A-17582, APRIL 20, 1927, 6 COMP. GEN. 681

A-17582: Apr 20, 1927

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IS TO BE RETURNED TO THE BOARD ON ACCOUNT OF A MORTGAGE HELD BY THE UNITED STATES ON THE VESSEL. 1927: I HAVE YOUR LETTER OF FEBRUARY 28. ARE TO BE RETURNED OR PAID TO THE SHIPPING BOARD ON ACCOUNT OF MORTGAGES HELD BY IT ON THE VESSEL. THAT ALL LAWS OR PARTS OF LAWS INCONSISTENT OR REPUGNANT TO THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED. THE QUESTION PRESENTED IS WHETHER THE SERVICES RENDERED BY THE CLERK IN RECEIVING. PAYING OUT THE MONEY PAID BY THE UNITED STATES SHIPPING BOARD AS PURCHASE PRICE AND RETURNED TO IT ON ACCOUNT OF A MORTGAGE HELD BY THE UNITED STATES UPON THE SHIP ARE SERVICES RENDERED "ON BEHALF OF THE UNITED STATES. THERE IS QUOTED IN YOUR LETTER PART OF A LETTER FROM THE DEPARTMENT OF JUSTICE TO THE CLERK OF THE COURT IN WHICH IT IS STATED THAT THIS CLEARLY INVOLVED MONEY PAID BY AN AGENCY OF THE UNITED STATES AND RETURNED TO SUCH AGENCY.

A-17582, APRIL 20, 1927, 6 COMP. GEN. 681

CLERKS OF UNITED STATES COURTS - FEES ON LIBELED VESSELS UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 11, 1925, 43 STAT. 857, REQUIRING THE COLLECTION OF CERTAIN FEES BY CLERKS OF UNITED STATES COURTS, EXCEPT FOR SERVICES RENDERED ON BEHALF OF THE UNITED STATES, THE FEE OF 1 PERCENT PROVIDED BY PARAGRAPH 8 OF SECTION 8 OF SAID ACT FOR ALL MONEYS RECEIVED, KEPT AND PAID OUT SHOULD BE COLLECTED UPON THE GROSS AMOUNT PAID FOR A VESSEL LIBELED BY PRIVATE PARTIES AND SOLD TO THE UNITED STATES SHIPPING BOARD EVEN THOUGH THE BALANCE OF THE PURCHASE PRICE, AFTER PAYMENT OF COSTS, LIBELANTS' LIENS, ETC., IS TO BE RETURNED TO THE BOARD ON ACCOUNT OF A MORTGAGE HELD BY THE UNITED STATES ON THE VESSEL.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, APRIL 20, 1927:

I HAVE YOUR LETTER OF FEBRUARY 28, 1927, SUBMITTING FOR DECISION A QUESTION AS TO WHETHER IN CONNECTION WITH THE SALE OF THE STEAMSHIP AMERICAN STAR FOR THE SUM OF $86,000 UNDER DECREE OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY TO THE UNITED STATES SHIPPING BOARD, THE CLERK OF THE COURT SHOULD DEDUCT A COMMISSION OF 1 PERCENT FROM THE ENTIRE AMOUNT OF THE PROCEEDS OF SALE, IT APPEARING THAT THE NET PROCEEDS, AFTER PAYMENT OF PRIOR LIENS AMOUNTING TO APPROXIMATELY $10,000, ARE TO BE RETURNED OR PAID TO THE SHIPPING BOARD ON ACCOUNT OF MORTGAGES HELD BY IT ON THE VESSEL.

THE ACT OF FEBRUARY 11, 1925, 43 STAT. 867, PROVIDES:

THAT THE FEES HEREINAFTER PROVIDED FOR, AND NO OTHER, SHALL BE CHARGED AND COLLECTED BY CLERKS OF THE DISTRICT COURTS OF THE UNITED STATES FOR SERVICES PERFORMED BY THEM OR THEIR ASSISTANTS: PROVIDED, THAT ALL LAWS OR PARTS OF LAWS INCONSISTENT OR REPUGNANT TO THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED; * * * PROVIDED FURTHER, THAT THE UNITED STATES SHALL NOT BE REQUIRED TO PAY ANY SUM OR FEE HEREIN PROVIDED FOR.

SEC. 8. THAT IN ADDITION TO THE FEES FOR SERVICES RENDERED IN CASES HEREINBEFORE ENUMERATED, THE CLERK SHALL CHARGE AND COLLECT, FOR MISCELLANEOUS SERVICES PERFORMED BY HIM, AND HIS ASSISTANTS, EXCEPT WHEN ON BEHALF OF THE UNITED STATES, THE FOLLOWING FEES:

8. FOR RECEIVING, KEEPING, AND PAYING OUT MONEY IN PURSUANCE OF ANY STATUTE OR ORDER OF COURT, INCLUDING CASH BAIL IN BONDS OF SECURITIES AUTHORIZED BY LAW TO BE DEPOSITED IN LIEU OF OTHER SECURITY, 1 PERCENTUM OF THE AMOUNT SO RECEIVED, KEPT AND PAID OUT, OR OF THE FACE VALUE OF SUCH BONDS OR SECURITIES.

THE QUESTION PRESENTED IS WHETHER THE SERVICES RENDERED BY THE CLERK IN RECEIVING, KEEPING, AND PAYING OUT THE MONEY PAID BY THE UNITED STATES SHIPPING BOARD AS PURCHASE PRICE AND RETURNED TO IT ON ACCOUNT OF A MORTGAGE HELD BY THE UNITED STATES UPON THE SHIP ARE SERVICES RENDERED "ON BEHALF OF THE UNITED STATES," WITHIN THE MEANING OF THE STATUTE, SUPRA.

THERE IS QUOTED IN YOUR LETTER PART OF A LETTER FROM THE DEPARTMENT OF JUSTICE TO THE CLERK OF THE COURT IN WHICH IT IS STATED THAT THIS CLEARLY INVOLVED MONEY PAID BY AN AGENCY OF THE UNITED STATES AND RETURNED TO SUCH AGENCY, AND IS THEREFORE NOT SUBJECT TO A DEDUCTION OF THE 1 PERCENT FEE, BUT THAT THE TRANSACTION SHOULD BE TREATED AS ANY OTHER SERVICE RENDERED THE UNITED STATES, THE MATTER TO BE HANDLED AS A CONSTRUCTIVE CHARGE ONLY, ON THE CLERK'S RECORDS. ON THE OTHER HAND, THE CLERK OF THE COURT STATES THAT THE PURCHASER, AS DISCLOSED BY THE MARSHAL'S SALE AND THE ORDER CONFIRMING THE SAME, WAS THE UNITED STATES SHIPPING BOARD BY R. W. MALONE, MANAGER OF SHIPPING SALES, AND THAT THE OWNER OF THE PREFERRED MORTGAGE UPON THE SHIP WAS THE UNITED STATES OF AMERICA. HE CONTENDS THAT WHILE NO DEDUCTIONS OF THE COMMISSION OF 1 PERCENT HAVE EVER BEEN MADE FOR MONEYS PAID INTO COURT BY THE GOVERNMENT FOR THE PURCHASE OF POST OFFICE SITES, CONDEMNATION OF LANDS FOR MILITARY PURPOSES, FINES, ETC., PAID INTO COURT FOR THE USE OF THE UNITED STATES, THESE BEING TREATED AS CONSTRUCTIVE FEES ONLY, THE PRACTICE HAS BEEN SINCE 1883, OR PRIOR THERETO, ON INFORMATION FOR FORFEITURE CASES, TO CHARGE THE COMMISSION OF 1 PERCENT ON THE PROCEEDS OF SALE, THESE CASES BEING THOSE IN WHICH THE UNITED STATES HAS FILED LIBELS ON INFORMATION FOR FORFEITURES.

IN 5 COMP. GEN. 458, THIS OFFICE HELD THAT ACTUAL COSTS, SUCH AS EXPENSES INCURRED BY THE UNITED STATES MARSHALS AND FEES EARNED BY MARSHALS OR CLERKS OF THE UNITED STATES COURTS INCIDENT TO THE SEIZURE AND FORFEITURE OF AN AUTOMOBILE TURNED OVER TO THE TREASURY DEPARTMENT UNDER THE PROVISIONS OF THE ACT OF MARCH 3, 1925, 43 STAT. 1116, ARE CHARGEABLE TO THE APPROPRIATION FOR THE ENFORCEMENT OF THE NATIONAL PROHIBITION ACT. THE QUESTION INVOLVED IN THAT DECISION WAS WHETHER FEES EARNED COULD BE CONSTRUED AS ACTUAL COSTS WITHIN THE MEANING OF THE ACT OF MARCH 3, 1925, AUTHORIZING THE DELIVERY OF THE SEIZED AND FORFEITED AUTOMOBILE TO THE TREASURY DEPARTMENT IN LIEU OF THE SALE THEREOF UNDER EXISTING LAW, AND AS TO SUCH CASES IT WAS HELD THAT SUCH FEES SHOULD BE CHARGED AGAINST SUCH VESSEL OR VEHICLE, THE OFFICERS OF THE COURT TO RECEIVE CREDIT THEREFOR AND THE INTERNAL REVENUE APPROPRIATION TO BEAR SUCH EXPENSES.

THERE IS NO ROOM FOR DOUBT IN THE PRESENT CASE THAT THE MONEY PAID BY THE UNITED STATES SHIPPING BOARD AS PURCHASE PRICE FOR THE VESSEL WAS MONEY OF THE UNITED STATES. THAT FACT, HOWEVER, IS NOT A CONTROLLING FACTOR IN THE CONSIDERATION OF THE MATTER INVOLVED. THE CONTROLLING FACTOR IS THE NATURE OF THE SUIT AND THE ORDER OF THE COURT PURSUANT TO WHICH THE SALE OF THE SHIP WAS MADE. FROM THE FACTS DISCLOSED IN THE SUBMISSION IT APPEARS THAT THE SUIT WAS AN ACTION IN ADMIRALTY BY PRIVATE LIBELANTS AGAINST A PRIVATELY-OWNED VESSEL AND THAT THE SALE WAS DECREED PRIMARILY FOR THE PURPOSE OF SATISFYING THE CLAIMS OF THE LIBELANTS. IF NOTHING MORE WERE SHOWN AND THE MONEY DERIVED FROM THE SALE WERE TO BE PAID TO THE LIBELEE AFTER THE PAYMENT OF LIBELANTS' CLAIMS, OTHER MINOR LIENS, FINES, COSTS, ETC., THERE WOULD BE NO QUESTION THAT THE CLERK OF THE COURT WOULD BE ENTITLED TO THE 1 PERCENT FEE PROVIDED BY THE ACT OF FEBRUARY 11, 1925, SUPRA, UPON THE GROSS PROCEEDS OF THE SALE, REGARDLESS OF WHETHER THE PURCHASER WERE THE UNITED STATES, THE SHIPPING BOARD, OR A PRIVATE CORPORATION OR INDIVIDUAL. THE FACT THAT THE UNITED STATES OR THE UNITED STATES SHIPPING BOARD HELD CERTAIN MORTGAGES ON THE VESSEL WHICH BECAME LIENS AGAINST, AND WERE SATISFIED IN WHOLE OR IN PART FROM, THE PROCEEDS OF SALE, CAN NOT OPERATE TO CHANGE THE NATURE OF THE PROCEEDING FROM THAT OF AN ORDINARY LIBEL IN ADMIRALTY, OR TO AFFECT THE RIGHTS, DUTIES, AND RESPONSIBILITIES OF THE CLERK OF THE COURT WITH RESPECT THERETO. NOR IS THE SITUATION IN THIS REGARD AFFECTED BY THE FACT THAT THE PROCEEDS WERE INSUFFICIENT TO PAY ALL CLAIMS WITH A BALANCE TO BE PAID TO THE LIBELEE. THE CLERK'S COMMISSION CONSTITUTES A CHARGE AGAINST THE PROCEEDS DEDUCTIBLE BEFORE PAYMENT OF THE CLAIMS OF THE LIBELANTS OR OTHERS, THE GOVERNMENT NOT EXCEPTED.

THE MISCELLANEOUS SERVICES PERFORMED BY THE CLERK IN CONNECTION WITH THE MONEY RECEIVED, KEPT, AND PAID OUT INCIDENT TO THE SALE OF THE VESSEL WERE NOT SERVICES PERFORMED ON BEHALF OF THE UNITED STATES WITHIN THE MEANING OF THE ACT OF FEBRUARY 11, 1925. THEY WERE SERVICES PERFORMED IN CONNECTION WITH THE SALE OF A PRIVATELY-OWNED VESSEL AND THE FACT THAT THE BALANCE OF SUCH FUNDS IS TO BE PAID TO AN AGENCY OF THE GOVERNMENT RATHER THAN TO A PRIVATE PARTY DOES NOT ALTER THE CHARACTER OF THE SERVICES.

YOU ARE ACCORDINGLY ADVISED THAT PURSUANT TO PROVISIONS OF PARAGRAPH 8, SECTION 8, OF THE ACT OF FEBRUARY 11, 1925, SUPRA, THE CLERK OF THE COURT SHOULD CHARGE THE 1 PERCENT FEE UPON THE GROSS AMOUNT OF THE PURCHASE PRICE, $86,000, PAID FOR THE STEAMSHIP AMERICAN STAR SOLD TO THE UNITED STATES SHIPPING BOARD PURSUANT TO THE ORDER AND DECREE OF THE COURT, THE AMOUNT OF SUCH FEES THUS COLLECTED TO BE DEPOSITED AND ACCOUNTED FOR BY THE CLERK, AS PROVIDED FOR IN THE ACT OF FEBRUARY 26, 1919, 40 STAT. 1182.