United States v. Taylor

• Citation: 37 L.Ed. 335,147 U.S. 695,13 S.Ct. 479
• Decision Date: 06 March 1893
• Docket Number: No. 795,795
• Parties: UNITED STATES v. TAYLOR
• Court: United States Supreme Court

147 U.S. 695

13 S.Ct. 479

37 L.Ed. 335

UNITED STATES

v TAYLOR.

No. 795.

March 6, 1893.

Statement by Mr. Justice BROWN:

This was a petition by the clerk of the circuit court of the United States for the eastern district of Tennessee for fees earned between July 1, 1887, and December 23, 1889, which had been disallowed in the settlement of the accounts rendered by him to the treasury department. The court directed judgment to be entered in his favor for $1,066, (45 Fed. Rep. 531;) and the United States appealed.

Sol. Gen. Aldrich, for the United States.

Geo. A. King, for appellee.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

The government objected to the allowance by the court below of the following items:

(1) For taking acknowledgments in criminal cases of defendants and their sureties to appeal bonds. It appears by the petition that these acknowledgments were taken jointly, and under the case of U. S. v. Ewing, 140 U. S. 142, 146, par. 2, 11 Sup. Ct. Rep. 743, but one fee can be allowed for taking the acknowledgment of a defendant and his sureties, at least unless it be made to appear that it was necessary to take them separately. See, also, U. S. v. Hall, 13 Sup. Ct. Rep. 478.

(2) For certificates of the clerk and seals to copies of orders of the court directing the marshal to pay witnesses and jurors. Charges for copies of orders and certificates thereto are allowable, but the charge for seals is disallowed upon the authority of U. S. v. Van Duzee, 140 U. S. 169, 174, par. 6, 11 Sup. Ct. Rep. 759.

(3) Filing orders from the district attorney discharging witnesses from attendance, at 10 cents each, $119.80. By Rev. St. § 877, 'witnesses who are required to attend any term of a circuit or district court on the part of the United States shall be subpoenaed to attend to testify generally on their behalf, and not to depart the court without leave thereof, or of the district attorney.' While it is proper that the clerk should be informed officially by the district attorney of the discharge of witnesses, it is difficult to see why the discharge should be filed. It is a piece of information for the clerk upon which he acts in computing the amount due the witnesses for mileage and attendance, and when this is done the discharge is functus officio. It has accomplished all that it was ever required to do, is not needed as a voucher, and no advantage is gained by cumbering the files of the court with it. The magnitude of this incumbrance may be judged by the fact that the clerk charges for filing in less than 2 1/2 years 1,198 of these discharges, (243 were filed in a single term,) at a useless expense of $119.80. In U. S. v. King, 13 Sup. Ct. Rep. 439, the clerk's charges for the payment of a witness aggregated $1.15, not including the affidavit of the witness, or this item for filing the discharge. If these be added, it is made to cost the government $1.40 in clerk's fees to pay off a witness,—a tax out of all proportion to the service rendered, or to the usual amount of the witness's compensation. This practice of multiplying fees for the simple service of paying a witness compensation, which may not exceed the amount of a single day's attendance, should not be permitted, and the item in question will be disallowed.

(4) There is an additional claim in items 12 and 16 of $95.85 for affidavits of witnesses as to their mileage and attendance. The clerk is entitled to a fee of 10 cents for administering the oath to witnesses repecting their mileage and attendance, but there is no reason for preserving the affidavit as a part of the records of the court. This item should be reduced accordingly. It is but just to say that no charge is made for filing these affidavits.

(5) Item 9 includes charges for papers entered by the clerk upon the final record of the cases, and disallowed by the comptroller as forming no proper part of the judgment record, and unnecessarily burdensome to the government. When the practice of a particular state or district requires a judgment record to be made up in each case, of course the clerk is entitled to his fees for services actually and necessarily performed in that connection, (U. S. v. Van Duzee, 140 U. S. 169, 176, par. 9, 11 Sup. Ct. Rep. 759;) but as to what shall be incorporated in such record there is no settled practice and some diversity of opinion.

A record is substantially a written history of the proceedings from the beginning to the end of the case, but nothing which is not properly matter of record can be made such by inserting it therein. In several of the states the matters properly incorporated in judgment rolls are enumerated by statute. Code Civil Proc. N. Y. § 1237; Code Wis. § 191; Code Civil Proc. Cal. § 670.

In Mandeville v. Perry, 6 Call, 78, the court of appeals of Virginia, in answering the question 'what this court will consider as constituting the record of which it is to take notice in cases of common law,' says: 'I answer, the writ for the purpose of amending by, if necessary; the whole pleadings between the parties. Papers of which a profert is made, or oyer demanded; and such as have been specially submitted to the consideration of the court by a bill of exceptions, a demurrer to evidence, or a special verdict, or are inseparably connected with some paper or evidence so referred to. These, with the several proceedings at the rules or in court, until the rendition of the judgment, constitute the record in any common-law suits, and are to be noticed by the court, and no others.' Mr. Chitty, in his work upon Criminal Law, says (1 Chitty, Crim. Law, p. 720) that 'the record in case of felony states the...