UNITED STATES v. MORTON, Clerk of Court, 65 F. 204

WOODS, Circuit Judge (after making the foregoing statement). By the second

section of the act establishing the circuit courts of appeals the clerks of those courts are given a salary of $3,000 a year each, and by the ninth

section it is provided that they shall be allowed “the same compensation for their respective services as is allowed for similar services in the existing circuit courts”; and the question presented is of the proper construction of the latter provision.. In the opinion of the district judge it is said: “Counsel for the petitioner contends with great earnestness that the clerk is entitled to the salary provided for in

section 2, and; in addition thereto, to retain out of the fees and emoluments of his office the same amount which clerks of existing circuit courts are allowed to retain. The district attorney, on the other hand, insists that he is only entitled to his salary of $8,000 a year; and that the last paragraph of

section 9 only relates to such incidental expenses of the court and its officers as the- marshal is authorized to pay, and has no relation to the compensation of the clerk for his services. Sections 2 and 9 ought to be so construed as to give full effect to' the language of each. They ought not, however, to be construed, unless incapable of other construction, in such a manner as to give the clerk of the circuit court of appeals the salary provided for in

section 2, and also the right to retain, in addition thereto, the same amount out of the fees and emoluments of his office as is allowed in the case of the clerks of the circuit courts. Such a construction would result in double compensation. It would, make his compensation larger than that received by the clerk of the supreme court of the United ■States, and nearly twice as large as that received by 'the clerks of the circuit courts. It cannot well be doubted that no such result was contemplated by the framers of the statute.

Still, if the language employed necessarily forbids any other construction than one leading to such a result, it would be the duty of the court to adopt and enforce that construction. I think the apparent conflict may be reconciled by regarding.section 9 as fixing the full measure of compensation which such clerk is entitled to receive. This

section enacts that the clerk of the circuit court of appeals shall be allowed the same compensation for his services as is allowed for similar services in the existing circuit courts. It .may be suggested that this provision was intended to fix the fees which may be lawfully taxed and collected as between the clerks and the litigants, and not as providing for the disposition of the fees when collected. This construction would make the compensation of the clerk the amount of‘his salary, and no more.

I am not, however, disposed to adopt this construction, because the statute declares that he shall be allowed the same compensation for his services as is allowed for similar services in the existing circuit courts. This, in my opinion, was intended to fix the limit of his compensation. He is to be allowed for his services the same compensation as is allowed to the clerks of existing circuit courts for similar-services. The clerks of éxisting circuit courts are entitled to receive, for all services rendered by them, $3,500 a year.

If the clerks of the circuit courts of appeals are to receive the same compensation as clerks of existing circuit courts for similar services, then they cannot receive a larger sum for all services rendered by tliem than S3,500 a year. The clerks of the circuit courts receive their compensation out of the fees and emoluments of their offices, which they are allowed to retain without covering the same into the treasury. The method in which their comjtensation is paid is not material.

The fees are collected under authority of law, and they belong to the United States as much as though they had been covered into the treasury. In my opinion, the clerk of the circuit court of appeals is entitled io the same compensation as the clerks of the existing circuit courts; that is to say, §3,500 a year, and no more.” It is plain that: it was not intended by

section 9 “to fix the fees which may be lawfully taxed and collected as between the clerks and the litigants,” because it is declared in

section 2 that the costs and fees in the supreme court shall be the costs and fees in the circuit courts of appeals. It is, therefore, from costs and fees taxed and collected in accordance with the rule of the supreme court, that the fund in the hands of a clerk of the circuit court of appeals must be derived. That fund, it is provided in

section 2, shall be expended, accounted for, and paid over io the treasury department in the same manner as is provided in respect to ihe costs and fees in the supreme; court. Out of the costs and fees in the supreme court the clerk of that court is authorized to deduct: his compensation, not exceeding $(>,000 a year, and the incidental expenses of his office, including Clerk hire, and is required to pay any surplus that may remain into the treasury of the United States. In harmony with this are the provisions of the 9th

section of this act, and of the; 829th

section of the Revised Statutes, whereby the clerks of the circuit courts of up-' peals are allowed the same compensation for their service's as are' allowed to clerks of the circuit cerarts for similar sendees, and the; latter are authorized to retain of the fees and emoluments of their ed'fie'es (derived from fees taxeel and collected under

section 828), for compensation over anel above necessary office expenses, including clerk hire, a sum not exceeding $2,500 a year. A comparison of the fees and costs in the supreme court, as fixed by the rule of the court, and the fees of the clerk of the circuit court , as fixed by

section 828 of the Revised Statutes, will show that they are in many respects essentially different, and consequently that the aggregate of the fees and costs collected by the clerk of a. circuit court of appeals will probably be different from the aggregate of compensation for services allowed by

section 9, when taxed in accordance with

section 828. We agree with the judge below that sections 2 and 9 should be so construed as to give full effect to the language of each; but we do not think that it should be assumed that a construction which would give a clerk the salary provided in

section 2, and also the right to retain the same amount out of the fees and costs collected as is allowed in the case of the clerks of the circuit courts would result in double compensation. A new system of courts of high-dignity was being established, — higher than the circuit courts, and inferior only to the supreme court, — which were to be held in ihe largest cities of the land; and it seems to us that the plain intention was that the chief officers of these courts, without regard to the amount of business done in them, should receive the salaries granted by

section 2, and in addition, and in proportion to the work done, like criers, bailiffs, and messengers, should each receive the same compensation for services performed as is allowed to clerks of the circuit courts for similar services. The words “respective services” are used to distinguish between the different classes of officers named, while the words “similar services” and the fact that criers, bailiffs, and messengers are included show that this provision has reference not to annual compensation, but to compensation for distinct acts of service, for which a charge should be made in accordance with

section 828 against the fund-derived from the fees and costs collected in accordance with the rule of the supreme court. We perceive no “apparent conflict” between the sections which needs to be reconciled by regarding

section 9 as fixing the full measure of the compensation which a clerk of the circuit court of appeals is entitled to receive. If it had been intended to allow, in addition to salary, a compensation for services not exceeding the sxim of $500, it is to be presumed that plain words to that effect would have been used. Sections 2 and 9 are clearly and distinctly expressed; one giving a salary, which is to be paid out of the national treasury; and the other giving compensation for services done, to be paid out of the fund derived from costs and fees collected, and to be applied, first, to the expenses of the office, and then, if there be a. surplus, to personal use. By

section 841 of the Bevised Statutes, marshals are allowed to retain for personal compensation as much as $6,000 a year; and the same construction which gives to a clerk of the circuit court of appeals $500 in addition to his salary of $3,000 would give the marshal of thát court $3,500 in addition to his salary of $2,500. The marshal, it is true, if the office had been continued, would have few writs to serve and no sales to make, and therefore could earn but little beyond the per diem of $5 for attending the court. So, too, according to the showing of this record, the compensation of the clerk under

section 9 is likely to be much less than $3,500; but the question for the court is not what will be the practical result, but what is ■ the proper

interpretation of the statute. Congress, doubtless, in view of the fact that the marshal would have little to do except to attend the sessions of the court, made his salary less than that of the clerk; and it can hardly be a proper construction of

section 9 which will make his entire compensation possibly greater than that of the clerk. A provision on the subject in the legislative appropriation bill passed July 31, 1894 (St. 53d Cong. 2d Sess. p. 203), has perhaps made the question unimportant for the future. What significance should be given to that enactment as a legislative

interpretation of the act in question need not be considered. It would seem to be an amendment rather than an

interpretation. The rights of the appellee should not be affected by

an act (which is the act of his adversary in the suit) passed since the suit was commenced. While we are not ready to commit ourselves to the opinion of the court below that under

section 9 the appellee could receive no more than $500, and decide nothing on that point, the amount in controversy being less than that súm, we are clear, that the judgment should be affirmed.

Section 15 of the act under which the suit was authorized to he brought in the district court provides that, if the United States puts in issue the right of the claimant to recover, the court may, in its discretion, allow costs to the prevailing party. The judgment is therefore affirmed, at the costs of the appellant.