Van Duzee v. United States

• Decision Date: 06 March 1890
• Citation: 41 F. 571
• Parties: VAN DUZEE v. UNITED STATES.
• Court: U.S. District Court — Northern District of Iowa

41 F. 571

VAN DUZEE v. UNITED STATES.

United States District Court, N.D. Iowa, Eastern Division.

March 6, 1890

A. J Van Duzee, pro se.

T. P Murphy, U.S. Dist. Atty., for defendant.

SHIRAS J.

The question presented by the demurrer to the petition filed in this cause is as to the right of plaintiff to recover for certain services rendered by him as clerk of the United States courts in the northern district of Iowa.

The first division of account sued on includes the fees charged in 45 criminal cases for filing the papers certified up by the commissioners before whom the cases were commenced. In the majority of the cases, the number of papers filed by the clerk ranges from 4 to 6. A few number 8 papers, and one reaches 16. In the whole number, of 45 cases, there were filed 267 papers, or an average of 5 14-15 to each case. It is admitted by defendant that for each paper properly filed the clerk is entitled to a fee of 10 cents; and the question is whether the clerk should file all the papers certified up by the commissioners, or should select out certain ones and file these only; or, to put the proposition in the language of counsel for defendant, 'the plaintiff was entitled to one filing for each final recognizance, and one filing for all other papers in the case. The latter should be fastened together, and filed as one paper. ' This is the position taken by the accounting officials at Washington, and, in accordance therewith, they have allowed to plaintiff for the filing of two papers in each case. The statute gives a fee of 10 cents for filing and entering every declaration, plea, or other paper. For every paper properly filed, the clerk is entitled to charge the named fee of 10 cents. When the papers in a case are received from the commissioner, it is the duty of the clerk to file the same; and I can see no ground for holding that he should select out the final recognizance for filing, and then fasten together all the other papers, and file the bundle as a single paper, thus making two papers in each case. The important papers pertaining to cases brought before the commissioners are the information, the warrant of arrest, and return thereon, the entry or evidence of proceedings had before the commissioner, including the order of committal, the recognizance entered into by the defendant if any, and the fee-bill taxed up by the commissioner. In given cases, there may be other papers of moment which the commissioner should send up. When received by the clerk, they are papers which he should file; and it is not his duty to select out one or more of such papers as specially important, and file that, and then bundle the others together, according to the contention on behalf of the defendant. It may be urged that the commissioners might send up a large number of papers which are wholly immaterial, and that the clerk ought not to be paid for filing matters of this nature. It is not the duty of the clerk to receive and file immaterial papers. When papers, however, which are properly sent to him in a given case, are of such a nature that he should receive and file them, then he is not under obligation to fasten all together, and call them one paper, when in fact they are not. The information, warrant of arrest, the order made by the commissioner, the recognizance entered into by defendant, the fee-bill, and other like matters, were not parts of one paper before the commissioner, but were separate and distinct; and they remain so when sent to the clerk. He is under no obligation to fasten them together, and, if for convenience sake he does so, there is no magic in a brass fastening, or the more venerable red tape, which can convert these papers into one. There is no claim made that the several papers filed in the cases named in the first division of the account sued on were not in fact filed, nor that they were not papers properly sent up by the commissioners. As I can see no legal foundation for the bundling theory advanced on behalf of the defendant, the conclusion is that plaintiff is entitled to recover the statutory fee for filing the several papers in the account described.

The second division in the account is for the sum of $4.50, for filing the appointment of the several deputy-marshals, and recording their oaths of office. The objection urged thereto is 'that any service incident and necessary to the appointment and qualification of an officer should be borne by him. ' As between the United States and the parties appointed to office, it may be that such is the correct rule, but it does not follow that the United States can require the clerk to perform the service indicated, and then compel him to look to the officer to pay. Is such, however, the rule between the United States and its appointees? Do the judges, marshals, district attorneys, clerks, and other like officers pay the cost of the preparation and issuance of their commissions? I do not understand such to be the practice of the government. The only way the clerk can secure pay for the services in question from the officer would be to refuse to file or record the papers until the fee was paid. Has the clerk the right to refuse to file and record such papers, when offered him, until the proper fee therefor is paid? By so doing, the interests of the government and its citizens might be put in jeopardy; for thereby the public officers may be seriously delayed in the completion of their right to enter upon the discharge of the duties of their respective positions. Again, if the matter of the recompense coming to the clerk for filing and recording commissioners' oaths of office and the like is a matter between the clerk and the officers, on the theory that such services do not come within the purview of the fee-bill, then how and by whom is the amount to be paid to be determined? Suppose the clerk demands five dollars, and the marshal offers one dollar. Is the public business to be brought to a stand-still until the question of the amount to be paid is judicially settled? This could not be tolerated for a moment. The filing and recording of the necessary papers to complete the authority of the given officer to enter upon the duties of his position is work done in the interest of the public, as well as in that of the officer; and the clerk has no right to interfere with the public business by refusing to file and record the papers in question. It is his duty to file and record the same,-- a duty due the public; and the government, as the representative of the public, should recompense his therefor. If, as between the government and the officer, the latter should pay such costs, the government can deduct the same from the pay coming to the officer.

The next item is for furnishing a copy of an indictment to a defendant charged with selling liquor to Indians contrary to the statute; the sum charged being 90 cents. The claim is that this should be charged to the party interested, and that it is only in capital cases that the United States furnishes the defendant a copy of the indictment free of costs. Section 1033 of the Revised Statutes provides that in cases of treason a copy of the indictment, a list of the jury, and of the witnesses, shall be delivered to the defendant at least three days before the time of trial, and in other capital cases such copy and list must be furnished at least two days before the trial. The section does not deal with other classes of cases, and it certainly does not enact that defendants are not entitled to a copy of the indictment against them. In article 6 of the amendments to the constitution it is provided that the accused 'shall enjoy the right to a speedy and public trial, * * * and to be informed of the nature and cause of the accusation. ' How can a defendant be fully and properly informed of the nature of a charge against him except by being furnished with a copy of the indictment? Under the provisions of the Code of Iowa, it is required that upon arraignment a copy of the indictment shall be furnished to the defendant in every case. The common practice prevailing in the state aids the court in determining in what mode the constitutional provision shall be carried out, and the defendant be informed of the nature of the charge and cause of accusation to which he has been required to answer. Will it be questioned that, when a defendant is charged with an offense which may be punished by imprisonment for years or life, it is due to him that he be furnished with a copy of the indictment? The constitutional provision already quoted is a law of higher authority than an enactment of congress, and it places the duty of carrying out its provisions upon the court. If congress should enact that a defendant should not have furnished to him a copy of the indictment, such enactment would not...