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Page 140 U.S. 169, 170
Asst. Atty. Gen. Cotton and John C. Chaney, for the United states.
T. A. Hamilton, A. J. Van Duzee and C. C. Lancaster, for appellee.
BROWN, J.
This account consists of 99 separate items, which we proceed to
consider in the order in which they appear in the demurrer filed in
the court below, and in the opinion of the court.
1. The first series of items embraces the fees charged in 45
criminal cases for filing the papers certified up by the commissioners
before whom the examinations were had. In the majority of the cases
the number of papers filed by the clerk ranged from 4 to 6, in a few
they were 8 in number, and in one 16. In the whole 45 cases there were
filed 267 papers. By Rev. St. 828, the clerk is allowed 10 cents 'for
filing and entering every declaration, plea, or other paper.' By
section 1014 the commissioners of the circuit court are required to
return copies of the process as speedily as may be into the clerk's
office of the court to which the defendant is bound over to appear,
together with the recognizances of the witnesses for their appearance
to testify in the case. In preparing the transcript of proceedings for
transmission from a lower to a higher court it is usual and proper to
attach the papers together, with a suitable indorsement indicating
their character as a transcript, and to treat them as one paper, and
if in such case the original be sent up the same course should be
pursued. If such papers are sent up separately they are liable to be
mixed with papers subsequently filed in the case. and produce
confusion. Such transcript or papers are properly sent up as soon as
the case is finished before the commissioner, and before action is
taken
Page 140 U.S. 169, 171
by the grand jury. The accounting officers of the treasury in this
case seemed to assume either that the clerk should select certain
papers and file those only, or should fasten them together, and file
the bundle as one paper. The clerk, however, is not responsible for
the manner in which such papers are transmitted by the commissioner,
nor is it his duty to select out the complaint, the recognizance, or
any other particular paper, and say that that only should be filed.
Because the statute allows the fee 'for filing and entering,' it does
not necessarily follow that before he is entitled to the fee he must
enter every paper that he files upon his court docket. He may make the
entry upon any proper book kept for the purpose. His duty is
discharged by filing them as they are received, and the exception to
his charge therefor is accordingly overruled.
2. The charges for filing the oaths, bonds, and appointments
of deputy-marshals, jury commissioners, bailiffs, district attorneys,
and their assistants are properly made against the government, and
should be allowed; and where, by order of the court or custom of the
office, it is the practice to require such documents to be recorded or
entered upon the journal, the clerk's fees for such services are also
properly chargeable. But the expense of taking the oaths and executing
the proper bonds are not so chargeable, since it is the duty of
persons receiving appointments from the government to prepare and
tender to the proper officer the oaths and bonds required by law; in
other words, to qualify themselves for the office. What shall be done
with such qualifying papers does not concern them; their own duty is
discharged by the tender of such papers properly executed according to
law.
3. The same principle applies to the charges for approving
the accounts of these officers. By the act of February 22, 1875, (18
St. 333,) 'before any bill of costs shall be taxed by any judge or
other officer, or any account payable out of the money of the United
States shall be allowed by any officer of the treasury, in favor of
clerks, masha ls, or district attorneys, the party claiming such
account shall render the same, with the vouchers and items thereof, to
a United States
Page 140 U.S. 169, 172
circuit or district court, and in presence of the district attorney
or his sworn assistant, whose presence shall be noted on the record,
prove in open court, to the satisfaction of the court, by his own oath
or that of other persons having knowledge of the facts, to be attached
to such account, that the services therein charged have been actually
and necessarily performed as therein stated, and that the
disbursements charged have been fully paid in lawful money; and the
court shall thereupon upon cause to be entered of record an order
approving or disapproving the account, as may be according to law, and
just. United States commissioners shall forward their accounts, duly
verified by oath, to the district attorneys of their respective
districts, by whom they shall be submitted for approval in open court,
and the court shall pass upon the same in the manner aforesaid.' It
follows from this section that the officer has performed his duty by
'rendering' his account in proper form to the court, with the proper
affidavit or oath in support of the actual and necessary performance
of the services therein charged. He is not concerned with the method
of verification adopted by the government for its own convenience and
protection, and is no more liable for the expense of entering the
orders of approval of such accounts, or for the certified copies of
such orders, than he is for the expense of auditing such accounts at
the treasury the protection of the government; and the court to a
certain extent the duties of an auditing officer, but such duties are
imposed not for the benefit of the claimant, who is entitled to his
statutory compensation for the services rendered, but for the
protection of the services rendered, but for the expenses attendant
thereon are proper charges against the government.
4. For copies of indictments furnished to defendants in
criminal cases. By the sixth amendment to the constitution, 'in all
criminal prosecutions the accused shall enjoy the right ... to be
informed of the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the assistance of
counsel for his defense.' By section 1033, where a person is indicted
for a capital offense, a copy
Page 140 U.S. 169, 173
of the indictment and list of the jurors and witnesses shall be
delivered to him at least two entire days before his trial. There
would appear to be a negative pregnant here, and it has accordingly
been held that in cases not capital the prisoner is not entitled to a
copy of the indictment at government expense. U. S. v. Bickford, 4
Blatchf. 337; U. S. v. Hare, 2 Wheeler, Crim. Cas. 288. Nor is he
entitled to a list of witnesses and jurors. U. S. v. Williams, 4
Cranch, C. C. 372; U. S. v. Wood, 3 Wash. C. C. 440.
There is no other statutory provision; for carrying out the
constitutional obligation of the government to inform the prisoner of
the nature and cause of the accusation, or for summoning witnesses, or
procuring the assistance of counsel, except that by section 878
indigent defendants are entitled to have their witnesses subpoenaed at
the expense of the government. There is, however, no general
obligation on the part of the government either to furnish copies of
indictments, summon witnesses, or retain counsel for defendants or
prisoners. The object of the constitutional provision was merely to
secure those rights which by the ancient rules of the common law had
been denied to them; but it was not contemplated that this should be
done at the expense of the government. We have no doubt, however, of
the power of the court to order a copy of the indictment to be
furnished upon the request of the defendant, and at the expense of the
government; and, when such order is made, the clerk is entitled to his
fee for the copy. In many cases, however the defendant does not desire
a copy, or pleads guilty to the indictment upon its being read to him;
and in such cases there in no propriety in forcing a copy upon him and
charging the government with the expense. This appears to have been
the ruling of the court below, and we see no valid objection to it.
5. For docketing, indexing, and taxing costs in nine cases
sent up from the commissioner's office, in which the defendant was
bound over to appear to answer an indictment by the grand jury. The
grand jury, however, ignored the bills, and, of course, no indictment
was ever filed. The fee bill allows
Page 140 U.S. 169, 174
for making dockets and indexes, taxing costs, and other services in
a cause which is dismissed or discontinued, ... one dollar.' The real
question is whether papers so sent up and filed can be said to
constitute of themselves a 'cause' which should be docketed. While it
is true that a criminal cause is begun in the commissioner's office by
the filing of a complaint and the issuing of a warrant, it is equally
true that there is no 'cause' in the district or circuit court, within
the meaning of the law, until an indictment or information is filed.
Copies of the process before the commissioner are required by section
1014 to be returned as speedily as may be into the clerk's office of
the court, together with the recognizances of the witnesses, etc. The
filing of such transcript, however, is not the institution of a suit.
The object of the provision seems to be to inform the district
attorney of the fact that the defendant has been held to bail or
committed to await the action of the grand jury,- a proceeding which
may be very necessary where the commissioner resides at a distance,
and to enable him to prepare an indictment. For filing such papers we
have held the clerk to be entitled to a fee, but it is not usual or
proper to docket cases as such until the grand jury or district
attorney has taken affirmative action in regard to them.
6. For seals affixed to copies of orders for payment by the
marshal of sums due to jurors and witnesses. Section 855 requires the
marshal, upon the order of the court, to be entered upon its minutes,
to pay to jurors and witnesses all fees to which they appear by such
order to be entitled, which sum is to be allowed him at the treasury
in his accounts. If the officers of the treasury department require a
copy of such order to be authenticated, not only by the signature of
the clerk, but by the seal of the court, then, of course, the clerk is
entitled to charge for affixing such seal. It is usual, however, as
between officers of the same court, and between such officers and
those of the treasury department, to accept the signatures of each
other as genuine; and under such circumstances the clerk has no right
to impose the unnecessary burden of a seal. Jones v. U. S., 39 Fed.
Rep. 410; Singleton v. U.
Page 140 U.S. 169, 175
S., 22 Ct. Cl. 118. The question is not so much what the law
requires as a sufficient authentication of the copy of an order, for
formal proof of such order in a case upon trial, but what method of
authentication the department requires. The department has the right
to waive the formal proof which would be required in a court of law.
7. Objection is also made to fees for entering orders for
trial and recording the verdict in 38 criminal cases, the claim being
that such services are included in the fee allowed '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.' The argument is made that the entry of an order
for trial and the recording of the verdict are not services rendered
upon the trial and argument of the cause, since the order for trial
precedes the trial, and the verdict follows it. Referring to the
clause in question, however, to determine what shall be deemed
services on the trial of a case, we find that issuing venires and
taxing costs are included among such services. The forer of these
certainly precedes the actual trial, and the latter follows not only
the verdict, but the judgment. We think it follows from this that the
docket fee was intended to include these services. If it does not, it
is not easy to say what it was intended to cover.
8. Charges for filing praecipes for benchwarrants are
proper. It is not always that the district attorney desires the arrest
of the defendant immediately upon the indictment being returned to the
court, and it is proper that the clerk should wait for instructions
before issuing the benchwarrant. These instructions are given in the
form of a praecipe, and for filing such praecipe the clerk is entitled
to his fee. It appearing upon the finding of the court below that the
filing of praecipes is in accordance with the settled practice of the
court, there is no just reason why the clerk is not entitled to his
fee therefor.
With regard to mittimuses after sentence, no such praecipe is
required, the sentence of the court being that the defendant 'be
committed' until the fine be paid, or the terms of the sentence
otherwise complied with. This is itself an order for
Page 140 U.S. 169, 176
a mittimus, and the district attorney has no right to interfere
with the execution of the sentence. From the moment the sentence is
pronounced the case passes beyond the control or discretion of the
district attorney. It is the mandate of the court, and is obligatory
upon all its officers.
9. Charges for incorporating in the final record the
transcript from the commissioner. There is no statute prescribing what
record shall be kept by the clerk, or how it shall be kept in criminal
proceedings. Properly speaking, as we have already held, the
transcript from the commissioner's office is no part of the case in
the circuit or district court; but the court in this district has
adopted a rule that 'in all criminal cases, unless otherwise specially
ordered, the final record entered therein shall include the order made
by the commissioner binding the party to appear before the grand jury
if any such was made; the presentment therein; the bench-warrant and
return; the plea of defendant; the verdict of the jury; and the final
order and sentence of the court thereon.' This rule, of course, is
obligatory upon the clerk, and for his services in connection
therewith he is entitled to compensation. He is therefore entitled to
recover for so much of the record as includes 'the order of the
commissioner binding the party to appear before the grand jury.' It is
not the practice in all districts to require a record to be made up in
criminal cases, but, as it seems to be the practice in Iowa, we see no
objection to the allowance of the item.
10. To the allowance for copies of subpoenas furnished to the
marshal for service upon witnesses objection is made upon the ground
that by section 829, prescribing the fees of the marshal, he is
allowed 'for serving a writ of subpoena on a witness, fifty cents, and
no further compensation shall be allowed for any copy, summons, or
notice for a witness.' This, however, was intended to apply only to
the marshal; and when, as in this district, there is a rule of the
court that the clerk in issuing subpoenas in criminal cases shall make
copies to be left with witnesses, he is clearly entitled to
compensation for such copies. When the clerk performs a service in
obedience to an order of the court, he is as much entitled to
Page 140 U.S. 169, 177
compensation as if he were able to put his finger upon a particular
clause of a statute authorizing compensation for such services.
These are the only questions considered in the opinion of the court
below to which exception was taken, and, in the absence of an
assignment of errors, we do not find it necessary to discuss all the
items of the account.
The judgment of the district court must be reversed and vacated,
and the case remanded, with directions to enter a new judgment in
conformity to this opinion.
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