A defendant under indictment who, pursuant to an order obtained
on his own application, voluntarily deposits cash in the registry
in lieu of bail does so with full knowledge that, under Rev.Stats.
§ 828, if applicable to such cases, one percent may be taxed as
compensation to the clerk for receiving, keeping, and paying out
the money, and the contentions that the retention of such
percentage, upon return of the deposit after his conviction, brings
that § in conflict with the Fifth and Eighth Amendments, and Art.
IV, § 2, of the Constitution are frivolous, and will not support a
direct writ of error under Jud.Code, § 238. P.
250 U. S.
117.
Writ of error dismissed.
The case is stated in the opinion.
Page 250 U. S. 116
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Section 828, U.S. Revised Statutes, which specifies the
compensation to be taxed and allowed to clerks of district courts,
among other things, provides:
"For receiving, keeping, and paying out money in pursuance
Page 250 U. S. 117
of any statute or order of court, one percentum on the amount so
received, kept, and paid."
In each of the criminal causes entitled
The United States v.
Emma Goldman and
The United States v. Alexander
Berkman, some days subsequent to defendants' arrest (June,
1917), evidently upon applications in their behalf consented to by
the District Attorney, the court below directed:
"That the sum of $25,000 cash, be deposited in the registry of
this Court in lieu and place of bail for the appearance of the
above-named defendant before the United States District Court for
the Southern District of New York, in accordance with the
provisions of the recognizance to be given by said defendant."
Defendants were afterwards convicted and sentenced to
imprisonment.
Upon motions duly presented, the clerk was afterwards directed
to pay to defendants' counsel funds deposited under the above
orders, less costs. He retained one percentum as compensation, and
the court refused to declare this sum unlawfully withheld, and
direct its return. The matter is here by writ of error to the
district court.
It is now maintained that § 828 does not apply to criminal
cases. Further, that, if construed to be applicable where cash is
deposited in lieu of bail for appearance of one charged with crime,
it conflicts with the federal Constitution, Fifth Amendment,
"No person shall . . . be deprived of . . . liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation;"
also with Article IV, § 2, cl. 1, "The citizens of each state
shall be entitled to all privileges and immunities of citizens in
the several states," and with the Eighth Amendment, "Excessive bail
shall not be required."
Our jurisdiction depends upon whether the case really and
substantially involves the constitutionality of the section in
question as construed and applied. Judicial
Page 250 U. S. 118
Code § 238;
Rakes v. United States, 212 U. S.
55,
212 U. S. 58;
Lamar v. United States, 240 U. S. 60,
240 U. S. 65.
And we deem it too clear for serious discussion that, as enforced
below, the statute deprived plaintiffs in error of no right
guaranteed by any of the constitutional provisions relied upon.
With full knowledge, they voluntarily asked to deposit money with
the clerk, and later requested that he be required to pay it out.
Having thus obtained his services, they now deny his claim for
compensation. Obviously, nothing was taken from them without due
process of law; their property was not taken for public use; they
were not deprived of any privilege or immunity enjoyed by citizens
of other states, and the record reveals no relation between the
contested charge and any excessive bail. We think the suggested
constitutional questions are wholly wanting in merit and too
insubstantial to support our jurisdiction.
Brolan v. United
States, 236 U. S. 216,
236 U. S. 218.
The writ of error must be
Dismissed.
MR. JUSTICE HOLMES and MR. JUSTICE BRANDEIS dissent.