The clerks of the district courts of Oregon and Minnesota, by the ninth section of the organic acts, shall receive in all United States cases "the same fees which the clerks of the district courts of the late Wisconsin Territory received for similar services." The clerks of the late Territory of Wisconsin, by the ninth section of the organic act of April 20, 1836, were to receive in government cases the same fees which the clerk of the district court of the United States in the northern district of New York received for similar services. The act of April 29, 1812, in relation to the district court of New York, provides for the appointment of a clerk to reside at Utica, in the northern district, who was to "be allowed the same fees and compensation as by law is allowed to clerks of the district courts." The district attorneys for Oregon and Minnesota, by section ten of the organic acts, are allowed "the same fees and salary as the attorney of the United States for the late Territory of Wisconsin received." The district attorney for Wisconsin, was allowed, by the tenth section of the organic act, "the same fees and salary as the attorney of the United States for the Michigan Territory." The fees of United States attorneys in Michigan Territory were regulated by the act of February 27, 1813, which provides that there should be appointed an attorney of the United States in each of the Territories, who should, "besides the usual fees of office, receive an annual salary of $250.” The construction put by the Attorney General on the terms "stated fees" is, that they mean the fees taxable in suits in pursuance of law. The phrase usual fees, I think has the same meaning. In the Territory of Michigan the statutes allowed attorneys no taxable fees or costs, and hence none could be allowed, according to law, in the Territory of Wisconsin, and none can now be allowed to the attorneys in Minnesota, Oregon, New Mexico and Utah. Nothing can be allowed to them except their salary and per diem. The law regulating the fees of clerks, in causes in which the United States are parties, and in causes arising under the laws and constitution of the United States, in the Territories of New Mexico and Utah, refers, 1st, to the laws regulating the fees of clerks in Oregon for similar services; 2d, to the organic law of the late Territory of Wisconsin; 3d, to the third section of the act of April 29, 1812, authorizing the appointment of a clerk, to reside at Utica, in the northern district of New York; 4th, to the law of 1799, relative to the fees of clerks of district courts; 5th, to the fee-bills of the State of New York, prescribing the fees of the clerks of the supreme court thereof. The law regulating the fees of attorneys of the United States in the Territories of New Mexico and Utah, refers, 1st, to the organic act of Oregon' Territory; 2d, to the organic act of the late Territory of Wisconsin; 3d, to the laws regulating the fees of the attorney for the late Territory of Michigan, which was the act of February 27, 1813, relative to the appointment of attorneys for the Territories; 4th, to the fee-bill of Congress of 1799; 5th, to the local law of the late Territory of Michigan, prescribing the taxable fees of attorneys in that Territory; and, lastly, there having been no local law prescribing fees of attorneys in the late Territory of Michigan, the reference and the provision for taxable fees and compensation to attorneys, for prosecuting and defending suits, wholly fails. Here, then, are five references for clerks' fees for each of the Territories of New Mexico and Utah, and four for each of the Territories of Oregon and Minnesota. There are also five references of attorneys' fees for each of the Territories of New Mexico and Utah, four for each of the Territories of Oregon and Minnesota, the two last of which are to different laws and di ferent States from those in relation to clerks' fees; and the references for stated or taxable attorneys' fees finally fail. Very respectfully, yours, To Hon. A. H. H. STUART, ELISHA WHITTLESEY, Comptroller. TREASURY DEPARTMENT, Comptroller's Office, November 26, 1851. SIR: In pursuance of your letter of May 23, 1851, in relation to the accounts of the officers of the federal courts, and the extent of the abuses which exist under the present system in the judicial expenses of the government, in addition to the report heretofore made by E. C. Seaman, esq., as acting Comptroller, and bearing date October 31, 1851, I respectfully submit the following abstracts of bills of costs and fees, remarks and suggestions, in illustration of the subject, as a supplementary report. First, as to the State of New York.-At the time of the adoption by Congress of the fee-bill of 1799, the State had a fee-bill for attorneys in civil causes in the supreme court, one for counsellors, and another for attorneys in criminal business, and other bills for solicitors and counsel in chancery, all allowing item fees. The civil fee-bill allowed attorneys and counsel also a retaining fee in each cause, provided counsel was actually employed; but prohibited the same man from receiving fees in two capacities, both as attorney and counsel, in the same cause. The criminal feebill did not allow any retaining fee, nor any counsel fees. Both bills allowed a folio compensation for drawing all writs, pleadings, and other papers and proceedings in the progress of a cause; also a folio compensation for every copy made or supposed to have been made, or necessary, and a fee for trial, and for each motion, or other service. The civil fee-bill, however, gave the highest compensation throughout, in addition to the retaining fee. The civil fee-bill being the highest, was adopted for criminal as well as civil business, by the district attorneys, in the federal courts. The fee-bills for attorneys for both civil and criminal suits remained substantially the same from about the year 1790 until 1840, when a new fee-bill was made for civil causes only, the criminal fee-bill remaining nearly the same to this day. The civil fee-bill of 1840 for the first time provides that the same man may take fees in the double capacity of attorney and counsel in the same causes or proceedings, but in civil causes only. It abolished all folio fees for drawing and copies of writs, pleadings, and other papers and proceedings, and substituted a specific fee for each one; for instance, instead of allowing twenty-five cents for one hundred words for drawing pleadings, and twelve and a half cents per folio for each copy, it allowed two dollars and fifty cents for drawing a declaration, and one dollar and twenty-five cents for each copy of it, &c. The charges and abuses in the State courts under the law of 1840, allowing double fees as attorney and counsel to the same peron, were so great that the whole bill and system of charging fees in small items, for attorneys, solicitors, and counsel, was abolished February 12, 1848, and a few general items substituted in their place. Under the act of Congress of 1841, and the State law of 1840, the district attorneys have charged for many years past, and still charge in criminal as well as in civil suits, both attorneys' and counsel fees. Where the bill of 1840 allows the largest compensation for any service as an attorney, the charge is usually made under that bill; but where the old law allowed the largest compensation for an item of service, the charge is usually made under it. For example, in the bill hereafter referred to, of the United States vs. Leonard Dyer, Mr. Hall charged for drawing the indictment, two hundred and forty-five folios, sixty-one dollars and twenty-five cents, for engrossing and for copy sixty-one dollars and twenty-five cents, and for fair copy for the grand jury thirty dollars sixty-two and a half cents; in all, one hundred and fifty-two dollars twelve and a half cents, though the State civil bill of 1840 allowed but two dollars and fifty cents for drawing and one dollar and twenty-five cents for each copy, making in all six dollars and twentyfive cents. And in the prosecution against Anthony Faulac, Mr. Shepherd, the late district attorney, charged at February term, 1849, for drawing the indictment, two hundred folios, fifty dollars, for engrossing and copy fifty dollars, and copy for grand jury twenty-five dollars; making in all one hundred and twenty-five dollars, for which the law of 1840 allowed but six dollars and twenty-five cents. They have entirely disregarded the law of Congress of 1842, which confines them, in criminal causes, to the criminal fee-bill of the State, and allows no retaining fees, and no counsel and no trial or term fees for attending to try a cause, unless it is actually tried; and both Mr. Shepherd and Mr. Hall have charged a retaining fee as attorney and counsel, also, and even a warrant of attorney, at each term of the court. In the case against A. Faulac, the papers sent to this office show, that Mr. Shepherd charged a retaining fee as attorney three dollars, as counsel five dollars, and for warrant as attorney thirty-seven and a half cents, at each of three terms; in all, for each term $8 37; that Mr. Hall made similar charges for the same amount at each of nine terms; that Mr. Shepherd and Mr. Hall each charged for April term, 1849; making in all charged for retaining fees and warrants of attorney, the sum of $100 50. The fees for brief, attorneys' fees, and counsel fees attending prepared for trial, was also repeated twelve times at eleven terins, amounting to $108. In many other causes, the retaining fees are charged from two to eight times in a cause. In fact, it seems to be a general practice to charge them, and also the nine-dollar trial fee, and for many other mere construction services, at each term of the court. And in the case of N. C. Marselis, Mr. Shepherd and Mr. Hali charged retaining fees, though the cause had been tried and the defendant was convicted, before either of them came into office, and nothing remained to be done except to sentence the prisoner. Though the act of Congress of 1842 is prospective in its operation, and plainly requires them to charge their fees under the State fee-bill in force when a service is rendered, yet they have paid no attention to the repeal in 1848, of the old fee-bill in civil causes, and the substitution of a much lamer one in its place, but have continued to charge as heretofore stated. The system of charging is illustrated by the following abstracts of bills of costs: and 2 copies, 50 cents Order to marshal to bring up prisoner... 23 Attending examination and motion to ad journ same... 25 Attending examination and motion to ad- 30 Drawing additional subpoena ticket, and Order to marshal to bring up prisoner.. Attending examination, motion to adjourn Drawing indictment, 245 fol., $61 25; en- Fair copy for grand jury (bill dismissed) 4 costs endorsed...... Drawing costs, copying and attending taxation 1 term fee. Total.. Amounts charged, taxed by the judge, 1849, and certified by the clerk as legal and proper, for June term.. Do. Do.... ..do.. for July term... ..do........for August term.. Total attorneys' fees charged and taxed. |