United States v. Hill

delivered the opinion of the court.

On the 5th of February, 1879, Clement Hugh Hill was duly appointed clerk of the District Court of the United States for the District of Massachusetts, by the judge of that court. On the same day he and William Goodwin Bussell and another person executed a joint and several b'ond to the United States in the penal sum of $20,000, conditioned that Hill, “ by him-' self and by his'deputies,” should “faithfully discharge the duties-of -his office, and seasonably record the decrees, judgments, and • determinations of the. said court, and properly account for all moneys coming into .his hands, as required by law.” The statute requiring a bond, in force at the time, was § 3 of the 'act of February 22, 1875, c. 95, 18 Stat. • 333, which required the clerk to give a bond, -with sureties, “faithfully to discharge the duties of his office, and seasonably to . record the decrees, judgments, and determinations of the court of which he is clerk.”

This suit was brought hy the United States against Hill and Bussell on said bond by a writ dated December 4, 1884, claiming $22,000 damages. The declaration alleges, as' a breach of the bond, that Hill" “ has not properly accounted for

•The following agreed statement of facts was filed - July 1, 1885, signed by the attorneys .for the respective parties, and upon it the case was, by written agreement, submitted to the ■ decision,of the court:

“ The defendant Hill was appointed clerk of said court on the "fifth day of February, 1819, and duj,y qualified as clerk, and the defendants gave the bond, a copy of which is annexed to the declaration. As clerk, he has made half-yearly returns of fees an,d emoluments received by him,, but he has not included. in the same the amounts received by him, for the naturalization of aliens in the District Court.

“ It has been the custom in the United States Courts in the District of Massachusetts, for a long time, not less than forty-, five years before the date of the writ in the present action, and known and approved by the judges, for the clerk to charge one dollar as a fee for a declaration of intention to become a citizen, and two dollars as a fee for a final naturalization and certificate-thereof; and the clerk of the District Court has never included these in the fees and emoluments returned by him, and .this has been known to the judges to whom the accounts have been semi-annually exhibited, and by whom they were passed without objection -in this- particular. Following this custom, and believing and being informed that these fees • formed no part of the emoluments to be returned- to the government, the- defendant Hill has not included these amounts in his accounts, and this was known to the judge when his accounts were examined, and he made on each a certificate in the form-hereto annexed; and his accounts' so made out, up-to July 1, 1884, have been examined and adjusted by the accounting officers of the Treasury Department.

• “ The clerks of the several courts of the state of Massachusetts made similar charges for like services, and made no

“If, upon the facts before stated and agreed, the court shall be of opinion that the said fees, charged by the defendant Hill, in respect to naturalizations, or any part thereof, should have been returned in his accounts to the United States as part of the emoluments of the clerk,' from which his compensation is to be taken, in accordance with § 833 of the Revised Statutes, and that the settlements and adjustments of his several accounts, as above mentioned, constitute no defence to this action, the case shall be sent to an assessor to ascertain the amount ■ due the United States, in accordance with the law as laid down by the court, unless the parties shall, within fifteen days after the announcement of the opinion of the court, agree upon the amount.

“ The blanks used for the report of clerks’ fees and emoluments, and the blanks used in naturalization of aliens, may be considered as.part of the record of the case.

“ The instructions of the Department o'f Justice to the severs! clerks, dated January, 1819, may be read for any purpose for which they are properly applicable; but neither the defendant HHl nor his deputy, Mr. Bassett, has any recollection of receiving, or seeing such a circular before October, 1884.

“ The court may draw such inferences from the above facts as a jury might.”

Section 833 of the Revised Statutes provides that every clerk of a District Court shall, “on the first days of January and July, in each year, or within thirty days thereafter, make to the Attorney General, in such form as he may prescribe, a written return for the half year ending on said days, respectively,. of all the fees and emoluments of his office, of every name and character, and of all the necessary expenses of his office, including necessary clerk hire, together with the vouchers for the .payment of the same for such last half year. He shall state separately in such return the fees and emoluments payable under the bankrupt act. . . . Said returns shall be verified by.the oath of the officer making them.”

Section 839 of the Revised Statutes provides, that “ no clerk

Section 844 provides, that 'every clerk shall, “at the time of making ,his half-yearly return to the Attorney General, pay into the Treasury, or deposit to the credit of the Treasurer, as he may be directed by the Attorney General, any surplus of the fees and emoluments of his office, which said return shows to exist over and above the compensation' and allowances authorized by law tó be retained by him.”

Sefction 845 provides, that in every case'where the return of a clerk “ shows that a surplus may exist, the Attorney General shall cause such returns to be. carefully examined, and the •accounts of disbursements to be regularly audited by the proper officer' of his department, and an account to be opened with such officer in proper books to be provided for that purpose.” .

The foregoing provisions of §§ 833, 839, 844, and 845 were taken from § 3 of the act of February 26, 1853, c. 80, 10 Stat. ■165, 166, the supervision being changed from the Secretary of the Interior tc the Attorney General by § 15 of the act of .True 22, 1870, c. 150, establishing the Department of Justice. 16 Stat. 164 .

Section 846 provides, that the accounts of clerks “ shall be ■ examined and certified by the district judge of the district for which they are appointed, before they are presented to the accounting officers of the Treasury Department for settlement. They shall then be subject to revision upon their merits by said accounting officers, as 'in the case of other public accounts.” This provision was taken from § 1 of the act of August 16, 1856, c. 124, 11 Stat. 49 .

The blank used for the report of clerks’ fees and emoluments, and the oath appended to the report and the certificate

“ [Blank for emolument return, to be filled up when a return is due, and forwarded to the-Attorney General of the United States, with the necessary vouchers. Should the-return be verified before any officer other than a judge or clerk of a court of the United States, the additional certificate of authentication should be appended, as the printed instructions of July 13,1870, require. Similar blanks will, be furnished for each semi-annual return.]

Return of fees', and emoluments of , cleric of the * Court of tlteUnited States for the district of' , from . to , and of moneys paid out by him during the same period for the expenses of his office1; also of the receipt or non-receipt of fees and emoliiments previously returned by him as (<not received

Signed and sworn'to before me this day of , 188 .

I, , judge of the Court for the district of , do hereby certify that I have carefully examined the vouchers referred to in the foregoing return; that the disbursements charged therein for clerk hire and office expenses were necessary to the convenient transaction of the business of the clerk’s office ; and that the sums paid therefor. are, in my opinion, reasonable.

" -Note 1. —No money can be paid from the Treasury to any clerk while his emolument return shall remain in arrear.”

On the foregoing facts and statutes it was contended by the United States, before the Circuit Court, held by the circuit judge and the'district judge, that the sums received as fees in naturalization proceedings were “ fees and emoluments ” within the meaning of § 833, and ought to have been included .by the clerk in his returns, on the ground that they were received for services rendered by the clerk in his official capacity, and he was, therefore, bound to account for them, whether they were or were not chargeable under § 823, prescribing fees for clerks. The Circuit Court held that the action

The opinion of the Circuit- Court, which accompanies the record, and is reported in 25 Fed. Rep. 375 , gives the following statement as tó the former and the existing legislation of Congress on the subject and as to the action of the courts and of the Executive Departments of the government: “ By the act of March 3, 1791, 1 Stat. 217 , § 1, the compensation of the clerks was fixed at five dollars a day for attending court, and their travel. To this was added by the act of May 8, 1792, 1 Stat. 277 , § 3, such fees as were allowed in the Supreme Courts of the state, with a provision that for discharging duties not performed by the clerks of the state courts, and for which the laws of the state made no allowance, the court might allow a reasonable compensation. Under these acts the clerks were allowed to retain all their fees, and were not required to render any account of them to the government. The first law requiring returns to be made was the act of March 3, 1841, 5, Stat. 427. This act established the compensation of clerks of courts at $4500 a year, above clerk hire and office expenses, payable from fees only, and required them to pay .the overplus into the public treasury, under such rules and regulations 'as might be prescribed by the Secretary of the . Treasury. The next in order of time was the act of May 18, 1842, 5 Stat. 483 . That act required the clerks to. make to the Secretary of the Treasury semi-annual returns, embracing all the fees and emoluments of their office, of every name and character, distinguishing those received or payable under the bankrupt act from those received or payable for any other service. It authorized the clerk of the District Court to retain from the fees and emoluments of his office, above office expenses and clerk hire, as his personal compensation, $3500 a year, and required him to pay the surplus into the Treasury. It has been stated that the provision in this act. as to bankruptcy fees was inserted to change the law, as ruled by Judge Story, that the clerks were not bound to account for fees earned under the bankrupt act of August 19, 1841.

Eeferring then to the fee-bill of February 26, 1853, as found in §§ 823 et seq. of the Eevised Statutes, the court proceeds: “ Upon an examination of the statute it will be seen that it applies to taxable costs in all ordinary litigation, whether at law or in equity or admiralty, and undoubtedly governs ’ the taxation in all such actions, suits, and proceedings, civil and criminal, in personam and in rern, in the courts of the United States. But- it has not usually been considered, at least in this district, as applying to certain special and peculiar cases, of which the courts have jurisdiction, where only the party asking for the right or privilege- is before the court, and from the nature of the case no costs are taxable as in ordinary litigated suits. Of such a character are proceedings under the naturalization laws, under the shipping commissioner’s act, and applications to be admitted to practice as.an attorney. Thus Judge Shepley early refused to allow the clerk to -tax costs by the fee-bill on applications under the shipping commissioner’s act of June 7, 1872, 17 Stat. 272 , Eev. Stat. § 4544, for the money and effects of deceased seamen deposited in the Circuit Court by the shipping commissioner.

“ It was with this view, to regulate the practice in naturalization cases, and define the duties required of the-clerk, that Judge Sprague, in 1855, adopted the following rules, which have ever since been in force:

“1 Ordered, by the court, that applications by aliens to be admitted to become citizens of - the United States shall be presented to the court-while in session, and that proof of the facts whereof the .court is required by law to be satisfied, shall be' made by at least two credible and disinterested wit

“£ Ordered, that before such applications are presented, all necessary papers shall be filed with the clerk, who shall report to the court, when, the application is.made, that he has examined the same, and whether they are all in due form and in conformity with the requirements of .law, or how otherwise:’ ”'

This fact, as to these rules made in 1855, was not made apart of the agreed statement of facts, but the counsel in the cause, in this court, stipulated in open court, that the fact should be taken as agreed.

The opinion of the Circuit Court then proceeds: “ It is for services rendered under these rules, and as a special officer of the court, and not as clerk, that these fees have been permitted. ’ They were not duties pertaining to the office of clerk. They could as well have been performed by any other person designated by the court for the purpose; as by the district attorney, or a commissioner of the Circuit Court, or an attorney, or any suitable person not an officer' of the court.

“Reference has- been made to the circular of Attorney GeneraRDevens of January 14, 1879, issued to the clerks. In it he 'says, referring to §. 833: ‘ This language embraces .every possible fee or emolument accruing to you by reason of " your official capacity,' and does not allow the withholding of any. Whatever is dpne by you that you could not do if out of office has an official color and significance that brings it Within the-compass of-the language of the statute.’ This is undoubtedly a forcible and accurate statement of the meaning of the statute. -But the naturalization fees do not come "(vithin this rule. They did not accrue to the clerk by reason of his^ official capacity, ancbweré for work which might as well have been- done by him when out of office as when nr It is also to be noticed that this circular calls upon the clerks for £ a statement of sums received for searches, for all copies for naturalization papers and paths, and all other sums received through your office,’ -but malees no mention in -terms of naturalization fees. Register Dept. Justice, 1884, p. 223.

“ It was stated at the bar that a bill was introduced in the last Congress to require the clerks to make returns of all fees which they should receive for naturalizations and as masters and commissioners, but failed to become a law. If a change in the practice should be thought desirable, it is obvious that it should be made by Congress, and not by the courts.

“ It is also to be noticed as significant, that the clerks of the courts of Massachusetts, under a fee-bill much like ours,' and a statute requiring them to make to the county treasurer yearly a return £ of all fees received by them for their official acts and services,’ were never required to include in their returns

“ The decision of the court is, that, upon the agreed facts in this case, this action cannot be maintained.”

Yiewing the whole subject in the light in which it appears on the face of the statute, in regard to the fees of the clerk, we are met by the fact that § 823 of the Revised Statutes, taken from § 1 of the act of February 26, 1853, c. 80, 10 Stat. 161 , provides that “the following, and no other, compensation shall be taxed and allowed ” to clerks of the District Courts. This applies prima, faoie to taxable fees and costs in ordinary suits between party and party, prosecuted in a court. There is no specification of naturalization matters in the fees of clerks. From as early as December, 1839, the practice set forth in the agreed statement of facts has obtained in the District Court in Massachusetts, of charging the fees of $1 and $2, as gross sums, in naturalization proceedings, without any division for specific services, according to any items of the fee-bill. The act of March 3, 1811, before referred to, the first one on the subject of returns, implied that there should be reports of “ fees and emoluments ” by the clerk to the Secretary of the Treasury. The act of May 18, 1812, provided -for semiannual returns to that officer, and. included, specifically, fees and emoluments under the bankrupt act. But the clerk never has included in these returns his fees and emoluments for naturalization proceedings, and his action, from 1812 tó and including 18.81 has been with the knowledge of the successive district judges, to whom his accounts have been semiannually exhibited. From 1812 to 1819 these accounts went to the Secretary of the Treasury; from 1819 to 1810; to the Secretary of the Interior; and. since'1810 they have gone to the Attorney General. From 1856 the statute has required that these accounts, before going forward, “ shall be examined and certified by the district judge,” and that, after being sent to the several heads of departments, they shall be subject to revis

With this long practice, amounting to a contemporaneous and continuous construction of the statute, in a case where it is doubtful whether the statute requires a return of the disputed fees,-.judges of eminence, heads of departments, and accounting officers of the Treasury having concurred in an interpretation in -which those concerned have confided, the surety in the present bond, as well as his principal, had a right to rely on that interpretation in giving the bond; and the semiannual accounts of the principal having been actually examined and adjusted at the Treasury, with the naturalization fees excluded, down to and including the one last rendered five months before this suit was brought, a court seeking to administer justice would long hesitate before permitting the United States to go back, and not only as against the clerk; but as against the surety on his bond, reopen what had been settled with such abundant and formal sanction. This principle has been applied, as a wholesome one, for the establishment and enforcement of justice, in many cases in this court, not only between man and man, but between. the government and those who deal with it, and put faith in the action of its constituted authorities, judicial, executive, and administrative.

In Edwards’ Lessee v. Darby, 12 Wheat. 206 , 210, it was said; “ In the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect.” 'To the same effect are United States v. Dickson, 15 Pet. 141 , 145; United States v. Gilmore, 8 Wall. 330 ; Smythe v. Fiske, 23 Wall. 314 , 382; United States v. Moore, 95 U. S. 760 , 763;

Judgment affirmed.