District Court.

Total amount of office expenses

RECAPITULATION.

Total amount of earnings, received and not received, brought down

Deduct amount paid for necessary office expenses

Balance due to the United States....

I, _____, clerk of the _____ court of the United States for the _____ district of __% d__, do solemnly swear that the foregoing account is, in all respects, just and true, according to my best knowledge and belief; and that I have neither received, directly or indirectly, nor directly or indirectly agreed to receive, or be paid, for my own or another's benefit, any other money, article, or consideration than therein stated; nor am I entitled to any emoluments for the period therein mentioned other than those therein specified; and that I have taken all reasonable pains to collect from individuals amounts due to the United States for services in my office: So help me God.

Signed and sworn to before me this ___ day of ___, 188_.

________.

________.

I, _____, judge of the _____ court for the _____ district of _____, do hereby certify that I have carefully examined the vouchers referred to in the foregoing return; that the disbursements charged therein for clerk hire and office expenses were necessary to the convenient transaction of the business of the clerk's office; and that the sums paid therefor are, in my opinion, reasonable.

________.

NOTE 1.—No money can be paid from the treasury to any clerk while his emolument return shall remain in arrear.

On the foregoing facts and statutes it was contended by the United States, before the circuit court, held by the circuit judge and the district judge, that the sums received as fees in naturalization proceedings were 'fees and emoluments' within the meaning of section 833, and ought to have been included by the clerk in his returns, on the ground that they were received for services rendered by the clerk in his official capacity, and he was, therefore, bound to account, for them, whether they were or were not chargeable under section 828, prescribing fees for clerks. The circuit court held that the action could not be maintained, and entered a judgment for the defendants, to review which the United States have brought a writ of error.

The opinion of the circuit court, which accompanies the record, and is reported in 25 Fed. Rep. 375, gives the following statement as to the former and the existing legislation of congress on the subject, and as to the action of the courts and of the executive departments of the government: 'By the act of March 3, 1791, (1 St. 217, § 1,) the compensation of the clerks was fixed at five dollars a day for attending court, and their travel. To this was added, by the act of May 8, 1792, (1 St. 277, § 3,) such fees as were allowed in the supreme courts of the state, with a provision that, for discharging duties not performed by the clerks of the state courts, and for which the laws of the state made no allowance, the court might allow a reasonable compensation. Under these acts the clerks were allowed to retain all their fees, and were not required to render any account of them to the government. The first law requiring returns to be made was the act of March 3, 1841, (5 St. 427.) This act established the compensation of clerks of courts at $4,500 a year, above clerk hire and office expenses, payable from fees only, and required them to pay the overplus into the public treasury, under such rules and regulations as might be prescribed by the secretary of the treasury. The next in order of time was the act of May 18, 1842, (5 St. 483.) That act required the clerks to make to the secretary of the treasury semi-annual returns, embracing all the fees and emoluments of their office, of every name and character, distinguishing those received or payable under the bankrupt act from those received or payable for any other service. It authorized the clerk of the district court to retain from the fees and emoluments of his office, above office expenses and clerk hire, as his personal compensation, $3,500 a year, and required him to pay the surplus into the treasury. It has been stated that the provision in this act as to bankruptcy fees was inserted to change the law, as ruld by Judge STORY, that the clerks were not bound to account for fees earned under the bankrupt act of August 19, 1841. The act of March 3, 1849, (9 St. 395, § 4,) establishing the department of the interior, transferred the supervision of the accounts of clerks of the the secretary of the interior. Until the act of February 26, 1853, (10 St. 161,) the official fees of the clerks remained in substance as fixed by the acts of 1791 and 1792. The act of 1853 was the first uniform statute regulating the fees of the clerks and other officers of the courts throughout the United States. It established the present fee-bill, and is reproduced in sections 823 to 857 of the Revised Statutes. Its provisions in regard to returns to be made by the clerks were the same as in the act of 1842, except that they were to be made to the secretary of the interior, as directed by the act of 1849, instead of to the secretary of the treasury. Since the act of June 22, 1870, creating the department of justice, the returns have been made to the attorney general, and supervision of these accounts has been exercised by that officer of the government.' Referring, then, to the fee-bill of February 26, 1853, as found in sections 823 et seq. of the Revised Statutes, the court proceeds: '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. Thus Judge SHEPLEY early refused to allow the clerk to tax costs by the fee-bill on applications under the shipping commissioner's act of June 7, 1872, (17 St. 272; Rev. St. § 4544,) for the money and effects of deceased seamen deposited in the circuit court by the shipping commissioner. In respect to naturalization cases, it has never been hitherto understood, either by the judges or the departments, that the fees of the clerk were for services rendered in his official capacity. At times, especially before elections, these applications are extremely numerous. The papers are usually prepared by the parties themselves, or their friends, or, more frequently, by agents of candidates. The hearings are ex parte, at no stated times, and it is rare that any person appears in opposition. It has, therefore, been necessary, both in the interest of the applicants and for the due and orderly execution of the law, and to enable the court to dispose of the cases, that the papers should be looked over and corrected by some person familiar with the law and practice, and in many instances that the witnesses should be examined before the cases were presented to the court for final action. It was for this service that the clerk has been allowed to make these charges to the parties. These are duties which the court has the undoubted right to have performed by some other person than the presiding judge. In these cases the clerk acts rather as a person appointed to assist the court in exercising its functions, like a master or examiner in an equity cause, or an assessor in admiralty, or an auditor in a suit at law. It is the universal practice of all courts of large jurisdiction to appoint special officers, at the expense of the parties, to make inquiries, in vestigate details, examine papers, take accounts, make computations, and perform ministerial acts. Their reports, when returned into court and accepted, become part oft he case, and form the basis of the orders and decrees of the court in the cause. It was with this view, to regulate the practice in naturalization cases, and define the duties required of the clerk, that Judge SPRAGUE, in 1855, adopted the following rules, which have ever since been in force: 'Ordered, by the court, that applications by aliens to be admitted to become citizens of the United States shall be presented to the court while in session, and that proof of the facts whereof the court is required by law to be satisfied shall be made by at least two credible and disinterested witnesses, who are citizens of the United States, to be produced and examined in open court. Ordered that, before such applications are presented, all necessary papers shall be filed with the clerk, who shall report to the court, when the application is made, that he has examined the same, and whether they are all in due form and in conformity with the requirements of law, or how otherwise."

This fact, as to these rules made in 1855, was not made a part of the agreed statement of facts, but the counsel in the cause in this court stipulated in open court that the fact should be taken as agreed. The opinion of the circuit court then proceeds: 'It is for services rendered under these rules, and as a special officer of the court, and not as clerk, that these fees have been permitted. They were not duties pertaining to the office of clerk. They could as well have been performed by any other person designated by the court for the purpose; as by the district attorney, or a commissioner of the circuit court, or an attorney, or any suitable person not an officer of the court. Reference has been made to the circular of Attorney General Devens, of January 14, 1879, issued to the clerks. In it he says, referring to section 833: 'This language embraces every possible fee or emolument accruing to you by reason of your official capacity, and does not allow the withholding of any. Whatever is done by you that you could not do if out of office has an official color and significance that brings it within the compass of the language of the statute.' This is undoubtedly a forcible and accurate statement of the meaning of the statute. But the naturalization fees do not come within this rule. They did not accrue to the clerk by reason of his official capacity, and were for work which might as well have been done by him when out of office as when in. It is also to be noticed that this circular calls upon the clerks for 'a statement of sums received for searches, for all copies for naturalization papers and oaths, and all other sums received through your office,' but makes no mention in terms of naturalization fees. Reg. Dep. Just. 1884, p. 223. No complaint of these fees has ever come to the ear of the court from any quarter. On the contrary, this service performed by the clerks has been of great advantage to those seeking to be admitted as citizens. It has had the effect, as originally intended, to simplify the process of becoming a citizen, and to make it more expeditious and inexpensive. It saves the parties the expense of employing an attorney, and the fee charged therefor is much less than would be allowed by the fee-bill, if the application is to be treated and entered on the docket of the court as an ordinary suit. In rejected cases no fee has been charged. This practice has prevailed for more than forty years, ever since the act of 1842, which first required returns, and has been perfectly well-known to everybody conversant with the courts. It was begun by Judge STORY and Judge SPRAGUE, and has had the approval of all the judges of this district since their day. It has also had the sanction successively of the department of the treasury, the department of the interior, and the department of justice. Until this suit was brought, it has never been called in question by any accounting officer of the government; nor has congress seen fit to put a stop to it by legislation. This constructin of the statute in practice, concurred in by all the departments of the government, and continued for so many years, must be regarded as absolutely conclusive in its effect. Edwards' Lessee v. Darby, 12 Wheat. 206; U. S. v. Temple, 105 U. 97; Ruggles v. Illinois, 108 U. S. 526, 2 Sup. Ct. Rep. 832; U. S. v. Graham, 110 U. S. 219, 3 Sup. Ct. Rep. 582. It was stated at the bar that a bill was introduced in the last congress to require the clerks to make returns of all fees which they should receive for naturalizations and as masters and commissioners, but failed to become a law. If a change in the practice should be thought desirable, it is obvious that it should be made by congress, and not by the courts. It is also to be noticed as significant that the clerks of the courts of Massachusetts, under a fee-bill much like ours, and a statute requiring them to make to the county treasurer yearly a return 'of all fees received by them for their official acts and services,' were never required to include in their returns the fees received in naturalization cases. Rev. St. 1836, c. 88, § 15; Gen. St. 1860, c. 121, § 22. This was changed by the act of 1879, c. 300, which defined what the fees in such cases should be, and directed the clerks to include them in their returns. The decision of the court is that, upon the agreed facts in this case, this action cannot be maintained.'

Viewing the whole subject in the light in which it appears on the face of the statute in regard to the fees of the clerk, we are met by the fact that section 823 of the Revised Statutes, taken from section 1 of the act of February 26, 1853, c. 80, (10 St. 161,) provides that 'the following, and no other, compensation shall be taxed and allowed' to clerks of the district courts. This applies prima facie to taxable fees and costs in ordinary suits between party and party prosecuted in a court. There is no specification of naturalization matters in the fees of clerks. From as early as December, 1839, the practice, set forth in the agreed statement of facts, has obtained in the district court in Massachusetts of charging the fees of one dollar and two dollars as gross sums in naturalization proceedings, without any division for specific services, according to any items of the fee-bill. The act of March 3, 1841, before referred to, the first one on the subject of returns, implied that there should be reports of 'fees and emoluments' by the clerk to the secretary of the treasury. The act of May 18, 1842, provided for semi-annual returns to that officer, and included, specifically, fees and emoluments under the bankrupt act. But the clerk never has included in these returns his fees and emoluments for naturalization proceedings, and his action from 1842 to and including 1884 has been with the knowledge of the successive district judges, to whom his accounts have been semi-annually exhibited. From 1842 to 1849 these accounts went to the secretary of the treasury; from 1849 to 1870, to the secretary of the interior; and since 1870 they have gone to the attorney general. From 1856 the statute has required that these accounts, before going forward, 'shall be examined and certified by the district judge,' and that, after being sent to the several heads of the departments, they shall be subject to revision on their merits by the accounting officers of the treasury department. The agreed statement of facts shows that this course has been pursued; that the district judge has examined and certified the accounts, knowing that they did not include naturalization fees; and that those accounts have been revised on their merits by these accounting officers, for this long series of years, and been examined and adjusted by them with the naturalization fees not included. With this long practice, amounting to a contemporaneous and continuous construction of the statute, in a case where it is doubtful whether the statute requires a return of the disputed fee, judges of eminence, heads of departments, and accounting officers of the treasury having concurred in an interprotation in which those concerned have confided, the surety in the present bond, as well as his principal, had a right to rely on that interpretation in giving the bond; and the semi-annual accounts of the principal having been actually examined and adjusted at the treasury, with the naturalization fees excluded, down to and including the one last rendered five months before this suit was brought, a court seeking to administer justice would long hesitate before permitting the United States to go back, and not only as against the clerk, but as against the surety on his bond, reopen what had been settled with such abundant and formal sanction. This principle has been applied, as a wholesome one, for the establishment and enforcement of justice, in many cases in this court, not only between man and but between the government and those who deal with it, and put faith in the action of its constituted authorities, judicial, executive, and administrative.

In Edwards' Lessee v. Dar by, 12 Wheat. 206, 210, it was said: 'In the construction of a doubtful and ambiguous law, the contemporaneous court action of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect.' To the same effect are U. S. v. Dickson, 15 Pet. 141, 145; U. S. v. Gilmore, 8 Wall. 330; Smythe v. Fiske, 23 Wall. 374, 382; U. S. v. Moore, 95 U. S. 760, 763; U. S. v. Pugh, 99 U. S. 265, 269; Hohn v. U. S., 107 U. S. 402, 406, 2 Sup. Ct. Rep. 494; and Five per cent. Cases, 110 U. S. 471, 485, 4 Sup. Ct. Rep. 210. In the case of Brown v. U. S., 113 U. S. 568, 5 Sup. Ct. Rep. 648, the same doctrine was applied, the cases in this court on the subject being collected, and it being said that a 'contemporaneous and uniform interpretation 'by executive officers charged with the duty of acting under a statute 'is entitled to weight' in its construction, 'and in a case of doubt ought to turn the scale.' A still more recent case on the subject is U. S. v. Philbrick, 7 Sup. Ct. Rep. 413, where this language is used: 'A contemporaneous construction, by the officers upon whom was imposed the duty of executing those statutes, is entitled to great weight; and since it is not clear that that construction was erroneous, it ought not now to be overturned.'

Judgment affirmed.

1

Affirming 25 Fed. Rep. 375.