#### CHARLES K. DARLING v. THE UNITED STATES.

[Decided Feb. 28, 1916.

No. 32514.]

*On the plaintiff’s motion.*

*Cleric of court; naturalization*fees.—A clerk of the United States Circuit Court for the District of Massachusetts collects fees in naturalization proceedings for a period of six months, amounting to $6,151, and retains thereof the sum of $3,000 under section 13 of the act of June 29, 1906, 34 Stat., 600, which provides that “ *clerics of courts exercising jurisdiction in naturalization proceedings shall he permitted to retain one-half of the fees in any fiscal year up to the sum of $3,000.”*Plaintiff was required to refund the sum of $1,500 so collected, for which he now brings suit.

*101
      *Retention of fees; Statutes*appUed.—Under section 2687 Revised Statutes and the act of June 29, 1906, *supra,*a clerk of a court is not entitled to the full maximum sum allowed for fees collected in naturalization proceedings in any one fiscal year received during six months of such year, but is only entitled to retain his pro rata share of said maximum sum for the period during which said fees were collected.

*The Reporter's*statement of the case:

The facts of the case and the grounds of plaintiff's motion are sufficiently set forth in the opinion of the court.

*Mr. Charles W. Clagett*for the motion. *Mr. Bruce Baird*was on the briefs.

Until a comparatively recent period numerous Federal officers were compensated for their services by the fee system, a system which provided for the payment to the officer of a definite fee by the person served at the time the service was performed. The fee was paid for a particular service and became the property of the officer immediately upon the performance of that service. Many offices were sustained entirely by fees, and the officer paid only for work actually performed and at the time of performance.

In some cases where business was small Congress supplemented the fees by a small yearly salary. This salary depended upon the length of service and was apportionable. The fees were paid for services actually rendered at the time they were rendered and belonged to the officer. As stated in *United States*v. Edwards, 1 McLean, 478, “ the salary has reference to the time, the commission to the amount of money received.” The act of 1846, now embodied in section 2687, provided that all officers and agents of the United States serving for less period than a year shall not be paid for the entire year, but shall be allowed in no case a greater sum than a pro rata of the maximum compensation of such officer or agent for the time only which they actually served. By the act of 1853, now embodied in section 839, B. S., Congress provided that no clerk should retain of the fees and emoluments of his office for his personal compensation over and above his necessary office expenses a sum exceeding *102$3,500 a year or exceeding that rate for any time less than a year. Although section 2687 was passed in 1853, the accounting officers of the Government made no claim to naturalization fees until 1884, when the case of *United States*v. Hill, 120 U. S., 169, was filed. It is clear that from 1855 until 1898, notwithstanding sections 2687 and 839, R. S., the clerks of court were entitled to retain and did retain for their own use all fees in naturalization cases; that on March 15,1898, Congress, in an appropriation bill and without undertaking to deal with the entire question of naturalization and procedure in naturalization cases, required the clerks to account for naturalization fees as required by law, and that no further change was made until 1906. On June 29,1906, Congress enacted a complete statute of naturalization. It provided a uniform rule for the naturalization of aliens, established a Bureau of Naturalization, and established a definite and distinct fee system by which it required the clerk to account for fees belonging to the United States earned in naturalization cases to the Bureau of Naturalization, and not to the Attorney General. It made a distinction between other fees and emoluments earned by the clerks for which they accounted to the Attorney General, leaving such fees to be accounted for to the special bureau charged with the special subject of naturalization. Prior to 1906 Congress had made no definite and well-considered effort to deal with naturalization fees. In that year it made full and complete provision as to such fees. It authorized the clerk “ to retain *one-half of the fees*collected by him in any such naturalization proceeding, the remaining one-half of naturalization fees collected by him in each case ” to be paid to the United States, and by a proviso made certain that said fees were not intended to be included within sections 2687 and 839, R. S., by authorizing the clerk to retain one-half of the fees in any fiscal year *up to*the sum of $3,000, and that all fees received by such clerks in naturalization proceedings *in excess*of such amount should be accounted for to the United States. This act gives these fees to the clerk as earned *“ in each case?*allows him to retain them as earned *up to*the *103sum of $3,000, and requires Mm to account for the *excess.*It covers the question of collection and distribution of naturalization fees in minute detail and leaves no room for sections 2687 and 839 to operate.

So far as section 13 of the act of 1906 relates to fees it is a special act and is to be construed as an exception to sections 2687 and 839 of the E. S. Section 839 is general legislation, affecting all fees and emoluments of clerks and limits the compensation of the clerk to $3,500 a year or to a pro rata amount for any portion of a year; section 13 of the act of 1906 provides additional compensation for the clerks for special services required by that act, and this compensation is without any limitation except that it shall not exceed $3,000 during any fiscal year.

The rule of construction to be applied is stated in *Lewis’ Sutherland on Statutory*Construction, section 275. See also *Townsend*v. Little, 109 U. S., 501; *Ex parte Crow*Dog, Ib., 556; *United States*v. Mills, 11 App. D. C., 500; *United States*v. Nix, 189 U. S., 199.

From the foregoing authorities it is clear that section 13 of the act of 1906 is to be construed as an exception to sections 2687 and 839, E. S., and as this section of the latter law of 1906 not only provides for additional fees for the clerks in naturalization cases but, on its face, is full and complete legislation in reference to such fees, the amount to be paid and when to be paid; such fees are not controlled in any way by sections 2687 and 839, E. S.

The legislature is conclusively presumed to know the law; it knew that sections 2687 and 839 not only limited the compensation of the clerk from fees and emoluments to $3,500 a year but that said sections limited the clerk to that rate for any time less than a year; it knew that by the act of 1898 the clerk was required to account for naturalization fees as provided for by law, and knowing these facts, by legislation fully and completely covering the subject, it authorized the clerk to retain one-half of the fees collected by him in naturalization cases up to $3,000 in any fiscal year and to account to the Government for the remaining one-half of such natu*104ralization fee. In apt language, it excepted these fees from the limitations of sections 2687 and 839 and gave one-half of them to the clerk without qualification.

A comparison of section 13 of the act of 1906 and section 839 shows that Congress did provide a complete rule for naturalization fees payable under the act. Section 839 limits the fees to $3,500 for any one year or not exceeding that rate for any time less than a year. Section 13 of the act of 1906 authorizes the clerk to retain one-half of the fees in each naturalization case, and by a proviso limits the amount he may retain to one-half the fees *in any fiscal year up to $3,000.*

When one-half of the specified fees earned in any fiscal year up to $3,000 is granted, a prior statute limiting the collection of general fees to $3,500 a year or at a pro rata rate for less than the whole year can not be given any force. It is repealed *pro tanto.*It would be an absurdity to say that fees given for the fiscal year can be limited by a prior statute to one-twelfth or one-sixth of such year. The act of 1906 and sections 2687 and 839 are in direct conflict, and what is directly given for twelve months by a statute establishing a complete rule on the subject, can not be limited to one month by a prior statute. To do so would deprive Congress of its right to repeal, alter, and amend the law.

The use of the words “in each case,” shows that it was the intention of Congress that the fee should be treated as earned in each case when the services were rendered. If there could be any doubt of the effect of this language, it is made certain by the proviso.

The office of a proviso is either to except something from the enacting clause or to qualify or restrain its generality or to exclude some possible misinterpretation of it as extending to cases not intended by the legislature to be brought within its purview. *Minis*v. *United States,*15 Pet. 423; *White*v. *United States,*191 U. S., 545.

This proviso authorizes the clerks in naturalization proceedings to retain one-half of the fees in any fiscal year, “ *up to*” the sum of $3,000 and requires that all fees received by *105them “ *in excess*” of such amount shall be accounted for, and paid over to the United States. The clerk is entitled to retain one-half of the fees in any fiscal year, and he is entitled to retain them as they are received until they aggregate $3,000 or *“*up to $3,000.”

He is required to account for and pay over all fees *“in excess*” of this amount but until he has collected more than $3,000, he has no *“ excess*”and it conclusively follows that until he has an *“ excess*” the fees whenever collected, legally belong to him, and he does not have to account for them.

There is no provision in the act of 1906 requiring the clerk to account for his part of the fees. He is only required to account for the half due the United States and any excess over $3,000 of the fees authorized to be retained by him in any fiscal year. If it had been the intention of Congress to pro rate the fees for any time less than a year, it not only would have said so but would have required the clerk to acoount for all fees at certain definite periods and to pay the excess, over the amount due the clerk for such limited period, to the Government. In other words, if it was the intention of Congress to reduce the fees to the terms of salary, it would have required an accounting from the clerk at stated intervals, but Congress required no account whatever for the clerk’s half of the .fees but on the contrary expressly authorized him to retain such fees up to $3,000 in any fiscal year.

This construction of the act of 1906 is in accordance with the decision of the Supreme Court construing the naturalization laws prior to that act. *United States*v. Mason, 118 U. S., 517.

The cycle of time has brought before this court the same question decided by Judge Story in a case originating over eighty years ago. *United States*v. Pearce, 2 Sumner, 575.

*Mr. Philip G.*Walker, with whom was *Mr. Assistant Attorney General Huston*Thompson, opposed.

*106Barney, Judge,

delivered the opinion of the court:

This is a suit brought by the clerk of a Federal court for additional compensation in naturalization proceedings. The claimant was clerk of the Circuit Court of the United States for the District of Massachusetts from July 1, 1911, to December 31, 1911, a period of six months, and during that time collected fees in naturalization proceedings amounting to $6,151, of which he retained $3,000 and transmitted the balance to the Department of Commerce and Labor. He was advised by the department that he was not entitled to retain $3,000, but only his pro rata share of the yearly maximum for the period covered, which was $1,500, and was called upon to pay over to the department the additional $1,500 which he had retained, and which he afterwards did under protest.

The Circuit Court for the District of Massachusetts was abolished by the act of March 3, 1911, 36 Stat., 1087, and the District Court of Massachusetts established in its place. The plaintiff was made clerk of the new court thus established, so that there was no break in his services as clerk of what was in reality the same court from the date of his appointment as clerk of the said Circuit Court until the bringing of this suit.

The question presented in this case is whether under the statutes hereinafter quoted the claimant is entitled to the full maximum sum allowed for fees collected in naturalization proceedings in any one fiscal year received during six months of such year if the amount received is more than double the amount so retained. The decision of this question will depend upon the construction of the following statutes. Section 13 of the act of June 29,1906, 34 Stat., 600, after prescribing certain fees which the clerk of the court must charge, collect, and account for in naturalization proceedings, provides as follows:

> “The clerk of any court collecting such fees is hereby authorized to retain one-half of the fees collected by him in such naturalization proceeding; the remaining one-half of the naturalization fees in each case collected by such clerks, respectively, shall be accounted for in their quarterly *107accounts, which they are hereby required to render the Bureau of Immigration and Naturalization, and paid oyer to such bureau within 30 days from the close of each quarter in each and every fiscal year, and the moneys so received shall be paid over to the disbursing clerk of the Department of Commerce and Labor, who shall thereupon deposit them in the Treasury of the United States, rendering an account therefor quarterly to the Auditor for the State and Other Departments, and the said disbursing clerk shall be held responsible under his bond for said fees so received.

> * * * * *

> “ Provided, That the clerks of courts exercising jurisdiction in naturalization proceedings shall be permitted to retain one-half of the fees in any fiscal year up to the sum of $3,000, and that all fees received by such clerks in naturalization proceedings in excess of such amount shall be accounted for and paid over to said bureau as in case of other fees to which the United States may be entitled under the provisions of this act. The clerks of the various courts exercising jurisdiction in naturalization proceedings shall pay all additional clerical force that may be required in performing the duties imposed by this act upon the clerks of courts from fees received by such clerks in naturalization proceedings. And in case the clerk of any court collects fees in excess of the sum of $6,000 in any one year, the Secretary of Commerce and Labor may allow to such clerk from the money which the United States shall receive additional compensation for the employment of additional clerical assistance, but for no other purpose, if in the opinion of the said Secretary the business of such clerk warrants such allowance.”

Section 2687 of the Revised Statutes is as follows:

> “ Sec. 2687. Collectors and all other officers of the customs serving for a less period than a year shall not be paid for the entire year, but shall be allowed in no case a greater than a pro rata of the maximum compensation of such officers, respectively, for the time only which they actually serve as such collectors or officers, whether the same be under one or more appointments, or before or after confirmation. And no collector or other officer shall in any case receive for his services, either as fees, salary, fines, penalties, forfeitures, or otherwise, for the time he may be in service, beyond the maximum pro rata rate provided by lawr. And this section shall be applied and enforced in regard to all officers, agents, and employees of the United States whomsoever, as well as *108those whose compensation is determined by a commission on disbursements not to exceed an annual maximum, as those paid by salary or otherwise.”

If our decision depended upon the construction of the act of June 29, 1906, standing alone, we should be reluctant to allow the claim of the plaintiff.’ It is therein provided that the “ clerks of courts exercising jurisdiction in naturalization proceedings shall be permitted to retain one-half of the fees *in any fiscal year*up to the sum of $3,000,” etc. It is clear from this language that Congress only intended an allowance of $3,000 out of naturalization fees received by clerks of courts for the full term of one year. Difficulty, however, might arise in giving practical construction to this intention when there were several incumbents of the office in any one fiscal year. That question is not considered or decided by the court, as it is not necessary for the decision of this suit to construe that statute as standing alone, for it is believed that the section of the Revised Statutes quoted puts this question beyond controversy.

If section 2687 R. S. is construed in connection with the act of June 29, 1906, it is not and can not be contended that the plaintiff was entitled to retain from the naturalization fees received by him more than his pro rata share for the whole year during which such fees were received. It is contended, however, by the plaintiff that the latter act is a special one, being a comprehensive statute, as its title shows, providing for all naturalization proceedings, and for that reason should not be construed in connection with any other statute.

It may be well said in reply to this contention that section 2687, Revised Statutes, is equally special and comprehensive and in specific terms applies to “ all officers, agents, and employees of the United States whomsoever.” The act of June 29, 1906, was passed with presumptive knowledge of the existence of section 2687 R. S., and under well-settled rules of the construction of statutes both must be given force and effect if the latter act is not inconsistent with the former. In this connection we quote from *Sutherland on Statutory Construction:*

> *109“ Sec. 287. The legislature are presumed to know existing statutes, and the state of the law, relating to the subjects with which they deal. Hence, that they would expressly abrogate any prior statutes which are intended to be repealed by new legislation. Where there is no express repeal none is deemed to be intended, unless there is such an inconsistency as precludes this assumption; then it yields only to the extent of the conflict. Eegard must be had to all the parts of a statute, and to the other concurrent legislation *in pari materia;*and the whole should, if possible, be made to harmonize.”

> * * # * *

> “ Sec. 288. Where enactments separately made are read *m pan*materia, they are treated as having formed in the minds of the enacting body parts of a connected whole, though considered by such body at different dates and under distinct and varied aspects or the common subject.”

We see nothing inconsistent in these two statutes, and if both are given force and effect we do not see how the claim of the plaintiff can be sustained. It might be here noted that section 2687 E. S. was held applicable to consuls in the following cases: *Marston*v. *United States,*71 Fed. Rep., 496; *Mahin*v. *United States,*41 C. Cls., 1.

The plaintiff relies much upon the decision of the United States Circuit Court in the case of *United States*v. *Pearce,*2 Sumner, 575. That was a suit involving the right to fees of the collector of customs and the statute considered was radically different from the act of June 29, 1906. But as this suit is not decided upon the latter statute alone it is not necessary to consider this difference, but only call attention to the fact that section 2687 E. S. was not in force at the time of the decision of that case, that suit arising in 1829 and section 2687 E. S. becoming a law February 11, 1846. We are also referred by the plaintiff to the case of *United States*v. *Hill,*120 U. S., 169, as sustaining his position that section 2687 has no application in this case. The only question presented there was whether at that time (1879-1885) the fees received by the clerks of United States district courts in naturalization proceedings should be accounted for by him in making up his returns. It was held that under the law at that time such accounting was not required and that such fees belonged to him. It might be noted that the de*110cisión in that case was based largely on the fact that for more than 40 years the clerks of United States district courts in Massachusetts had charged such fees (although no fees for such services were provided for by statute) and had never accounted for the same, which fact was well known by the judges who certified to the correctness of the returns of such clerks. The following paragraph from the opinion of the lower court in that case, and quoted with approval by the Supreme Court, is very significant in this case:

> “ It was stated at the bar that,a bill was introduced in the last Congress to require the clerks to make returns on all fees which they should receive' for naturalizations and as commissioners, but failed to become a law. If a change in the' practice should be thought desirable, it is obvious that it should be made by Congress and not by the courts.”

Section 2687 was not discussed or even mentioned in the learned opinion, for the evident reason that it had no application whatever.

Since that case was decided Congress has made provision regarding the fees of clerks of courts in naturalization proceedings, and it is that statute and its relation to other laws that we are here construing.

We see no force in the contention of the plaintiff that there was any trust relation existing between the parties as to the fund which the Secretary of Labor might allow the plaintiff for additional clerical services in case his fees collected should exceed $6,000. If the Secretary was of the opinion that the clerk needed such additional clerical services he could make an additional allowance to him for that purpose. The clerk employed the parties who rendered these clerical services and paid for them out of the fees received by him. It was simply a matter of bookkeeping between him and the Secretary of Labor. We might add in this connection that no evidence was presented in this case as to any difference between the plaintiff and the Secretary of Labor upon the question of pay for additional clerical services.

It follows from the foregoing that the motion of the plaintiff for a new trial should be denied.