cers to examine and decide for themselves, whether the certifying judge had or had not exceeded his powers. On this question of jurisdiction, and the limitation of the power of the judges, see the printed volume of the Opinions of the Attorneys General, pages 324, 1173-4, and the latter part of the opinion of Mr. Attorney General Crittenden, of July 5, 1851. Mr. Wirt says, on page 324: "The account, then, is to be first submitted to the Auditor, and he is to examine it; not to control in the slightest degree the discretion with which the law has invested the court, but to see that that discretion has been exercised upon the subjects pointed out by the law; or, in other words, to see that the account contains no items but those which are authorized by the law.' "But if it contains any such item, (that is, any item not authorized by the law) then I am clear that there is nothing so imperative in the law, as to require them to pass it; but, on the contrary, that it is their duty to reject it." Mr. Butler says, in his opinion of March 20, 1838, in relation to the account of a marshal of New York, on page 1174: "Where a charge is allowed by the court or judge, for a service or purpose not mentioned in the acts of Congress, or where a greater sum than that fixed by law is allowed, the certificate of the court or judge may be regarded by the accounting officers as a nullity, and the charge disallowed or reduced, as the case may require. For example, suppose the marshal's bill as examined and certified contains a charge for summoning the counsel, or a charge of ten dollars for serving a writ; in the former case, the accounting officers should reject the item; and in the latter, they should reduce it to two dollars; because, in the one case the charge would be palpably illegal, and in the other as palpably excessive." Mr. Crittenden has recently affirmed the same doctrines. In his opinion of July 5th, he says: "If a judge having a special limited jurisdiction to hear and determine all actions upon bond, note, account, not exceeding $50, give judgment for $100 for debt by note, the judgment is void-absolutely null. The subjects are specially enumerated in the statutes to be included in the marshal's accounts. The fees or allowances are in some instances specified, in others confided to the discretion of the judges. The certificate being the evidence of the exercise of a special and limited jurisdiction, it must show upon its face a case within that jurisdiction." He continues: "If, therefore, it appears from the certificate that a fee or charge has been allowed for any service or cause not within the jurisdiction, the certificate as to that is of no force or validity. That, I think, is clear; and so, if for any of the services enumerated as within the jurisdiction, a greater fee or sum be allowed where the law has fixed a smaller one, then, also, the certificate. as to the extent is of no legal force." The law authorizes a single judge out of court to examine and certify accounts; the law of 1842 requires the clerk, also, to certify them, and Congress might confer the power on any other officer. It is a special power conferred on the judges for a special purpose, and is not comprised in the general powers and jurisdiction of the court. It is a general rule, that nothing shall be intended to be out of the jurisdiction of a supreme court but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged. (See Ist Saunders's Reports, 74.) The powers of all special jurisdictions, and the powers of commissioners, and special courts of limited jurisdiction, are tested by the same rule as those of inferior courts. (See cases of Smith vs. Rice, 11 Mass. Rep., 313; Duval vs. Duval, 13 Mass. Rep., 264; and Parkin vs. Proctor, 2 Wilson's Rep., 382.) It should therefore appear on the face of every certificate, taken in connexion with the account, that each item was a legal charge against the government, and that the judge has not exceeded his powers, and allowed a larger sum than is allowed by law for any service for which the law has prescribed a specific fee or compensation. On this principle the accounting officers have acted for fifty years. The questions to be acted on by the judge, and also by the accounting officers, are as follows: 1. Is the subject-matter of each item of an account such that it is a legal charge against the government, if the facts in relation to it are as alleged? 2. Has the service been rendered, or the supplies furnished for and used by the court, as alleged? 3. In case of supplies furnished, did the marshal pay the amount for them which is claimed in his account? 4. In the case of services for which the judge may have allowed such sums as he deemed reasonable, the question is, whether it is or is not a case in which the law invests the judge with such discretionary power. 5. If it is a case of services where the law prescribes a specific fee or compensation, the power of the court is thereby limited as to the amount to be allowed, and the judge can only ascertain and certify to the facts, and merely carry out, ministerially, such sum as the law allows. The first question applies to every item of any account; it is a question of juris liction, and one which the accounting officers are bound to examine for themselves, as is affirmed by Attorneys General Wirt, Butler and Crittenden, in the cases cited. In fact, questions of jurisdiction, all persons as well as officers are bound to take notice of at their peril. That the marshal is bound to take notice of them, at the peril of losing all illegal payments made by him, is held by Attorneys General Wirt and Butler. (See pages 324, 325, and 1174, 1175, of the volume of Opinions.) In both cases, certain payments by marshals, for witnesses' fees, which had been duly certified by the court, were held illegal, and not proper items to be allowed to the marshals. If the first question appears affirmatively on the face of the account, in relation to each and every item, the accounting officers do not inquire into either the second or third questions, unless there is error or miscalculation apparent upon it. As to the fourth question, the accounting officers inquire no further than to determine whether the amount of each charge is or is not subject to the discretion of the court or judge; and if it is apparent that it is subject to such discretion, they pass the account. As to the fifth question, the accounting officers feel bound to inquire into the jurisdiction, as referred to in the first question. If that is apparent, they take the facts to be true as stated and certified, and examine them only so far as to learn the application of the fee-bill to them. They then look to the statute prescribing the fees or compensation, and if they find that any of the items are carried out for a larger sum than is prescribed by statute for the service, the error is corrected. What is fixed by law, the judge has no power to alter. It is a question of power; that is, it is a limitation to the exercise and extent of his jurisdiction, which the accounting officers have ever been in the habit of inquiring into. They are governed by the law, under the sanction of their oaths, and cannot regard the certificate of a judge as superior to the law. Judges have certified to the following classes of items, and many others, the subject-matter of which are not legal charges against the United States: 1. For a per diem compensation of an imprisoned witness, for several months, claimed as a contingent expense of holding courts, as stated by Mr. Wirt, in pages 324 and 325 of Opinions of the Attorneys General. 2. The law books for district attorneys, to furnish them libraries at the expense of the government, without authority of law. 3. For office rent of marshals and clerks, without authority from the head of the department. 4. For printed blanks for clerks and marshals, to save them the labor of writing what they are paid for. 5. The counsel fees for defending poor prisoners, on the assignment of the court. 6. For items of clerks' fees for services rendered for persons indicted, and for defendants in civil suits prosecuted by the United States. 7. For many thousand dollars, in four different districts, for the claims of marshals for pretending to superintend the State jails. In the following classes of cases, and in many others, where the statutes have prescribed the fees and compensation of officers, judges have certified to larger amounts than the law allows: 1. Extra compensation to witnesses more than the statute allows, as decided by Attorney General Butler. (See Opinions of Attorneys General, pages 1174 and 1175.) 2. The 4th section of the fee-bill of 1799 limits the fees of attorneys, solicitors, and proctors, in admiralty causes, to $17. In addition to the $17 attorneys' fees allowed by law, the judge of the eastern district of Louisiana allowed to the late district attorney, counsel fees in twenty-one admiralty causes to the amount of $6,182 60, and certified to the same. 3. The law allows district attorneys a small salary, a per diem, and taxable attorneys' fees, but no counsel fees in addition thereto. In addition to the fees and compensation allowed by law, the district judge of the eastern district of Louisiana allowed the late district attorney, in his bill for the. quarter ending March 31, 1849, the aggregate amount of $13,950 counsel fees, for his services in forty causes. Counsel fees, or quantum meruit fees, for the services of district attorneys not allowed by law, have been certified by judges in several other districts. 4. The fees of officers in the northern and southern districts of New York have not been made out in accordance with the provisions of the 167th paragraph of the act of 1842, limiting their fees and compensation to the amount allowed to State officers for like services; but much larger sums have been allowed and certified than the law allows. 5. In many cases where the limitations of the act of 1841 apply, through oversight, want of information in relation to the amount of the emoluments of officers, or some other cause, the judges have not conformed to it, but have certified to larger fees than it allows. This may be illustrated by the following cases in the Massachusetts district, to which the law of 1841 applies. In 1849, 'three indictments were found against one Wilson, and three against one Crafts, for an illegal conspiracy and an attempt to procure a ship to be cast away. Several sailors, who were witnesses, were put in jail for want of security for their appearance. The witnesses and prisoners were brought out of jail from day to day, during the examinations and trials, on writs of habeas corpus, and returned again at night to jail on warrants. The marshal's fees on those writs and warrants were charged, and certified by the judge, at over $6,000, and the clerk's fees at over $500. The charge was made and claimed under the act of 1799; that is, $2 was charged by the marshal for the service of each writ on the prisoner, and on each witness named in it; and the same fee for the service of each warrant for each prisoner named in it, besides $1 for a copy, mileage, and fifty cents for each one for commitment to or discharge from prison. All these fees were charged, besides much more, during the months of April and May, 1849. The statute of Massachusetts allows sheriffs but 30 cents for serving a writ or warrant on each person named in it, and 12 cents for a copy if demanded; so that if the charges had been made in accordance with the statute of 1841, they would have been less than one-third part as much as was certified by the judge. 6. The law of 1799 allows marshals a per diem for attending a circuit or district court, and for no other service. In some districts, judges have allowed and certified to a per diem for the marshals for attending before a judge out of court, or a commissioner on examination of a prisoner, for which the law allows the marshal fees for serving the writ and subpoenas, and mileage, and nothing more except his salary. There has been a want of uniformity in the action of different judges in certifying accounts under the same provisions of law. Many, and perhaps the greater part of the errors in the accounts, have been detected and corrected from time to time by the accounting officers, whose efforts have had a salutary influence in checking irregularities, confining officers to the law, and securing something like an approximation to uniformities of decision. Considering the extraordinary state of things, and the extravagant prices at the present time, in the State of California, I respectfully suggest the propriety and expediency of allowing the officers in the northern and southern districts of California, for their services for two years, double the compensation and fees provided for in said bill, and fifty per cent. more than is provided for in said bill, for two years thereafter. All of which is respectfully submitted. E. C. SEAMAN, Year 1850. 513,428 20 1 616,279 89 Increase per centum of population and expenses of courts since the year 1 SIR: As requested by you, I herewith send a reference to the prescribing the fees of attorneys of the United States and clerks, vices in causes in which the United States are concerned, in the Ter of New Mexico, Utah, Oregon and Minnesota. The ninth and tenth sections of the organic acts of the Territo New Mexico and Utah provide that the clerks in government suits receive the same fees, and the attorneys of the United States the san and salary, as the attorney and clerks of the Territory of Oregon. |