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"Therefore I decide that the clerk of the Supreme Court of the United States should report and deposit all fees collected by him on account of admission of attorneys. In this connection attention is invited to the Parkin case (7 Comp. Dec., 542-544)."
The decision of the Auditor presents two questions, neither of which are free from doubt: First, the jurisdiction of the Auditor to render the decision in question; second, the duty of the clerk to make return under oath to the AttorneyGeneral, within thirty days after the 1st day of January in each year, of all amounts received by him on account of admission of attorneys to practice in the Supreme Court.
If the Auditor is without jurisdiction to render the decision it follows that the Comptroller is without jurisdiction to approve, disapprove, or modify the same. The authority of the Auditor to make such decision, if he had such authority, is found in the following language of the Dockery Act:
"All decisions by Auditors making an original construction or modifying an existing construction of statutes shall be forthwith reported to the Comptroller of the Treasury, and items in any account affected by such decisions shall be suspended and payment thereof withheld until the Comptroller of the Treasury shall approve, disapprove, or modify such decisions and certify his actions to the Auditor."
It is questionable whether items of amounts of admission fees of attorneys treated as emoluments of the office of the clerk of the Supreme Court are such items, if not required to be returned to the Attorney-General, as the Auditor is authorized under this act to suspend and withhold payment thereof.
The act of March 15, 1898, is the one governing the accounting by such clerk for the fees and emoluments received by him covered by the Auditor's decision. It reads (30 Stat., 317):
"SEC. 8. That the clerk of the Supreme Court of the United States, on the first day of January in each year or within thirty days thereafter, shall, on a form prescribed by the Attorney-General, make to the Attorney-General a return, under oath, of all fees and costs collected by him in cases disposed of at the preceding term or terms of the court and of all emoluments hereafter collected by him, and after deducting from such collections his compensation, as provided in para
graph 9 of the act of March 3, 1883 (22 Stat., 603, 631), and the incidental expenses of his office, including clerk hire, such expenses to be certified by the Chief Justice and audited and allowed by the proper accounting officers of the Treasury shall, at the time of making such returns, pay any surplus that may remain into the Treasury of the United States: And provided further, That all clerks of courts of the United States shall pay over, at the times and in the manner provided by law for other fees and emoluments, all fees received by them for naturalization after deducting the amount of compensation they are entitled to receive.'
It is seen by this act that the clerk of the Supreme Court— "shall, on a form prescribed by the Attorney-General, make to the Attorney-General a return, under oath, of all fees and costs collected by him in cases disposed of at the preceding term or terms of court and of all emoluments hereafter collected by him, * * such expenses to be certified by the Chief Justice and audited and allowed by the proper accounting officers of the Treasury"
When the returns in question were made by the clerk to the Attorney-General he did not return as emoluments or fees of his office amounts received on account of attorneys being admitted to practice at the bar of said court, although the fee fixed therefor by the said Supreme Court had been fixed at $10; but, on the contrary, stated therein that the amounts so received were not included in said return. If under the law he should have returned said collections as emoluments of his office to the Attorney-General under forms prescribed by him, these returns show that he did not so report them.
Whose duty is it under the law to compel a proper and legal return of the emolument accounts of the clerk of the Supreme Court of the United States? It would seem that it is clearly the duty of the officer upon whom the responsibility is cast by law and who has authority under the law to enforce a legal return, and not the officer who can not prescribe the form thereof and who can not enforce a decision in that regard.
The Attorney-General, and not the Auditor, would seem to be the officer upon whom the law casts the responsibility and duty of requiring the clerk of the Supreme Court properly and legally to return the emoluments received by him as such
clerk. The Attorney-General has the power to invoke the aid of the proper court, by mandamus or other appropriate remedy, to force the clerk to properly return all emoluments of his office which by law he is required to make return to the Attorney-General. The accounting officers are clothed with no such power or authority.
What would be the legal effect of my approving the decision of the Auditor which holds that the clerk of the Supreme Court of the United States should report and deposit all fees collected by him on account of admissions of attorneys? If the clerk saw fit not to account for the same, what could the Auditor or the Comptroller do in the premises? Absolutely nothing. If the Attorney-General should require him to make return of such collections and he should refuse, it would be the plain duty of the Attorney-General, by appropriate proceedings in court, to compel such return, in which proceedings the question of the legality of such requirement would necessarily arise and be determined.
If the Attorney-General in such supposed case were correct in determining such collections to be emoluments of the office to be returned, the court would so declare, and compel the clerk to include such collections in his returns to the AttorneyGeneral.
But the accounting officers have no such authority or power, and all that they could do would be to continue what the Auditor is now doing, namely, suspend the final settlement of these accounts awaiting the pleasure of this clerk to comply with a decision they have no power to enforce.
Under the present system of accounting, Congress has enabled the accounting officers to enforce their decisions, where authorized to make them, by withholding credit or making disallowances, and where this power is not coincident with the power to decide, the grave suspicion at least is raised that the accounting officers are acting beyond the powers conferred upon them and usurping the authority conferred upon some other branch of the Government.
. If I were absolutely certain that the decision in question were ultra vires, I would rest my action alone upon that view of the case, and hold that I have no jurisdiction to determine officially the question raised by the Auditor in his decision,
namely, that it is the duty of the clerk of the Supreme Court to make a return to the Attorney-General of amounts collected by him from persons admitted to the bar of that court. But while I am strongly inclined to that view, I am far from certain that it is the correct one.
But on a consideration of the second question involved, which is also one of grave doubt, I have arrived at the conclusion, largely influenced by certain after-mentioned decisions of the Federal courts, including the Supreme Court, that amounts collected by the clerk of the Supreme Court from attorneys admitted to its bar, such amounts being prescribed by rule of the court, are not properly emoluments of his office, such as under the law he is required to return to the Attorney-General to be considered by the accounting officers in the settlement of his accounts.
This is evidently the view taken of the matter by the Attorney-General, the officer charged by law with the supervision of this clerk's accounts, and to whom he is required to make return of the emoluments received by him, for which he is to account and to return them upon forms prescribed by the said Attorney-General.
I understand it to be a fact that the clerk, in the returns in question, specifically directed the attention of the AttorneyGeneral to the fact that the sums received by him for admissions to the bar were not contained in his return of emoluments. The Attorney-General has made no effort, in so far as I am advised, to have him include in his return of emoluments sums collected by him on account of these admissions to the bar. The opinion of the Attorney-General thus negatively expressed is entitled to great weight and respect, and, unless clearly wrong, should be acquiesced in by the accounting officers.
As before stated, if the clerk is, under the law as it stands, obligated to make return of these collections as part of the emoluments of his office, it is clearly the duty of the AttorneyGeneral to compel him to so comply with the law and embody these collections in his emolument returns; and when this is done the accounting officers will have a basis upon which his accounts can be correctly and intelligently audited by them, and not before.
But is the clerk required by law, under the decisions of the court above alluded to, to return to the Attorney-General such collections as part of the emoluments of his office?
There can be no reasonable pretense that any statute prior to the act of March 3, 1883, compels such a return. This act (22 Stat., 631) provides:
"That the clerk of the Supreme Court of the United States shall not hereafter retain of the fees and emoluments of his office for his personal compensation over and above his necessary clerk hire and the incidental expenses of his office, certified to by the court, or by one of its justices appointed by it for that purpose, and to be audited and allowed by the proper accounting officers of the Treasury, a sum exceeding $6,000 a year, or exceeding that rate for any time less than a year; and the surplus for such fees and emoluments shall be paid into the Treasury as provided by law in cases of clerks of the circuit and district courts of the United States: And provided further, That so much of section 3 of the act of February 28, 1799, as relates to the compensation of said clerk for his attendance in court is hereby repealed: And provided further, That the Supreme Court is hereby authorized and empowered to prepare the table of fees to be charged by the clerk thereof, and until the same is thus prepared the fees therein charged for recording or copying any paper or record shall not exceed fourteen cents per folio.
It would appear that the purpose of this act was to place the clerk of the Supreme Court under the same requirements as to returning and accounting for the emoluments of his office as were the clerks of the circuit and the district court.
Congress must have known and is conclusively presumed to have known when it passed the acts of March 3, 1883, and March 15, 1898, supra, what construction had been given to similar clauses, even stronger clauses, in acts providing that clerks of the circuit and district courts should return and account for all emoluments received by them as such clerks.
The circuit court for the district of Massachusetts in United States v. Hill (25 Fed. Rep., 375) decided, on November 14, 1885, that amounts received by the clerk of the district court of the United States for the naturalization of aliens in that court were not fees and emoluments within the meaning of Revised Statutes, section 833, and that the clerk was not bound to include them in his half-yearly return.