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It has been uniformly held that the United States are bound to pay to the various court officers the fees prescribed by the statutes in all cases in which they are a party to the same extent as individual parties are obliged to pay such fees. (United States v. Ringgold, 8 Pet., 150; United States v. Wolters, 51 Fed. Rep., 896; In re Meloney, 2 Comp. Dec., 276.) The only difference is that while the clerk is authorized to collect from individuals his fees as they accrue he is required by section 856, Revised Statutes, to present to the Treasury an account of the fees payable by the Government for settlement and payment.

The difficulty under which Mr. Butler labors is that he fails to distinguish between "fees" and "costs." The "fees" are the emoluments of the clerk, and when collected from the par ties litigant belong to his office. The fees thus paid or pay. able, as the case may be, by the successful party, are taxed as costs against the losing party (Caldwell v. Jackson, 7 Cranch, 276), and when taxed in favor of the United States are required like all other moneys collected by the officers or agents of the Government to be paid into the Treasury without any deduction whatever (sec. 3617, Rev. Stat.). It was so specifically held by Attorney-General Devens (15 Opin. A. G., 386). In United States v. Cigars (2 Fed. Rep., 494) the distinction between "fees" and "costs" was recognized, but it was apparently held that the fees which the court officers earn for services rendered to the Government in cases in which the Government is victorious and recovers costs against its antagonists are not payable from the Treasury under the provisions of section 856, but are payable from the fund paid into court. It is to be noticed that the motion upon which the decision in that case was rendered was to require the clerk to pay over to the Government the entire sum paid into the registry of the court, "including fees, costs, charges, and expenses of the officers of the court." This would necessarily have required the clerk to pay into the Treasury the fees collected from others than the Government, which is not required, and therefore the motion was properly denied. That case does not accord with the uniform practice, and has been disapproved in United States v. Wolters (51 Fed. Rep., 896), where it is well shown that the fees of court officers "for services rendered at the instance and for the benefit of the Government, for the payment of which the latter is therefore necessarily liable," are payable from the

Treasury under the provisions of section 856, and that the costs which the Government recovers against its antagonists, including the fees thus payable to the clerk and other officers, are to be paid into the Treasury because the property of the Government and not of the officers.

The action of the Auditor is therefore affirmed.

R. B. BOWLER,
Comptroller.

REWARD FOR SEIZING VESSEL ENGAGED IN

SMUGGLING.

The act of June 22, 1874, authorizing the Secretary of the Treasury to reward persons detecting and seizing "goods, wares, or merchandise" in the act of being smuggled, or which have been smuggled, will not warrant the payment of a reward either from the proceeds of the vessel when forfeited and sold, or otherwise, to the persons detecting and seizing a vessel engaged in smuggling.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

February 26, 1896.

SIR: I am in receipt of your letter of the 6th instant, inclosing a certificate of Judge Bellinger, of the district court of the United States for the district of Oregon, certifying that Leslie Cullom and E. O. Wood, special agents of the Treasury Department, were the detectors and seizors of the steamer Haytien Republic, which was forfeited, as shown by said certifi

cate

"in consequence of a violation of sections 2867, 2868, 2871, 2872, 2873, and 2874, R. S., and an act approved May 5th, 1892, entitled 'An act to prohibit the coming of Chinese persons into the United States:' also an act of Congress approved May 6th, 1882, entitled 'An act to prohibit the coming of Chinese persons into the United States;' also an act of Congress approved on the 6th day of May, 1892, entitled 'An act to exe cute certain treaty stipulations relating to Chinese, and acts amendatory thereof and supplementary thereto.' Said violations taking place at various dates between July, 1892, and July 3rd, 1893."

Messrs. Cullom and Wood have made a claim for compensation as detectors and seizors, and you ask whether you are authorized to pay them any amount under section 4 of the antimoiety act of June 22, 1874 (18 Stat., 186), from the appropri

ation, "Compensation in lieu of moieties," which reads, " For compensation in lieu of moieties in certain cases under the customs-revenue laws."

So much of section 4 of said act as is applicable to the question now under consideration is as follows:

"That whenever any officer of the customs or other person shall detect and seize goods, wares, or merchandise, in the act of being smuggled, or which have been smuggled, he shall be entitled to such compensation therefor as the Secretary of the Treasury shall award, not exceeding in amount one-half of the net proceeds, if any, resulting from such seizure, after deducting all duties, costs, and charges connected therewith: Provided, That for the purposes of this act smuggling shall be construed to mean the act, with intent to defraud, of bringing into the United States, or, with like intent, attempting to bring into the United States, dutiable articles without passing the same, or the package containing the same, through the customhouse, or submitting them to the officers of the revenue for examination." * **

This section, according to its terms, relates only to seizures of "goods, wares, or merchandise, in the act of being smuggled, or which have been smuggled," and does not relate to the vessel in which such goods were being carried at the time the act of smuggling was committed. It is entirely clear that statutes authorizing a forfeiture of goods, etc., in the manner above quoted would not have authorized the forfeiture of the vessel in which they were being carried, and it was therefore necessary to specifically provide for the forfeiture of the vessel in such cases, which was done by section 2874, Revised Statutes; in certain cases only, however. It seems, therefore, proper to treat section 4 of the act of June 2, 1874, as relating only to the goods, wares, and merchandise smuggled, and not to the vessel in which they were imported. No doubt the same reasons which actuated Congress in authorizing a payment to the seizors of a portion of the proceeds of smuggled merchandise when forfeited would apply to the case of a vessel; but as Congress has only authorized the payment in the one case and not in the other, and as in order to forfeit the vessel it was necessary to make a specific provision of law to that effect, I know of no authority which would authorize the Executive Department to extend the provisions of the act of June 22, 1874, to the proceeds of a forfeited vessel-a case not therein provided. I am therefore of the opinion that there is no authority conferred upon the Secretary to grant to the seizor

any portion of the proceeds arising from a sale of a forfeited vessel, and that no payment can therefore be made to Messrs. Cullom and Wood from the appropriation "Compensation in lieu of moieties." This opinion agrees with that of the Solicitor of the Treasury given in this case. Furthermore, an investigation fails to find a single case in which any portion of the proceeds of a forfeited vessel has been paid to a seizor. Respectfully, yours,

R. B. BOWLER,
Comptroller.

The SECRETARY OF THE TREASURY.

IN RE APPEAL OF S. P. CONDON, UNITED STATES MARSHAL FOR THE EASTERN DISTRICT OF TENNESSEE.

A marshal is not entitled to fees for serving a commissioner's warrant when the offense charged therein is an alleged violation of statutes which had been repealed by Congress prior to the issuing of the warrant.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

February 27, 1896.

Mr. S. P. Condon, United States marshal for the eastern district of Tennessee, appeals from the settlement by the Auditor for the State and other Departments of his accounts for the quarter ending December 31, 1894. The Auditor disallowed numerous items for services rendered in cases before different commissioners for alleged violations of the laws relating to the elective franchise, contained in Title XXVI of the Revised Statutes, and which by chapter 7 of Title LXX of the Revised Statutes constitute crimes. These alleged offenses were committed at the Congressional election of November 6, 1894. Prior to that time, however, by the act "to repeal all statutes relating to supervisors of elections and special deputy marshals and for other purposes," approved February 8, 1894 (28 Stat., 36), the statutes which it was alleged had been violated by the defendants in these cases had been repealed, and therefore the complaints upon which the warrants of arrest were issued did not state an offense against the United States, and the commissioners before whom the proceedings were had were without jurisdiction.

It is well-established law that a ministerial officer who obeys the warrant, order, or mandate of a court having jurisdiction of the subject-matter and of the person is protected in the execution of these processes of the court, although the court may in some respects exceed its powers; but where the court has neither jurisdiction of the subject-matter nor of the person, and such a lack of jurisdiction appears upon the warrant, order, or mandate, the officer executing the same is not protected from the consequences of his illegal act and therefore is not obliged to obey the processes of the court. This doctrine was well laid down by the supreme court of the State of New York in Savacool v. Boughton (5 Wend., 170), where, on page 181, Marcy, J., who delivered the opinion of the court, said:

"If a mere ministerial officer executes any process, upon the face of which it appears that the court which issued it had not jurisdiction of the subject-matter or of the person against whom it is directed, such process will afford him no protection for acts done under it."

This doctrine has been uniformly followed by other courts. In Fisher v. McGirr (1 Gray, 1, on page 46), Shaw, C. J., said:

"The law relied on for justification being void, gave the magistrate no jurisdiction and no authority to issue the search warrant, the officer can not justify the seizure under it, and therefore an action lies against him for the taking."

See also Champaign County Bank v. Smith (7 Ohio St., 42), Frazier v. Turner (76 Wis., 562), Driscoll v. Place (44 Vt., 252), Wise v. Withers (3 Cr., 331), Dynes v. Hoover (20 How., 65). In this latter case Mr. Justice Wayne used the following language:

"In both cases, the law is, that an officer executing the process of a court which has acted without jurisdiction over the subject-matter becomes a trespasser, it being better for the peace of society, and its interests of every kind, that the responsibility of determining whether the court has or has not jurisdiction should be upon the officer, than that a void writ should be executed. This court, so far back as the year 1806, said, in the case of Wise and Withers, 3 Cr., 331, p. 337 of that case, 'It follows, from this opinion, that a court-martial has no jurisdiction over a justice of the peace as a militiaman; he could never be legally enrolled; and it is a principle that a decision of such a tribunal, in a case clearly without its jurisdiction, can not protect the officer who executes it. The court and the officer are all trespassers.""

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