In this case, a petition for mandamus directing the court below
to correct its action is denied and a petition for certiorari
granted, and, the parties having so stipulated, the papers filed
are treated as the record, and the case regarded as submitted for
decision on the merits.
Although the provisions in the Act of February 13, 1911, c. 47,
36 Stat. 901, in regard to clerk's fee for supervising printing the
record, may not apply to appeals from every interlocutory decree,
it does apply where the decree, as in this case, although
interlocutory in character, is, within the intendment of the
statute, a final decree.
Smith v. Farbenfabriken of Elberfeld
Co., 197 F. 894, approved.
The facts, which involve the construction of the Act of February
13, 1911, 36 Stat. 901, amending the fee bill and its application
to interlocutory decrees, are stated in the opinion.
Page 235 U. S. 386
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
The application is for leave to file a petition for mandamus
directing the court below to correct the action taken by it which
is complained of, or for the allowance of a certiorari to bring up
the record in order that such complained-of action may be reviewed.
We decline to allow leave to file the petition for mandamus, but
grant the petition for certiorari, and, conformably to the
stipulation of the parties, treat the document made a part of this
proceeding as the record for the purpose of the certiorari, and
proceed to act upon the same, treating the case as under submission
on the merits.
The Automobile Supply Company appealed to the court below from
an interlocutory decree in favor of the complainant, the
Lovell-McConnell Company, finding that the patents sued on had been
infringed, and awarding an injunction, and directing an accounting
for damages and profits. On such appeal, the Automobile Supply
Company furnished the clerk of the court below a complete printed
record accompanied with a written index of the contents of the
same, and, in consequence of a demand made by the clerk, deposited
under protest the sum of $696 as a fee
Page 235 U. S. 387
due the clerk for supervising the printed record so furnished.
When, after a hearing, the court reversed the decree of the trial
court, the Automobile Supply Company called upon the clerk either
to refund the money charged for supervision or to include it in his
statement of the costs to be entered on the mandate. The clerk,
being doubtful as to his duty in the matter, refused to do either,
and insisted that the propriety of the charge be tested, to the end
that he might act advisedly in the premises. The Automobile Supply
Company thereupon moved to direct the clerk to include the
supervision fee in the mandate, or to refund the amount of the
deposit which had been made. The court held that the charge for
supervision was lawful, and was therefore properly taxable as
costs, and directed the clerk to retain the money and include a
charge for the same in the mandate. The application before us was
then made by the Lovell-McConnell Company, the party cast and
ultimately bound for the costs, both the parties, however, entering
into the agreement as to the record and the submission on the
merits which we at the outset stated.
Considering the Act of Congress of February 13th, 1911, 36 Stat.
901, c. 47, in
Rainey v. W. R. Grace Co., 231 U.
S. 703, it was held that the provisions of the act were
applicable to the circuit courts of appeals, and it was
consequently decided that, where a printed transcript of the record
was filed in compliance with the statute with the clerk of the
court of appeals, no supervision fee could be charged by such
clerk. Of course, if that ruling is here applicable, the court
below clearly erred in allowing the charge for supervision, and the
only possible question therefore is whether the statute, although
generally applicable to records filed in the circuit court of
appeals, is not so applicable in this case. It is insisted that it
is not -- and the court below so held -- because, as the statute
only provides for an appeal from a "final judgment or decree," it
does not apply to
Page 235 U. S. 388
a case like the one under consideration, where the appeal was
from a decree interlocutory in character. But, without affixing to
the statute a latitudinarian meaning, upon the theory that to do so
is essential to give effect to its purpose and intent, and bring
every interlocutory decree within its reach, we are of opinion that
to exclude an interlocutory decree of the character of the one here
involved from the operation of the statute would be to frustrate
its plain purpose by a too rigid and unreasoning adherence to its
letter. We so conclude because, while, in a technical sense, the
decree here in question was interlocutory, when its character and
the scope of the subject matter which the appeal brought under
review and the relief under it which it was competent to afford are
considered, we are of opinion it must follow that such decree was,
within the intendment of this statute, a final decree, and
therefore that error was committed in permitting the supervision
charge. Indeed, this view was taken in a well considered opinion by
the Circuit Court of Appeals for the Sixth Circuit in a case
decided before the ruling in the
Rainey case,
supra, (
Smith v. Farbenfabriken of Elberfeld Co.,
197 F. 894), and we approve the reasoning by which the ruling in
that case was sustained.
It results that the circuit court of appeals erred in its order
approving the charging and retaining the fee for supervision, and
such order is therefore reversed, with directions to the court
below to take such steps as may be necessary by recalling the
mandate, if needs be, or otherwise, to afford the relief essential
to give effect to the conclusions which we have expressed.
Reversed.