United States v. Oliphant
| Decision Date | 15 February 1916 |
| Docket Number | 2029-2033. |
| Citation | 230 F. 1 |
| Parties | UNITED STATES v. OLIPHANT et al. (three cases). OLIPHANT et al. v. UNITED STATES (two cases). |
| Court | U.S. Court of Appeals — Third Circuit |
[Copyrighted Material Omitted]
J Warren Davis, U.S. Atty., and Joseph L. Bodine, Asst. U.S Atty., both of Trenton, N.J.
Alan Strong, of Philadelphia, Pa., for defendants.
Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.
The questions in these cases arose out of the failure of the clerk of the Circuit Court of the United States for the District of New Jersey to report and pay to the government certain moneys, which he had collected through a long term of years for work done in connection with printing records for use in the Circuit Court and transmitting records for use in the Circuit Court of Appeals. These questions raise two inquiries, first, whether the work done in connection with printing records was a service connected with the office of the clerk, the fees or emoluments for which were payable to the government; and second, whether the clerk's charges for certified transcripts were made at the rate prescribed by statute.
The conduct out of which grew these questions was this: The principal defendant was sub-clerk and deputy clerk of the Circuit Court of the United States for the District of New Jersey from 1875 to 1904, and was clerk of that court from 1904 to 1912, when the court was abolished. When he became clerk, he continued a practice, which, according to the testimony, had theretofore existed, if not with the approval, then with the acquiescence and knowledge of several judges. Under this practice he charged litigants for printed copies of records in equity cases, for use in the Circuit Court, at the rate of $1.50 a page, paid for printing the same at the rate of $1.00 a page, and kept the difference. He omitted to make office entries of such transactions, and failed to include them in his emolument accounts and in his periodical reports to the government. For certified transcripts of records transmitted to the appellate court of the circuit, the defendant clerk made charges at the rate of 10 cents a folio. He likewise omitted to include these fees in his office records and emolument accounts, (though noting therein the issuance of the transcripts) failed to report them to the government, and retained them for his own use.
The conduct of the clerk with respect to these matters had its origin in a rule of the Circuit Court, first promulgated in 1893 and with few changes again promulgated in 1898. This rule is as follows:
Three actions at law were instituted by the United States on the three bonds of the clerk. The defendant, Henry D. Oliphant, is the principal in each of the bonds; the other defendants are the sureties. The actions are conveniently referred to as first, second and third, having reference to the succession of the respective periods covered by the bonds. They were tried together, and, upon review, were heard together.
In the first suit, the government made two demands, covering the period of the first bond:
The defendant clerk admitted the acts upon which these claims were based, but justified them by his interpretation of the rule, and, as he claimed, by the contemporaneous interpretation given it by long continued practice and judicial and departmental acquiescence and approval.
The trial court submitted to the jury the question, whether the work done in supervising printing constituted services performed by the clerk in connection with the duties of his office or constituted something else, accompanying the submission with appropriate instructions that, if found to be services, the verdict should be for the government, and if not, then for the defendants.
Upon the claim for moneys collected for transcripts, the court directed a verdict for the government for an amount based upon a charge of 10 cents a folio, stating, as a matter of law, that to be the rate prescribed by the statute for such a service.
The jury found that the work done in connection with 'printing' did not constitute services, and returned a verdict for the government only for the moneys collected for 'transcripts,' which, together with interest, amounted to the sum of $6,224.56. Each party sued out a writ of error.
In the second suit, the government made two similar demands, covering another period, resulting in like rulings by the court, a like finding by the jury, and a verdict for the government for $3,582.90. Each party prosecuted a writ of error.
In the third suit, the government made but one demand. This related to fees collected for printing during the third period. Upon this demand the court submitted the same question as it submitted upon like demands in the other suits. The jury made a like finding and rendered a verdict for the defendants. In this case the government alone sued out a writ of error.
The questions raised upon the writs of error, prosecuted by both parties, are susceptible of the following general classification:
First: Whether the defendant clerk should account for and pay to the government the difference between the cost of printing records for use in the Circuit Court and the amount charged therefor.
Second: Whether the court should have submitted to the jury, or decided as a matter of law, the question whether the moneys received by the clerk for printing records for use in the Circuit Court, were for services connected with his office.
Third: Whether testimony showing the origin and continuance of the clerks' practice of obtaining printing at one price and charging for it at another, and retaining the difference, and showing the knowledge and acquiescence of judges and the department therein, was admissible in evidence.
Fourth: Whether the clerk should account for and pay to the government the moneys received for the printed transcripts of records sent on appeals and writs of error to the Circuit Court of Appeals, and, if so,
Fifth: Whether the court erred in directing the jury to find for the government for amounts based upon the rate of 10 cents per folio instead of upon the rate of 15 cents per folio.
Against the demands of the government, the defendants claimed an allowance of certain deductions for extra printing and expenditures incident to supervising the printing. These deductions were allowed by the trial judge in his instructions to the jury. Their allowance is not specifically assigned as error, though perhaps embraced in one general assignment, but as there is no exception to this feature of the charge or to the admission of testimony upon which it was based, there is before us no question of the court's error in allowing the deductions.
For defense to the first demand, the defendants maintain, that the excess charges exacted by the defendant clerk for supervising printing in obedience to the rule, might have been 'private profit,' 'commission,' 'bonus,' 'salvage,' 'rake-off' or 'graft,' for which he might be liable to some one, but in no event was the work a service 'connected with the clerk's office,' for the emoluments of which is he liable to the government. This contention is based upon the ground that the office of clerk was statutory, that the statutes did not connect services of this character with the office, and that unless so connected by positive statutory enactment, the emoluments received therefor do not belong to the government. This requires a brief review of the statutes.
The office, of course, was statutory. The act establishing the circuit courts included and created the office of clerk of such courts. 1 Stat.pp. 74-75 (1789). The duties of a clerk of a circuit court were in a measure indicated but not wholly defined by legislation respecting the fees of clerks exhaustive historical reviews of which may be found in United States v. Hill, 120 U.S. 169, 7 Sup.Ct. 510, 30 L.Ed. 627, United States v. Hill, 123 U.S. 681, 8 Sup.Ct. 308, 31 L.Ed. 275, and United States v. Mason, 218 U.S. 517, 31 Sup.Ct. 28, 54 L.Ed. 1113, only a portion of which need be...
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In re Visking Corporation
...More impressive, we think, is the decision to the contrary of the Circuit Court of Appeals of the Third Circuit in United States v. Oliphant, 3 Cir., 230 F. 1, 13. In that case, after referring to the fact that the question had been a controverted one in the Circuit Courts since 1882 and re......