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(40 Sup.Ct.)

plement or perfect those originally instituted. [8 Fed. 904. And likewise the question whethIf the original arrest was lawful, the deten- er there was a right then to remove him. tion would remain legal only for the reason- Compare Cheong Ah Moy v. United States, 113 U. S. 216, 5 Sup. Ct. 431, 28 L. Ed. 983; Ex parte Baez, 177 U. S. 378, 20 Sup. Ct. 673, 44 L. Ed. 813.

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able time required to enable appropriate removal proceedings to be instituted. Unless the lawful arrest was promptly followed by such proceedings, the prisoner would be entitled to his discharge. In the Matter of Fetter, 23 N. J. Law, 311, 321, 57 Am. Dec. 382. On the other hand, if the original arrest and detention had been illegal, Stallings would not be entitled to his discharge, if before final hearing in the habeas corpus proceedings legal cause for detaining him had arisen through the institution of removal proceedings. Where it appears that sufficient ground for detention exists a prisoner will not be discharged for defects in the original arrest or commitment. Nishimura Ekiu v. United States, 142 U. S. 651, 12 Sup. Ct. 336, 35 L. Ed. 1146; Iasigi v. Van de Carr, 166 U. S. 391, 17 Sup. Ct. 595, 41 L. Ed. 1045; Kelly v. Griffin, 241 U. S. 6, 13, 36 Sup. Ct. 487, 60 L. Ed. 861.

[3] Third. The admission to bail by the commissioner to answer the indictment in the district of Wyoming was upon his own request on advice of counsel. When this bail was given no application had been made to the court for his removal, and there had not even been an order of the commissioner that he be held to await such application. He ceased, therefore, to be in the position ordinarily occupied by one who is contesting the validity of his detention and who has been released on bail pending the habeas corpus proceeding. Sibray v. United States, 185 Fed. 401, 107 C. C. A. 483. Stallings' position was thereafter no better than if he had applied for the writ after he had given bail. It is well settled that under such circumstances a petitioner is not entitled to be discharged on habeas corpus. Respublica v. Arnold, 3 Yeates (Pa.) 263; Dodge's Case, 6 Mart. O. S. (La.) 569; State v. Buyck, 1 Brev. (S. C.) 460. Being no longer under actual restraint within the District of Columbia he was not entitled to the writ of habeas corpus. Wales v. Whitney, 114 U. S. 564, 5 Sup. Ct. 1050, 29 L. Ed.

277.

[4] Furthermore by voluntarily giving bail to appear in Wyoming, the purpose of the removal proceedings had been accomplished, and all questions in controversy in the habeas corpus and in the removal proceedings ter

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minated. Whether his arrest and detention had originally been valid was thereby rendered immaterial. In re Esselborn (C. C.)

[5] Fourth. Stallings' contention that he should be discharged, because the indictment failed to charge a crime under the laws of the United States, is also unfounded. He was indicted under section 97 of the Penal Code, which declares that any officer of the United States who shall embezzle any money which may have come into his possession in the execution of such office or under claim of authority as such officer shall be punished. The indictment charges Stallings with having received as commissioner divers sums of money from persons named, to be paid over to the receiver of the land office at Cheyenne, and embezzling the same. It is contended that the money could not have been received as commissioner for transmission, because it is not among the statutory duties of a commissioner. But section 2294 of the Revised Statutes, as amended by Act March 4, 1904, c. 394, 33 Stat. 59 (Comp. St. § 4546), provides that, where applicants for the benefit of the homestead and other land laws make the required affidavits before commissioners of the United States, the proof so made shall have the same effect as if made before the register and receiver, "when transmitted to them with the fees and commissions allowed and required by law." The circular issued by the Land Office in 1905 (33 Land Dec. 480, 481), containing "Suggestions to United States Commissioners," etc., directs that the proofs so taken be "transmitted to the register and receiver with the necessary fees and commissions." And the circular issued in 1915 (44 Land Dec. 350, 352) directs that in "no case should the transmittal thereof be left to the claimant."

[6] Duties of an officer may be prescribed by rule. If the validity of the indictment

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was open to reasonable doubt, it was to be resolved, not by the committing magistrate, but, after the removal, by the court which found the indictment. Beavers v. Henkel, 194 U. S. 73, 83, 24 Sup. Ct. 605. 48 L. Ed. 882; Benson v. Henkel, 198 U. S. 1, 10, 11, 12, 25 Sup. Ct. 569, 49 L. Ed. 919; Haas v. Henkel, 216 U. S. 462, 481, 30 Sup. Ct. 249, 54 L. Ed. 569, 17 Ann. Cas.

1112.

Affirmed.

1 Comp. St. § 10265.

(253 U. S. 195)
UNITED STATES v. MacMILLAN et al.
(Submitted Jan. 23, 1920. Decided June 1,
1920.)
No. 167.

§ 1404); section 844, R. S. (Comp. St. § 1414).

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*The controversy originated by a suit commenced by the United States against the defendants in error as clerk of the District Court of the United States for the Northern District 1. CLERKS OF COURTS 61-FEES NOT "PUB- of Illinois, Eastern Division, and the surety on LIC MONEYS OF UNITED STATES," SO AS TO his official bond to recover $3,861.05. The ENTITLE GOVERNMENT TO ACCRUING INTEREST. right to the relief was based upon averments Fees and emoluments, collected by the that during the period from December 27, clerk of a United States District Court re- 1905, to January 27, 1910, the clerk had colquired to meet the expenses of his office there- lected the sum named as interest on the avfrom and pay over the surplus to the United | erage daily balances of his bank accounts reStates, and deposited by him in a bank, are sulting from the deposit by him of the fees not "public moneys of the United States," so as to entitle the United States to interest paid and emoluments of his office and of moneys thereon by the bank as an increment of its placed by litigants with him to meet payownership. ments for costs or otherwise which they might lawfully be required to make during the course of the litigation.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Public Money.]

2. CLERKS OF COURTS 61 INTEREST ON FEES AND EMOLUMENTS NOT AN EMOLUMENT

TO BE ACCOUNTED FOR.

Interest paid by a bank on a deposit of the fees and emoluments of a clerk of a United States District Court, required by statute to meet the expenses of his office from such fees and emoluments and pay over the surplus

to the United States, is not in itself an emolument of the office for which the clerk is liable to account.

It was further alleged that although the interest thus received constituted a fee or emolument of the office of the clerk, or money held in trust by him for the United States, for the receipt of which he was bound by law semiannually to account, he had failed to do so and was therefore liable.

By plea the defendants admitted the collection by the clerk of the amount sued for as interest on the average daily balances of his bank accounts made up as alleged of

Mr. Justice Pitney and Mr. Justice Clarke moneys derived from fees and emoluments dissenting.

and deposits by litigants under the rules or orders of court. The plea averred that, as reIn Error to the United States Circuit quired by law, the clerk had made his semiCourt of Appeals for the Seventh Circuit. annual accountings in which, although he Suit by the United States against Thomas did not charge himself with the interest alC. MacMillan and another. Judgment for de-lowed him on his bank balances as stated, he fendants was affirmed by the Circuit Court of Appeals for the Seventh Circuit (251 Fed. 55, 163 C. C. A. 305), and the United States brings error. Affirmed.

See, also, 209 Fed. 266.

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had charged himself with every item constituting a fee or emolument of his office from whatever source due, and after debiting the charge thus made with the proper proportion of his salary and the expenses of his office, had turned the balance, if any there was, into the Treasury of the United States. There was annexed to the plea a copy of the rules of court relating to the placing by litigants of money with the clerk, and the plea alleged that whenever, out of such money, any

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*charge whether for a fee or emolument or otherwise became due, it was at once paid,

Mr. Chief Justice WHITE delivered the so that the amount of that deposit always opinion of the Court.

solely represented money belonging to and held for the account of the depositing litigant to meet payments due by him which might thereafter arise.

The relation of the United States to moneys alleged to have been collected by a clerk of a District Court of the United States as fees or emoluments of his office and To this plea the United States demurred the scope of his duty to account semi- as stating no defense and, after hearing, its annually for the same to the Attorney Gen- demurrer was overruled. 209 Fed. 266. In eral so as to fix, if any there was, the surplus consequence of an election by the United due to the United States after paying the ex- States to plead no further, the case was subpenses of the clerk's office and the clerk's sal-mitted for judgment on the petition and plea. ary as fixed by law, is the general subject At that time the court had under advisehere arising for consideration. Section 833, ment eight other cases involving the quesR. S. (Comp. St. § 1394); Act June 28, 1902, 32 tions arising in this, five being suits by the Stat. 475, 476; section 839, R. S. (Comp. St. United States against the clerks of other

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

#202

of the United States, thus entitling the United States to the interest as an increment of its ownership. That it was not is so completely foreclosed as to cause it to be only necessary to consider the previous ruling on the subject. In United States v. Mason, 218 U. S. 517, 31 Sup. Ct. 28, 54 L. Ed. 1133, the court was called upon to determine the validity of the action of a *Circuit Court of the United States in quashing three indictments against the clerk of a Circuit Court of the United States for the "embezzlement of certain moneys of the United States," which moneys were a portion of the surplus of fees and emoluments of his office over and above the compensation and allowances authorized by law to be retained by him. The indictments were based, and the sole reliance to sustain them and thus

United States courts and three, in addition | terest was allowed him were public moneys to this, being against the clerk who is defendant here, covering interest collected for different periods. The court disposed of the nine cases in one opinion. It held that as there was no contention as to a default by the clerk concerning any money deposited with him by litigants, that subject would be put out of view. Carefully considering the pleadings, it held that the claim of the United States to the interest rested upon one or the other of two propositions: (1) That the money deposited by the clerk and upon which the interest was allowed was public moneys of the United States and therefore the interest belonged to the United States; (2) that without reference to whether the deposits were public moneys, the interest paid was an emolument for which the clerk was bound to account. Elaborately considering these questions the court decided both against the

United States.

Reviewing on error one of the cases against this defendant which was decided, as

we have seen, by the trial court along with this, the Circuit Court of Appeals affirmed the trial court in a brief per curiam opinion in which it approved the analysis of the case as made by the trial court and concurred in

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holding decisive the cases in this *court which the trial court relied upon. Subsequently when the case now before us came to be heard the ruling in the case just stated was applied to this and the judgment was therefore also affirmed.

reverse the court below was rested, upon sections 5490 and 5497, Revised Statutes (Comp. St. §§ 10257, 10264), with the amendments made by Act Feb. 3, 1879, c. 42 (20 Stat. 280

ed fees and emoluments and that under such legislation the sums collected by the clerks were in no sense public moneys of the United States, but were moneys of the clerks held by them in their personal capacity in payment for their official services.

[Comp. St. § 10265]), each of which sections exclusively dealt with embezzlement of "public moneys." Whether, therefore, the particular moneys which were there in question, being derived from fees and emoluments of the clerk, were public moneys required necessarily to be decided. Reviewing historically the legislation covering clerks of courts of the United States which had been previously recapitulated in United States v. Hill, 120 U. S. 169, 7 Sup. Ct. 510, 30 L. Ed. 627, it was pointed out, first, that originally clerks of In argument here it is suggested by the courts were not salaried, but were remuneratUnited States that as the defendant clerked by the right to collect and retain establishwas by exceptional legislation an officer whose salary was specifically appropriated for (Act July 31, 1894, 28 Stat. 162, 204; Act March 2, 1895, 28 Stat. 764, 806; Act Aug. 24, 1912, 37 Stat. 417, 465), therefore the principles passed upon below are not necessarily decisive. But aside from the disregard of the admissions resulting from the pleadings which the suggestion involves and the entire absence of even an intimation that such a contention was raised in either of the courts below, we put the belated suggestion out of view, since as it is not disputed that the defendant clerk was under obligation to meet the expenses of his office from the fees and emoluments thereof and to pay over to the United States only the surplus resulting, we think the distinction assumed to arise from "The plain object of this statute was to limit the proposition stated makes no difference the amount which the clerk was to retain and in the application of the principles which the to require an accounting, an audit of expenses, court below held to be conclusive and the and a payment of the surplus. Otherwise the soundness of which we are now therefore re-established method of administering the office quired to pass upon.

[1] As we agree with the lower court that the two propositions decided by the trial court embraced the whole case, we are thus brought, first, to determine whether the fees and emoluments collected by the clerk and deposited by him in bank and upon which in

Coming to state the evolution in the situation by which in time it came to pass that a limit was placed on the amount of compensation which a clerk should annually receive and consequently making it his duty to account for his fees and emoluments and to turn over to the United States the surplus, if any, remaining after the payment of his compensation and the expenses of his office, the court observed (218 U. S. 523, 524, 31 Sup. Ct. 31, 54 L. Ed. 1133):

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was not changed. The fees were to be re-
covered as theretofore; and to the extent of
the amount of the fixed compensation of the
he was entitled to use and to pay as formerly.
clerk and the necessary expenses of his office,
The statute suggests no other course.
if anything, should be paid into the public
treasury at the end of the half year, when

What,

he was to make his return, depended upon the amount of the fees, the amount of the expenses and the result of the audit. If his fixed compensation and his necessary expenses exhausted the fees there would be nothing to pay. The amount payable was to be determined when the return was made."

Testing the possible application of the statutes dealing with the embezzlement of public moneys to the rights and duties of a clerk to collect the fees and emoluments of his office and to make use of them as authorized by law, it was pointed out that such application could not be made because of the incompatibility between the powers and duties of the clerk, on the one hand, and the provisions of the statutes relied upon, on the other. This incongruity was aptly illustrated by the statement which follows dealing with the duties of the clerk and the impossibility of applying to them the prohibitions of one of the statutes in question (218 U. S. 525, 31 Sup. Ct. 32, 54 L. Ed. 1133):

"They lay outside of the prohibition of section 16 against loaning, using, converting to his own use, depositing in banks, and exchanging for other funds, for it was upon these fees that the clerk depended for his livelihood and for the payment of the expenses of his office, subject only to the duty twice a year to make his accounting and to pay over the surplus if the fees exceeded the total amount allowed him."

Again marking the broad line which lay between public money and the clerk's fees and emoluments and his right to collect and disburse the same, the court declared (218 U. S. 529, 31 Sup. Ct. 33, 54 L. Ed. 1133): "There has thus been established a distinct

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doctrine on the subject announced in United States v. Hill, 123 U. S. 681, 8 Sup. Ct. 308, 31 L. Ed. 275, where it was in express terms pointed out that

"A clerk of a court of the United States collects his taxable 'compensation,' not as the revenue of the United States, but as fees and emoluments of his office, with the obligation on his part to account to the United States for all he gets over a certain sum which is fixed by law."

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[2] Conclusively disposing as these cases do of the contention of the government as to public moneys of the United States, it leaves only for consideration the question of whether the interest on the sum of the fees and emoluments deposited by the clerk in bank was in and of itself an emolument for which he was liable to account. But that question is virtually also foreclosed in view of what was held in the Mason Case, since the individual character of the bank deposit as there defined and the right to make it necessarily causes the increment of such deposit, that is, the interest, to partake of the character of the principal. And besides, aside from the ruling in the Mason Case, it had been previously held that a sum collected by a clerk for a service not pertaining to his office or provided for in the schedule of fees allowed him for official services was not a fee or emolument in the sense of the statute. United States v. Hill, 120 U. S. 169, 7 Sup. Ct. 510, 30 L. Ed. 627.

Although at the outset we eliminated from consideration liability for interest on money of litigants deposited with the clerk under the rules of court because not embraced in the claim of money or property of the United States upon which all the government contentions here rest, in leaving the case we observe that the question of the liability of the clerk to pay interest to litigants on money deposited by them is in a large degree cover

system with respect to the fees and emoluments of the clerks. Its features are to be explained by the history of the clerk's office and the requirements of its convenient administration. It is urged that the fees and emoluments are attached to the office, and are received in an official capacity. This consid-ed by the rules of court annexed to the plea, eration, however, does not aid the prosecution, which permit in the cases specified an applifor they were attached to the office before the cation of a litigant to the court to direct the statute of 1841, when they belonged to the allowance of such interest and to provide for clerk without any duty on his part to account its payment by the clerk when the request is for any portion of them." granted.

And once more emphasizing the distinction it was said (218 U. S. 531, 31 Sup. Ct. 34,

54 L. Ed. 1133):

"The fees and emoluments are not received by the clerk as moneys or property belonging to the United States, but as the amount allowed to him for his compensation and office expenses under the statutes defining his rights and duties, and with respect to the amount payable when the return is made the clerk is not trustee but debtor. Any other view must ignore not only the practical construction which the statutes governing the office have received, but their clear intent."

Indeed the decisive principles which were thus announced in the Mason Case were but

In conclusion we direct attention, as was done in the Mason Case and as did the trial court in this case, to the incompatibility which would result, on the one hand, from enforcing an absolute obligation on the part of the clerk to account for all the fees and emoluments of the clerk's office whether collected or not as well as his duty to defray the expenses of his office out of such revenue, and the upholding, on the other hand, of the conflicting theory that the fees and emoluments were public moneys and the power of the clerk to deal with them accordingly limited. Affirmed.

Mr. Justice PITNEY and Mr. Justice

a reiteration and application of the general| CLARKE dissent.

(253 U. S. 300)

In re PETERSON. (Argued March 15, 1920.

1920.)

No. 28.

(40 Sup.Ct.)

| right to a jury trial, either because it involves delay in reaching the jury trial, or because it affords opportunity for exploring in advance Decided June 1, the evidence which the adversary purposes to introduce before the jury.

1. MANDAMUS 4(1)-PROHIBITION ~3(2)
-LIES TO PREVENT PROCEEDINGS DENYING
TRIAL BY JURY, NOTWITHSTANDING RIGHT
OF REVIEW BY EXCEPTIONS.

7. JURY 34 (2)-RIGHT NOT INFRINGED BY REQUIRING AUDITOR TO EXPRESS OPINION ADMITTED AS PRIMA FACIE EVIDENCE.

An order referring an action at law to an auditor for a preliminary hearing, with a view to separating the matters in dispute from those If proceedings pursuant to the appointment not in dispute, is not unconstitutional, as unof an auditor in an action at law to determine duly interfering with the jury's determination what matters are in dispute and to express an of issues of fact, because it directs the auditor opinion on such matters would deprive a party to form and express an opinion on the matters of his right to a trial by jury, the Supreme in dispute, though the report of the auditor, Court has jurisdiction to entertain an applica-unless rejected by the court, will be treated as tion for writs of mandamus or prohibition, or prima facie evidence.

both, notwithstanding the objecting party's

right to protect himself by exceptions, which 8. JURY 34 (2)-ORDER OF COURT EXTENDwould be subject to review.

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ING PRESUMPTION OF REGULARITY TO OFFI-
CIAL ACT NOT UNCONSTITUTIONAL.

An order of a court, like a statute, is not unconstitutional, because it endows an official act or finding with a presumption of regularity or of verity.

9. REFERENCE 7(1) -FEDERAL COURTS MAY

APPOINT AUDITOR TO DETERMINE WHAT MAT-
TERS ARE IN DISPUTE AND EXPRESS OPINION.

In the absence of legislation to the contrary, federal courts have inherent power to order a preliminary hearing before an auditor in an

Assuming the power of the District Court to appoint an auditor in an action at law to determine what matters are in dispute and express an opinion thereon, such appointment was justified in an action for a balance due on an account annexed for coal sold and delivered, containing 298 items, in which defendants set up another account containing 402 items, claim-action at law, with a view to determining what ed to have arisen out of 123 different deliveries of cargoes or partial cargoes of coal on 91 different days during a period of 11 months, involving claims for penalties, commissions, cash discounts, and allowances on account of freight.

3. JURY 31(3)-RIGHT OF JURY TRIAL DOES NOT PREVENT CHANGES IN PROCEDURE AND

PRACTICE.

Const. Amend. 7, providing that the right of trial by jury shall be preserved, does not require that old forms of practice and procedure be retained, or prohibit the introduction of new methods for determining what facts are in issue or the introduction of new rules of evidence.

4. JURY 12 (3)-RIGHT OF JURY TRIAL DOES

NOT EXIST, EXCEPT AS TO ISSUES Of fact.

There is no right in a civil case to a trial by jury, unless and except so far as there are issues of fact to be determined.

5. JURY 31(3)-RIGHT NOT INFRINGED BY REQUIRING OATH OF PARTY TO FACTS RELIED ON.

It does not infringe the constitutional right to a trial by jury to require, with a view to formulating the issues, an oath by each party

to the facts relied on.

6. JURY 31(8)-RIGHT NOT INFRINGED BY REFERENCE TO DETERMINE WHAT MATTERS ARE IN DISPUTE.

matters are in dispute, and to require the auditor to express an opinion on the matters in dispute.

10. COSTS 158-EXPENSE OF PRELIMINARY

HEARING BEFORE AUDITOR MAY BE TAXED.

In the absence of a federal or state statute or rule of court excluding such items, a federal District Court referring an action at law to an auditor for a preliminary hearing may tax the expenses of such reference, including the fees of the auditor and his stenographer, as

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PREVAILING
PRACTICE.

357-RULE ALLOWING COSTS TO PARTY PREVAILS OVER STATE

A compulsory reference of an action at law involving long accounts to an auditor, to separate the matters in dispute from those not in The rule of practice, confirmed by Rev. St. dispute, does not infringe the constitutional § 983 (Comp. St. § 1624), that in actions at law

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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