No. 26 | 6th Cir. | Feb 6, 1893
This was an appeal from a decree of the circuit court for the western district of Tennessee adjudging the United States to he indebted to John B. Clough, a United States commissioner, the plaintiff below, in the sum of $405.78 for fees earned by him as such commissioner. The petition was filed under an act of congress approved March 3,1887, entitled "An act to provide for the bringing of suits against the government of the United States,” (chapter 359, 24 St. at Large, p. 505,) which conferred upon district and circuit courts of the United States a jurisdiction similar to that exercised by the court of claims over suits brought against the United States. The judgment rendered covered and included fees for a number of items, only one of which is objected to and assigned for error on this appeal. The court below held that the plaintiff was entitled to a fee of 20 cents for affixing his commissioner’s seal to warrants, writs of mittimus, etc., issued by him upon preliminary examinations, amounting in the aggregate to $141.40.
Under section 847 of the Bevised Statutes, commissioners are entitled to the same fees as are allowed to clerks for like services; and under section 828 of the Bevised Statutes the clerks are allowed for affixing the seal of the court to any instrument when required, 20 cents. Under section 1014 of the Revised Statutes the process issued by the commissioner is required to be the same as that issued against offenders under the state law by examining magistrates. In Tennessee the seal of the magistrate is necessary to validate his warrant or mittimus. Tackett v. State, 3 Yerg. 392. And it is therefore essential to the validity of a warrant of the United States commissioner, exercising jurisdiction in Tennessee, that Ms writs shall have his seal affixed.
It is contended by counsel for the appellee that it necessarily follows from the foregoing that the commissioner should be allowed 20 cents for affixing his seal to each writ. Were the foregoing all of the statute law bearing on the subject, the argument would he sound, but, in our opinion, the other provisions of section 828 show that it cannot be supported. By section 828, clerks are allowed
Ji the seal of a United £5rates coMMissioner is essential to make a legal warrant or a writ of mittimus within the state of Tennessee, then we are clearly of the opinion that such service is included In toe issuing of naek warrant or writ, and that the one dollar provided by statute for issuing pays also for the afifodng of the coal.
The provision in section 828, allowing 20 cents for affixing the seal eC the court to nav instrument when required, applies only to those instrumento the iuraing ov preparo lion of which are not specifically allowed iu the previous provision» of the same sections, and on which a seal may be needed. The provision allowing 15 cents h folio for making any record, certificate, return, or report bos application to writings some of which might need a Beal, and in charging for such record or certificate or other paper 20 cento should be Allowed for affixing the seal, because the 15 certs a folio is obviously only for the wrUing require!! in the body of the paper. But where the fee is for issuing end entering a particular writ ¡he service to he paid for is the issuing and entering a lawful writ with o« that ihai: includoR. The learned judge below, in objecting to this view, sáayr:
‘■The argument %aí ace! ion 323 ot tlie Be vised Statutes, gMiig a fee of ono dollar for v'-sulns and eutonng every process, ota., covers every charge In bpert of suui! eonceiTiÍLiA the wrij, is wholly nn.ton»Mo, because file anhseqaenf parr of file section In t( tine provides a foe for entering' the return of it, ami viij service may just as well ho paid lo !>e embraces! La the one dollar as tlte fee for e taxing fire seal, also eipmsly given.”
There is involved In this statement, it seem® to us, a non geqtdtnr. The issuing and entering oí a process is one thing, and entering o£ the return of the process is another. The process io valid and complete iu the hands of the executing officer without any return, and the entering of the return is therefore a, service entirely separate from the Issuing and entering of the process, and could not, it seems to ns, by any force of reasoning, be held to include the entering oí the return. We do nofc concur in the opinion of the court in McKinstry v. U. S., 40 Fed. Rep. 813, as io the principle to be followed In tlie construction of the fee bill. We do not know any rule of public policy or of practical experience which requires that where a statute i;¡lowing an officer’s compensation “admits of two interpretations, toe words should be construed liberally in favor of the officer, and not strictly in favor of the United States.” The well-known abuses under the feo system, for which the government ban been defrauded of large amounts through, unconscionable charges, and the lax administration of the law in this resoect, would seem to require a strict interpretation in favor of the United States, rather than in favor of the officer. The decree of the court below will be modified in accordance with this opinion.