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UNITED STATES v. AVERILL.

decided: April 15, 1889.

UNITED STATES
v.
AVERILL.



APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH.

Author: Blatchford

[ 130 U.S. Page 335]

 MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is an action at law, brought by the United States in the District Court of the Third Judicial District, Territory of Utah, upon the official bond of Oscar J. Averill, as clerk of the Third Judicial District Court of the Territory of Utah, on which the other defendants were sureties, to recover the sum of $5253.33, being an alleged surplus of fees and emoluments received by the said Averill, as clerk, between August 5, 1879, and December 31, 1883, in excess of the amounts which he was entitled to retain for his personal services and the reasonable and necessary expenses of his office during that period, and for which it was claimed he was bound to account to the United States. The cause was heard in the District Court upon a general demurrer to the complaint, on which judgment was rendered for the defendants. The judgment of the District Court was affirmed on appeal by the Supreme Court of the Territory. To reverse that judgment the United States prosecute this appeal.

Section 1 of the act entitled "An Act to regulate the Fees and Costs to be allowed Clerks, Marshals and Attorneys of the

[ 130 U.S. Page 336]

     Circuit and District Courts of the United States, and for other Purposes," passed February 26, 1853, c. 80, 10 Stat. 161, provided as follows, as originally enacted: "That in lieu of the compensation now allowed by law to attorneys, solicitors and proctors in the United States Courts, to United States district attorneys, clerks of the District and Circuit Courts, marshals, witnesses, jurors, commissioners and printers, in the several States, the following and no other compensation shall be taxed and allowed." Then followed a specification of fees to be charged by various officers for various services. Section 3 provided for the rendering of accounts of fees, semi-annually, by district attorneys, clerks of the District and Circuit Courts and marshals, and contained the following enactment: "and no clerk of a District Court, or clerk of a Circuit Court, shall be allowed by the said Secretary," the Secretary of the Interior, "to retain of the fees and emoluments of his said office, or, in case both of the said clerkships shall be held by the same person, of the said offices, for his own personal compensation, over and above the necessary expenses of his office, and necessary clerk hire included, also to be audited and allowed by the proper accounting officers of the treasury, a sum exceeding three thousand five hundred dollars per year, for any such district clerk, or circuit clerk, or at and after that rate for such time as he shall hold the office." These provisions did not apply to the clerks of the territorial courts.

By § 12 of the act "making appropriations for the civil and diplomatic expenses of government, for the year ending the thirtieth of June, eighteen hundred and fifty-six, and for other purposes," passed March 3d, 1855, c. 175, 10 Stat. 671, it was enacted, "that the provisions of the act of February twenty-sixth, eighteen hundred and fifty-three, 'to regulate the fees and costs to be allowed clerks, marshals and attorneys of the Circuit and District Courts of the United States, and for other purposes,' are hereby extended to the Territories of Minnesota, New Mexico and Utah, as fully, in all particulars, as they would be, had the word 'Territories' been inserted in the sixth line after the word 'States,' and the same had read, 'in the several States and in the Territories of the United States.'

[ 130 U.S. Page 337]

     This clause to take effect from and after the date of said act, and the accounting officers will settle the accounts within its purview accordingly." With this amendment § 1 of the act of February 26, 1853, read as follows: "That in lieu of the compensation now allowed by law to attorneys, solicitors and proctors in the United States Courts, to United States district attorneys, clerks of the District and Circuit Courts, marshals, witnesses, jurors, commissioners and printers, in the several States and in the Territories of the United States, the following and no other compensation shall be taxed and allowed."

When § 1 of the act of 1853, as originally enacted, spoke of the compensation to be "allowed" to the officers named in it, it clearly included the compensation to be allowed to be retained by them for their services. This is also plainly indicated in § 3 of the same act, in the provision as to the amount per year which a clerk of a District or Circuit Court may be "allowed" to retain, out of the fees and emoluments of his office, "for his own personal compensation." So, when, by the amendment made in 1855, to § 1 of the act of 1853, the latter act was made to apply to the compensation to be allowed, in the Territory of Utah, to the clerks of the District Courts there, the provision of § 3 of that act as to compensation allowed to be retained by a clerk of a District Court, was necessarily made applicable to clerks of District Courts in the Territory of Utah. Because, by the act of 1855, the provisions, that is, all the provisions, of the act of 1853, are extended to the Territory of Utah, "as fully, in all particulars, as they would be," had the words "and in the Territories of the United States" been inserted in § 1 of the act of 1853, as originally enacted. This is further shown by the fact that the new clause is, by the act of 1855, made to take effect from and after the date of the act of 1853, and the "accounting officers" are directed to "settle the accounts within its purview accordingly." This can refer only to the "proper accounting officers of the Treasury," who are required, by § 3 of the act of 1853, to audit and allow the compensation accounts of the clerks of courts. The accounts within the purview of the amendment of 1855, which the

[ 130 U.S. Page 338]

     accounting officers were required to settle "accordingly," necessarily included accounts for the compensation of the clerks of the District Courts of the Territory of Utah, which were to be settled according to the requirements of § 3 of the act of 1853.

This was the state of legislation in regard to the question under consideration when the Revised Statutes were enacted. Section 823 of those statutes, which is taken from § 1 of the act of 1853, provides as follows: "The following and no other compensation shall be taxed and allowed to attorneys, solicitors and proctors in the courts of the United States, to district attorneys, clerks of the Circuit and District Courts, marshals, commissioners, witnesses, jurors and printers in the several States and Territories, except in cases otherwise expressly provided by law." By the act of June 27, 1866, c. 140, § 2, 14 Stat. 74, the commissioners to revise the statutes were directed to place at the sections of the revision "references to the original text from which each section is compiled." The references opposite § 823 are these: "26 Feb. 1853, c. 80, s. 1, v. 10, p. 161; 3 Mar. 1855, c. 155, s. 12, v. 10, pp. 670, 671." This shows that the provision of the act of 1855 was regarded as being incorporated in § 823. The provision of § 3 of the act of 1853, in regard to the compensation to be retained by clerks, was embodied in § 839 of the Revised Statutes, in these words: "No clerk of a District Court, or clerk of a Circuit Court, shall be allowed by the Attorney General, except as provided in the next section, and in section eight hundred and forty-two, to retain of the fees, and emoluments of his office, or, in case both of the said clerkships are held by the same person, of the fees and emoluments of the said offices, for his personal compensation, over and above his necessary office expenses, ...


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