UNITED STATES v. FITCH, 70 F. 578

HAMMOND, J. (after staling the facts). The judgment of the court below in favor of the clerk for $113.40, referred to in the first of these items, must be affirmed. A cleric is entitled, under flu; statute, to a fee ‘‘for entering any return, rule, order, continuance, judgment, decree or recognizance, or drawing any bond, or making any record, ceriiiicate, return or report, for each folio, fifteen cents.” Rev. St. § 828. And if is further provided that “the term ‘folio’ in this

chapter shall mean one hundred words, counting each figure as a. word. When there are over fifty and under one hundred words they shall be counted as one folio; but a less number than fifty words shall not be counted, except when the whole statute, notice or order contains less than fifty words.” Rev. St. § 854.

No question is made by the appellant, as to the rendition of the services, nor as to the legality of the charges in the account, except that, the liability of the government to pay the amount due tlie clerk is denied, because these items have never been audited by the proper officials in the executive department at Washington. This suit was instituted under the act of congress of March 3, 1887 (24 Stat. 505, c. 359), providing for tlie bringing of suits against the United States in tlie circuit and district courts, as well as in the court of claims.

There is nothing in the act which requires that a claim shall be audited at tlie tieasury department or anywhere before the suit is brought. In Clyde v. U. S., 13 Wall. 38, which was a suit begun in the court of claims, the action was dismissed because, under a rule of that court, the claimant liad not applied to tlie proper executive department for an auditing and allowance of his claim before bringing suit. In reversing this action of the court of claims, Mr. Justice Bradley says: “Instead of being a rule of practice, it was really an additional restriction of tbe exercise of jurisdiction by that court.

It required' tbe claimant to do wbat tbe act giving tbe courts jurisdiction did not require bim to do, before it would assume jurisdiction of bis case.” In U. S. v. Knox, 128 U. S. 230, 9 Sup. Ct. 63, the claimant presented his account to the court, as required by the act of February 22, 1875 (18 Stat. 333); and the court refused to act upon the claim because it had not been presented to the treasury department to be audited. In answer to this objection by the government, the supreme court, citing Clyde v. U.

S., supra, approved it, and declared that: “Tbe presentation, therefore, of tbe present case to tlie officers of tbe government charged with the auditing of such accounts in tbe treasury department, was not necessary to give the court of claims jurisdiction.” And these cases have been subsequently approved by the supreme court in U. S. v. Ewing, 110 U. S. 142-144, 11 Sup. Ct. 743, and U. S. v. Fletcher, 147 U. S. 664-668, 13 Sup. Ct. 434.

In the last case, however, it was held that: “So long as tbe claim is pending and awaiting final determination in the department, tbe court should not be called upon to interfere, at least not until it ignores such claim or fails to pass upon it within a reasonable time.” In this case the court below did not interfere until the appellee’s claim was disallowed at the treasury department. Indeed, action was suspended pending thp determination of the department, which shows that due regard was paid to this suggestion of the proper judicial action under such circumstances.

Whatever may be thought of the propriety of the action of the auditing officers in disallowing this just claim of the clerk, because he had not proffered it for action in the auditing office at the proper time, according to their rules of procedure, it cannot be claimed that this disallowance is conclusive of the clerk’s right to the money.

Excluded, as he may be, through this disciplinary process, he clearly has the right to resort to the courts for a recovery of the sum due him, inasmuch as this auditing process is not a prerequisite to his right to the money nor a prerequisite to the jurisdiction, and therefore the disallowance can in no sense be said to be a defense to his action against the government. Next, as to the amount claimed by the clerk for issuing the commissions to the supervisors of election: This amount was also properly allowed in the judgment of the court below. By

section 828 of the Keyised Statutes it is enacted that a clerk may receive ‘‘for issuing and entering every process, commission, summons, capias, execution, warrant, attachment or other writ except a writ of venire or a summons or subpoena for a witness, one dollar.” It is required by the statute requiring the appointment of election supervisors that “the judge * * ⅜ ‘ shall open the circuit court at the most convenient place in the circuit.” Rev. St. § 2011.

And “the court when so opened by the judge shall proceed to appoint and commission from day to day and from time to time and under the hand of the judge and under the seal of the court, ⅞ * * and renew such appointment from time to time, to citizens, * * ⅞ who shall be known and designated as supervisors of election.”- Id. § 2012.. And, further, "the circuit court when opened by the judge as required in the two preceding sections, shall therefrom and thereafter and up to and including the day following the day of election, be always ojien for the transaction of business under this title.” Id. § 2013.

Here these provisions of the statute were strictly followed, the supervisors being appointed by tire judge who signed the commissions which had been prepared for his signature by the clerk, and were sealed by him, and properly issued and delivered to the supervisors.

If any service performed by the clerk of a court in a matter within its jurisdiction was necessary and proper to be done by him, that which he did in this matter of the supervisors’ commissions was certainly entirely within the scope of his duties; and there is and can be no reason whatever, except a special prohibition in the statute to the contrary, which should preclude his right to the fees allowed under the statute we have quoted. Clough v. U. S., 55 Fed. 921.

The judgment of the court below is affirmed, except as to the item relating to the clerk’s charge for his service as jury commissioner, as to which error is confessed by the appellee.