Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1893-10-12
A QUESTION OF FEES.
in Important Ruling by Judge BlriCh
This Morning.
Ills Honor Susiains the Demurrer TO
Complaint, Which is Dismisscd.-
Judge Judd Excepis.


Ion ia the case Of the United States
u America, plaintiff, VI Henry G.
Mcmillan, John J. Daily and worden
y. Noble, defendants, argued ami sub.
mittod recently.
II was an action brought against the
defendant Mcmillan aud his surotios
on his bond AZ clerk Of the Third die.
ttici cour', and b. was alleged that he
had failed to make returns Of certain
moneys received by him ~ emolu.
ments Of his Office from June Bth to
December 3lst, 1859. The complaint
stated that between those dates Mir.
MCMILLAN, as clerk, collected and re-
ceivod from different sources az fees
aud emolumentB OF his tflice the fum
u s7iis7j, Of which s0sS.9O was r.
cc.vri Ia United States business,
5S776 Tor declarations oi intention aud
naturalization, and S2Gl2sO from
private persons in civil litigation, and
from this Territory VI UIah On account
OF territorial business.
The point that arose In the case was
on "a demurrer 10 thr complaint, on the
/ ground that neither Of the oOunts stated
iacis tullgiurt 10 constitute q cause Of
/ action. ile question, said his Honor,
/ wac as 10 whether tue defendant clerk
/ was compelled under the law OF the
! United States 10 make returns OF Ter.
| rilOrial umulumunta that are received
| from Territorial business anu from
naturalization. The plainllti claimed
| that under the law hu was required %
| make these returns, aud the defendant
| denied that he was 10 required under
| the statute, This required cOustruc-
| ton Of the act relating 10 fees Tor these
| on cere, anu whether that act applied 30
| Territorial business. Tue act 10 rOgu-
/ late fees aud costs 10 be allowed clerks,
! mafshzls anu attorneys ~ the circuit
ana district courts OF the United States
| was passed February 26lh, 1853, and
provides "rhat In lieu Of the compcn.
satiOn now allowed by law 10 Attor.
| neys, solicitors and proctors iu thu
/ United States oourts, 10 United States
/ district attorney, clerks OF the district
| and circuit courts, marshall, witnesses,
| JUROR, commissioners and printers, In
| the several states, the following and no
/ other shall be taxed ami allowed"
And then fOllOwed a specification OF
| Ices TO be allowed in the conduct Of
| the busineiH.
Ia this act, remarked tho court, the
| territories were not Included, anu its
| provisions did not apply 10 clerks Of
territorial courts, but only 10 clerks OF
| the circuit hnd district courts VI
the several states OF the United
States. There was no alluaiOn whatever
/ Ia any Of IT, provisions 10 territorial,
/ civil or criminal business, nor was
there any reference 10 naturalization
Of aliens. The act was passed 10 rrgu.
late tho fees for United states buoincss
IN the several states, aud there could be
no question that..no reference whatever
having been made 70 the territories or
/ officers OF the terdtOrles-that ut the
time Of its passage Il was not Intended
10 apply 10 these territories.
The law no continued without refer.
encr 10 the territories until March 3rd,
| 1866, wnen it was enacted "rhAt the
/ provisions Of the act OF February
/ twenty-slx, eighteen hundred and
fuy.threc, to regulate the fees ana
UOsts to be allowed clerks, marshals
and attorneys OF the circuit
aud district courts Of this
| United states, ami for other pur.
poses, are hereby extended to the ter
rltories OF Minnesota, New Mexico and
Utah, Ms fully, In nil particulars, as
they would DO had the word terri.
| tories boon In ierted IN tho sixth line
1 after the word 'statos' aud the same
| had read in the several states and In
| the territories OF the United Slstos.'
/ This clause TO take effect from aud
after the date OF said act, aud the Ao.
counting officers will settle the Ao.
counts within its puryiew according
ly."
10 seemed clear, then, his Honor
| went on % say, that up to this time the
| clerks OF the territorial cOuTta were not
required to report the fees in question.
| The Supreme Court OF the United
states, Ia tho ease OF the United States
VI Hin, expressly held that the act did
not apply TO naturalization cases,
aud tnRt the clerks need not
make returns Of their fees TO.
| celvud In that class OF cases.
This was for tho district Of Massachu.
selts, but the same ruling would also
apply 10 the territories Vi the United
| states.
The section upon which counsel for
| defendants relied, or that art which IL
] ANA INllt hNANf lAhNAhNA AAAk AhN NltNh
shall, eat lhe time OF making his half.
| yearly return W tue attorney general,
| lay into the treasury or deposit 10 the
| Cfg DIT u tho treasurer, US he may be
directed 10y the attorney general, any
| purpiu, Il the Ices aud omniuments VI
| hiHutiil1, wulch said return showed 10
oXist over .. 4 above ,he compensation
and allowances authorized ny law 10
| ba retained by hiB." This section
would be broad enough 20 include all
! fpOs OF tie tl9Ik 1.-THE law lusI referred
10 applied 70 Janitorial business and
naturalization.
Counsel .or plgintii claimed that
| there was conflict between the Gaze
| VI the United States vs. I'm and that
| Of the United States w A veTill, which
was found r. 1870 US, 885. Ills honor
| had examined the original papers In
| the latter case and inuni that that was
An action brought against CLERK Avefill
| Tor fees due 90 tie United States. There
| was no reference whatever In the com
plaint TO Territorial fees or TO natural.
| iz.tion fec, anu under the ruling IN
that case it was certainly very clear
In view OF the pleadings that the clerk
must account fotsuch fees. Comparing
the two decisions (Which were written
by the samn iugtiCe) he could see no
conflict. In the former case the ques-
tlon was raised as 10 naturalization ices,
| which were not included in tue lee bill