Clerks of the federal courts are not controlled in respect to
their fees and emoluments and accounting therefor by the provisions
of the Act of March 3, 1875, c. 144, 18 Stat. 479, or of Rev.Stat.,
§§ 5490 and 5497, relating to embezzlement of moneys and property
of the United States by officers and other persons charged with the
safekeeping thereof.
There is a separate system with respect to the fees and
emoluments of clerks, and the amounts which the clerk receives are
not moneys or property of the United States, but a fund from which
he receives his compensation and expenses, and as to the surplus
for which he must account to the United States he is not trustee,
but debtor.
The facts, which involve the validity of indictments for
embezzlement against a clerk of the district court of the United
States and the construction of statutes relating to the fees,
salaries, and accounts of clerks of United States courts, are
stated in the opinion.
MR. JUSTICE HUGHES delivered the opinion of the Court.
The defendant, the Clerk of the District Court of the
Page 218 U. S. 518
United States for the District of Massachusetts, was indicted
for the embezzlement of certain moneys of the United States.
Separate indictments were found as to moneys received by the clerk
in the years 1906, 1907, and 1908, respectively. They are precisely
alike, save for the difference in the years and the amounts
specified. In each case, the circuit court sustained a demurrer as
to three counts of the indictment, the second, third and fourth,
and the judgments on the demurrers are brought here for review.
Each of these three counts,which are set forth in the margin,
* states that the
moneys were a "portion of a
Page 218 U. S. 519
surplus of fees and emoluments of his said office over and above
the compensation and allowances authorized by law to be retained by
him." The charge of the second count is that the defendant "the
same public moneys
Page 218 U. S. 520
unlawfully did fail safely to keep" as required by acts of
Congress, "and, on the contrary, the same then and there unlawfully
did convert to his own use," and thereby "was guilty of
embezzlement of said public moneys so converted." The third count
is the same as the second, except that it charges that the
defendant converted the moneys "fraudulently" as well as
"unlawfully." The fourth count charges that he should have paid the
money -- that is, the alleged surplus -- to the United States "in
the manner provided by law," and that he "the same money
unlawfully, wrongfully, and fraudulently did convert to his own
personal use and embezzle."
To sustain the counts, the assignment of errors refers to §§
5490 and 5497 of the Revised Statutes, and to the Act of March 3,
1875, chapter 144 (18 Stat. p. 479).
Section 5490 is as follows:
"Every officer or other person charged by any act of Congress
with the safekeeping of the public moneys, who fails to safely keep
the same, without loaning, using, converting to his own use,
depositing in banks, or exchanging for other funds than as
specially allowed by law, shall be guilty of embezzlement of the
money so loaned, used, converted, deposited, or exchanged, and
shall be imprisoned
Page 218 U. S. 521
not less than six months nor more than ten years, and fined in a
sum equal to the amount of money so embezzled."
Section 5497, with the addition made by the amendment of
February 3, 1879, chapter 42 (20 Stat. 280), provides:
"Every banker, broker, or other person not an authorized
depositary of public moneys, . . . who uses, transfers, converts,
appropriates, or applies any portion of the public money for any
purpose not prescribed by law, . . . is guilty of an act of
embezzlement of the public money so deposited, loaned, transferred,
used, converted, appropriated, or applied, and shall be punished as
prescribed in section fifty-four hundred and eighty-eight."
"And any officer connected with, or employed in, the internal
revenue service of the United States, and any assistant of such
officer, who shall embezzle or wrongfully convert to his own use
any money or other property of the United States, and any officer
of the United States, or any assistant of such officer, who shall
embezzle or wrongfully convert to his own use any money or property
which may have come into his possession or under his control in the
execution of such office or employment, or under color or claim of
authority as such officer or assistant, whether the same shall be
the money or property of the United States or of some other person
or party, shall, where the defense is not otherwise punishable by
some statute of the United States, be punished by a fine equal to
the value of the money and property thus embezzled or converted, or
by imprisonment not less than three months nor more than ten years,
or by both such fine and imprisonment."
By the Act of March 3, 1875, chapter 144, § 1 (18 Stat. p.
479),
"any person who shall embezzle, steal, or purloin any money,
property, record, voucher, or valuable
Page 218 U. S. 522
thing whatever, of the moneys, goods, chattels, records, or
property of the United States, shall be deemed guilty of
felony."
It is also contended in argument that the facts alleged in the
indictment bring it within the scope of § 5489 of the Revised
Statutes, which provides that, if "any public depositary fails
safely to keep all moneys deposited," he shall be deemed guilty of
embezzlement, and this, under § 5493, is to be construed
"to apply to all persons charged with the safekeeping, transfer,
or disbursement of the public money, whether such persons be
indicted as receivers or depositaries of the same."
What, if any, application these provisions may have to the clerk
of the district court with respect to the fees and emoluments of
his office can be determined only after a consideration of the
history of his relation to these moneys and of the statutes which
specifically define his rights and duties. Prior to 1841, the
clerks were not required to render any account of their fees to the
government.
United States v. Hill, 120 U.
S. 169 at page
120 U. S. 176.
The Act of March 3, 1791, chapter 22, § 1 (1 Stat. 217), fixed
their compensation for attending court and made an allowance for
traveling. That of May 8, 1792, chapter 36, § 3 (1 Stat. 277),
added such fees as were allowed by the supreme court of the state,
and authorized the court to grant a reasonable compensation for the
discharge of duties not performed by the clerks of the state court,
and for which the laws of the state made no allowance. But, under
these statutes, the fees and emoluments received by the clerks were
their own property. And they were to be recovered "in like manner
as the fees of the officers of the states respectively for like
services." 1 Stat. 278, § 6.
In 1841, for the first time, the clerks were limited as to the
amount which they were entitled to retain out of their fees. The
Act of March 3, 1841, chapter 35, § 1
Page 218 U. S. 523
(5 Stat. 427), provided that the fees and emoluments retained by
the clerks after the payment "of such necessary office and other
expenses as shall be allowed by the Secretary of the Treasury,"
within a prescribed limit, should
"not exceed, in any case, four thousand five hundred dollars;
the overplus of fees and emoluments to be paid into the public
Treasury, under such rules and regulations as may be prescribed by
the Secretary of the Treasury, subject to the disposition of
Congress."
This was followed by the Act of May 18, 1842, chapter 29 (5
Stat. 483), which limited the amount which the clerk could retain
out of the fees and emoluments of his office
"for his own personal compensation, over and above the necessary
expenses of his office, and necessary clerk hire included, also to
be audited and allowed by the proper accounting officers of the
Treasury,"
to the sum of $3,500 per year. The clerks were required to make
verified returns semiannually, "embracing all the fees and
emoluments of their respective offices, of every name and
character," and also "all the necessary office expenses of such
officer, together with the vouchers for the payment of the same."
It was also provided that the officer, with each return, should
"pay into the Treasury of the United States, or deposit to the
credit of the Treasurer thereof, as he may be directed by the
Secretary of the Treasury, any surplus of the fees and emoluments
of his office which his half-yearly return, so made as aforesaid,
shall show to exist over and above the compensation and allowances
hereinbefore authorized to be retained and paid by him."
Where the return showed that a surplus might exist, the
Secretary of the Treasury was to cause the return to be carefully
examined, and the accounts of disbursements to be regularly
audited, "and an account to be opened with such officer in proper
books to be provided for that purpose."
The plain object of this statute was to limit the amount
Page 218 U. S. 524
which the clerk was to retain, and to require an accounting, an
audit of expenses, and a payment of the surplus. Otherwise the
established method of administering the office was not changed. The
fees were to be recovered as theretofore, and to the extent of the
amount of the fixed compensation of the clerk and the necessary
expenses of his office, he was entitled to use and to pay as
formerly. The statute suggests no other course. What, if anything,
should be paid into the public treasury at the end of the half
year, when 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.
This was the state of the law as to the clerks' fees and
emoluments at the time of the passage of the Act of August 6, 1846,
chapter 90 (9 Stat. 59), which was entitled, "An Act to Provide for
the Better Organization of the Treasury and for the Collection,
Safe-Keeping, Transfer, and Disbursement of the Public Revenue." It
made careful provision with respect to the duties of the Treasurer,
Assistant Treasurers, and of collectors and receivers of public
moneys, and the manner in which these moneys should be deposited
and disbursed. By § 6 of this act, "all public officers of whatever
character" were required
"to keep safely, without loaning, using, depositing in banks, or
exchanging for other funds than as allowed by this act, all the
public money collected by them"
until it was ordered "by the proper department or officer of the
government" to be transferred or paid out.
See Revised
Statutes, § 3639. By § 16, it was provided that, if any officer
"charged by this act, or any other act, with the safekeeping,
transfer, and disbursement of the public moneys" should use, loan,
deposit, or exchange, except as allowed by the act, "any portion of
the public
Page 218 U. S. 525
moneys entrusted to him," every such act should be deemed an
embezzlement. 9 Stat. 63.
This last-mentioned section is the source of § 5490 of the
Revised Statutes, which we have quoted above as one of the statutes
relied upon to sustain the counts in question, and in construing it
we may refer to the purpose and scope of the act from which it was
derived.
McDonald v. Hovey, 110 U.
S. 619;
United States v. Le Bris, 121 U.
S. 278;
Logan v. United States, 144 U.
S. 263,
144 U. S. 302.
Section 5493 must be construed in the same way for a similar
reason. And it is clear that the Treasury Act of 1846 and the
provisions of § 16 did not apply to the fees and emoluments
received by clerks of courts, and that the clerks were not charged,
within the meaning of that act, with the safekeeping of these fees
and emoluments as public moneys. These were governed by other
rules. They lay outside of the prohibition of § 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.
The statute relating to the Treasury was speedily supplemented
by the Act of March 3, 1849, chapter 110, entitled
"An Act Requiring All Moneys Receivable from Customs and from
All Other Sources to be Paid Immediately into the Treasury, without
Abatement or Reduction, and for Other Purposes"
(9 Stat. 398). This is the source of § 3617 of the Revised
Statutes, providing that "the gross amount of all moneys received
from whatever source for the use of the United States," with the
exceptions stated (not here important),
"shall be paid by the officer or agent receiving the same into
the Treasury at as early a day as practicable, without any
abatement or
Page 218 U. S. 526
deduction on account of salary, fees, costs, charges, expenses,
or claim of any description whatever."
But this, obviously, had no application to clerks of courts, who
continued to receive, hold, and use their fees and emoluments
subject to the prescribed limitations and the duty to account.
In 1849, the supervisory power of the Secretary of the Treasury
over the accounts of clerks was transferred to the Secretary of the
Interior (Act of March 3, 1849, chapter 108, § 4, 9 Stat. 395). In
1853, a statute was passed regulating the fees of clerks and other
officers of the courts throughout the United States, and the duties
of clerks with respect to their returns and payments were defined.
This established the present fee bill (Act of February 26, 1853,
chapter 80, 10 Stat. 161). In 1870, the supervisory power passed to
the Attorney General. Act of June 22, 1870, chapter 150, § 15, 16
Stat. 164.
The provisions of the Act of 1853, as modified by the subsequent
legislation, have been incorporated in the Revised Statutes, §§ 823
to 857, and these continue the policy of the Act of 1842,
supra.
Section 823 provides that "the following and no other
compensation shall be taxed and allowed to . . . clerks of the
circuit and district courts." Section 828 prescribes the clerks'
fees. Section 833 provides for semiannual returns to the Attorney
General, as follows:
"Every district attorney, clerk of a district court, clerk of a
circuit court, and marshal, shall, on the first days of January and
July, in each year, or within thirty days thereafter, make to the
Attorney General, in such form as he may prescribe, a written
return for the half year ending on said days, respectively, of all
the fees and emoluments of his office, of every name and character,
and of all the necessary expenses of his office, including
necessary clerk hire, together with the vouchers for the payment of
the same for such last half year. He shall
Page 218 U. S. 527
state separately in such returns the fees and emoluments
received or payable under the Bankrupt Act. . . . Said returns
shall be verified by the oath of the officer making them."
Section 839 defines the amount which may be retained out of the
clerk's fees for his compensation over and above expenses:
"No clerk of a district court, or clerk of a circuit court,
shall be allowed by the Attorney General, except as provided in the
next section and in section eight hundred and forty-two, to retain
of the fees and emoluments of his office, or, in case both of the
said clerkships are held by the same person, of the fees and
emoluments of the said offices, respectively, for his personal
compensation, over and above his necessary office expenses,
including necessary clerk hire, to be audited and allowed by the
proper accounting officers of the Treasury, a sum exceeding three
thousand five hundred dollars a year for any such district clerk,
or for any such circuit clerk, or exceeding that rate for any time
less than a year."
Sections 844, 845, and 846 contain the following provisions,
which are applicable to the payment by clerks of the surplus shown
by their returns and for the examination and audit of their
accounts:
"SEC. 844. Every district attorney, clerk, and marshal shall at
the time of making his half-yearly return to the Attorney General,
pay into the Treasury, or deposit to the credit of the Treasurer,
as he may be directed by the Attorney General, any surplus of the
fees and emoluments of his office which said return shows to exist
over and above the compensation and allowances authorized by law to
be retained by him."
"SEC. 845. In every case where the return of a district
attorney, clerk, or marshal shows that a surplus may exist, the
Attorney General shall cause such returns to be carefully examined,
and the accounts of disbursements
Page 218 U. S. 528
to be regularly audited by the proper officer of his Department,
and an account to be opened with such officer in proper books to be
provided for that purpose."
"SEC. 846. The accounts of district attorneys, clerks, marshals,
and commissioners of circuit courts shall be examined and certified
by the district judge of the district for which they are appointed,
before they are presented to the accounting officers of the
Treasury Department for settlement. They shall then be subject to
revision upon their merits by said accounting officers, as in case
of other public accounts."
Section 857 brings forward the provision of the Act of 1792 (1
Stat. 278) as to the manner in which the fees shall be
recovered.
Section 5 of the Act of February 22, 1875, chapter 95 (18 Stat.
334), provides that, if any clerk of any district or circuit court
of the United States shall willfully refuse or neglect to make or
to forward any report, certificate, statement, or other document
required by law to be made or forwarded by him, it shall be the
duty of the President to remove him from office, and he shall not
be eligible to any appointment as clerk or deputy clerk for the
period of two years thereafter. By § 6 of the same act, the willful
refusal or neglect to make or to forward the report or other
documents mentioned in the preceding section is made a
misdemeanor.
We have also to note the proviso contained in the Appropriation
Act of June 28, 1902, chapter 1301 (32 Stat. 475, 476), as
follows:
"That each clerk of the district and circuit courts shall, on
the first days of January and July of each year, or within thirty
days thereafter, make to the Attorney General, in such form as he
may prescribe, written returns for the half year ending on said
days, respectively, of all fees and emoluments of his office of
every name and character, and of all necessary expenses of his
office, including
Page 218 U. S. 529
necessary clerk hire, together with the vouchers for the payment
of the same for such last half year, and the word 'emoluments'
shall be understood as including all amounts received in connection
with the admission of attorneys to practice in the court, all
amounts received for services in naturalization proceedings,
whether rendered as clerk, as commissioner, or in any other
capacity, and all other amounts received for services in any way
connected with the clerk's office."
There has thus been established a distinct 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 consideration, however, does not aid the
prosecution, for they were attached to the office before the
statute of 1841, when they belonged to the clerk without any duty
on his part to account for any portion of them. The fees and
emoluments stand in a different category from other moneys which he
may receive by virtue of his office, as, for example, moneys paid
into court. Revised Statutes, §§ 995, 996.
In
United States v. Hill, 123 U.
S. 681, the action was on the official bond of the Clerk
of the District Court of the United States for the District of
Massachusetts, and it was asserted that this Court had jurisdiction
to review the judgment because the suit was brought for the
enforcement of a "revenue law." The Court held that § 844 of the
Revised Statutes, requiring the clerk to pay into the Treasury any
surplus of fees and emoluments shown by his return, was not a
revenue law within the meaning of § 699, and in delivering the
opinion of the Court, Chief Justice Waite said:
"Certainly it will not be claimed that the clerk of a district
court of the United States is an 'officer of the
Page 218 U. S. 530
revenue,' but there is nothing to indicate that the term
'revenue' has any different signification in this subdivision of
the section from that which it has in the other. The clerk of a
court of the United States collects his taxable 'compensation,' not
as the revenue of the United States, but as the fees and emoluments
of his office, with an obligation on his part to account to the
United States for all he gets over a certain sum which is fixed by
law. This obligation does not grow out of any 'revenue law,'
properly so called, but out of a statute governing an officer of a
court of the United States."
None of the statutes relating to embezzlement of moneys or
property of the United States which we have quoted affords a basis
for the counts in question. There may be an honest difference of
opinion with regard to the amount the payment of which from the
fees collected may properly be allowed. Provision has been made for
the examination of the matter and for the ascertainment of the
amount due. Pending such audit, there would be no justification for
indicting the clerk as an embezzler upon the allegation that he had
in his hands a surplus which he had converted to his own use. It is
not a question of public moneys, which are to be deposited as such,
and are to be disbursed in accordance with the Treasury system. A
fixed compensation is to be retained, the expenses of the office
are to be defrayed, and the question of the necessity of the
expenses is to be passed upon, and the clerk is not in default
until he refuses or fails to make his return or to pay over the
surplus shown by his return to exist, or the amount found upon the
audit of his accounts to be payable.
We have not before us a case where a clerk has refused or failed
to make the return required by statute, or to pay over the surplus
shown by his return to exist, or established by the audit. None of
the three counts makes that charge. The second and third counts
charge that the moneys in
Page 218 U. S. 531
question constituted a portion of the surplus over and above his
authorized allowances, and that he converted the moneys to his own
use. Whether or not this surplus was shown by his return, or was
the result of the audit contemplated by the statute, is not stated.
The fourth count alleges that the clerk should have paid to the
United States the moneys which it is said were a part of the
surplus, but it is not alleged that the duty had arisen upon the
return and accounting required by the statute.
But, for the reasons we have stated, even the duty to pay the
surplus shown by the return or audit is not governed by the
statutes relating to embezzlement, which have been referred to in
support of these counts. The amount with which the clerk is
chargeable upon his accounting is not the "public money" or "the
money or property of the United States" within the meaning of their
provisions. 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.
The second, third, and fourth counts of the indictment are
insufficient, and the judgment of the Circuit Court is therefore in
each case
Affirmed.
*
"Second count. And the jurors aforesaid, on their oath
aforesaid, do further present, that said Frank H. Mason during all
of the year 1908 was, and ever since has been, an officer of the
United States, to-wit, Clerk of the District Court of the United
States for the District of Massachusetts, and on said first day of
February, in the year 1909, had in his possession and under his
control, to-wit at Boston, aforesaid, certain public moneys of the
United States, a particular description whereof is to said grand
jurors unknown, to-wit, moneys to the amount and of the value of
$387, which, during said year 1908, had come into his possession
and under his control in the execution of his office as such
officer, and under authority and claim of authority as such
officer, and were a portion of a surplus of fees and emoluments of
his said office over and above the compensation and allowances
authorized by law to be retained by him for said year 1908, which
said public moneys said Frank H. Mason, on said first day of
February, in the year 1909, as such officer, was charged, by
certain acts of Congress, to-wit, §§ 823, 828, and 844 of the
Revised Statutes of the United States, and the Act approved June
28, 1902, 32 Stat. 419, c. 1301, and by divers other acts of
Congress, safely to keep; that said Frank H. Mason, on said first
day of February, in the year 1909 at Boston, aforesaid, the same
public moneys unlawfully did fail safely to keep, as required by
said acts of Congress, and, on the contrary, the same then and
there unlawfully did convert to his own use, and that thereby said
Frank H. Mason then and there was guilty of embezzlement of said
public moneys so converted."
"Third count. And the jurors aforesaid, on their oath aforesaid,
do further present, that said Frank H. Mason, during all of the
year 1908, was, and ever since has been, an officer of the United
States, to-wit, Clerk of the District Court of the United States
for the District of Massachusetts, and on said first day of
February, in the year 1909, had in his possession and under his
control, to-wit at Boston, aforesaid, certain public moneys of the
United States, a particular description whereof is to said grand
jurors unknown; to-wit, moneys to the amount and of the value of
$387, which, during said year 1908, had come into his possession
and under his control in the execution of his office as such
officer, and under authority and claim of authority as such
officer, and were a portion of a surplus of fees and emoluments of
his said office over and above the compensation and allowances
authorized by law to be retained by him for said year 1908, which
said public moneys said Frank H. Mason, on said first day of
February, in the year 1909, as such officer, was charged, by
certain acts of Congress, to-wit, §§ 823, 828, and 844 of the
Revised Statutes of the United States, and the Act approved June
28, 1902, 32 Stat. 419, c. 1301, and by divers other acts of
Congress, safely to keep; that said Frank H. Mason, on said first
day of February, in the year 1909, at Boston, aforesaid, the
last-mentioned public moneys unlawfully did fail safely to keep, as
required by said acts of Congress, and, on the contrary, the same
then and there unlawfully and fraudulently did convert to his own
use, and that thereby said Frank H. Mason then and there was guilty
of embezzlement of said public moneys so converted."
"Fourth count. And the jurors aforesaid, on their oath
aforesaid, do further present, that said Frank H. Mason, during all
of the year 1908, was, and ever since then has been, an officer of
the United States, to-wit, Clerk of the District Court of the
United States for the District of Massachusetts, and, on said first
day of February, in the year 1909, had in his possession and under
his control, to-wit at Boston, aforesaid, a portion of the money of
the United States, a particular description whereof is to said
grand jurors unknown, to-wit, money to the amount and of the value
of $387, which, during said year 1908, had come into his possession
and under his control in the execution of his office as such
officer, and under authority and claim of authority as such
officer, and was a portion of a surplus of fees and emoluments of
his said office over and above the compensation and allowances
authorized by law to be retained by him for said year 1908, which
money last aforesaid he should, on said first day of February, in
the year 1909, have paid to the United States at Boston, aforesaid,
in the manner provided by law, and that said Frank H. Mason, on
said first day of February, in the year 1909 at Boston, aforesaid,
the same money unlawfully, wrongfully, and fraudulently did convert
to his own personal use and embezzle."