United States v. Joseph Finnell

• Decision Date: 21 April 1902
• Docket Number: No. 523,523
• Parties: UNITED STATES, Appt. , v. JOSEPH C. FINNELL
• Court: U.S. Supreme Court

185 U.S. 236

22 S.Ct. 633

46 L.Ed. 890

UNITED STATES, Appt.,

v JOSEPH C. FINNELL.

No. 523.

Submitted February 28, 1902.

Decided April 21, 1902.

Assistant Attorney General Pradt and Mr. Philip M. Ashford for appellant.

Mr. Charles C. Lancaster for appellee.

Mr. Justice Harlan delivered the opinion of the court:

The appellee was clerk of the district and circuit courts for the Kentucky district from July 1st, 1894, to June 30th, 1898, his office, during that period and previously, being in the city of Covington, one of the places at which those courts were held. The district judge resided in the city of Louisville, while the circuit judges resided in other states.

The clerk presented to the proper officers of the Treasury for payment his account for certain services rendered during the above period, amounting to $995.

The account was sworn to and approved as required by the act of February 22d, 1875, which provides, among other things, that before 'any account payable out of the money of the United States shall be allowed by any officer of the Treasury, in favor of clerks, marshals, or district attorneys, the party claiming such account shall render the same, with the vouchere and items thereof, to a United States circuit or district court, and, in presence of the district attorney or his sworn assistant, whose presence shall be noted on the record, prove in open court, to the satisfaction of the court, by his own oath or that of other persons having knowledge of the facts, to be attached to such account, that the services therein charged have been actually and necessarily performed as therein stated; and that the disbursements charged have been fully paid in lawful money; and the court shall thereupon cause to be entered of record an order approving or disapproving the account, as may be according to law and just.' 18 Stat. at L. 333, chap. 95, § 1.

Payment of the account having been refused, this suit was brought against the United States, the petitioner averring that 'his whole compensation, if said fees were added, would not exceed the maximum compensation of $7,000 for any one year.'

Judgment having been entered in favor of the plaintiff for the amount sued for, the government has prosecuted this appeal.

The findings of fact upon which the judgment below was based were as follows:

'1. The claimant, Joseph C. Finnell, was clerk of the district and circuit courts of the United States for the district of Kentucky from July 1st, 1894, to June 30th, 1898, duly qualified and acting.

'2. During said period he entered orders, decrees, and other proceedings of the court on 199 days, extending through said time. None of the judges of said courts were personally pres- ent at the time of the entry of such orders, decrees, and proceedings, but said orders, decrees, and proceedings were transmitted to the claimant by mail by the different judges composing the courts of said district. Said orders, decrees, and proceedings were indorsed: 'Enter this order' (signed by the judge); or, 'Enter this' (signed by the judge); or, 'Enter' (signed by the judge). For the purpose of entering said orders, decrees, and other proceedings the claimant made the following entries on the journal for opening and adjourning court on the dates for which attendance is claimed: 'Court met: Present, Hon. John W. Barr, sitting as circuit judge' (or Judge Taft, or Judge Lurton, or whoever may have been the judge sending the order. Then follows the entry of the order or other proceedings of the court for that day), and, 'It is now ordered that the court stand adjourned until.' The date to which adjournment was had was left blank, and when another such order, decree, or other proceeding was received to be entered said blank was filled by entering therein the date on which the same was received, and another entry, similar to the above, opening and adjourning the court to a blank date, was made. The record containing the entries of the opening and adjourning of court, the certified presence of the judge, and the orders, decrees, and other proceedings of the court, was afterwards signed by the judge sending such orders, decrees, and other proceedings, to be entered as the record of the court for the days on which the same were respectively entered. The Exhibits A, B, and C, attached to and made a part of these findings, are illustrative copies of the record of the court upon such days.

'The nature and character of business transacted on the days on which court was opened and adjourned, as aforesaid, is best shown by the following statement of the subject-matter of said orders, decrees, and other proceedings entered as aforesaid on the days actually claimed for:

'Entry of order granting additional time to plead, four days.

'Entry of order directing drawing of jury by jury commissioners, eighteen days.

'Entry of order granting restraining order, five days.

'Entering orders disposing of sundry demurrers and motions, twenty-one days.

'Entry of orders granting rule, ten days.

'Entry of orders granting application for writ of certiorari, four days.

'Entry of orders granting petition for witnesses on behalf of the defendant at the cost of the United States, seven days.

'Entry of orders approving report of receivers, authorizing compromise by receiver, instructions issued to receiver, and various other orders pertaining to the appointment and conduct of receivers, thirty-three days.

'Entry of orders, and decrees finally disposing of cases, seventeen days.

'Sundry entries of orders granting writs of possession, approving bond of clerk of court, granting leave to withdraw exhibits, granting leave to file intervening petition, ordering sale of property, confirming sale of property, determining the priorities of liens, continuing cases, and granting appeals, eighty days.

'3. Claimant made his account for said services as attendance on court when the same was opened and adjourned by order of the judge, and while the same was actually in session and business actually transacted, which was verified and presented to the United States court for approval in the presence of the district attorney, and orders approving the same as being just and according to law were entered of record. Said accounts were then presented to the accounting officers of the Treasury Department for payment, and payment of fees as per diems in finding 4 was refused.

'4. Item 1. per diems for attendance on court on the days on which said orders, decrees, and other proceedings were entered, 199 days, at $5 per day, $995.

'5. Charges for similar services have been made by the claimant in every account rendered since 1882, and were always allowed and paid by the accounting officers of the Treasury up to June 30th, 1893.'

By § 828 of the Revised Statutes, a clerk of a circuit or district court of the United States was allowed '$5 a day for his attendance on the court while actually in session.'

This section was similar to one in the act of February 26th, 1853, chap. 80 (10 Stat. at L. 161, 163). Under that act clerks were allowed $5 a day for attendance only, whether business was transacted or not by the court. After many years had expired, Comptroller of the Treasury Durham held that interpretation of the statute to be erroneous, and ruled that the transaction of business was a condition precedent to the right to a per diem compensation for attendance, although the court may have been, in fact, regularly opened for business, and awaited the coming of suitors. But the court of claims held, in 1885, that the Comptroller was in error, and adjudged that within the meaning of § 828 the clerk was entitled to $5 a day for his attendance on court, even when no business was transacted. Jones v. United States, 21 Ct. Cl. 1.

The judgment of that court did not, however, pur the matter at rest; for, by the sundry civil appropriations act of Auguse 4th, 1886, chap. 902, it was provided that no part of the money appropriated by that act should 'be used in payment of a per diem compensation to any clerk or marshal for attendance in court, except for days when business is actually transacted in court, and when they attend under §§ 583, 584, 671, 672, and 2013 of the Revised Statutes, which fact shall be certified in the approval of their accounts.' 24 Stat. at L. 222, 253. That act, by its terms, was temporary.

At the subsequent session of Congress the subject was again considered, and resulted in a permanent provision to be found in the sundry civil appropriations act of March 3d, 1887, chap. 362. By that act it was provided 'that hereafter no part of the appropriations made for the payment of fees for United States marshals or clerks shall be used, . . . nor shall any part of any money appropriated be used in payment of a per diem compensation to any attorney, clerk, or marshal for attendance in court, except for days when the court is opened by the judge for business, or business is actually transacted in court, and when they attend under §§ 583, 584, 671, 672, and 2013 of the Revised Statutes, which facts shall be certified in the approval of their accounts.' 24 Stat. at L. 509, 541.

The sections of the Revised Statutes referred to in the act of 1887 are as follows:

'§ 583. If the judge of any district court is unable to attend at the commencement of any regular, adjourned, or special term, the court may be adjourned by the marshal, by virtue of a written order directed to him by the judge, to the next regular term, or to any earlier day, as the order may direct.

'§ 584. If the judge of any district court, in Alabama, California, Georgia, Indiana, Iowa, Kentucky, North Carolina, Tennessee, or West Virginia is not present at the time for opening the court, the clerk may open and adjourn the court from day to day for four days; and if and judge does not appear by 2 o'clock after noon of the fourth day, the clerk shall adjourn the court to the next regular term. But this section...