125 F. 250 | U.S. Circuit Court for the District of Middle Pennsylvania | 1903
It was the duty of the clerk, in response to the writ of error, to make up and certify the record and return it to the Court of Appeals, for which he is entitled to charge at the rate of 15 cents for each folio of 100 words. McIlwaine v. Ellington (C. C.) 99 Fed. 133. He is confined, however, to that which he has so certified, and no more, and that is found in the first volume of the record as printed, at the end of which his certificate appears. It does not extend to the other two volumes, made up of the evidence, which is no part of the record except as it is brought into it by bills of exceptions duly noted and sealed. So far the matter is clear.
But there is more difficulty with regard to the printing. By the rules of the Court of Appeals of this Circuit, the clerk of that court, upon the filing of the transcript of the record, is to cause it to be printed (Rule 23, § 1; Page’s Rules, pp. 161, 162), receiving therefor a fee of 25 cents a page, in addition to the cost of printing (Rule 31, § 7; Page’s Rules, p. 169). He is required, however, to accept any portions of the record of proper size and type that may have been printed in any other court (Rule 23, § 2; Page’s Rules, p. 162); and this makes a place for the practice which prevails in some of the districts, of the circuit, including this one, of having the clerk of the court from which the record comes to do the printing. The clerk of the Circuit Court performed this service in the present instance, and claims a fee per folio for it, and the question is whether he is entitled thereto. He is not unless he can point to a statute which justifies the charge; and this, unfortunately, he cannot do. The fee of 25 cents a page which is allowed to the clerk of the Court of Appeals is given him by the fee bill which the act of Congress expressly authorizes that court to adopt (Act Feb. 19, 1897, c. 263, 29 Stat. 536 [U. S. Comp. St. 1901, p. 557]) i but there is no equivalent provision with regard to the circuit or district clerk, nor any means by which the fee that is so provided can be transposed and made to apply to either of them. The right to it was raised and denied in the case of Doherty’s Accounts,'Bowlers’ Comptrollers’ Decisions, 253, where a similar fee per folio for proofreading, in addition to the bill of printing, was disallowed. The clerk is therefore confined to the cost of printing, the advantage that he gets out of having it done being that he can use the printed copy in certifying the record, thus saving himself the trouble and expense of otherwise transcribing it.
But in undertaking to do the printing he is only entitled to what it is reasonably worth, and this gives rise to another complication. The ordinary price per page for such work does not exceed $1, while the bill that is presented is for $1.25. This is sought to be
In accordance with these views, the clerk’s fees are retaxed and allowed as follows:
For making up.,and certifying the record, 950 at 15 cents each... $ 145
For printing 1186 pages at $1 a page................................. 1,186
Total .........................................................$1,331