:MARVIN V. UNITED STATES.
MARVIN 11. UNITED STATES.
(O£rcuU COUrt, D. ConnectIcUt. December 19,1890.)
CLERK OF COURT-FEES.
Under Act Congo March 8, 1887, (24 St. 505,) the clerk is entitled, on orders of the court, to pay the accounts of the marsbal and officers, other tban commissioners, as follows: Entering order, 45 cents; copy, 30 cents; certificate, 15 cents; seal, 20 cents; filing duplicate, 10 cents. The statute reqnires that only one copy of the commissioner's account shall be presented, wbich is forwarded to the treasury department. Held, that a certified copy of the order of court approving it should accompany it, and that tlJe fees should be as follOWS: Enterinll: the order of approval, 45 cents; filing same, 10 cents; copy, 30 cents; certificate and seal, 35 cents. Where blanks furnished by the department for of payment of witnesses, etc., contain jurats, the clerk is entitled to a fee of 25 cents for each jurat.
He is also entitled to a fel> of 10 cents for filing each separate voucher returned by 'the marshal with his accounts· Under Act Congo Aug. 4, 1886, (24 at. 253,' providing that none of the money thereby appropriated shall be u!led to pay clerk's per diem for attendance in court except for days w hen business was actually transacted, the burden is on the clerk to show tbat business was actually transacted by the court on the days for which he claims his per diem for attendance. A commissioner is entitled to a per diem for time actually spent by him in hia judicial character as commissioner on criminal oases after the accused were a1'rested, though tbeir cases were ,oontinued.
Tbe petitioner is entitled to a commissioner's per diem for services performed as such, though he performed services as clerk, and received compensation therefor, on the same day.
Under Act Congo June 30,1879, (21 St. 48,) appointing the clerk a jury commissioner ex o!ficto, he is entitled to a Jury oomml8Sioner's compensation for services performed as sucb.
For the annual statement to the attorney general of the judgments, etc., for the preceding- year, the clerk is entitled to compensation for the final abstract at 15 cents per folio, and not to the regular fees for searches. He is entitled to fees for copies of orders to pay jurors, and for seals
The clerk's fees for final records in criminal oases should be in accordance with the folios whicb are contained in the record, and not be limited to four folios. But he is not entitled to a separate fee for entering the oral appearances of attorneys in criminal cases, as this is included in the docket fee. Docket and discontinuance fees should be allowed where the commissioner's records are returned to court and docketed, though the case is discontinued before the information is filed. Under Rev. St. U. S. § 1001, providing that no interest shall be allowed on any claim up to the time of the rendition of a judgment thereon by the court of claims, unless on a contract expressly stipUlating therefor, the cirCUit court cannot allow interest in a suit therefor in such court under 24 St. 505, no contract baving stipulated for such interest.
The commissioner is eutitled to a fee for recognizance of record take.n by him, where justices of the peace of tbe state in which the federal oourt ia beld bave " vower to take such recognizances.
Where principal and surety ellter int08uch recogniaances by acknowledgments before the commissioner, he is entitled to a fee for each acknowledgment. Under the provision that "copies of the process sball be returned
to the clerk's office," fees shoUld be allowed for transcripts of tbe record.
Tbe provision of Act Congo Aug. 4, 1886, (24 St. 274,) wbich!s an appropriation biU"that commissionel'li may'be paid the same compensation as is allowed clerks for .like services, but "shil.ll not. be entitled to any docket fees," applies not merely to that appropriation, but is continuing.
The provision of Rev. St. U. S. § 1030, that no writ is necessary for remanding a prisone,l' from the court into, custody, applies where the accused is in custody under a, warrant from tbe court, and not where he is arrested on the first warrant of the commissioner to arrest and bring before him, and the commissioner is entitled to a fee for a mittimus upon the first continuance, if, the prisoner is to be held.
The clerk is not entitled to fees as for reports for letters transmitting receipts of the depository for moneys, and stating the nature of the case, as the comlIlissions on Buell moneys were intended tp pay for these services.
The clerk is not entitled to a fee for keeping' a list of the names and residences of jUrors, as this is parlof th1:l jury commissioner's duties.
The commissioner is entitled to fees for aftidavit, warrant, etc., in the case of an aeoused person who was.Dot arrestedt left the state.
At Law. Edwin E. Marvin, pro Be. Goo. G. 8,ill, Dist. Atty.
SHIPMAN, J. This is a petition under the act of Marcb 8, 1887, (24 St. 505,)to recoverfees and chargeR of the petitioner as clerk of the district ami circuit courts of the United States for this district, as circuit court commissioner, and as jury commissioner ex officio, which have been disallowed by the treasury department, and which are specifically and by items set lorth in the petition. The earliest item is dated August 1, 1883. The United States denied in fact the petitioner's right to recover, and appeared upon the hearing of the cause by the district attorney for this distri<:t.The said cause having been heard, the following 1acts are found by the court: All the allegations of fact in said petition are found to be true. The servkoes and expenses charged therein, and in the various amendmentstheretQ, were actually rendered and expended. The acts alleged in said petition and amendments to have been done and performed were done and performed, and the time therein allp,ged to have been spent as clerk, commissioner of the circnit court,IHld jury commisl;ioner ex ojfiqio, was spent. The .said items mention'ed in the petition were included in the petitioner's accounts, which were duly presented to the judge of the district court, wereappnwed, and forwarded t6 the accountirig officer of the treasury, except the item of interest hereinoftermentioned. The lia.bility of the United l:$tates depends entirely upbn"thb \:onstructionwhich onght to be given to the statutes pertaining , to the subject of fees, and the payment thereof. , 1. Tile .6rstmatter .in to the proper amount of the clerk's fees upon orders of court to pay the accounts or the marshal and
. MARVIN V. UNI'l'ED S'l'ATES.
other officers, upon his fees for administering the oaths and subscribing the jurats attached to each one of the marshal's vouchers, and for filing these vouchers.. No clerk's fees'were paid for a time upon the orders of court. which allowed these accounts. 1 had occasion to examine this subject in Stanton v. r;. S., 37 Fed. Rep. 252, and was of opinion that the government was liable for this class of fees. Other judges have been of the same opinion, (Erwin v. U. S., 37 Fed. Rep. 470; Jonea v. U. S., 39 Fed. Rep. 410; Goodrich v. U. S., 42 Fed. Rep. 392;) and the present comptroller coincides therewith, but claims that the petitioner's fees are too large; . The clerk anne:x:es to both the duplicate accounts ,an order, &igned and sealed, whereas the comptroller allows for an originaI,order, which is retained in the clerk's office, and for a copy thereof annexed to the account which is sent to Washington. The difference in regard to the orders to pay commissioners is that the clerk ll1ak.es and files a sealed order, whereas the comptroller is willing.to allow for a re.cordt¥1 order without selll or filing.. The difference upon commissionorders is 30 cents per order,aLld upon orders to pay other officers is 35 cents per order. In regard to the ordj)rs upon accounts of officers other than the statute (1881. 333)requires only a single order to be entered of record. "The III \Y requires the account to be made The. original in duplicllte, but not the .order approving the account, with a certified copy of the order, is forwarded to the .<lepartment., and the dpplicate account is retained by the clerk, and filed ·,in his office." Jonea v. U. S., 39 Fed. Rep. 410. I do not think that it is,. necessary that this. order should be sealed. .An order. I of. court that. the derk was signed by the judge is sufficient. It should be not notified by the first comptroller's office of its desire that a more economical course shollId be adopted until April, 1889. The charges for these services should be, as no,w claimed by the comptroller: Entering order, 45 cents; copy, 30 cents; certificate, 15 cents; seal, 20 cents; filing duplicate, 10 cents,-total, $1.20. The statute requires that only one copy of the commissioner's account should be presented, which is forwarded to the department. A certified copy of the order of court should accompany it. The fees for the service should be as follows: cents for entering the order approving the account; 10 cents for filing the samei.30 cents for copy; 35 cents for certifioate and seal,-total, $1.20. , The next question relates to the propriety of the charge of 25. cents for each jurat affixed to the abstracts of payment of witnesses, jurors, bailiffs, as well as to the accounts current to which they belong. The were furnished by the treasury department contained these jurats. and indicated the intention of the department that each account should be sworn to. Of late, if I am correctly advised, these separate oaths are notrequired. Inasmuch as they were required, they are to bepaic,l by the government at the rate of 25 cents for each jurat. 'fhegoyernment to the charge of 10 cents for filing e,ach .vquchfiilf returned by t4e murshal with his accounts. Each voucher is a separate., un\\ttached.pape,I and,. ,both, re-
REPORTER, vol. 44.
quire that they should be marked and filed. The charge is allowed by the statute, and is due. It has been allowed in Goodrich v. U. S., v. U. S., 8upra. 35 Fed. Rep. 193; Erwin v. U. S., supra; 2. The second subject relates to the "per diems" for attendance and services as clerk, as circuit court commissioner, and as jury commissioner ex officio. The first item in dispute is $80 for 16 days' attendance as clerk in July, 1886, when the minutes do not show what business was done. The appropriation bill of August 4, 1886, (24 St. 253,) provided that no part of the money appropriated by the act should be used in the payment of a per diem compensation to a clerk or marshal for attendance in court, except for days when business was actually transacted in court. This means business which belongs to' the court, and is transacted by the judge, and places upon the clerk the burden of showing that business of the court was actually transacted on those days. The minutes simply show that the court was opened and adjourned, and, although the petitioner says that doubtless business of the court was transacted, he does not show what it was, within the proper meaning of that language, and I am therefore compelled to disallow the item. . For othflr charges for attendance as clerk and mileage, the government is liable. The next item under this head relates to commissioner's per diems, which were suspended, because, under the construction of the fee-bill which the treasury department adopted, the petitioner was not" hearing and deciding" a criminal case. The time charged was actually spent by the petitioner upon the cases in his judicial character as commissioner, after the accused were arrested Hnd brought before him for trial. The cases were then continued for reasons which were satisfactory t<> him; one party or the other was not ready for trial. The facts are. substantially the same with those in U. S. v. Junes, 134 U. S. 486, 10 Sup. Ct. Rep. 615, in which the commissioner's per diems were allowed. The same ruling had previously been made in Rand v. U. S., 36 Fed. Reo. 67L The next'item is for commissioner's per diems, disallowed because he was allowed a per diem fee for the same <lays as clerk of court. The general question 'was considered in U. S. v. Saunders, 120 U. S. 126,7 Sup. Ct. Rep. 467, when it was held that, when the functions of two appointments or offices which are held by one person, and to each of which compensation is attached,are separate and distinct, he is, in such case, entitled to recover the two compensations. The particular question was. discussed in Brwin v. U. S., supra, and I accord with the conclusion of Judge SPEER that the commissioner is entitled to his statutory fee of $5for services performed upon anyone day, although upon the same day he performs services as clerk, for which he also receives a per diem. The clerk claims compensation for the services performed as jury commissioner ex offteio from and after 1887, in accordance with the allowance made to jury commissioners in the various annual appropriation acte. The work requires the time that is charged. It devolves upon the clerk simply by virtue of the statute of June 30, 1879, (21 St. 43,)
MARVIN fJ. UNITED STATES.
which in fact made two persons jury commissioners; and the construction, which gives compensation to only one commissioner, and compels the clerk to do the work for nothing, seems to be a narrow one. I think that the clerk is a jury commissioner e.t officio, and comes within the provisions of the statutes which give compensation to jury commissioners. Erwin v. U. S., supra; Goodrich v. U. S., 42 Fed. Rep. 392. 3. The next class relates to fees for records of the proceedings of the court upon its minute book, and fees for annual reports to the attorney general of judgments, discontinuances, etc., for the year. The fees for recording the proceedings of court are now allowed and paid without objection, at the rate of 15 cents per folio, and the charge does not seem to be now contested, so that further discussion of the matter is unnecessary. The unpaid charges are allowed. The attorney general calls for an annual statement of the number of judgments, discontinuances, and other statistics in regard to the cases in court for the preceding year. The work of preparing the material and making the abstract is a consid· erable one, though at last the tabulated condensed statement is not more than a folio. As the clerk had to search for all judgments, he has charged according to the allowance in the fee-bill for searches. I think this charge inadmissible. and that the petitioner can recover only for the final abstract or report at the rate of 15 cents per folio. The next item is for copies of orders to pay jurors in the fourth quarter of 1888, which were disallowed. I do not know the reason for the disallowance as a whole. They were previously, and are now, allowed. The The charge for seals upon copies of this class of orders is original order of court is without seal, but a certified copy of an order of court should, as it seems to me, if in proper form, be attested by the seal of the court. The next question arises upon fees for final records in criminal cases. The treasury department allows for four folios in each case, and rejects the excess above that number. There can be no such arbitrary rule for the payment of records, some of which are necessarily voluminous. The length of the record varies with the nature of the indictment, and there is no propriety in a rule which limits the payment of the recording of 50 folios to ,60 cents, the fee for recording 4 folios. An examination shows that the clerk is entitled to$13.95, instead of $16.50, as charged. Charges fer copies of folios which were furnished either by order of court or by order of the superintendent of the detective service, which have been unpaid, are hereby allowed. 4. This question is whether the clerk is entitled to a fee of 15 cents for entering in the docket the oral appearances of tne attorney in criminal cases. I do not think that this entry comes within the provision for "making any record, certificate, return, or report," but it is included within the services which are paid for by the docket fee, and the charge is therefore disallowed. 5. Docket and discontinuance clerk fees were disallowed in two CRSes, where the commissioner's records were returned to court and docketed, and the"cases were then discontinued by the attorney before an illforma-
tionwas filed. The fees were'disallowed upon the ground thnt,until an information is filed, there is no caSe in court. This question was considered in Stanton v. U. S., 37 Fed. Rep. 252, wherein it was held that the fees are properly chargeable. A charge of 10.cents each for filing 20 separate exhibits in a criminal case is allowed. 6. Interest at 4 per cent. for 23 months is daimed upon $635.71, auditeq in favor of the clerk on December 22, 1886, payment of which amount was withheld until November 10, 1888, for an immaterial reason. The appropriation Was not exhausted. The statute under which this petition is brought (24 St. 505) i'll one enlarging the jurisdiction of the court of claims,and giving a concurrent jurisdiction in the specified cases to the district and circuit courts. In the statute to the court of claims (Rev. St. § 1091) it is provided that no interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the court of claims, unless upon a contract expressly stipulating for the payment of interest. This provision was held in Tillson v. U. S., 100 U.S. 43, to be imperative against the allowance of interest by the court of claims, ulil:Iess it is, in some way, expressly provided for. The circuit court has no,larger power in regard to interest upon claims which are sued for under this statute than has the court of claims. An item of $1 for making and filing a report under section 798, at the September term, 1888, of circuit court, was disallowed, but is now allowed under the ordinary custom in regard to such reports. 7. The treasury depll.rtment disallows a fee of 15 cents upon commissioners' orders fixing bail, holding to bail, and discharging bail, upon the ground that the commissioners' court is not a court of record. There are a number of decisions. by federal judges that courts of justices of the peace in their respective states, and commissioners' courts therein,are not courts of record, and are not authorized to take acknowledgment of recognizances for future appearance of the accused, (Strong v. U. S.,34 Fed. Rep. 17,) but that bail for the appearance in the trial court should be by'bond; arecognizlInce being a contract of record, and a part of the records of the 'court, (U. S. v. Ambro8e, 7 Fed. Rep. 554.) All these de:. cisions are based upon U. S. v. Rundlett, 2 Curt. 41, in which Mr. Justice CURTIS beld that it was the intention of congress, in the section of the act in regard to the powers of commissioners, now known as section ' 1014 of the Revised Statutes"To assimilate all the proceedings for holding accused persons to answer before a court of the United States to the proceedings held for similar purposes by the laws of the state where the proceedings should take place, and, as a necessary congequence, "tiJat ,the commissioners have power to order a recognizance to be given to appear before them in those states where justices of the peace or other ell;aminillg magistrates have such power." And if the magistrate; in the state has no such power, the commissioner in such state cannot take a recognizance for appearance at a future day befoi'ehim.'; Judge 'WOODRuFF,in U. S.v. CMe, 8, BIatchf. 250, concurred in this construction, saying that "in a state where the justice of the peace has power to take a recognizance to appear from day. to day,
pending the examination of the accused, then a United States commissioner has such power." If the state magistrate has not such power, a commissioner can only tllke bail for appearance at the proper court. to answer there for the offense charged. How the bail should be taken, whether by bond or recognizance, was not settled. In Connecticut a. bond or recognizance' for appearance before a justice of the peace from day to. day can be taken by the magistrate pending the examination. Potter v. Kingsbury, 4, Day, 98. Courts of justices of the peace are courts of record, (Davidson v. Murphy, 13 Conn. 213,) and it is the constant practice for justices of the peace to take recognizances. The fees which are charged are proper in this district, and are allowed. In this connection, items 10 and 11 may properly be considered. Item 10 relates to acknowledgments of the principal in a recognizllnce, which 'are objected to because only one aknowledgment of the bond is neoessary', and, latterly, a fee for any acknowledgment is objected' to upon the ground that an acknowledgment of a written bond is unnecessary, and adds nothing to its validity , which is true. But the recognizances which are taken by commissioners in this district, and other districts where similar statutes exist, are not written bonds, but are obentered into before the court, and into which each party, both principal and surety, enters by a separate acknowledgment. No. 11 relates to fees for. copies or transcripts of records returned by the commissioner to the clerk's office. The auditor allows, in each case, the sum of 60 cents as ample to furnish a record of the proceedings or for a copy ofthe "process." The statute provides that "copies of the process shall be returned " to the clerk's office, and the auditor con"trues this to be a copy merely of the warrant, or perhaps the complaint and warrant. The commissioner makes a copy of the record. It" process" in section 1014 is properly construed to mean simply the papers upon which the accused was arrested, the position of the auditor is correct. But it was expressly held in U. S. v. Rundlett, 8upra, that" mode of proin this section means mode of proceeding, and that the non-appearance of the principal in the recognizance in answer to a call was to be proved by an entry on the minutes of the magistrate, and returned to him as part of the proceedings. The word "process" in like manner does not mean simnly the warrant, butis used in the larger sense of" proceedings." The petitioner has followed the uniform course of justices of the peace in this state, who are required by statute to transmit to specified officers of the state court copies of the files and records in "binding over" criminal cases before them. An examination of all the records named in the petition and amendments shows that $16.80 should be allowed and paid in excess of the sum allowed by the auditor. 8. The next subject is themuch.disputed question of a commiRsioner's right to docket fees under the deficiency appropriation bill of August 4, 1886, (24 St. 274,) which appropriated a sum of money for the payment of commissioners: "providetl, that for issuing any warrant or writ and for any other necessary service, commissioners may be paid the same compensation as is allowed to clerks for like services, but they
shall not be entitled to any docket fees." Upon the question whether this provision applied merely to that appropriation, or was a continuing statute, and was intended to limit the breadth of section 847, as construed by the supreme court in U. 8. v. Wallace, 116 U. S. 398, 6 Sup. Ct. Rep. 408, the courts have been much divided. BeU v. U. 8., 35 Fed. Rep. 889; Rand v. U. S., 36 Fed. Rep. 671; Hoyne v. U. 8.. 38 Fed. Rep. 542; and McDermott v. U. 8.,40 Fed. Rep. 217, are authorities to the effect that the provision applied merely to that appropriation. 8trong v. U. S., 34 Fed. Rep. 17; Calvert v. U. S., 37 Fed. Rep. 762; McKinstry v. U. 8., 40 Fed. Rep. 813; Orawford v. U: 8., Jd. 446; Goodrich v. U. S., 42 Fed. Rep. 392, are contra. Notwithstanding the clause is in a deficiency bill, and is a proviso, I think that the history of the legislation, and the positive character of the language, which, repeating the phraseology of the disputed clause of sectiop.. 847, adds the declaration, "they shall not be entitled to any docket fees," show the legislative intent that docket fees should not thereafter be included within that section; in other words, the of Judges TOULMIN and PARDEE, with which Mr. Justice LAMAR concurs, seems to me the more forcible and convincing. The item is not allowed. 9. The department declines to allow for a mittimus by the commissioners upon the first continuance,upon the ground that section 1030 provides that no writ is'necessary for remanding the .prisoner from the court into custody. This is applicable where the accused is already in custody by virtue of a warrant from the court. The first warrant of the commissioner is simply to arrest arid bring before him; and, when it is executed, it has spent its force. A commitment to jail becomes necessary if the prisoner is to be held. Ex parte Morrilh, 35 Fed. Rep. 261; Heyward v. U. S., 37 Fed. Rep. 764. In this district, the copy which is required by section 1028 to be left with the jailer is made and certified by the commissioner. The fees for the warrant or mittim1t8, filing the same upon its return, entering the return, the copy, and the certificate, are $1.80. 12. Fees for five subprenas were deducted on the ground that they were excessive. The clerk testifies that he never issued a su bpcena unless it was' called for by the district attorney. I have no reason to suppose that unnecessary papers of this kind are called for or are issued. 13. The clerk charges for reports to the depositary, secretary of the treasury, and commissioner of internal revenue of the cases in which moneys are paid to the clerk at 15 cents per folio. These reports are in the nature of letters to the different officials, transmitting the receipts of the depositary for these moneys, and stating the case and its nature. I think that the term "reports" is not applicable to them, and that the commissions were intended to cover the services incident to the deposit of the money· and the transmission of the information to the department. This item is disallowed. 14. Small deductions of$1.90 wert! made for claimed errors in addition, etc., as stated in the fourteenth claim. The amount should not have been deducted.
IN RE STERNBACH.
15. The clerk charges for recording, in a book for that purpose, the names and residences of the jurors who were annually selected, and whose names were put in the boxes. This was not done by order of court, but was a thing very proper and necessary to be done for the orderly management of the business. A list or a record should be kept, so that the names upon the separate slips can be easily ascertained and verified, and that the names of those who have been drawn or who have died or have remo\'ed may be checked. This was a part of the business of the jury commissioners, and not of the clerk, as clerk. This item is not allowed. ,,16. The charges by the plaintiff as United States commissioner of $2.20 for affidavit, oath, filing, and the warrant in the case of an accused person who was not arrested,- having left the state for another country, are allowed. The· charges of $1.30 as clerk, for entering motion to reduce a bond and denial of the same, also of fees for mittimus in Massacott's Case, and for entering motions and orders appointing guardians ad litem of minors, are allowed. The items in regard to entering motions for and orders of leave to file pleas of nolo contendere, and for entering payment of fines and costs, are withdrawn. 17. The next item, consisting of charges for copies of bills of costs furnished by the clerk in compromised internal revenue cases, as follows: For copy of costs furnished di::;trict attorney in these cases before judgment, 10 cents; a certified copy furnished after judgment, by direction of the internal revenue commissioner, 25 cents. In compromised internal revenue cases, the department requirp,s these copies, and the copy after payment is required to be a certified copy. The fees are included in the expenses to be paid, and are paid to the government by the defendant. The item is allowed. The amount due to the plaintiff is $1,279.12, for which let judgment be entered, with costs.
(Circuit Court, So D. New York.
November 24, 1890.)
CuSTOMS DUTIES-RETURN OF BOARD OF GENERAL APPRAISERS.
The return of the board of United States general appraisersl under section 15 of the act of June 10, 1890, entitled "An act to simplify the lawslD relation to the collection of the revenues, " should contain, in addition to the record and the evidence taken by them and their decision on the questions of law, a certified statement of the facts involved in the case; and it is the duty of the said board to pass upon the questions of fact n.ised by the protest of the importer.
At Law. Motion to order and direct the board of United States general appraisers to file a complete and full return in the above-entitled suit or proceeding.