10 Utah 184 | Utah | 1894
This is an action brought by the United States against Henry G. McMillan, late clerk of the Third District Court of Utah Territory, and his bondsmen, to recover an alleged surplus of fees and emoluments alleged to have been earned and received by said McMillan as such clerk, and which it is alleged he failed to account for and pay over as required by sections 833, 844, Eev. St. U. S. The complaint contains two counts. The first alleges that between the 8th day of June and the 31st day of December, 1888, the said McMillan, as such clerk, earned and received, as fees and emoluments of his said office, $7,458.70, of which sum $988.90 was earned and received in United States cases; $3,776 for declarations of intention and naturalization; and $2,693.80 from private persons in civil litigation, and from the territory on account of territorial business. It is further alleged that the said McMillan was entitled to retain of said moneys, as his personal compensation and reasonable and necessary expenses of his office, the sum of $3,728.98, and no more, and that it was his duty to account for and pay into the treasury of the United States all moneys received by him in excess of said last-mentioned sum, to-wit, $3,729.72; that he has failed to account for
The second count alleges that between the 1st day of January and the 31st day of December, 1890, the said McMillan, as such clerk, earned and received, as fees and emoluments of his said office, the sum of $10,544.70, of which sum $1,793.35 was earned and received in United States cases; $1,439.50 for declarations of intention and naturalizations; and $7,311.85 from private persons in civil litigations and from the territory on account of territorial business. It is further alleged that the said McMillan was entitled to retain of said moneys, as and for his personal compensation, and as reasonable and necessary expenses of his said office, $6,256.75, and no more, and that it was his duty to account for and pay into the treasury of the United States all moneys received by him as aforesaid in excess of said sum of $6,256.75, to-wit, the sum of $4,287.95; and that he has failed to account for or pay any part of said sum, except the sum of $793.40, and a judgment is prayed against the said clerk and his bondsmen accordingly. To this complaint, and to each count thereof, the defendants demurred, on the ground that the facts stated were insufficient to constitute a cause of action. The demurrer was sustained by the court below, and, the plaintiff declining to amend, judgment was entered in favor of the defendant, dismissing the bill of the complainant, from which judgment this appeal was prosecuted by the government.
Two questions are presented: First — Is the clerk required to account for, as fees and emoluments of his office, moneys earned and received by him in civil cases between private parties and from the territory in territorial business? Second — Is he required to account for, as such fees and emoluments, moneys earned and received by him in the matter of the naturalization of aliens? We think
In the case of Marte v. Railway Co., decided at the last January term, and reported in 35 Pac. 501, we held that the federal fee bill was not applicable to cases in the territorial courts in which the United States was not a party, or of which the federal courts would not have exclusive jurisdiction if the territory were a state; and that officers,