Speech #580088598

L.. 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 by the United States against Hill and Russell on said bond by a writ dated December 4. 1884. claiming $22.000 dam. ages. The declaration alleges. as a breach of the bond. that Hill "has not properly accounted for all moneys coming into his hands. as required by law. according to the condition of said bond." The answer of the defendant denies that allegation. and avers that Hill "has made full and sufficient returns of all moneys received by him. as required by law. and that he owes no sum* of money to the- said United States." 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 11111 was appointed clerk of said court on the 5th (lay of February. 1871). and duly qualified as clerk.-and the defendants gave the bond. a copy of which Is annexed to the declaration. As cierk he has made halfyearly returns of fees and 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 fortyfive years before the date of the writ In the present action. and known and approved by the judges. for the clerk to charge $1 as a fee for a declaration of. intention to become a citizen. and $2 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 semiannually 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 1111 has not included these amounts in his accounts. and this was known to the judge when his accounts were enamined. and he made on each a certificate in the form 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 tile State of Massachusetts made similar charges for like services and made no returns to the treasurers of the counties of the fees so received until the passage of the statute of the State of 18.79. chapter 300. . "if. upon the facts before stated and agreed. the court shall be of the oplI ion that the said fees charged] by the defendant 11ill 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 section 833 of the Revised Statutes. and that the settlements and adjustments of his several accounts. as above mentioned. constitute no defense to this action. the case shall be sent to an assessor to ascertain the amount due the United States In accordance With the law laid down by that 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 of .Tustice to the several clerks. dated January. 1879. may be read for any purpose for which they are properly applicable. but neither the defendant Hill nor his deputy. Ir. 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 1st days of January and July in each year. or within thirty days thereafter. make to the AttorneyGeneral. 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 sepIaratel y 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 of the district court * * * shall be allowed by the AttorneyGeneral * * * to retain of the fees and emoluments of his office * * * for his personal compensition. over and above his necessary office expenses. including necessary clerk hire. to be audited and allowed by the proper accounting oflicers of the Treasuiry. a sum exceeding $3.500 a year for any such district clerk. * * * or exceeding that rate for any tie less than a year." Section 844 provides that every clerk shall. "at the*time of making his halfyearly return to the AttorneyGeneral. pay into the Treasury or deposit to the credit of the Treasurer. as he may be directed by the AttorneyGeneral. 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 to be retained by him." Section 845 provides that in every case where the return of a clerk "shows that a surplus may exist the AttorneyGeneral 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." Tlie foregoing provisions of sections 833. 83). 844. and 845 were taken from section 3 of the act of February 26. 1853 (ch. 80. 10 Stat.. 1(.5. 1010). the supervision being changed from the Secretary of the interior to the AttorneyGeneral by section 15 of the act of June 22. 1870 (ch. 150). establishing the Departtnent 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 section 1 of the act of August 16. 1856 (ch. 124. 11 Stat.. 49). * * * * * S * 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 section 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 section 828. prescribing fees for clerks. T.hc circuit court held that the action could not be maintained. and entered a judgment for the defendants. to review which the United States have brought a writ of error. The opinion of the circuit court. which accompanies the record. and is reported in 25 Federal Reporter. 375. gives the following statement as to 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.