United States v. Millan

• Decision Date: 15 February 1897
• Docket Number: No. 164,164
• Citation: 41 L.Ed. 805,165 U.S. 504,17 S.Ct. 395
• Parties: UNITED STATES v. McMILLAN et al
• Court: U.S. Supreme Court

165 U.S. 504

17 S.Ct. 395

41 L.Ed. 805

UNITED STATES

v McMILLAN et al.

No. 164.

February 15, 1897.

This was an action brought December 31, 1892, in the Third judicial district court of the territory of Utah, by the United States against Henry G. McMillan, clerk of that court, and the sureties on his official bond, to recover the amount of certain fees received by him and not accounted for.

The complaint contained two counts, the first of which alleged that 'between January 8 and December 31, 1889, inclusive, the said Henry G. McMillan, while clerk as aforesaid, and as such, earned, collected, and received from different sources, as the fees and emoluments of his said office, $7,458.70, of which sum $988.90 was earned and received in United States business, $3,776 for declarations of intention and naturalizations, and $2,693.80 from private persons in civil litigation, and from the territory of Utah, on account of territorial business'; that he was entitled to retain, of the moneys aforesaid, the sum of $1,984.93 as his personal compensation, and the further sum of $1,744.05 as the reasonable and necessary expenses of his office, as allowed by the attor- ney general of the United States; that it was his duty, as clerk aforesaid, on January 31, 1890, to account for and to pay over to the United States all moneys, so earned and received by him as aforesaid, in excess of these two sums; and that he neglected and failed so to do.

The second count was precisely like the first, except that it related to fees received between January 1 and December 31, 1890, inclusive, and specified different sums.

The defendants demurred to the complaint, as not stating facts sufficient constitute a cause of action. The court sustained the demurrer, and, the attorney for the United States saying that he could not amend the complaint, judgment was rendered for the defendants. The United States appealed to the supreme court of the territory, which affirmed the judgment. 10 Utah, 184, 37 Pac. 263. The United States sued out this writ of error.

Asst. Atty. Gen. Dodge, for the United States.

Arthur Brown, for appellees.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.

The questions presented by the case are whether 'the fees and emoluments of his office,' for which it is the duty of the clerk of a district court of the territory of Utah to account to the United States, include: (1) Fees received by him from private parties in civil actions, and from the territory on account of territorial business; (2) sums received by him for declarations of intention, and for naturalizations, of aliens.

The true answer to each of these questions appears to us, if not to be found in, at least to be necessarily inferred from, one of two judgments of this court, both delivered by Mr. Justice Blatchford, who, from his long experience in the district and circuit courts, was peculiarly familiar with questions of this kind. U. S. v. Averill, 130 U. S. 335, 9 Sup. Ct. 546; U. S. v. Hill, 120 U. S. 169, 7 Sup. Ct. 510. The weight of those decisions, as applied to the case at bar, may be the better appreciated by recapitulating the legislation supposed to affect the case.

The congress of the United States, by the act of February 26, 1853, c. 80, entitled 'An act to regulate the fees and costs to be allowed to clerks, marshals and attorneys of the circuit and district courts of the United States, and for other purposes,' enacted, in section 1, that, in lieu of the compensation then allowed by law, the fees and costs therein specified, and no other compensation, should be taxed and allowed to 'attorneys, solicitors and proctors in the United States courts, to United States district attorneys, clerks of the district and circuit courts, marshals, witnesses, jurors, commissioners and printers, in the several states'; and, in section 3, that such district attorneys, clerks, and marshals should make half-yearly returns in writing to the secretary of the interior, 'embracing all the fees and emoluments of their respective offices, of every name and character'; that 'no clerk of a district court, or clerk of a circuit court, shall be allowed by the said secretary to retain, of the fees and emoluments of his said office, or, in case both of said clerkships shall be held by the same person, of the said offices, for his own personal compensation, over and above the necessary expenses of his office, and necessary clerk hire included, also to be audited and allowed by the proper accounting officers of the treasury, a sum exceeding three thousand five hundred dollars per year for any such district clerk or circuit clerk, or at and after that rate for such time as he shall hold the office'; and that every such officer should, with each return made by him, pay into the treasury of the United States 'any surplus of the fees and emoluments of his office, which his half-yearly return, so made as aforesaid, shall show to exist over and above the compensations and allowances hereinbefore authorized to be retained and paid by him.' 10 Stat. 161, 166.

That statute did not mention the clerks of the territorial courts. But by section 12 of the civil appropriation act of March 3, 1855, c. 175, the provisions of the act of 1853 were extended to Utah and other territories, 'as fully, in all particulars, as they would be, had the word 'territories' been inserted in' the clause last quoted above from section 1 of that act, 'after the word 'states,' and the same had read 'in the several states and in the territories of the United States'; this clause to take effect from and after the date of said act, and the accounting officers will settle the accounts within its purview accordingly.' 10 Stat. 671.

By the express words, and the necessary effect, of this section of the act of 1855, 'the provisions,' that is to say, all the provisions, of the act of 1853, and, among others, those concerning 'clerks of the district and circuit courts,' 'in the several states,' were extended to Utah and other territories, 'as fully, and in all particulars,' as if the clause, 'in the several states,' had read, 'in the several states and in the territories of the United States.' Clerks of district or circuit courts in the territories were thus subjected, not only to the fee bill established by the act of 1853, but also to the directions of that act, that 'clerks of the district and circuit courts' should be allowed no other compensation than the fees and costs therein specified; that they should make half-yearly returns, 'embracing all the fees and emoluments of their respective offices, of every name and character'; that 'no clerk of a district court, or clerk of a circuit court,' should be allowed to retain, of the fees and emoluments of his office, or, if holding both clerkships, of the two offices, for his personal comepensation, a sum exceeding $3,500 a year; and that every such clerk should pay any surplus into the treasury of the United States.

Notwithstanding this congressional legislation, offices, for his personal compensation, a sum by a statute of January 21, 1859, adopted a fee bill for the clerks and other officers of the supreme court and district courts of the territory, differing from the fee bill established by the acts of congress of 1853 and 1855. Laws Utah 1851-1870, p. 71. And by a territorial statute of February 20, 1874, c. 23, a new fee bill was adopted, also differing from that established by the acts of congress. Laws Utah 1874, p. 37.

By chapter 16 of title 13, entitled 'The Judiciary,' of the Revised Statutes of the United States, approved June 22, 1874, congress again, in section 823, established a fee bill, founded on that of 1853, and enacted that the fees and costs therein prescribed, 'and no other compensation,' should 'be taxed and allowed to' 'clerks of the circuit and district courts,' and to other officers and persons in those courts, 'in the several states and territories, except in cases otherwise expressly provided by law'; in section 828, prescribed the 'clerks' fees' for different items of service; in sections 833, 839, and 844, substantially reenacted the provisions of section 3 of the act of 1853, relating to the returns, the limit of the amount to be retained, transferring, however, the supervision from the secretary of the interior to the attorney general, in accordance with the act of June 22, 1870, c. 150, § 15 (16 Stat. 164), and the payment of the surplus into the treasury of the United States by clerks of district and circuit courts; and, in section 1883, provided that the fees and costs to be allowed 'to the clerks of the supreme and district courts,' and other officers, 'in the territories of the United States, shall be the same for similar services by such persons, as prescribed in chapter 16, tit. 'The Judiciary,' and no other compensation shall be taxed or allowed.' And by Act Cong. June 23, 1874, c. 469, § 7, 'the act of the congress of the United States, entitled 'An act to regulate the fees and costs to be allowed clerks, marshals and attorneys of the circuit and district courts of the United States, and for other purposes,' 1874, by acts passed on two successive days,—the and shall apply to the fees of like officers in said territory of Utah'; 'and all laws of said territory, inconsistent with the provisions of this act, are hereby disapproved.' 18 Stat. 256.

The words, 'except in cases expressly otherwise provided by law,' in section 823 of the Revised Statutes, doubtless referred to the cases (also excepted out of section 839) mentioned in sections 840 and 842, by the first of which 'the clerks of the several circuit and district courts in California, Oregon and Nevada' were entitled to charge double fees, and to retain and be allowed a double maximum compensation; and by the other of which, in prize causes, the clerks might be allowed to retain an additional compensation, not exceeding one-half of the...