UNITED STATES v. MacMILLAN et al., 251 F. 55

PER CURIAM. Suit was brought by the United States on the official bond of Thomas C. MacMillan, clerk of the United States District Court for the Northern District of Illinois; the alleged breach of the bond being that for the period between January 27, 1910, and August 1, 1910, he received and did not turn over to the government interest to the amount of $368.86 on public moneys which came to him as such clerk, such moneys being (

a) fees paid to him under the bankruptcy laws of the United States; (

b) moneys paid to him as his emoluments and fees under various statutes of the United States; and (

c) moneys'paid to him as clerk by various litigants, under various statutes and under the rules of the Department of Justice. To the plea of the defendant, the government interposed a demurrer, which the court overruled, and, the government electing to stand by its demurrer, judgment was entered for defendant. The issues are more fully stated in the opinion of Judge Geiger in the District Court, upon the overruling of the demurrer. 209 Fed. 266. We are in accord with the views expressed in that opinion, and with the conclusion reached by the District Court.

Since the oral argument in this court, our attention has been directed to an opinion of the Comptroller of the Treasury (volume 23, p. 732, June 13, 1917) wherein the question considered was the charging of the account of the clerk of the United States District Court for the district of Massachusetts with interest received by him on deposits in banks of the earnings of his office, pending the making of his returns. Mainly on the authority of United States v. Hill, 120 U. S. 169, 7 Sup. 510, 30 L. Ed. 627, and 123 U. S. 681, 8 Sup. Ct. 308, 31 L. Ed. 275, and United States v. Mason, 218 U. S. 517, 31 Sup.

Ct. 28, 54 L. Ed. 1133, as well as on the authority of Judge Geiger’s opinion (which opinion was' based largely upon the cases cited), the Comptroller found that it “seems to be fairly well established that interest moneys accruing on money collected by a clerk for official services rendered, and held by him pending his semiannual return do not constitute emoluments of the clerk’s office to be accounted for to the United States,” and he affirmed the prior decision of the department auditor, which was against the gov-' ernment’s contention. The judgment of the District Court is affirmed.