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Claimant was duly notified of my proposed action, by letter dated November 16, 1904, supra, in which his attention was specially directed to certain items of allowances by the Auditor. to wit: 1. For making calendars for the court and copies thereof for attorney and clerk, aggregating...

$23. 80 2. For filing papers sent up by commissioners in Chinese-exclu

sion cases, except where defendants appealed, aggregating... 15.30 3. For filing papers sent up by commissioners in Chinese-exclusion cases where defendants appealed, aggregating

2. 90) 4. For docket fees of $3.00 each, in 56 criminal cases remitted

November 12, 1903, by the district court to the circuit court
for trial, aggregating

168.00 On the 12th instant claimant's reply to my notice, supri, was received, and the questions raised will now be considered and determined.

Item 1. These charges were allowed under my decisions of April 24, 1901, in Trogdon's case (7 Comp. Dec., 671), and December 11, 1901, in Corles's case (8 id., 395), and my reasons for raising the question here arise from the facts that in United States v. Marsh (112 Fed. Rep., 629), decided January 14, 1902, the circuit court of appeals (5th circuit), took a different view of the law and that the Court of Claims in Grant v. United States (No. 23488, not reported), followed the Marsh case.

Claimant, in his reply as to this item, says:

“ The clerk is required to make a calendar for every term of court by a rule of court; it has been customary to make calendar and copies in accordance with such rule ever since the organization of the court. The need of a calendar is apparent to any judge that has ever held a court. I can not well see how it can be considered as being covered by the docket entriesit never appears of entry in docket; of course, it has some relation to the case, but so has a judgment which is entered in a separate book, the minute entries in the case, the orders which are filed and required to be entered in order book. The case In re Trogdon to my mind states the case properly, and should be the law.

“The case of U. S. v. Marsh refers to a docket which perhaps is only necessary because the clerk or court thought it a convenience, not absolutely necessary, while a calendar is a record in itself, and being made by an order of court should be allowed."

The question here is not that these calendars are covered by “docket entries” but by docket fees, and with respect to judgments, minute entries and orders in cases, it is sufficient to say that specific fees are provided for entering or recording them. (United States v. Van Duzee, 140 U. S., 169, 199.) The facts in this case are quite similar to those upon

which the decision in Trogdon's case was based, and it is somewhat interesting to note that this claimant had never prior to that decision claimed specific folio fees for making calendars and copies, although, as he says, they had been made in accordance with a rule "ever since the organization of the court." This, however, is not sufficient to defeat his right to these fees if he is otherwise entitled to them.

In the Marsh case, supra, the court said (p. 930):

"Schedule F is for making certain entries in cases in which the United States were plaintiffs in what was called the 'combined docket. From the facts as found, this docket was, in addition to other dockets, kept by the clerk, and was kept by an order and rule of the court, and was of great convenience to the court and litigants. The fee bill found in section 828, Rev. Stat., provides a specific fee of $3 for making dockets and indexes, issuing venire, taxing costs, and all other seryices on the trial or argument of the cause where issue is joined and testimony given; a specific fee of $2 for making dockets and indexes and taxing costs and all other services in a case where issue is joined when no testimony is given; a specific fee of $1 for making dockets and taxing costs in cases removed on writ of error or appeal. These docket fees seem to provide for making dockets and indexes and taxing costs in every class of cases likely to arise in the courts of the United States. The fee bill does not specify the dockets to be kept, but seems to include all services in keeping dockets. As all dockets are kept under the rules, and not under any specific law, it does not seem that the fact that the court ordered a combined docket' to be kept would be any reason for allowing an extra fee to the clerk. The convenience and use of a

combined docket’ to the judge, attorneys, and litigants furnishes no reason for allowing the clerk fees not allowed by law, and we think that herein there is no better ground for allowing an extra charge for a so-called "combined docket' than there would be for an appearance docket, or a trial docket, or a cost docket.

In addition to the specitic docket fees enumerated by the court there is still another of $1 for “making dockets and indexes, taxing costs, and all other services in a cause which is dismissed or discontinued, or where judgment or decree is made or rendered without issue.”

It will be observed that the facts in this case were practically the same as those in the Trogdon case, supra, and in this, and the reasoning of the court appears to include all manner of dockets or calendars, and the Court of Claims having followed it, I should feel it my duty to do likewise even if I felt sure that such reasoning was not entirely sound.

In Watson's case (10 Comp. Dec., 647), I announced that where the Court of Claims allowed fees to claimants, which had been been disallowed under decisions of this office, and in which the Department of Justice accepted the judgment of that court as the true interpretation of the law, that I would follow the court, and the same rule was announced in Sisson's case (MS. Dec., vol. 28, pp. 439-442), and to follow the courts when they decide against the Government and not to follow them when they decide in its favor would be not only an inconsistency, but unfair to the Government.

Therefore if, as before indicated, I were satisfied that the courts in the Marsh and Grant cases were wrong I would follow them, but I am not so satisfied and am rather of the opinion that theirs is the true interpretation of the law, consequently I follow them less reluctantly.

I am not unmindful of the provisions and limitations of section 8 of the act of July 31, 1894 (28 Stat., 207), and if this claimant had been a disbursing officer and the allowance here in question had been for disbursements made under my decisions, supra, another question would be presented.

In my opinion, where a payment is made by a disbursing officer under a decision of this office, he is entitled to protection thereunder, provided, of course, the facts be the same or practically the same, whether made at his request or not, but as these allowances are for fees held to be illegal, and involve no disbursement by claimant, the rule is different.

It follows, therefore, that the Trogdon case, and so much of the Cowles case as relates to the subject matter of this inquiry, must be and are overruled, and the allowances by the Auditor in these accounts, made under those decisions, are also overruled and will be disallowed on these revisions.

Item 2: These charges are claimed under the following rule, adopted January 26, 1900, by the district court:

“United States commissioners appointed by this court under the act of May 28, 1896, shall transmit to the clerk of this court, within five (5) days after the examination before them, of a person accused of crime, the complaint, warrant, order of commitment or discharge, the bail bond, if any, a transcript of proceedings had before them including the names of witnesses examined and a brief statement of their testimony.'

Chinese exclusion cases, not being criminal, do not fall under this rule. The clerk, however, says that "until lately” they had been considered as “ criminal in character” and the papers were sent up in accordance with the rule. He also says, since the United States Supreme Court has decided that they are not criminal, in future papers might not be required to be sent up, but as these papers were sent up under the rule and filed, the fees should be allowed.

The decision referred to (Fong Yue Ting v. United States, 149 U. S., 698) was rendered May 15, 1893 (McGettrick's case, 4 Comp. Dec., 706), long before the papers in question were sent up and filed, therefore claimant's statement is without force.

The Auditor's allowances of charges referred to in this item are also overruled, and they will be disallowed on these revisions.

Item 3: A question similar to this was considered by me on the appeal (No. 10811) of José D. Sena, clerk of the supreme court of New Mexico, from disallowances by the Auditor of fees claimed by the clerk in criminal cases wherein the United States was the party plaintiff, but in which defendants appealed from the judgment of the lower court.

In a decision dated November 29, 1904, I held that the United States was liable only for services performed directly for it. The same rule applies here, and the Auditor's allowances indicated by this item are also overruled and will be disallowed on these revisions.

Item 4: The question here presented is more difficult. The indictments in these cases were found January 6, 1901, and after various proceedings were transmitted, on motion of the district attorney, to the circuit court, evidently under section 1037 of the Revised Statutes, which provides:

" Whenever the district attorney deems it necessary, any circuit court may, by order entered on its minutes, remit any indictment pending therein to the next session of the district court of the same district where the offense charged in the indictment is cognizable by the said district court. And in like manner any district court may remit to the next session of the circuit court of the same district any indictment pending in the said district court. And such remission shall carry with it all recognizances, processes, and proceedings pending in the case in the court from which the remission is made; and the court to which such remission is made shall, after the order of remission is filed therein, act in the case as if the indictment, and all other proceedings in the same, had been originated in said court."

The clause of clerks' fee bill (sec. 828, Rev. Stat.), under which this fee is claimed, is as follows:

“For making dockets and indexes, issuing venire, taxing costs, and all other services on the trial or argument of a cause where issue is joined and testimony given, three dollars."

Claimant, in relation to this item, shows that proceedings had in these cases were sufficient to entitle him to the fees as claimed if they had been finally determined and disposed of in the district court, and he says that these transmissions are final dispositions of these cases so far as the district court is concerned, and contends that when a case is thus transmitted “the order remitting in such case becomes the final judgment."

I am not prepared to agree to this contention. In my opinion these transmissions were discontinuances in the district court, and that claimant is entitled to the docket fee provided by that clause of the fee bill which provides as follows:

“For making dockets and indexes, taxing costs, and other services in a cause which is dismissed or discontinued, or where judgment or decree is made or rendered without issue, one dollar."

In my opinion the fees on these transmissions fall under the first part of the clause just quoted, and that claimant is entitled to $1 in each case.

It is true that the courts have decided that the joinder of issue, etc., fixes the docket fee, regardless of what the final judgment may be, and that the accounting officers follow the courts in that respect, but in all cases where the question bas arisen, there had been final disposition on the merits, therefore I think the rule indicated does not apply here.

It has long been the practice to allow clerks a docket fee of $1 in cases transmitted from the district court to the circuit court (Bowler's First Comptroller's Dec., 116), and I see no good reason for changing that practice.

The Auditor's allowances are modified accordingly, and instead of the $3 fee allowed by him, claimant will be allowed $1 in each case, and the residue, aggregating $112, disallowed on these revisions.

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