, Chap. 252,

receiver in any case unless a special reason is certified to by the district judge. He may, however, sit as master in certain

cases.

A commissioner's compensation consists of fees. There is no salary. The accounts are rendered to the United States attorney for the particular district, duly verified by oath, by whom they are submitted for approval in open court.

Commissioners are required to keep a complete record of all proceedings before them in criminal cases. In the event of the death or removal of a commissioner, the book in which his record has been kept is delivered to and preserved by the clerk of the District Court.

The duties of a commissioner are prescribed by law. He may issue warrants for offences against the United States; cause offenders to be arrested and imprisoned, or bailed for trial; order the removal of offenders to other districts; and extradition to other countries; hold to security of the peace and for good behavior; carry into effect the award or arbitration or decree of any consul of any foreign nation; sit as judge or arbitrator in such differences as may arise between the captains and crews of vessels belonging to the nations whose interests are committed to his charge; enforce obedience by imprisonment until such award, arbitration or decree is complied with; take bail and affidavits in civil causes; discharge poor convicts imprisoned for non-payment of fines; take oaths and acknowledgments; institute prosecutions under the laws relating to crimes against the elective franchise and civil rights of citizens, and appoint persons to execute warrants thereunder; issue search warrants authorizing internal revenue officers to search premises where a fraud upon the revenue has been committed; issue warrants for deserting foreign seamen; summon masters of vessels to appear before him and show cause why process should not issue against such vessels; issue warrants for and examine persons charged with being fugitives from justice; determine the status of Chinese persons under the Exclusion Acts; take depositions.

The office of commissioner was created by the Act of February 20, 1812. The duties were at first confined to the

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taking of acknowledgments of bail and affidavits. Several subsequent acts enlarged the powers materially, and at one time a commissioner was made an examining and committing magistrate in Federal criminal offences with undivided responsibility and not subject to another's control. A commissioner cannot punish for contempt.

ATTORNEYS

Each judicial district in the United States has a United States attorney or district attorney who is the representative of the Attorney-General of the United States and, as such, is counsel for the Government in all suits and actions in which the United States is a party. This official is appointed by the president with the approval of the Senate. The term of office is four years though the incumbent may and indeed is expected to remain beyond the four-year limit if his successor is not sooner appointed. There is no constitutional provision or statutory regulations providing for the removal of a district attorney before his term shall have expired. Originally there was some doubt that a district attorney could be removed except by impeachment but it is now generally accepted that the president may remove in his discretion. In case of a vacancy the District Court for the district in which the vacancy occurs, the Supreme Court of a Territory, and the Supreme Court of the District of Columbia may appoint persons to exercise the duties of the office within their respective jurisdictions until an appointment is made by the president. The circuit judge of a circuit in which a vacancy in the same office exists may appoint a district attorney pending the president's action in the matter. Each district attorney is required to reside permanently within the district for which he is appointed, but any person may be appointed for any district provided he establishes his permanent residence therein. In the Southern District of New York (embracing New York and adjacent counties but not Long Island or Staten Island) the district attorney may by special enactment reside within twenty miles of his

district. The salaries of the district attorneys vary in different districts from $2000 in Delaware and New Hampshire to $10,000 in the Southern District of New York.1 Fees and various extra items of expenditure and special service were allowed in addition to salary. All this was changed by the Act of May 28, 1896, and later affirmed in all cases except in the District of Columbia, where certain fees are still allowed.2

The assistants to the district attorney are appointed by the attorney-general but the former may appoint special assistants when the need for their services is certified by the district judge to the attorney-general. Such clerical assistance is sought only when extra work makes it necessary and may be dispensed with as soon as the need is past. The attorney-general regulates the compensation. The number of assistant district attorneys is limited only by the needs of the district attorney, and the salaries depend on ability, experience and length of service.

It is the duty of a district attorney to prosecute in his district all delinquents for crimes and offences cognizable under the authority of the United States, and all civil actions in which the United States is concerned. He appears, unless otherwise instructed by the Secretary of the Treasury, in behalf of defendants in all suits or proceedings pending in his district against collectors or other revenue officers for any act done by them or for the recovery of money exacted by or paid to such officers, and by them paid into the Treasury. It is not the duty of a district attorney to advise or defend boards of immigration. According to various court decisions a district attorny is the only prosecutor known to the law in a Government case in the Federal courts. It has been held by the courts themselves that there is no power conferred on them by statute or usage to recognize a suit, civil or criminal, as legally before them, in the name of the United States, unless it is instituted and prosecuted by a district attorney legally appointed and commissioned. It 1 Act of March 3, 1905. 2 Ibid.

3

See U. S. v. Doughty (1870), 7 Blatchf. (U. S.) 424, 25 Fed. Cas.

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