Marvin v. United States

• Decision Date: 19 December 1890
• Citation: 44 F. 405
• Court: U.S. District Court — District of Connecticut
• Parties: MARVIN v. UNITED STATES.

44 F. 405

MARVIN v. UNITED STATES.

United States Circuit Court, D. Connecticut.

December 19, 1890

Edwin E. Marvin, pro se.

Geo. G Sill, Dist. Atty.

SHIPMAN J.

This is a petition under the act of March 3, 1887, (24 St. 505,) to recover fees and charges of the petitioner as clerk of the district and 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 forth 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 district. The said cause having been heard, the following facts are found by the court: All the allegations of fact in said petition are found to be true. The services and expenses charged therein, and in the various amendments thereto, 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 alleged to have been spent as clerk, commissioner of the circuit court, and jury commissioner ex officio, was spent. The said items mentioned in the petition were included in the petitioner's accounts, which were duly presented to the judge of the district court, were approved, and forwarded to the accounting officer of the treasury, except the item of interest hereinafter mentioned. The liability of the United States depends entirely upon the construction which ought to be given to the statutes pertaining to the subject of fees and the payment thereof.

1. The first matter in dispute relates to the proper amount of the clerk's fees upon orders of court to pay the accounts of the marshal and 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. I had occasion to examine this subject in Stanton v. U.S., 37 F. 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 F. 470; Jones v. U.S., 39 F. 410; Goodrich v. U.S., 42 F. 392;) and the present comptroller coincides therewith, but claims that the petitioner's fees are too large. The clerk annexes to both the duplicate accounts an order, signed and sealed, whereas the comptroller allows for an original 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 makes and files a sealed order, whereas the comptroller is willing to allow for a recorded order without seal or filing. The difference upon commissioners' orders is 30 cents per order, and upon orders to pay other officers is 35 cents per order. In regard to the orders upon accounts of officers other than commissioners, the statute (18 St. 333) requires only a single order to be entered of record. 'The law requires the account to be made in duplicate, but not the order approving the account. The original account, with a certified copy of the order, is forwarded to the treasury department, and the duplicate account is retained by the clerk, and filed in his office. ' Jones v. U.S., 39 F. 410. I do not think that it is necessary that this order should be sealed. An order of court signed by the judge is sufficient. It should be said that the clerk was not notified by the first comptroller's office of its desire that a more economical course should be adopted until April, 1889. The charges for these services should be, as now 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: 45 cents for entering the order approving the account; 10 cents for filing the same; 30 cents for copy; 35 cents for certificate 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 blanks which were furnished by the treasury department contained these jurats, and indicated the intention of the department that each separate account should be sworn to. Of late, if I am correctly advised, these separate oaths are not required. Inasmuch as they were required, they are to be paid by the government at the rate of 25 cents for each jurat. The government also objects to the charge of 10 cents for filing each voucher returned by the marshal with his accounts. Each voucher is a separate, unattached paper, and both convenience and neatness require 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., 35 F. 193; Erwin v. U.S., supra; Jones 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 las 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 other 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 and brought before him for trial. The cases were then continued for reasons which were satisfactory to him; one party or the other was not ready for trial. The facts are substantially the same with those in U.S. v. Jones, 134 U.S. 486, 10 S.Ct. 615, in which the commissioner's per diems were allowed. The same ruling had previously been made in Rand v. U.S., 36 F. 671.

The next item is for commissioner's per diems, disallowed because he was allowed a per diem fee for the same days as clerk of court. The general question was considered in U.S. v. Saunders, 120 U.S. 126, 7 S.Ct. 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 Erwin v. U.S., supra, and I accord with the conclusion of Judge SPEER that the commissioner is entitled to his statutory fee of $5 for services performed upon any one 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 officio from and after 1887, in accordance with the allowance made to jury commissioners in the various annual appropriation acts. 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,) 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 ex 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 F. 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 considerable 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...