#### EDWIN M. KEATLEY v. THE UNITED STATES.

[No. 30415.

Decided December 13, 1909.]

*On the Proofs.*

Tbe case of Marvin is decided by this court in favor of the claimant, clerk of a circuit court, without an opinion, under the authority of *Owen’s case*(41 O. Ols. R., 69), and the judgment is affirmed by the Supreme Court under the authority of *United, States*v. *Finnell*(185 U. S. R., 236). The question in this case is whether it should be distinguished in certain particulars from the decision of the Supreme Court in *Marvin’s case*(44 C. Cls. R., 593; 212 U. S. R., 275).

I. A bankruptcy court being always open for the transaction of business under Revised Statutes (§§ 574, 828) and the *Banlc-rupicy Act, 1st My 1898*( 30 Stat. -L., p. 545, § 2), it is'not necessary for the clerk of a circuit and district court to make an entry showing the opening and closing of the court on days when he enters proceedings in bankruptcy cases.

II. The clerk is authorized by the bankruptcy act to enter orders referring certain cases to referees in the absence of the judge.

*37III. The proceedings of courts in bankruptcy cases are both judicial and clerical. These proceedings constitute “ *business transacted in court,"*especially where the court is always open and the clerk necessarily in attendance.

IV. It is not necessary that a clerk should show in an action to recover his per diem fees whether the cases referred by him were eases of voluntary or involuntary bankruptcy inasmuch as the bankruptcy act, 1898 (sec. 18), provides that eases of involuntary bankruptcy must be disposed of by different proceedings.

*The Ref orters1 statement*of the case:

The following are the facts of the case as found by the court:

I. The claimant, Edwin M. Keatley, was clerk of the United States circuit and district courts of West Virginia from July 1. 1903, to December 31, 1908.

II. The claimant performed services for and in behalf of the United States during that period and made a supplemental account for the fees earned by him, said account being verified by his oath and duly approved by the court as required by the act of February 22, 1875 (18 Stat., 334), the orders of approval by the court of said account being entered of record and said accounts were forwarded through the Department of Justice to the accounting officers of the Treasury Department, where final action was taken and payment of the items in said account, as more specifically set out in Finding III, was refused.

III. The items disallowed are as follows:

To per diejns upon days when orders were entered in bankruptcy referring cases to referee in the absence of the judge from the district, as follows:

For calendar year—

1903_ $S

1904_ 15

1905_ 5

1906_255

1907_110

1908_120

One hundred and two days, at $5 each_510

*38IV. Said accounts included charges for attendance on twenty-two days at .$5 per day for the calendar year 1907. The claimant has been paid his maximum compensation for that calendar year (1907), except $22.23.

No charges included in said supplemental accounts for attendance on court were included in any of his previous regular accounts.

V. The business transacted by the claimant was the making and entering orders of reference by him to the referee of petitions in bankruptcy filed during the absence of the judge from the district, a copy of which order was attached to each petition. The claimant, after learning of the decision of the Supreme Court of the United States in the case of *The United States*v. *Marvin*(212 U. S., 275), prepared his supplemental accounts for similar services and presented them for payment, which payment was refused.

VI. Claimant’s supplemental account for per diem services is supported, in each per diem charge, by the following order of the court, which was entered on the docket:

“ United States oe Amekica, *“Southern District of West*Virginia,

“At a District Court for the United States for the Southern District of West Virginia, continued and held at Huntington in said district on the 6th day of April, A. D. 1909, the following order was made and entered of record, to wit: Whereas Edwin M. Keatley, clerk of the District Court for the Southern District of West Virginia, has rendered to this court a supplemental account of his official services from the 1st day of July, 1903, to the 31st day of December, 1903, with the items and vouchers thereof, in the presence of the district attorney, and has, by his oath attached to the account, proved to the satisfaction of the court that the services therein charged have been actually and necessarily performed as therein stated; and whereas said charges appear to be just and according to law, it is hereby ordered that said account, amounting, to $5 be, and the same is hereby, approved under the authority contained in the decision of the Supreme Court of the United States in the case of the *United States*v. *Edwin Marvin,*decided the 1st day of February, A. T). 1909.”

*39Similar orders to tlie above were entered for each day that ■cases were referred for which per diems were charged.

*Messrs. Grosthwaite*and *Golladay*for the claimant.

*Mr. Philip M. Ashford*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendant.

AtkiNSON, J.,

delivered the opinion of the .court:

This class of cases has been so often disposed of by this ■and the Supreme Court that but little room for contention by the accounting officers of and the attorneys for the Government are left open for controversy. The claim herein is so nearly the case of *Marvin*v. *United*States, decided by this court April 20, 1908, and affirmed on appeal by the Supreme Court (212 U. S., 275) that an opinion thereon is by no means essential. But inasmuch as counsel for the United States avers that the cases are not analogous, we ■deem it proper to, prepare an opinion thereon.

The claimant is now, and was at the time of the claim for which he sues, clerk of the United States Circuit and District Courts for the Southern District of West Virginia; at the time or times he rendered his quarterly accounts against the United States for fees as said clerk from July 1, 1903, to December 31, 1908, he made no charge for per diem services in referring bankruptcy cases to referees in bankruptcy ivhen the court was not actually in session. He avers that he did not then know that he was entitled by law to charge such per diem fees for his services as such clerk until the decision of the *Marvin case*(supra) was rendered by this court, and which decision was affirmed by the Supreme Court; and that after said decision was rendered he filed a supplemental account against the United States, as provided by the act of February 22, 1875 (18 Stats., 334), for per diem fees for such services, which account was not allowed by the accounting officers of the Treasury Department, and therefore he brings this suit to recover said fees.

In his petition he sets out in detail the name of every petitioner in bankruptcy which was referred by him to the referee in bankruptcy as required by the bankruptcy act of *40July 1, 1908 (30 Stats., 545), and according to the practice which prevailed in his court since the passage of said act-On each of the days for which a per diem fee is charged he opened the bankruptcy order book and entered upon the ■ same the reference, in the judge’s absence, as prescribed by Form No. 15 of the general orders in bankruptcy proceedings, thus certifying to the referee the case for adjudication.

In rendering his supplemental account, after setting out the amount claimed as a per diem for his said services as clerk, he presented the account in each individual case to the district attorney, who approved the same, which approval was presented to the court, and in each case an order was entered of record by the court, as set out in Finding VI.

It is averred by the defendants that the findings do not affirmatively show that the court was opened for business on the days for which per diems are charged, or that the judge certified that it was opened for the transaction of business, or that business was transacted, consequently it justifies the conclusion, or rather the affirmative statement, that such was not the fact. Under the decision of the Supreme Court in *Finnell's case*(185 U. S., 236),and the decision of this court-in *Owen's case*(41 C. Cls., 69), it was decided that a bankruptcy court is always open for the transaction of business, under sections 574 and 828, Revised Statutes, and section 2 of the bankruptcy act (30 Stats., 545), and therefore it was not necessary for the clerk to make any entry of the opening' and adjourning of the court on the days for which per diems are herein claimed.

Moreover, the services performed by the claimant were authorized by section 18, paragraphs (/) and *(g)*of the bankruptcy act, supra, which provides as follows:

> “(/) If the judge is absent from the district, or the division of the district in which the petition is pending, on the next day after the last day on which pleadings may be filed, and none have been filed by the bankrupt or any of his creditors, the clerk shall forthwith refer the case to the referee.

> “ *(g)*Upon the filing of a voluntary petition the judge-shall hear the petition and make the adjudication or dismiss-the petition. If the judge is absent from the district, or the *41division of the district in which the petition is filed, at the time of the filing, the clerk shall forthwith refer the case to the referee.”

The findings show that the services performed by the-claimant under the above provisions of the bankruptcy act were the making and entering of an order of court on the journal referring the petition to the referee, and a copy of said order was attached to the petition in the form prescribed by the Supreme Court in compliance with section 30 of the bankruptcy act.

This form of order shows that while it was made by the clerk it was in legal contemplation the order of the court and had the same force and effect as if made by the judge, if he Avere present on the bench or in the district. This provision of law and the method of procedure in such cases require the-attendance of the clerk on the court which is always open; and the particular services performed were just as much business transacted in the court as though the judge had made the-order in person and directed the clerk to enter and enforce the same. To perform this service, therefore, it was necessary for the clerk to be in attendance upon the court either in person or by deputy, and if neither was in attendance, bankruptcy proceedings would necessarily be suspended and the public inconvenienced, contrary to the expressed requirements of section 2 of the bankruptcy act, which provides that a court in bankruptcy proceedings, as well as in admiralty and equity procedure, shall be deemed always open. *(Finnell*v. *United States,*185 U. S., 236; *Butler*v. *United States,*87 Fed., 635, 655; *Owen*v. *United States,*41 C. Cls., 69; *United States*v. *Marvin,*212 U. S., 275.)

The proceedings of courts in bankruptcy cases are both judicial and clerical, and both are separate and necessary. These proceedings constitute “ business transacted in court,”' and more especially so in a court that is always an open forum on which the clerk is actually and necessarily in attendance, and who is, therefore, legally entitled to a *per diem*compensation for attendance thereon.

It is further contended by defendants that this claim is defective in this, that it is not shown whether the petitions referred by the clerk to the referee were voluntary or involun*42tary cases. Section 18 of the bankruptcy act of July 1,1898 (80 Stats., 551), provides for a reference of a voluntary petition by the clerk to the referee in the absence of the judge, and section 19 of the same act defines the method of procedure upon involuntary petitions. In the latter class of cases an issue must be joined, and if demanded by the party alleged to be bankrupt, a trial by jury must be granted by the court. Hence it must be presumed that the references by the clerk to the referee of the petitions for-which fees are charged were necessarily voluntary petitions.

For the reasons we have given we decide that the claimant is entitled to recover a judgment of and from the United States in the sum of $422.23.