Van Duzee v. United States

48 F. 643

• Court: District Court, N.D. Iowa
• Decided: November 15, 1891
• Status: Published

Opinion

Su iras, .1,

Attached to the petition in this cause is an itemized account of the work done and services rendered for which the plaintiff seeks to recover judgment. The demurrer presents the question whether the items included in the account conic within the classes of service for which the plaintiff, as clerk of the court, is entitled to compensation from the United States.

1. The first question arises on a charge for filing the discharges given to witnesses summoned on behalf of the government by the district attorney. .Section 877 of the Revised Statutes requires that witnesses summoned to attend court on behalf of the United States shall be subpoenaed generally, and not in a particular case, and that they must not depart from the court without leave of the court or of the district attorney. Under the rule of this court, before a witness can obtain his pay from the marshal, he is required to obtain from the clerk a certificate showing the number of days of attendance and mileage to which he is entitled; and, to properly prepare this certificate, the clerk must know the day on which the witness is discharged from attendance, and also the fact that he has obtained the proper leave from the district attorney. It is and has boon the settled practice for years, in this district, for the district attorney to furnish to the witness a written discharge, which is filed with the clerk, and upon which in turn the clerk bases the certificate which he gives the witness as evidence for the guidance of the marshal in paying the witness the sum due him. There can be no possible question that it is the duty of the district attorney to furnish the written discharge as evidence of the leave granted the witness to depart from the court: and no reason is perceived why it is not the duty of the clerk to file and preserve this discharge, for his own protection, and for that of the witness. If a witness duly summoned and in attendance should depart without leave of the court, or of the district attorney, he could he liable for contempt; and hence it is entirely proper that the files of the court or the records should show that leave had been granted. If a witness should apply, under the statute, to the court for leave to depart, and the same should be granted, the record would contain an entry to that effect; and for the making the same the clerk would be entitled to his fee. When the leave is granted by order of the district attorney, the discharge should be filed, so as to be preserved as part of the record of the proceedings of the court, and in either case the clerk is entitled to the statutory fee for making the record by filing the discharge.

'¿. The second item in dispute is the charge for filing receipts of the United States collector for fines paid in or collected from persons sentenced for violation of the internal revenue la'ws. Under the regulations of the treasury department, the clerk is required to pay all fines collected in revenue cases to the collector of the proper district. As evidence of the receipt thereof, the collector executes written receipts, which operate in the double capacity of evidence showing that the collector has become liable to account for the money thus received, and as evidence that the clerk has performed his duty of payment to the proper officer. . The argument in support of the demurrer to this class of items is that there is no law requiring the taking or filing such receipts, and therefore the same are not “papers,” within the meaning of the third clause of section 828 of the Revised Statutes. It certainly cannot be possible that the government seeks to have it declared to be the law that the clerk is not required or expected to take receipts for moneys thus paid to the collectors. It cannot be that the department would be satisfied with a practice of the clerk paying hundreds of dollars to the collectors without any written evidence being taken of such payments. The proposition is its own refutation; and it is entirely clear that it is the duty of the clerk, when these payments are made, to take proper receipts from the collectors, not only as evidence for his own protection, but as evidence on behalf of the government showing that the collector has become liable for the amounts thus paid him. Such receipts are not the private property of the clerk, but should be kept in his office as part of the official papers, there to remain for the benefit of the government, and as evidence useful in settling the accounts of the clerk and accounts of the collectors; and as such thejr form part of the record of the particular cases in which the fine has been collected and paid' over. Such receipts are part of the papers connected with the case, are properly filed as such, and for such filing the .clerk is entitled to the statutory fee.

8. The next item in dispute is the fee charged for filing the written reports made by the district attorney in regard to the accounts of the marshal, clerk, and commissioner. By a rule of this court, duly adopted and spread upon the record, it is provided that, when the reports of the officers named are filed, they must be submitted to the district attorney for his examination, and he is required to make to the court a written report of the result of such examination. The argument made in support of the demurrer, that the act of February 22, 1875, does not call for a written report from the district attorney, does not meet the question. This court has the right to adopt rules for the conduct of the business before it; and, as already stated, it has adopted a rule requiring the district attorney to make an examination of the accounts of officers, and to report thereon in writing. The accounts of officers are voluminous, and require that kind of examination that cannot be well given them in open court. The requirements of the rule of court are in addition to those of the act of 1875, and are intended as an additional safeguard against the allowance of illegal fees. Under the rule, it is the duty of the district attorney to make a written report of the result of his examination of each account, and it is the duty of the clerk to file such report when made. The report is a paper lawfully filed as part of the record of the court, and the clerk is therefore entitled to the usual fee for such filing.

4. The next items demurred to are the charges made for duplicate copies of the orders of court approving tlie accounts of the marshal, clerk, and district attorney. The act of February 22, 1875, requires that the accounts of the officers named, and the vouchers belonging thereto, shall be made in duplicate; the original to be forwarded to Washington, and the duplicate to be retained by the clerk. In order to entitle the original to consideration and allowance by the department, it is required that duly certified copies of the orders of allowance by the court shall accompany the accounts. Yet these orders do not form part of the accounts and vouchers of which a duplicate is required to be; left with the clerk. The “duplicate” named in the act is the duplicate of the accounts and the vouchers, and does not include the orders of the court. To these items the demurrer is sustained.

5. The fee charged for entering upon the record the fact of the submission of official accounts to the court is demurred to on the theory that the act of February 22, 1875, only required the entry of the order of approval or disapproval. The usual practice is that in accordance with the requirements of the statute the account is presented to the court in the presence of the district attorney or his assistant, and is supported by the oath of the party. Thereupon the court, as soon as possible, examines the account in detail, and then makes the final order. The necessary examination precludes the entering the oidor of approval at the time of the entry of the fact of submission in open court, and hence the need of the two entries. The act of 1875 requires that the record shall show that the district attorney or his assistant was present in court when the account is submitted, and hence there must be a record entry of the fact of the presentation of the account in open court in presence of the attorney; and the statute further requires a record entry of the final order of approval or disapproval. The clerk has no control over these ¡natters. If the court receives the presentation of the account upon one day, it is the duty of the clerk to make the proper entry of that fact in the proceedings of that day; and then when the court, upon another day, renders its decision, and orders the approval of the account, the clerk must make the proper entry thereof. For such entries he is entitled to the proper fees.

6. The next .point arising upon the demurrer is whether the clerk is erutitlecl to compensation for services rendered in procuring names of parties to serve as jurors, and in drawing the juries for the term of court in the district. This question has been adjudged in this circuit in favor of the right of the clerk to compensation for such services. See opinion of Judge Caldwell in Goodrich v. U. S., 42 Fed. Rep. 392. Relying upon tire ruling in that case, the demurrer will be overruled to these items of charge in the present cause.

7. Exception is next taken to the charge made for filing the duplicate vouchers accompanying the accounts of the marshal. These accounts and vouchers pass under the control of the clerk, as they are required to be presented to the court in the first instance; and then, upon approval, the clerk is required to forward the original account and the original vouchers to the department at Washington, and to retain the duplicates. In the instructions issued by the department of justice to the clerks, (see Register of 1886, p. 265,) the clerk is required to certify, when forwarding the original of the accounts and vouchers, that the duplicates thereof are on file in his office. These papers are therefore matters that are to be filed, and under the ruling of Ruewer, J., in Goodrich v. U. S., 35 Fed. Rep. 193, the clerk had the right to file each paper, and to make the statutory charge therefor.

8. The next item demurred to is a charge for a certified copy of a recognizance in a case wherein the sureties thereon caused the rearrest of the party under indictment. Section 1018 of the Revised Statutes authorizes the sureties to arrest their principal, and, before a judge or 'committing officer, to deliver him to the marshal; and, at the request ,of the bail, it is made the duty of the judge or committing officer to eu-iter upon the recognizance, or a certified copy thereof, the exoneration of the bail. Under this section, it would seem to be the duty of the !bail to procure and paj^ for the certified copy of the recognizance in case they desired to have the exoneration indorsed thereon. To authorize the rearrest of the principal, and his delivery to the custody of the marshal, it is not necessary that the recognizance, or a copy thereof, should be procured in the first instance; and need therefor does not arise unless the bail desires to ask the entry of discharge thereon. The copy made is not furnished to the marshal as evidence of his right to receive the prisoner, for that is based upon the action of the sureties taken before the judge or officer; but it is furnished the sureties in order that they may, if the}' choose, have entered thereon a discharge of liability. The clerk is entitled to demand a fee from the bail when they demand a copy, but such fée is not a proper charge against the United States.

9. The demurrer must also be sustained to the charge for issuing W'arrant to the marshal to bring a prisoner confined at Sioux City to Ft. Dodge for trial. Strictly, under section 1030 of the Revised Statutes, a formal writ or warrant for that purpose was not needed; and, treating the warrant »as in fact a copy of the order for bringing the prisoner to Ft. Dodge, no fee is chargeable therefor under the provisions of the section just cited.

JO. Exception is also taken to the charge for certificate and seal attached to the copy of the indictment furnished on demand to the defendant in the ease of U. S. v. Parquette under the provisions of the standing rule of this court. It tvas the duty of the clerk to furnish the copy; and it is the usual rule that copies of all parts of the record, when furnished by the clerk, shall he duly cerlilied to by the clerk. The charge is allowed.

11. The next item excepted to is the folio charge for the approval by ' the clerk of recognizances given in certain criminal cases. It is the duty of the clerk to approve these bonds, and it is the practice to evidence such approval by a written entry or certificate of approval upon the face or back of the bond. This is the making of an entry or certificate, within the language of section 828 of the Revised Statutes; and the folio fee of 15 cents is chargeable therefor.

12. The next class of items to which exception is taken is that including charge for administering the oath to jurors, grand and petit, when they are proving up their attendance before the clerk, lor the issuance of a certificate to each juror showing the number of days he has attended court, and the number of miles traveled, as the basis for the action of the marshal in making payment to the jurors; for entering order directing the marshal to pay the jurors; for making copies of such order for the marshal; and for making report to the court of the per diem and mileage due the jurors, — as the evidence upon which the court relies in making the order for payment. The clerk is required to perform these services in carrying out the requirements of the rule adopted by the court regulating the manner in which proof of the amounts due jurors is to be furnished. When the jurors are discharged from further attendance, the rule requires them to go to the clerk, and, upon a proper book prepared by him, to enter their names, places of residence, days of attendance, and number of miles of travel; and, as evidence of the correctness thereof, they are required to make oath thereto. Thereupon the clerk makes out and furnishes to each party a certificate showing the days of attendance and miles traveled and the amount due. This certificate ia submitted to the marshal, and thus he is furnished with a check upon the juror. When the account of the marshal is made out for submission to the court, the rule requires that it shall be first submitted to the clerk, who is required to compare the payment made with the facts appearing on his book or record; and, if they agree, he is required to make a certificate of that fact upon the account of the marshal. Thus there is put in operation a, check upon the juror, and also upon the marshal; for his account will not be approved unless it agrees with the clerk’s record. The court is also required to make an order directing the payment, of the sums due the jurors; and as the basis therefor the clerk is required to make a report to the court of the names of the jurors, and the amount duo them. Thus it is made the duty of the clerk to perform each act for which the fee is charged; and, as they are all services of a character for which the foe-bill provides payment, the clerk is entitled to pay therefor.

13. Exception is also taken to the charge for certificate and seal attached to copy of order furnished the jury commissioner, directing the drawing of juries under the jn’bvisions of the statute and rules of court. It is the proper practice to furnish to the commissioner the evidence of the order made by the court, requiring him to aid in summoning a jury; and what better mode for so doing can be suggested than by sending him a certified copy of the order? The charge is therefore allowed.

14. Exception is next taken to the folio fee charged for making final entries in a number of criminal cases. The purpose of the final entry is to bring together in compact form upon the record the evidence of the material steps taken in the given case. Under the rule and settled practice in Iowa, there should be included, of the items claimed in the ac-coimt attached to the petition herein, in the final entry, the commissioner’s order for appearance before the grand jury; the entry showing the due presentment of the indictment by the grand jury; the indictment; the bench-warrant, and return thereon; the plea of defendant, including arraignment; the entry showing trial and verdict; the sentence and final order or orders of the court, such as order granting new trial, or modifying or suspending sentence in whole or in part, or directing mode or place of carrying into effect the sentence imposed; the mittimu* and return of the officer showing the execution of the sentence; and the entry of satisfaction, when the sentence by way of fine is paid. The final entry should not include the bail-bonds; the entry of default, and forfeiture thereof; orders of attachments for witnesses who may fail to appear; the attachment and return, and the order made thereon. These do not constitute any part of the proceedings against the defendant named in the indictment, although they grow out of it, and hence aré not proper parts of the final' entry or record.

15. Exception is taken to the charge for administering the oath to witnesses in criminal'cases, it being argued that the docket fee of three dollars includes services of this nature. The fee-bill (section 828) expressly provides -for a fee of 10 Cents for administering oaths; and in Van Duzee v. U. S., 140 U. S. 199, 11 Sup. Ct. Rep. 941, it is expressly held that the docket fee of three dollars is intended to cover the entry of the case, indexing, making minutes on calendar, and such other incidental services as are not covered by other clauses of the statute. The administering an oath is a service for which compensation is expressly provided by another clause of the statute; and the fee therefor is properly chargeable.

16. Objection is also made to the charge for certificates and seals to copies of the sentence, and order based thereon, in cases wherein a prisoner is sentenced to imprisonment, and an order is made fixing the place wherein the sentence is to be carried out. Section 1028 of the Revised Statutes provides that when a prisoner is delivered to a sheriff or jailer under a writ, warrant, or mittimus, a copy thereof shall be left with such sheriff and jailer, and the marshal’s return shall be made on the original. The statutes of Iowa (section 4515, Code) require that when a prisoner is committed to the custody of a keeper of a jail or prison a certified copy of the entry of the judgment shall he furnished him. Certainly it is the proper practice, when prisoners are committed to a state jail under a sentence of a court of the United States, that there shall be furnished to the jailer the evidence which the state statute requires him to demand before he will receive a prisoner under his custody. The copy of the judgment entry shows the terms of the sentence, and the order shows where the sentence is to he carried out, which is a necessity in case of sentence in the federal courts. These copies, when delivered to the jailer, are the evidence upon which he relies as proof of his authority to hold the prisoner in custody. Clearly, therefore, the copies should be certified to; and thus the jailer has furnished him that which, on its face, bears evidence of its official character. The copies in question constitute the mittimus required by section .1028 of the Revised Statutes, and the jailer is entitled to demand an official copy thereof before he can be required to assume the charge of the prisoner; and this requires that the clerk shall make the proper certificate, with his official seal attached, and for so doing he then becomes entitled to the statutory fee.

17. Exceptions are next taken to the folio fees for making copies of certain indictments, and certifying the same, at the request of the district attorney. These indictments wore found against certain officers of a national bank, and contain many counts. The charge therefor was allowed by the court, when the clerk’s account was originally passed on, because the court know the character of the cases, the large number of counts in the indictments, and that, to enable the district attorney to prepare the causes for trial, it was absolutely necessary that he should have, for his own use, a copy of the indictments, which sot forth in detail the various acts counted on as violations of the banking act. The facts upon which the allowance was made clearly proved the need of furnishing to the district attorney the copies charged for; and as the services were rendered by the clerk in aid of prosecutions instituted by the government, and upon the written order of the district attorney, the court, in passing upon the account of the clerk, allowed the folio fee for the copies, and the fee for the certificate and seal, and also lor filing the written order or prsedpe. The'ruling then made is now affirmed.

18. Exception, is also taken to the fee charged for issuing a mittimus in cases wherein the defendant is ordered to be imprisoned until the fine be paid, and for filing same when returned by the marshal, and for entering his return thereon. The mittimus is the warrant issued to the marshal, directing him to commit the defendant to custody as required by the sentence, without which the marshal would not be justified in committing the defendant to jail; and its issuance and return are necessary steps in carrying out the judgment or sentence of the court. The fees charged for these services are therefore allowed.

19. The last item demurred to is the charge for making duplicate copies of the order of the court, directing the marshal to procure the necessary record books for use in the Cedar Rapids division of this district. These copies of the order are in themselves vouchers for the benefit of the marshal. He is entitled to a certified copy of the order of the court as the evidence of his authority to procure the requisite books, which forms part, at least, of the papers which vouch for the proper outlay made by him in this particular, and he is required to file with the clerk a duplicate of all vouchers which accompany his account, and hence the need for duplicate copies of the order made.

The total sum sued for is $714.40. Under the conclusion reached as herein announced, the clerk is entitled to $666.90, the remainder of the sum total being disallowed; and judgment will therefore be entered for said amount of $666.90.