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Section 833 of the Revised Statutes reads:
"Every district attorney, clerk of a district court, clerk of a circuit court, and marshal, 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 returns the fees and emoluments received or payable under the bankrupt act;
said returns shall be verified by the oath of the officer making them."
and was the law governing the returns of emoluments in the case of Hill, supra.
This language requiring the return of emoluments is stronger than the language contained in either the acts of 1883 or 1898 as applied to the clerk of the Supreme Court. In the body of this decision the court says:
"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 rem, 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."
This case was taken to the Supreme Court and determined, on appeal, by that court on January 31, 1887. See 120 U. S., 169. The judgment of the circuit court was therein affirmed. See also in this regard 40 Fed. Rep., 441, and 165 U. S., 504.
It is apparent at a glance that if the fees received by the clerk of a court in a naturalization proceeding are not emoluments of his office for the reasons given in the case of United States v. Hill, supra, amounts received from applicants for admission to the bar are not emoluments within the meaning of the acts of 1883 or 1898.
When the act of 1898 was passed by Congress it must have been well understood that the courts had held and construed the word "emoluments" not to cover and include such fees of the clerk as naturalization fees or amounts received on account of admissions to the bar.
We are not left in the dark as to what Congress meant by the use of the word "emoluments" in statutes requiring clerks of the circuit and district courts to report and account for all emoluments received by them. It was held by me in the case of Converse, clerk of the southern district of Illinois, on July 29, 1901 (8 Comp. Dec., 56), that clerks under the law governing that case were not required to report or account for amounts received by said clerks for admissions to the bar, such amounts having been fixed by an order of the court. Congress recognized the correctness of this decision and by the act of February 19, 1903 (32 Stat., 849), directed the accounting officers to reopen the accounts of clerks of the circuit and district courts for the years 1891 to 1900, inclusive, where a balance against said clerks had been created contrary to said decision; in other words, to correct the error made by the accounting officers in charging them with amounts received from applicants for admission to the respective bars of their courts, on the theory that such amounts were emoluments of their offices which they were bound to return and to account for.
By the act of June 28, 1902 (32 Stat., 475), Congress virtually repealed section 835 of the Revised Statutes in so far as it had required clerks of the circuit and district courts to return the emoluments of their offices, said emoluments not being understood to include amounts received in connection with the admission of attorneys to practice in such courts, by using the following language therein:
"The word 'emoluments' shall be understood as including all amounts received in connection with the admission of attorneys to practice in the court, all amounts received for services in naturalization proceedings, whether rendered as clerk, as commissioner, or in any other capacity, and all other amounts received for services in any way connected with the clerk's office."
But this latter legislation is confined to the emoluments of circuit and district clerks. Congress knew when it was 28007 Vol. 11-05-11
enacted and must have known in what sense the word "emoluments" had been construed as it appeared in former acts as it affected the clerks of the circuit and district courts, and for this very reason passed the act supra. It must have known that the same construction would be given to similar statutes affecting the salary of the clerk of the Supreme Court, and, with this knowledge, did not include in its later legislation any different definition of the word "emolument" as found in the statute affecting the compensation of the clerk of the Supreme Court. But one inference can be drawn from this nonaction by Congress, and that is that it intended no change in the law as it existed relative to the matter of the return of the emoluments by the clerk of the Supreme Court. It may have been an omission on the part of Congress not to define "emoluments" as they referred to the clerk of the Supreme Court, the same as they did with regard to the clerks of the circuit and district courts. Be that as it may, I am not authorized to supply omissions made by Congress.
If the word "emoluments," as found in the acts of 1883 and 1898, supra, did not embrace and mean amounts collected from persons admitted to the bar of the Supreme Court, and evidently the circuit court of Massachusetts did not so regard it, neither did the Supreme Court, nor has the AttorneyGeneral when these emolument accounts were returned to him by this clerk with the specific statement that they did not contain such sums, it is perfectly clear that an act defining emoluments differently from the definition given the word by the courts and found in an act not affecting the clerk of the Supreme Court and passed at a date long antedating the acts in which it was used as it affects this clerk, can not alter its meaning found in the governing acts.
For the reasons above set forth, I am unable to concur in the decision of the Auditor in which he declares that the clerk of the Supreme Court of the United States should report to the Attorney-General, as emoluments of his office, amounts collected from applicants for admission to the bar of the Supreme Court.
If I am in error in this matter it is within the province and is the duty of the Attorney-General to require such a report, and if he takes a different view and makes such requirement, I will cheerfully follow his initiative.
PHOTOLITHOGRAPHING AND PRINTING OF DRAWINGS FOR THE LIGHT-HOUSE BOARD.
The photolithographing and printing of drawings for the use of the LightHouse Board in connection with the letting of a contract for the construction of a vessel is printing for an Executive Department within the meaning of section 87 of the act of January 12, 1895, and must be done at the Government Printing Office.
(Comptroller Tracewell to Capt. C. F. Hutchins, naval secretary of the Light-House Board, September 29, 1904.)
In your communication of September 13, 1904, you request my decision of a question which you therein present as follows:
"I have presented to me for payment an account of Mr. Andrew B. Graham for photolithographing and printing 250 copies each of six sheets of drawings for a tender for St. Marys River, Michigan, said drawings having been executed by employees appointed in the outside service of the LightHouse Establishment whose compensation is paid from the appropriations for the specific purposes under which they are employed.
An act of Congress approved March 3, 1903, is as follows: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the following sums be, and the same are hereby, appropriated for the objects hereinafter expressed:
"Tender for Saint Marys River, Michigan: Construction of a steam tender for use in Saint Marys River and adjacent waters, Michigan, seventy-five thousand dollars.'
"As an incident to the accomplishment of the purpose of the above-named appropriation it became necessary that the Board obtain a considerable number of copies of the drawings for the vessel to furnish prospective bidders for the construction of said vessel, and to be used as working drawings by the contractor to whom the contract should be given.
"The Board, therefore, deeming the immediate procurement of 250 copies of the above-named drawings a public exigency, on July 15, 1904, under the provision of section 3709, Revised Statutes, requested Mr. Andrew B. Graham, of Washington, D. C., to furnish it the aforesaid number of copies of the said drawings.
"As the above-named drawings appear to be inseverable from the purposes for which Congress made the appropriation herein above quoted, I have the honor respectfully to request your decision as to whether the voucher of Mr. Graham, now before me, is not properly payable from the appropriation, tender for St. Marys River, Michigan."
In a decision by this office, dated August 30, 1904, rendered to the Secretary of Commerce and Labor, a similar question was considered. It was said therein:
"I understand that the drawings referred to are made by the Light-House Board, which is a bureau in the Department of Commerce and Labor. (Sec. 4, act of February 14, 1903, 32 Stat., 826.) I am therefore of opinion that the act of January 12, 1895, supra, requires that lithographing and printing thereof shall be done at the Government Printing Office, and that the cost of such lithographing and printing is properly payable from the appropriation for public printing and binding only."
You state in your communication that the drawings referred to therein were made by employees appointed in the outside service of the Light-House Establishment. You also state that it became necessary that the Light-House Board procure copies of the drawings "to furnish prospective bidders for the construction of said vessel. and to be used as working drawings by the contractor to whom the contract should be given.'
Section 4666 of the Revised Statutes provides as follows:
"All materials for the construction and repair of lighthouses, light-vessels, beacons, buoys, and so forth, shall be procured by public contracts, under such regulations as the Board may from time to time adopt, subject to the approval of the Secretary of the Treasury, and all works of construction, renovation, and repair shall be made by the orders of the Board, under the immediate superintendence of their engineer secretary, or of such engineer of the Army as may be detailed for that service."
The powers and duties of the Secretary of the Treasury relating to the Light-House Board having been transferred to the Secretary of Commerce and Labor by section 10 of the act of February 14, 1903 (32 Stat., 829), the preparation of the contracts required by the provision of section 4666, supra, pertains to the Department of Commerce and Labor.