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(40 Sup. Ct.)


U. S. 473, 35 Sup. Ct. 888, 59 L. Ed. 1414;, the performance of specific judicial duties, as Chicago, etc., R. R. v. Jones, 149 Ill. 361, 382, they may arise in the progress of a cause. 37 N. E. 247, 24 L. R. A. 141, 41 Am. St. Rep. From the commencement of our government 278. In the Meeker Case this court relied es- it has been exercised by the federal courts, pecially upon Holmes v. Hunt, 122 Mass. 505, 23 Am. Rep. 381, and called attention to the when sitting in equity, by *appointing, either fact that there the statute making the report with or without the consent of the parties, of an auditor prima facie evidence at the trial special masters, auditors, examiners, and commissioners. To take and report testimony; before a jury was held to be a legitimate exercise of legislative power over rules of evi- to audit and state accounts; to make compudence and in no wise inconsistent with the tations; to determine, where the facts are constitutional right of trial by jury. The complicated and the evidence voluminous, reasons for holding an auditor's report ad- what questions are actually in issue; to hear missible as evidence are, in one respect, conflicting evidence and make finding thereon stronger than for giving such effect to the re-these are among the purposes for which such port of an independent tribunal like the In- aids to the judges have been appointed. Kimberly v. Arms, 129 U. S. 512, 523, 9 Sup. Ct. 355, 32 L. Ed. 764. Whether such aid shall be sought is ordinarily within the discretion of the trial judge; but this court has indicated that where accounts are complex and intricate, or the documents and other evidence voluminous, or where extensive computations are to be made, it is the better practice to refer the matter to a special master or commissioner than for the judge to undertake to perform the task himself. Heirs of P. F. Dubourg de St. Colombe v. United States, 7 Pet. 625, 8 L. Ed. 807; Chicago, Milwaukee & St. P. Ry. v. Tompkins, 176 U. S. 167, 180, 20 Sup. Ct. 336, 44 L. Ed. 417. Of the appointment made in Field v. Holland, 6 Cranch, 8, 21 (3 L. Ed. 136), Mr. Chief Justice Marshall said:


terstate Commerce Commission. The auditor is an officer of the court which appoints him. The proceedings before him are subject to its supervision, and the report may be used only if, and so far as, acceptable to the court.

That neither the hearing before the auditor, nor the introduction of his report in evidence, abridges in any way the right of trial by jury was the conclusion reached in 1902 in the district of Massachusetts in Primrose v. Fenno, 113 Fed. 375, and 119 Fed. 801, 56 C. C. A. 313, the first reported case in which an auditor was appointed with the powers here conferred. The practice there established has been followed in the Southern District of New York, Vermeule v. Reilly, 196 Fed. 226; and in the Eastern District of Tennessee, United States v. Wells, 203 Fed. 146.

Fifth. There being no constitutional obstacle to the appointment of an auditor in aid of jury trials, it remains to consider whether Congress has conferred upon District Courts power to make the order. There is here, unlike Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117, no legislation of Congress which directly or by implication forbids the court to provide for such preliminary hearing and report. But, on the other hand, there is no statute which expressly authorizes it. The question presented is, therefore, whether the court possesses the inherent power to supply itself with this instrument for the administration of justice when deemed by it essential.

"It is a reference to 'auditors,' a term which designates agents or officers of the court, who examine and digest accounts for the decisions of the court. They do not decree, but prepare material on which a decree may be made."

And in Railroad Co. v. Swasey, 23 Wall. 405, 410 (23 L. Ed. 136), Mr. Chief Justice Waite said of the master's report:

"Its office is to present the case to the court in such a manner that intelligent action may be there had, and it is this action by the court, not the report, that finally determines the rights of the parties."

What the District Judge was seeking when he appointed the auditor in the case at bar was just such aid. He required it himself, because without the aid to be rendered through the preliminary hearing and report, the trial judge would be unable to perform his duty of defining to the jury the issues sub


[9] Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties. Compare Stockbridge Iron Co. v. mitted for their determination and *of directCone Iron Works, 102 Mass. 80, 87-90. This ing their attention to the matters actually in power includes authority to appoint persons issue. United States v. Reading Railroad, 123 unconnected with the court to aid judges in U. S. 113, 114, 8 Sup. Ct. 77, 31 L. Ed. 138. The hearing and report were also essential as shown above to enable the jury to perform not to infringe the right of trial by jury in Maine, their specific duty. Owing to the difference Howard v. Kimball, 65 Me. 308, 327; and in New in the character of the proceedings and of the Hampshire, Doyle v. Doyle, 56 N. H. 567; Perkins questions ordinarily involved, the occasion v. Scott, 57 N. H. 55. A different conclusion was for seeking such aid as is afforded to a judge

Acts making findings in the tentative hearing before an auditor prima facie evidence were held

reached in Francis v. Baker, 11 R. I. 103, 23 Am.

Rep. 424, and Plimpton v. Town of Somerset, 33 by special masters, auditors, or examiners arises less frequently at law than in equity.

Vt. 283.

A compulsory reference with power to deter-[ provides for taxing the fees of masters, and mine issues is impossible in the federal courts rule 50 (33 Sup. Ct. xxxii) for the expense because of the Seventh Amendment, United of a stenographer. Both rules embody subStates v. Rathbone, 2 Paine, 578, Fed. Cas. stantially the practice which had theretoNo. 16,121; but no reason exists why a com- fore prevailed generally in equity proceed. pulsory reference to an auditor to simplify ings, and which in the Southern District of and clarify the issues and to make tentative New York had been followed not only in findings may not be made at law, when occa- equity, American Diamond Drill Co. v. Sulsion arises, as freely as compulsory references livan Machine Co. (C. C.) 32 Fed. 552; Id., to special masters are made in equity. Ref- 131 U. S. 428, 9 Sup. Ct. 794, 33 L. Ed. 217; erence of complicated questions of fact to a Brickill v. Mayor, etc., of City of New York person specially appointed to hear the evi- (C. C.) 55 Fed. 565; Hohorst v. Hamburgdence and make findings thereon has long American Packet Co. (C. C.) 76 Fed. 472; been recognized as an appropriate proceeding but also in admiralty, The E. Luckenbach in an action at law. Heckers v. Fowler, 2 (D. C.) 19 Fed. 847; Rogers v. Brown (D. C.) Wall. 123, 17 L. Ed. 759. The inherent pow- 136 Fed. 813. The expense of printing the er of a federal court to invoke such aid is the records and briefs in the trial court has been same whether the court sits in equity or at law. We conclude, therefore, that the order, in so far as it appointed the auditor and prescribed his duties, was within the power of the court.

[10, 11] Sixth. The clause in the order which provides that "the expense of the auditor, including the expense of a stenographer, to be paid by either or both parties to this action, in accordance with the determination of the trial judge" requires special


consideration. As Congress has made *no provision for paying from public funds either the fees of auditors or the expense of the stenographer, the power to make the appointment without consent of the parties is practically dependent upon the power to tax the expense as costs. May the compensation of auditor and stenographer be taxed as costs; and, if so, may the expense be imposed in the discretion of the trial court upon either party?

Federal trial courts have, sometimes by general rule, sometimes by decision upon the facts of a particular case, included in the taxable costs expenditures incident to the litigation which were ordered by the court because deemed essential to a proper consideration of the case by the court or the jury. Equity rule 68 (33 Sup. Ct. xxxviii)


made by rule of court in *several of the circuits taxable as costs against the defeated party, Hake v. Brown (C. C.) 44 Fed. 734. Compare Kelly v. Springfield Ry. Co. (C. C.) 83 Fed. 183; Tesla Electric Co. v. Scott (C. C.) 101 Fed. 524. As early as 1843 Mr. Justice Story, sitting at circuit in Whipple v. Cumberland Cotton Manufacturing Co., 3 Story, 84, Fed. Cas. No. 17,515, approved, in an action at law for damages, although not specially authorized by any rule, the order of a survey, as "necessary for the true understanding of the cause on both sides," and ordered the expense paid by them. In cases in which courts have refused to tax as costs copies of stenographer's minutes and other expenditures incident to the litigation, attention has been called to the fact that they were made for the benefit of the party, as distinguished from expenditures incurred under order of the court, to make possible or to facilitate its consideration of the case. Stallo v. Wagner, 245 Fed. 636, 158 C. C. A. 64; New Hampshire Land Co. v. Tilton (C. C.) 29 Fed. 764. But see Bridges v. Sheldon (C. C.) 7 Fed. 17, 42.

The allowance of costs in the federal courts rests, not upon express statutory enactment by Congress, but upon usage long continued and confirmed by implication from provisions in many statutes. Mr. Justice Woodbury in Hathaway v. Roach, 2 Woodb. & M. 63, Fed. Cas. No. 6,213; Mr. Justice Nelson in Costs in Civil Cases, 1 Blatchf. 652, Fed. Cas. No. 18,284; The Baltimore, 8 Wall. $77, 19 L. Ed. 463. In Hathaway v. Roach, 2 Woodb. & M. 67, Fed. Cas. No. 6,213, it is said to have been the usage of the federal courts

'In Massachusetts the expense of the auditor was prior to 1878 taxed in all cases as costs to be paid by the defeated party. See Acts of 1818, c. 142; Rev. Stat. (1836) c. 96, § 31; Gen. Stat. (1860) c. 121, § 50; Act of March 16, 1867, c. 67; Act of June 6, 1873, c. 342. By Act of April 23, 1878, c. 173, the expense of the auditor in cases tried in the superior or in the Supreme Judicial Court was made payable by the county. See also Rev. Laws (1902) c. 165, 60; Act of June 5, 1911, c. 237; Acts of 1914, c. 576. In Maine the fees of the auditor were prior to

1897 taxed as costs in favor of the prevailing party. Laws (1821) c. 59, § 25; Acts of 1826, c. 347, § 1; Rev. Stat. (1883) c. 82, § 70. Since the Act of March 12, 1897, c. 224, the fees and necessary expenses of the auditors are paid by the county.

In New Hampshire the fees of the auditor are also taxable as costs in favor of the prevailing

And in The Baltimore, 8 Wall. 390, 391

party; but the court may now in its discretion, (19 L. Ed. 463) this court stated that—

order them paid by the county. Act of June 23, 1823, c. 19, § 1; Act of July 20, 1876, c. 35, § 4; Pub. Stat. (1901) c. 227, § 7.

"to conform to the state laws as to costs, when no express provision has been made and is in force by any act of Congress in relation to any particular item, or when no general rule of court exists on this subject."

"The costs taxed in the Circuit and District Courts were the same as were allowed at that

(40 Sup.Ct.)


time in the courts of the state, including such matters as travel and attendance of the parties, fees for copies of the case, and abstracts for the hearing, compensation for the *services of referees, auditors, masters, and assessors, and many other matters, not embraced in the fee bills, since passed by Congress."8

Neither the Act of February 26, 1853, c. 80, 10 Stat. 161, Rev. Stats. § 983 (Comp. St. § 1624), nor any later act of Congress or rule of court, deals expressly or by implication with the subject of taxing as costs the expense of an auditor. The practice, if any, governing in this respect the courts of New York would, therefore, be followed in the federal courts. See Huntress v. Town of Epsom (C. C.) 15 Fed. 732. But, so far as appears, the preliminary hearing before an auditor in aid of jury trials is not a part of the judicial machinery of that state. The nearest analogy to it is the reference had in actions at law on long accounts as a substitute for a jury trial. The expense of the compulsory reference in such actions is so taxable. Code Civ. Proc. § 3256. As there is no statute, federal or state, and no rule of court excluding auditors' fees and the expense of his stenographer from the items taxable as costs, no reason appears why they may not be included, like other expenditures ordered by the court with a view to securing an intelligent consideration of a case.

Shreve v. Cheesman, 69 Fed. 785, 789, 16 C. C. A. 413. See also Scatcherd v. Love, 166 Fed. 53, 91 C. C. A. 639; Michigan Aluminum Foundry Co. v. Aluminum Co. of America (C. C.) 190 Fed. 903, 904.

his claims, or that for other reasons only a part or none of the costs should in fairness be allowed. 10 This rule of practice established by long usage is confirmed by the language of section 983 of the Revised Statutes. It would, therefore, be held to prevail over a rule, if any, to the contrary established in the courts of the state. But the practice in the courts of New York appears to be in this respect in entire harmony with that of the federal courts. 11 In Whipple v. Cumberland Cotton Manufacturing Co., supra, the expense of the survey ordered by the court was imposed by it equally on the two parties; and the same disposition was made in Primrose v. Fenno, supra, where the auditor had been appointed at the instance of the court without objection by either party. But

[12, 13] Seventh. The further question is whether the District Court had power to make the expense of the auditor taxable in whole or in part against the prevailing party, if the trial judge should so determine. The advantages of such a flexible rule are obvious. But general principles governing the taxation of costs in actions at law followed by the federal courts since their organization, preclude its adoption.

While in equity proceedings the allowance and imposition of costs is, unless controlled by statute or rule of court, a matter of dis*318 cretion, it has been uniformly held that in actions at law the prevailing party is entitled to costs as of right (compare United States v. Schurtz, 102 U. S. 378, 407, 26 L. Ed. 167, 219), except in those few cases where 10 Crabtree v. Neff, 1 Bond, 554, Fed. Cas. No. by express statutory provision or by estab-3,315; Hooe v. Alexandria, 1 Cranch, C. C. 98, Fed. lished principles costs are denied. It has al- Cas. No. 6,667; Bartels v. Redfield (C. C.) 47 Fed. so been generally held that this right to costs 708; Trinidad Asphalt Paving Co. v. Robinson (C. C.) 52 Fed. 347; United States v. Minneapolis, etc., of the prevailing party in actions at law exRy. Co. (D. C.) 235 Fed. 951, 953; West End St. Ry. tends to the entire costs in the trial court, co. v. Malley, 246 Fed. 625, 627, 158 C. C. A. 581; and that the court is without power to make Sears, Roebuck & Co. v. Pearce, 253 Fed. 960, 962, an apportionment based upon the fact that 165 C. C. A. 402; Wheeler v. Taft (C. C. A.) 261 Fed. the prevailing party has failed in part of


For instance, Rev. Stat. § 968 (Comp. St. 1609), denying costs to a plaintiff or petitioner who recovers less than $500.


in Houlihan v. Corporation of *St. Anthony (C. C.) 173 Fed. 496, and 184 Fed. 252, 106 C. C. A. 394, where the auditor was appointed by consent of the parties, the same court taxed both the auditor's and the stenographer's fees against the losing party, holding that it had discretion, if it was not obliged to do so; and a petition for writ of certiorari was denied by this court. 220 U. S. 613, 31 Sup. Ct. 717, 55 L. Ed. 609.

[14] Although the order was erroneous in declaring that the expense of the auditor shall, instead of abiding the result of the action, be paid by one or both of the parties in accordance with the determination of the trial judge, the error does not require that either of the extraordinary remedies applied for here be granted. If the petitioner deems himself prejudiced by the error he may get redress through application to the District Court for a modification of the order, or after final judgment on writ of error, from the Circuit Court of Appeals. In re Morrison, 147 U. S. 14, 26, 13 Sup. Ct. 246, 37 L. Ed. 60. The petition for writs of mandamus and/or prohibition is Denied.

Mr. Justice MCKENNA, Mr. Justice PITNEY, and Mr. Justice McREYNOLDS dissent.

11 The general rule that in actions at law the prevailing party is entitled as of right to the taxable costs prevails in New York; and there is a further provision that when plaintiff demands a judgment for a sum of money only, the plaintiff, if prevailing, is entitled to the costs whether the suit be one at law or in equity. Murtha v. Curley, 92 N. Y. 359; Norton v. Fancher, 92 Hun, 463, 36 N. Y. Supp. 1032.


Const. Amend. 16, authorizing Congress to

1920.) No. 654.

(Argued March 5, 1920. Decided June 1, collect taxes on incomes, from whatever source derived, without apportionment, among the states, does not extend the taxing power to new or excepted subjects, but merely removes all occasion otherwise existing for an apportionment, and hence does not authorize a tax on the salary of a federal judge, contrary to article 3, § 1.


(253 U. S. 245)

EVANS v. GORE, Acting Collector of Internal Revenue.

The Supreme Court cannot decline or renounce jurisdiction to review the judgment in an action involving the question as to the power of Congress to tax the income of a-federal judge, including his salary, because of the individual relation of the members of the court to such question.


Const. art. 3, § 1, providing that judges shall receive a compensation which shall not be diminished during their continuance in office, imposes such limitation in the public interest and not for the benefit of the judges, and must be construed in accord with its spirit and the principle on which it proceeds, and not restrictively.


Act Feb. 24, 1919, § 213 (Comp. St. Ann. Supp. 1919, § 6336%ff), so far as it imposes a tax on the income of judges of the courts of the United States, including their salaries, violates Const. art. 3, § 1, providing that the compensation of judges shall not be diminished during their continuance in office, and the fact that the income of other persons is likewise taxed does not validate the tax.



Apart from his salary, a federal judge is taxable on his income or property the same as any other person.

Mr. Justice Holmes and Mr. Justice Brandeis dissenting.


Const. art. 3, § 1, providing that the compensation of judges shall not be diminished during their continuance in office, prohibits anything, the necessary operation and effect of which is to withhold or take from the judge a part of that which has been promised by law for his services.




Unless there is some real conflict between Const. art. 3, § 1, providing that the compensation of judges shall not be diminished during their continuance in office, and Amendment 16, relative to the taxation of income, effect must be given to both.

In Error to the District Court of the United States for the Western District of Kentucky.


It is not lightly to be assumed that, in adopting the Sixteenth Amendment, there was any purpose to depart from or imperil a constitutional principle so widely extended and so vital to the system of government as the independence of the judiciary.

Action by Walter Evans against J. Rogers Gore, Acting Collector, etc. Judgment for defendant (262 Fed. 550), and plaintiff brings error. Reversed.


*Messrs. William Marshall Bullitt and Edmund F. Trabue, both of Louisville, Ky., for

The plaintiff is the United States District Judge for the Western District of Kentucky, and holds that office under an appointment by the President made in 1899 with the advice and consent of the Senate. The tax which he calls in question was levied under the act of February 24, 1919, c. 18, 40 Stat. 1062, on his net income for the year 1918, as computed under that act. His compensation or salary as District Judge was included in the computation. Had it been excluded he would not have called on to pay any income The inclusion was in tax for that year. obedience to a provision in section 213 (Comp. St. Ann. Supp. 1919, § 6336%ff), requiring the computation to embrace all gains, profits, income and the like, “including in the case of the President of the United States, the judges of the Supreme and inferior courts of the United States [and * the compensation received others] as such." Whether he could be subjected *247

to such a tax in *respect of his salary, consistently with the Constitution, is the matter in issue. If it be resolved against the tax he will be entitled to recover what he paid; otherwise his action must fail. It did fail in the District Court. 262 Fed. 550.

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

Mr. Assistant Attorney General Frierson, for defendant in error.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This is an action to recover money paid under protest as a tax alleged to be forbidden by the Constitution.

(40 Sup.Ct.)

The Constitution establishes three great With what purpose does the Constitution co-ordinate departments of the national provide that the compensation of the judges government-the legislative, the executive, "shall not be diminished during their conand the judicial-and distributes among tinuance in office"? Is it primarily to benethem the powers confided to that govern- fit the judges, or rather to promote the pubment by the people. Each department is lic weal by giving them that independence dealt with in a separate article, the legisla- which makes for an impartial and couragetive in the first, the executive in the second ous discharge of the judicial function? Does and the judicial in the third. Our present the provision merely forbid direct diminuconcern is chiefly with the third article. It defines the judicial power, vests it in one Supreme Court and such inferior courts as Congress may from time to time ordain and establish, and declares:

"The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for

their services, a compensation, which shall not be diminished during their continuance in office."

The plaintiff insists that the provision in section 213 which subjects him to a tax in respect of his compensation as a judge by its necessary operation and effect diminishes that compensation and therefore is repugnant to the constitutional limitation just quoted.

[1] Stated in its broadest aspect, the contention involves the power to tax the compensation of federal judges in general, and also the salary of the President, as to which the Constitution (article 2, § 1, cl. 6) contains a similar limitation. Because of the individual relation of the members of this court to the question, thus broadly stated, we cannot but regret that its solution falls to us; and this although each member has been paying the tax in respect of his salary voluntarily and in regular course. But jurisdiction of the present case cannot be declined or renounced. The plaintiff was en

1 See House Report, No. 767, p. 29, 65th Cong., 2d Sess.; Senate Report, No. 617, p. 6, 65th Cong. 3d Sess. And see Cong. Record vol. 56, p. 10370, where the Chairman of the House Committee, in asking the adoption of the provision, said: "I wish to say, Mr. Chairman, that while there is considerable doubt as to the constitutionality of taxing


tion, such as expressly reducing the compensation from a greater to a less sum per year, and thereby leave the way open for indirect, yet effective, diminution, such as withholding or calling back a part as a tax on the whole? Or, does it mean that the judge shall have a sure and continuing right to the compensation, whereon he confidently may rely for his support during his continuance in office, so that he need have no apprehension lest his situation in this regard may be changed to his disadvantage?

The Constitution was framed on the fundamental theory that a larger measure of liberty and justice would be assured by vesting the three great powers, the legislative, the executive, and the judicial, in separate departments, each relatively independent of the others; and it was recognized that without this independence-if it was not made both real and enduring-the separation would fail of its purpose. All agreed that restraints and checks must be imposed to secure the requisite measure of independence; for otherwise the legislative department, inherently the strongest, might encroach on or even come to dominate the others, and the judicial, naturally the weakest, might be dwarfed or swayed by the other two, especially by the legislative.

The particular need for making the judiciary independent was elaborately pointed out by Alexander Hamilton in the Federalist, No. 78, from which we excerpt the following:


titled by law to invoke our *decision on the question as respects his own compensation, in which no other judge can have any direct personal interest; and there was no other "The executive not only dispenses the honors, The appellate tribunal to which under the law but holds the sword of the community. he could go. He brought the case here in Legislature not only commands the purse, but prescribes the rules by which the duties and due course, the government joined him in rights of every citizen are to be regulated. The asking an early determination of the ques-judiciary, on the contrary, has no influence tion involved, and both have been heard at over either the sword or the purse; no directhe bar and through printed briefs. In this tion either of the strength or of the wealth of situation, the only course open to us is to the society; and can take no active resolution consider and decide the cause-a conclusion whatever. It may truly be said to have neither supported by precedents reaching back many force nor will, but merely judgment. years. Moreover, it appears that, when this taxing provision was adopted, Congress regarded it as of uncertain constitutionality and both contemplated and intended that the question should be settled by us in a case like this.1

federal judges' or the President's salaries,
we cannot settle it; we have not the power to set-
tle it. No power in the world can settle it except
the Supreme Court of the United States.
Let us
raise it, as we have done, and let it be tested, and
it can only be done by some one protesting his tax
and taking an appeal to the Supreme Court." And
again: "I think really that every man who has a
doubt about this can very well vote for it and take
the advice of the gentleman from Pennsylvania
[Mr. Graham], which was sound then and is sound
now, that this question ought to be raised by Con-
gress, the only power that can raise it, in order
that it may be tested in the Supreme Court, the
only power that can decide it."

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