United States v. Payne

• Decision Date: 15 February 1929
• Docket Number: No. 12497.,12497.
• Citation: 30 F.2d 960
• Parties: UNITED STATES v. PAYNE et al.
• Court: U.S. District Court — Western District of Washington

30 F.2d 960 (1929)

UNITED STATES v. PAYNE et al.

No. 12497.

District Court, W. D. Washington, N. D.

February 15, 1929.

Anthony Savage, U. S. Atty., and Tom De Wolfe, Asst. U. S. Atty., both of Seattle, Wash.

Theo. S. Turner and Preston, Thorgrimson & Turner, all of Seattle, Wash., for defendant Casualty Co.

NETERER, District Judge.

Departmental construction of a statute should be given weight, and when there is doubt the court will adopt the departmental interpretation of a statute. Hewitt v. Schultz, 180 U. S. 139, 21 S. Ct. 309, 45 L. Ed. 463. The contemporaneous construction of a statute by the Attorney General is entitled to great respect. United States v. G. Falk & Bros., 204 U. S. 143, 27 S. Ct. 191, 51 L. Ed. 411. The doctrine of contemporaneous and practical construction of statutes is firmly imbedded in our jurisprudence (Pennoyer v. McConnaughy, 140 U. S. 1, 11 S. Ct. 699, 35 L. Ed. 363), and an amended statute should not be given a different interpretation, unless there is a substantial change of phraseology. McDonald v. Hovey, 110 U. S. 619, 4 S. Ct. 142, 28 L. Ed. 269.

Antecedently to the amendment and since, the clerk collected the commission, and the Circuit Court of Appeals in United States v. Penn. R. Co., 283 F. 937 (July 5, 1922), held that the clerk was entitled to a commission of 1 per cent. on fines imposed and paid, under section 828, R. S., which provides that "for receiving, keeping, and paying out money, in pursuance of any statute or order of court, 1 per centum of the amount so received, kept, and paid." This court, in United States v. Williams, 282 F. 324 (June 3, 1922 — District, now Circuit, Judge Rudkin and District Judge Cushman concurring), held the clerk not entitled to commission on Liberty Bonds deposited as bail.

The amended Act of February 11, 1925, § 8 (section 555, title 28, USCA) provides "That in addition to the fees for services rendered in cases, hereinbefore enumerated, the clerk shall charge and collect, for miscellaneous services performed by him, and his assistants, except when on behalf of the United States, the following fees": Paragraph 8: "For receiving, keeping, and paying out money in pursuance of any statute or order of court, including cash bail or bonds or securities authorized by law to be deposited in lieu of other security, 1 per centum of the amount so received, kept and paid out, or of the face value of such bonds or securities."

There are two provisions in the amendment which are not in the original act: First, "except when on behalf of the United States;" second, "including cash bail or bonds or securities authorized by law to be deposited in lieu of other security." The adoption of defendant's contention would destroy the second provision and restrict the provisions of the old law, in face of the express enlargement. Both provisions must be given life, if it may be consistently done.

It is clear that the intent of the Congress was to remedy the unsettled legal right of the clerk to collect as fees 1 per centum of the value on bonds deposited as bail, leaving the law for collecting, keeping, etc., money undisturbed. See McGovern et al. v. United States (C. C. A.) 272 F. 262; United States v. Williams, supra, and cases cited.

The phrase, "except when on behalf of the United States," was significantly used, and has a restricted application, but has no application in a proceeding where the United States is a party. It has application to actions prosecuted or...