PUTNAM, Circuit Judge
(orally). I will first take up the indictments relating to the alleged embezzlement of moneys, -which I think •are Nos. 45, 46, and 47. There are two classes of counts here. . Counts 2, 3, and 4 relate specifically to surplus fees and emoluments of the clerk of the United States District Court, and as such clerk he* is charged by those counts with embezzling that surplus. The other counts cover a disposition of funds in his hands without alleging the origin of them; but they all charge embezzlement. The expression “to embezzle” was settled in the Court of Appeals for this circuit as sufficient, the same as the words “steal, take, and carry away,” to show a willful conversion unlawfully and fraudulently to one’s own use. Jewett v. United States, 100 Fed. 832, 837, 41 C. C. A. 88, 53 L. R. A. 568 ; Dickinson v. United States, 159 Fed. 801, 802, 86 C. C. A. 625, 626. In all these counts the description of the funds alleged to have been embezzled is sufficient, because the grand jury specifies an amount, and says that it is unable to give further information. Under several decisions of the Supreme Court, that is sufficient, and my recollection is that it is sufficient until disproved. Counts 2, 3, and 4 relate, however, clearly to moneys which came into Mason’s hands as fees and emoluments, and no fair consideration of the counts can leave out that limitation. All the other counts, while they have been discussed as based on this statute or that statute, contain finally a general charge of em[559]*559bezzlemeiit, which is sufficient, as I have said, although perhaps they contain other matters which may be regarded as surplusage. They are so framed that, with reference to alleged embezzlements, the United States can rest them upon any statute which they will fit in a general way. Therefore all those counts must stand on these demurrers. The demurrers, however, are not to each indictment as a whole, but to each and every count. So, notwithstanding some counts are good, other counts may he adjudged invalid.
A supposed fundamental question made by the parties is as to the nature of the title by which the clerk of the District Court holds the moneys he receives as fees and emoluments. The Supreme Court has characterized the nature of this title in two different ways; but in each case in a mere dictum relating not at all to any essemial matter, each being disposed of on fundamental points to which the dictum had no necessary relation. Expressions in the case of United States v. Hill, 123 U. S. 681, 8 Sup. Ct. 308, 31 L. Ed. 275, would indicate that, in the view of the court, the moneys, until some step was taken under the statutes other than the mere collection of them from litigants, are the moneys of the clerk. The other expression, cited by the United States, which was repeated by the Circuit Court of Appeals in this Circuit in United States v. Mason, 129 Fed. 742, 64 C. C. A. 270, was again a mere dictum, but has a different outlook. To determine this precise point we have to look back to the time when these moneys were undoubtedly the moneys of the clerk as they were received. That was the law of the United States courts in accordance with the law of Great Britain generally that fees and emoluments are the property of the person receiving them, and this to such an extent that under the common law many offices were sold outright, and allowed to be sold; the purchase motley being based upon the amount of fees and emoluments which the holder of the office might receive. There was no question about that until the statute of 3853, now Rev. St. §§ 823, 828 (U. S. Comp. St. 1901, pp. 632, 635). To that time the whole question of the clerk’s fees and emoluments was mostly a matter of tradition. Then the statute undertook to regulate the fees and emoluments of clerks, and did so to a certain extent, leaving still a large remnant as a matter of judicial practice. In United States v. Hill, 120 U. S. 169, 7 Sup. Ct. 510, 30 L. Ed. 627, the clerk prevailed on a question of usage necessary to enable the court to construe the act of 1853 (Act Feb. 26, 1853, c. 80, 10 Stat. 361). All this indicates the nature of the right which we are considering. Yet whether under the present statutes the fees and emoluments received by him are the clerk’s moneys, quasi moneys, or whether they are moneys of the United States when they are received, and whether the surplus in his hands is his moneys until he has made the return which the statute requires, or whether they are moneys of the United States, one thing is clear — that by settled usage, and undoubtedly by the law, the clerk never deposits the fees and emoluments under the subtreasury system of the United States. He always holds them in his own hands until he makes his return, when by the statute he is required to paj? the surplus to the United States! He uses to some extent those moneys for his family expenses and for his own expenses; and there can be no question that an interpretation of [560]*560the law which, permits this is a reasonable one and á necessary one, because, aside from those moneys, the clerk is not supposed to have any resoürces for his support during the six-months period which his returns cover. Such is the practice, and such I have no doubt is the law; and so those moneys have never been covered by the subtreasury acts. Therefore there is always a margin of doubt and question— sometimes large, sometimes small — but a margin of doubt and question as to what portion of those moneys belongs to the United States; that is, what is the surplus, and what portion belongs to the clerk.
As the result, there are two roads marked out by the statutes of the United States, one that of the subtreasury moneys, or moneys which the clerk necessarily pays into the subtreasury, or some depository, and which can be drawn only by checks countersigned by the judge, and the other that of the moneys collected by the clerk as fees and emoluments, always an uncertain, undetermined amount until finally closed by an adjudication of the department satisfactory to the clerk, or by civil litigation in the courts. In view of the fact that section 549,0 of the Revised Statutes (U. S. Comp. St. 1901, p. 3704), on which the United States orally bases one of its counts, will, on examination, be found to be a part of the subtreasury act (Act Aug. 6, 1846, c. 90, 9 Stat. 63), it has no relation to these proceedings, so far as they concern fees and emoluments of the clerk’s office, although I agree with the district attorney that the statute is a regulatory statute, intended to guard the finances of the United States by clear rules, and to point out positively the place where the moneys shall be deposited, and what shall be done with them. The subtreasury system points out one path; but what we have here relates to that uncertain state of accounts of which I have spoken, and to the moneys which the clerk is not required to deposit instantly, but which he may apply in part to his own personal uses or to his family .uses, and which travel an entirely different road. That in my judgment is marked out by what was section 833 of the Revised Statutes, coupjed with section 844. The two go together as parts of the act of 1853 about fees, and must be read together.
I may, however, call attention to another statute which has not been explained to me; that is, Act Reb. 22, 1875, c. 95, 18 Stat. 333 (U. S. Comp. St. 1901, p. 648), and sequence.
Free access — add to your briefcase to read the full text and ask questions with AI
PUTNAM, Circuit Judge
(orally). I will first take up the indictments relating to the alleged embezzlement of moneys, -which I think •are Nos. 45, 46, and 47. There are two classes of counts here. . Counts 2, 3, and 4 relate specifically to surplus fees and emoluments of the clerk of the United States District Court, and as such clerk he* is charged by those counts with embezzling that surplus. The other counts cover a disposition of funds in his hands without alleging the origin of them; but they all charge embezzlement. The expression “to embezzle” was settled in the Court of Appeals for this circuit as sufficient, the same as the words “steal, take, and carry away,” to show a willful conversion unlawfully and fraudulently to one’s own use. Jewett v. United States, 100 Fed. 832, 837, 41 C. C. A. 88, 53 L. R. A. 568 ; Dickinson v. United States, 159 Fed. 801, 802, 86 C. C. A. 625, 626. In all these counts the description of the funds alleged to have been embezzled is sufficient, because the grand jury specifies an amount, and says that it is unable to give further information. Under several decisions of the Supreme Court, that is sufficient, and my recollection is that it is sufficient until disproved. Counts 2, 3, and 4 relate, however, clearly to moneys which came into Mason’s hands as fees and emoluments, and no fair consideration of the counts can leave out that limitation. All the other counts, while they have been discussed as based on this statute or that statute, contain finally a general charge of em[559]*559bezzlemeiit, which is sufficient, as I have said, although perhaps they contain other matters which may be regarded as surplusage. They are so framed that, with reference to alleged embezzlements, the United States can rest them upon any statute which they will fit in a general way. Therefore all those counts must stand on these demurrers. The demurrers, however, are not to each indictment as a whole, but to each and every count. So, notwithstanding some counts are good, other counts may he adjudged invalid.
A supposed fundamental question made by the parties is as to the nature of the title by which the clerk of the District Court holds the moneys he receives as fees and emoluments. The Supreme Court has characterized the nature of this title in two different ways; but in each case in a mere dictum relating not at all to any essemial matter, each being disposed of on fundamental points to which the dictum had no necessary relation. Expressions in the case of United States v. Hill, 123 U. S. 681, 8 Sup. Ct. 308, 31 L. Ed. 275, would indicate that, in the view of the court, the moneys, until some step was taken under the statutes other than the mere collection of them from litigants, are the moneys of the clerk. The other expression, cited by the United States, which was repeated by the Circuit Court of Appeals in this Circuit in United States v. Mason, 129 Fed. 742, 64 C. C. A. 270, was again a mere dictum, but has a different outlook. To determine this precise point we have to look back to the time when these moneys were undoubtedly the moneys of the clerk as they were received. That was the law of the United States courts in accordance with the law of Great Britain generally that fees and emoluments are the property of the person receiving them, and this to such an extent that under the common law many offices were sold outright, and allowed to be sold; the purchase motley being based upon the amount of fees and emoluments which the holder of the office might receive. There was no question about that until the statute of 3853, now Rev. St. §§ 823, 828 (U. S. Comp. St. 1901, pp. 632, 635). To that time the whole question of the clerk’s fees and emoluments was mostly a matter of tradition. Then the statute undertook to regulate the fees and emoluments of clerks, and did so to a certain extent, leaving still a large remnant as a matter of judicial practice. In United States v. Hill, 120 U. S. 169, 7 Sup. Ct. 510, 30 L. Ed. 627, the clerk prevailed on a question of usage necessary to enable the court to construe the act of 1853 (Act Feb. 26, 1853, c. 80, 10 Stat. 361). All this indicates the nature of the right which we are considering. Yet whether under the present statutes the fees and emoluments received by him are the clerk’s moneys, quasi moneys, or whether they are moneys of the United States when they are received, and whether the surplus in his hands is his moneys until he has made the return which the statute requires, or whether they are moneys of the United States, one thing is clear — that by settled usage, and undoubtedly by the law, the clerk never deposits the fees and emoluments under the subtreasury system of the United States. He always holds them in his own hands until he makes his return, when by the statute he is required to paj? the surplus to the United States! He uses to some extent those moneys for his family expenses and for his own expenses; and there can be no question that an interpretation of [560]*560the law which, permits this is a reasonable one and á necessary one, because, aside from those moneys, the clerk is not supposed to have any resoürces for his support during the six-months period which his returns cover. Such is the practice, and such I have no doubt is the law; and so those moneys have never been covered by the subtreasury acts. Therefore there is always a margin of doubt and question— sometimes large, sometimes small — but a margin of doubt and question as to what portion of those moneys belongs to the United States; that is, what is the surplus, and what portion belongs to the clerk.
As the result, there are two roads marked out by the statutes of the United States, one that of the subtreasury moneys, or moneys which the clerk necessarily pays into the subtreasury, or some depository, and which can be drawn only by checks countersigned by the judge, and the other that of the moneys collected by the clerk as fees and emoluments, always an uncertain, undetermined amount until finally closed by an adjudication of the department satisfactory to the clerk, or by civil litigation in the courts. In view of the fact that section 549,0 of the Revised Statutes (U. S. Comp. St. 1901, p. 3704), on which the United States orally bases one of its counts, will, on examination, be found to be a part of the subtreasury act (Act Aug. 6, 1846, c. 90, 9 Stat. 63), it has no relation to these proceedings, so far as they concern fees and emoluments of the clerk’s office, although I agree with the district attorney that the statute is a regulatory statute, intended to guard the finances of the United States by clear rules, and to point out positively the place where the moneys shall be deposited, and what shall be done with them. The subtreasury system points out one path; but what we have here relates to that uncertain state of accounts of which I have spoken, and to the moneys which the clerk is not required to deposit instantly, but which he may apply in part to his own personal uses or to his family .uses, and which travel an entirely different road. That in my judgment is marked out by what was section 833 of the Revised Statutes, coupjed with section 844. The two go together as parts of the act of 1853 about fees, and must be read together.
I may, however, call attention to another statute which has not been explained to me; that is, Act Reb. 22, 1875, c. 95, 18 Stat. 333 (U. S. Comp. St. 1901, p. 648), and sequence. Section 5 of that act (page 621) provides in substance that, if any clerk shall willfully refuse or neglect to make any report, certificate, or statement, or other document, required, by law to be by him made, or shall willfully refuse or neglect, to forward any such report, certificate, statement, or document to thé department, officer, or person to whom by law the same should be forwarded, the President may remove him. Then the act provides further, in section 6 (page 622), that, if any such neglect or refusal occurs, .the clerk is guilty of a misdemeanor, and may be punished by fine not exceeding $1,000 or by imprisonment not exceeding one year.
• Now, tó my mind, there is, in all this, a plain, straight-forward sjrstem from the beginning to the end, distinguishing these matters before us, so far as fees and emoluments are concerned, from all the statutes which’'relate .to the subtreasury of the United States. They are entirely separate and distinct systems. The United States are entitled tó be protected by these statutes,’ and the clerk also is entitled to be [561]*561protected by them; and, so far as they can relieve him from unjust litigation and from being charged with embezzlement, he is entitled to be relieved. Under sections 833 and 814, which provide, not only for the semiannual returns, but also that, when the returns are made, and not sooner, the clerk shall pay into the treasury of the United Slates the amounts shown by them to be due from him, it is my opinion that the clerk cannot be charged in any 'way criminally for any disposition of any part of the fees and emoluments received by him as fees and emoluments under any general provisions of the statutes of the United States with reference to embezzlement. If the clerk fails to make a return, or refuses to make a return, he may be proceeded against under the act of 1875; and whether in the event he refuses or neglects to avail himself of the opportunity of explaining his finances given him by sections 8.33 and 844 of the Revised Statutes referred to, or whether in the event he refuses or neglects to pay over a surplus which has been definitely ascertained on an adjustment of his accounts or by a civil suit, he can be proceeded against criminally under any other statute than that of 1875, I have no occasion to ascertain at present. Certainly I regard any proceeding of the character I am discussing, relating to moneys received by the clerk as fees and emoluments, as futile in law unless they allege that he refused to make his return, or unless they allege that, if he made the return, he refuses to make payment at the end of the time provided by section 844. These allegations are lacking in the present case.
Therefore the judgment will be that the three counts which do not relate to moneys received by the clerk as fees and emoluments are sufficient in law, and the respondent will be directed to answer over to them. So far as the other three counts are concerned, those which relate to moneys received by him as fees and emoluments, the counts are not sufficient in law, and are adjudged invalid; and, so far as those counts are concerned, the judgment will be that the respondent goes without day.
I will now take the other indictment. There the difficulty is a very serious one indeed. Whatever my conclusion, I have very great doubts. The difficulty comes, not from any general rules of law, but from the fact that Congress saw fit in an appropriation act where it did not belong to make a provision of the crudest character. Section 833 of the Revised Statutes provided for a semiannual return by the clerk, as well as by the district attorney and the marshal. Then at the close it contained the following: “Said returns shall be verified by the oath of the officer making them.” Act June 28, 1902, c. 1301, 32 Stat. 419, was a general sundry civil appropriation act, making appropriations for the fiscal year ending June 30, 1903. It was approved June 28, 1902, which was two days before the semiannual return of the clerk, the respondent here, was required to be made in accordance with section 833 of the Revised Statutes. It made no reservation of that return, but contained a repealing clause at page 481 that “all laws or parts of laws in conflict with the provisions of this act be and the same are hereby repealed.” for a long time my mind was much taken up with the rules in reference to the effect of repealing statutes, but difficulties underlie that. Two statutes cannot stand in the same place any more than two persons can [562]*562stand in the same place; and this statute, which was found in the bowels of the appropriation act, modified the form of return to be made, and omitted the requirement for an oath. In the form of the return some changes were very evidently important to be made. One was a mere matter of form, namely, it omitted the marshal and the district attorney, each at that time on a salary, and the other included specifically certain items which it classified as fees and emoluments which were not clearly included in any previous act. The provision does not purport to be an amendment. It contains on its face no reference to the Revised Statutes; that is, to the section in question, 833. It simply is made out of whole cloth. It reads, in fact, the same as though there had been no previous statute. Now, the repealing provision of the Revised Statutes does not seem to reach this case exactly. It does not seem to reach the case so far as the return of the clerk due July 1, 1902, was concerned. That is left in the air; but I need not trouble on this account, because there is no practical question about it. This act of 1902 did, however, occupy the place occupied by section 833 of the Revised Statutes, and therefore in a certain sense, at least, it repealed it by inevitable effect.
The expressions of the Supreme Court are not always complete with reference to what are repealing statutes by implication. They ordinarily say that by implication a new statute does not repeal if it is possibly reconcilable with the old statute. The Supreme Court guards itself very carefully in that way, but it has sometimes failed to speak of the effect by implication of a statute which covers the same ground as a previous statute, when it is impossible for the.two to stand together. However, the question is not one of repeal, but whether or not Congress intended to bring forward from the Revised Statutes to the act of 1902 the provision for an oath. The difficulty in my mind is that that provision for an oath is for an oath to the return declared in section 833, while now I am asked to establish an oath' to a return which is different, essentially different, in its subject-matter. Right there is where the question lies in my mind. If, however, I do not bring forward the provision for an oath in section 833, I repeal section 844 of the Revised Statutes, because section 833 relates to the same return as section 844, which requires that the clerk pay over the moneys. I would have to hold that Congress has unintentionally repealed all provisions for paying after the return is made. It is easy to imagine extreme cases where a re-enactment of a statute would bring forward what was not in terms re-enacted. Take a criminal statute imposing a penalty of life imprisonment, or of hanging, in case of murder! The statute, as your Massachusetts statutes do, may define murder, the different degrees of murder, with a great deal of detail. Ret the Legislature re-enact a new description of the details of the offense, but omit in terms to re-enact the penalty! Both statutes could not stand together, but no court would venture to hold that the penalty was lost. That would be an extreme case. This here, which is a matter of regulation, requires a longer stretch on the part of the court than the extreme case which I suggest. Nevertheless, with great doubt, and with the possibility of a revision of my views at a subsequent stage of the case, I think that I must hold that the provision for an oath has been brought forward by [563]*563the intention of Congress or the inevitable condition of things, and that the court cannot disregard it.
The other objections to tlie indictment of which I am speaking are not so serious. They are not free from doubt, but still they are objections on which the views of the court are clearer. 1 have no doubt, although there is no express provision, that the oath may be taken by the district judge. There is a settled rule of law, of the common law, that a judge of a superior court is a magistrate who can take any oatli which the law requires, either in court or out of court; and this rule has been adopted by the common practice in the United States in the federal courts, and applies to the judges of those courts. I think that Mr. Justice Swayne in the case cited here so holds; and the Supreme Court in the case cited by him also so holds. At any rate, that is the settled practice. So the only question would be as to the effect of the act of 1902 — whether the oath was required. If I am right in my view that the oath was required, then I am clear that the district judge liad the right to take the oath. I am also clear that, if there was any question with reference to this return under the act of 1902 for investigation by the judge of the District Court, he had a right to take the oath in reference thereto whether there was any provision of statute therefor or not. But there does not seem to be any statute which rests upon the district judge any right or obligation to investigate that return. Therefore the case stands entirely, so far as we have gone, upon the correctness of my views whether or not 1 am entitled to hold, and should hold, that the provision for the oath in section 833 was brought forward into the act of 1902.
There is one other question; that is, that the indictment fails to allege that the return was made within the time fixed by statute. T look upon this matter of time as a mere regulation, which, of course, in my judgment, cannot reach the vitals of this case; and therefore I cannot sustain that point.
The judgment on this indictment will be that the indictment is adjudged sufficient, and that the respondent must answer over.
The counsel will submit the proper interlocutory judgment on each indictment, according to this opinion.