A-26539, APRIL 29, 1929, 8 COMP. GEN. 567

A-26539: Apr 29, 1929

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ARE NOT AUTHORIZED TO RETAIN FOR THEIR OWN USE ANY PART OF SUCH FEES. THE PRACTICE HERETOFORE PREVAILING OF ALLOWING THEM TO RETAIN ONE-HALF OF SUCH FEES WILL BE DISCONTINUED AND SAID CLERKS REQUIRED TO ACCOUNT FOR THAT PORTION OF THE FEES RETAINED BY THEM THE SAME AS OTHER FEES COLLECTED AND USED BY THEM FOR THE NECESSARY EXPENSES OF THEIR OFFICE UNDER THE PROVISIONS OF THE ACT OF JUNE 6. ANY BALANCE REMAINING IN HIS HANDS AFTER ALL PAYMENTS ORDERED BY THE COURT SHALL HAVE BEEN MADE SHALL BE BY HIM COVERED INTO THE TREASURY OF THE UNITED STATES AT SUCH TIMES AND UNDER SUCH RULES AND REGULATIONS AS THE SECRETARY OF THE TREASURY MAY PRESCRIBE. AS OTHER COURT EXPENSES ARE PAID. THE SALARIES OF THESE CLERKS WERE INCREASED BY THE ACT OF FEBRUARY 27.

A-26539, APRIL 29, 1929, 8 COMP. GEN. 567

NATURALIZATION FEES - CLERKS OF UNITED STATES DISTRICT COURTS IN ALASKA UNDER THE ACT OF JUNE 29, 1906 (34 STAT. 600), AUTHORIZING CLERKS OF COURTS TO RETAIN ONE-HALF OF THE FEES COLLECTED BY THEM IN NATURALIZATION CASES, THE CLERKS OF THE UNITED STATES DISTRICT COURTS IN ALASKA, BEING PAID THEIR COMPENSATION ON A SALARY BASIS AT RATES FIXED BY LAW, ARE NOT AUTHORIZED TO RETAIN FOR THEIR OWN USE ANY PART OF SUCH FEES, AND THE PRACTICE HERETOFORE PREVAILING OF ALLOWING THEM TO RETAIN ONE-HALF OF SUCH FEES WILL BE DISCONTINUED AND SAID CLERKS REQUIRED TO ACCOUNT FOR THAT PORTION OF THE FEES RETAINED BY THEM THE SAME AS OTHER FEES COLLECTED AND USED BY THEM FOR THE NECESSARY EXPENSES OF THEIR OFFICE UNDER THE PROVISIONS OF THE ACT OF JUNE 6, 1900 (31 STAT. 325).

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, APRIL 29, 1929:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF NOVEMBER 12, 1928, WITH INCLOSURE OF AN EXCERPT FROM THE REPORT OF AN EXAMINER OF THE DEPARTMENT OF JUSTICE ON THE OFFICE OF THE DISTRICT COURT OF THE UNITED STATES FOR THE FIRST DISTRICT OF ALASKA, RELATING IN PARTICULAR TO THE CLERK RETAINING FOR HIS OWN USE ONE-HALF OF THE NATURALIZATION FEES COLLECTED BY HIS OFFICE. YOU SUGGEST THAT THE ACCOUNTS REFERRED TO BY THE EXAMINER BE REOPENED AND THE CLERK RECHARGED WITH SUCH ITEMS RELATING TO NATURALIZATION MATTERS AS MAY, IN THE OPINION OF THIS OFFICE, WARRANT SUCH ACTION.

THE ACT OF JUNE 6, 1900, 31 STAT. 325, FIXED THE SALARY OF CLERKS OF THE DISTRICT COURTS OF ALASKA AT $3,500 EACH PER ANNUM, AND PROVIDED THAT:

EACH CLERK SHALL COLLECT ALL MONEY ARISING FROM THE FEES OF HIS OFFICE OR ON ANY OTHER ACCOUNT AUTHORIZED BY LAW TO BE PAID TO OR COLLECTED BY HIM, AND SHALL REPORT THE SAME AND THE DISPOSITION THEREOF IN DETAIL, UNDER OATH, QUARTERLY, OR MORE FREQUENTLY IF REQUIRED, TO THE COURT, THE ATTORNEY GENERAL, AND THE SECRETARY OF THE TREASURY, AND ALL PUBLIC MONEY RECEIVED BY HIM AND HIS DEPUTIES FOR FEES OR ON ANY OTHER ACCOUNT SHALL BE PAID OUT BY THE CLERK ON THE ORDER OF THE COURT, DULY MADE AND SIGNED BY THE JUDGE, AND ANY BALANCE REMAINING IN HIS HANDS AFTER ALL PAYMENTS ORDERED BY THE COURT SHALL HAVE BEEN MADE SHALL BE BY HIM COVERED INTO THE TREASURY OF THE UNITED STATES AT SUCH TIMES AND UNDER SUCH RULES AND REGULATIONS AS THE SECRETARY OF THE TREASURY MAY PRESCRIBE. THE CLERK MAY EMPLOY NECESSARY CLERICAL HELP WITH THE APPROVAL AND AT COMPENSATION TO BE FIXED BY THE COURT TO AID HIM IN THE EXPEDITIOUS DISCHARGE OF THE BUSINESS OF HIS OFFICE. ANY PERSON SO EMPLOYED SHALL BE PAID BY THE CLERK ON THE ORDER OF THE COURT, AS OTHER COURT EXPENSES ARE PAID.

THE SALARIES OF THESE CLERKS WERE INCREASED BY THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1029, TO $3,800 EACH, AND WERE FURTHER INCREASED PURSUANT TO THE WELCH ACT OF MAY 28, 1928, 45 STAT. 776, TO $4,000 EACH.

THE CLERKS OF UNITED STATES DISTRICT COURTS IN CONTINENTAL UNITED STATES IN 1900 WERE ON A FEE BASIS BUT THEY WERE PLACED ON A SALARY BASIS BY THE ACT OF FEBRUARY 26, 1919, 40 STAT. 1182, WITH A PROVISION IN SECTION 9:

THAT THE CLERK OF EVERY DISTRICT COURT, EXCEPT THE CLERKS OF THE DISTRICT COURTS OF ALASKA, SHALL ACCOUNT QUARTERLY FOR ALL THE FEES AND EMOLUMENTS EARNED DURING THE QUARTER LAST PRECEDING SUCH ACCOUNTING, EXCEPT WHERE THE PERSON REQUIRING THE SERVICES IS RELIEVED BY LAW FROM PREPAYMENT OF FEES AND COSTS, AND FOR ALL FEES AND EMOLUMENTS RECEIVED WITHIN THE QUARTER WHICH HAVE BEEN EARNED PRIOR THERETO. SUCH ACCOUNTING SHALL BE IN WRITING AND SHALL BE MADE TO THE ATTORNEY GENERAL, IN SUCH FORM AS HE MAY PRESCRIBE, ON THE FIRST DAYS OF JANUARY, APRIL, JULY, AND OCTOBER IN EACH YEAR, OR WITHIN TWENTY DAYS THEREAFTER, AND SHALL INCLUDE ALL MONEYS RECEIVED IN CONNECTION WITH THE ADMISSION OF ATTORNEYS TO PRACTICE IN THE COURT, ALL THAT PORTION RETAINED BY THE CLERK OF MONEYS RECEIVED FOR SERVICES IN NATURALIZATION PROCEEDINGS IN WHATEVER CAPACITY RENDERED, AND ALL OTHER AMOUNTS RECEIVED FOR SERVICES IN ANY WAY CONNECTED WITH THE CLERK'S OFFICE. * * * IMMEDIATELY UPON RECEIPT OF NOTICE FROM THE AUDITOR, OR WITHIN TEN DAYS THEREAFTER, THE CLERK SHALL DEPOSIT TO THE CREDIT OF THE TREASURER OF THE UNITED STATES THE AMOUNT SO STATED AGAINST HIM.

THERE IS CLEARLY AN EXPRESSED INTENTION IN THE ACT LAST QUOTED NOT TO DISTURB THE PROCEDURE PROVIDED FOR AND ADOPTED UNDER THE ACT OF JUNE 6, 1900, SUPRA, IN SO FAR AS THE CLERKS OF THE UNITED STATES DISTRICT COURTS IN ALASKA WERE AUTHORIZED TO USE SUCH PART OF THE FEES COLLECTED BY THEM AS MAY BE DIRECTED BY THE COURT IN PAYMENT OF AUTHORIZED EXPENSES. UNDER THE PROVISIONS OF SAID ACT, THEY ARE PERMITTED TO USE A PART OF THE FEES IN PAYMENT OF AUTHORIZED EXPENSES OF THEIR OFFICES INSTEAD OF DEPOSITING THE FULL AMOUNT IN THE TREASURY OF THE UNITED STATES AS IS REQUIRED OF CLERKS OF THE UNITED STATES DISTRICT COURTS IN THE UNITED STATES BY THE ACT OF 1919, BUT UNDER THE ACT OF 1900 THERE IS NO AUTHORITY FOR A CLERK OF A UNITED STATES DISTRICT COURT IN ALASKA TO RETAIN FOR HIS OWN USE ANY PART OF THE FEES COLLECTED BY HIS OFFICE ON ACCOUNT OF NATURALIZATION CASES, OR OTHERWISE.

THE ACT OF JUNE 29, 1906, 34 STAT. 600, PROVIDED THAT CLERKS OF COURTS EXERCISING JURISDICTION IN NATURALIZATION CASES SHALL CHARGE, COLLECT, AND ACCOUNT FOR A FEE OF $1 FOR RECEIVING AND FILING A DECLARATION OF INTENTION AND ISSUING A DUPLICATE THEREOF AND $2 FOR MAKING, FILING AND DOCKETING THE PETITION OF ANY ALIEN FOR ADMISSION AS A CITIZEN OF THE UNITED STATES, AND FOR THE FINAL HEARING THEREON, AND $2 FOR ENTERING THE FINAL ORDER AND THE ISSUANCE OF THE CERTIFICATE OF CITIZENSHIP WITH THE PROVISION THAT:

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 ACCOUNTS, WHICH THEY ARE HEREBY REQUIRED TO RENDER THE BUREAU OF IMMIGRATION AND NATURALIZATION AND PAID OVER TO SUCH BUREAU WITHIN THIRTY 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 (NOW THE DEPARTMENT OF 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 (NOW THE GENERAL ACCOUNTING OFFICE), AND THE SAID DISBURSING CLERK SHALL BE HELD RESPONSIBLE UNDER HIS BOND FOR SAID FEES SO RECEIVED.

IN THE CARRYING OUT OF THE PROVISIONS OF THIS LAW, IT APPEARS THAT IN ALASKA WHERE THE CLERKS OF UNITED STATES COURTS WERE ON A SALARY BASIS, THERE AROSE THE PRACTICE OF THE CLERKS RETAINING FOR THEIR OWN USE ONE- HALF OF THE NATURALIZATION FEES COLLECTED, THE SAME AS WAS THE PRACTICE IN CONTINENTAL UNITED STATES WHERE THE COMPENSATION OF CLERKS OF UNITED STATES COURTS WAS ON A FEE BASIS. THE LANGUAGE USED IN THE PORTION OF THE NATURALIZATION ACT OF 1906, QUOTED ABOVE, PROVIDES IN SPECIFIC TERMS THAT THE CLERK OF ANY COURT COLLECTING SUCH FEES IS AUTHORIZED TO RETAIN ONE- HALF OF THE FEES COLLECTED BY HIM FOR NATURALIZATION PROCEEDINGS, AND, ALTHOUGH THE ENACTMENT IS NOT SPECIFIC IN THAT RESPECT, IN SO FAR AS CLERKS OF THE UNITED STATES COURTS ARE CONCERNED, IT WAS EVIDENTLY INTENDED TO BE CONSTRUED AS APPLYING PRIMARILY TO CLERKS WHOSE COMPENSATION WAS ON A FEE BASIS. THAT SUCH WAS THE INTENDMENT OF THE LAW IS BORNE OUT BY THE PROVISIONS OF THE LATER ACT OF 1919, SUPRA, IN WHICH THE CLERKS OF UNITED STATES DISTRICT COURTS ARE REQUIRED TO TURN OVER OR DEPOSIT ALL FEES COLLECTED BY THEM, INCLUDING NATURALIZATION FEES, AFTER SAID CLERKS HAD BEEN PLACED BY THE SAME ACT ON A SALARY BASIS INSTEAD OF RECEIVING THEIR COMPENSATION ON A FEE BASIS AS THERETOFORE. IN CONNECTION WITH CLERKS OF THE UNITED STATES DISTRICT COURTS IN ALASKA, THE LAW OF 1906 MUST BE UNDERSTOOD AND CONSTRUED AS PLACING THAT PORTION OF NATURALIZATION FEES RETAINED BY THEM ON THE SAME FOOTING AS OTHER FEES COLLECTED BY THEM. THAT IS TO SAY, THEY COULD USE SUCH PORTION OF THE FEES RETAINED BY THEM, ALONG WITH OTHER FEES COLLECTED BY THEM, FOR PAYMENT OF NECESSARY EXPENSES OF THEIR OFFICES AS AUTHORIZED BY ORDER OF THE COURT AS PROVIDED BY THE ACT OF 1900, SUPRA, BUT THERE APPEARS TO HAVE BEEN NO AUTHORITY FOR THEM TO RETAIN FOR THEIR OWN USE ANY PART OF SUCH FEES. TO HOLD OTHERWISE WOULD ALLOW CLERKS OF THE UNITED STATES DISTRICT COURTS IN ALASKA TO SUPPLEMENT AND INCREASE THEIR SALARIES IN EXCESS OF THE RATES OTHERWISE FIXED BY LAW CONTRARY TO THE PROVISIONS OF SECTION 1765, REVISED STATUTES, PROHIBITING PAYMENT OF EXTRA COMPENSATION TO EMPLOYEES OF THE GOVERNMENT SERVICE WHOSE SALARIES HAVE BEEN FIXED BY STATUTE UNLESS OTHERWISE SPECIFICALLY PROVIDED BY LAW.

ACCORDINGLY, IN VIEW OF THE FOREGOING, I HAVE TO ADVISE THAT THE CLERKS OF THE UNITED STATES DISTRICT COURTS IN ALASKA ARE NOT ENTITLED TO RETAIN FOR THEIR OWN USE ANY PART OF THE NATURALIZATION FEES COLLECTED BY THEM, AND THAT, HEREAFTER, THE PRACTICE ADOPTED BY THEM OF RETAINING FOR THEIR OWN USE ONE-HALF OF SUCH FEE SHOULD BE DISCONTINUED.

WITH RESPECT TO THE MATTER OF REOPENING SETTLED ACCOUNTS AND RECHARGING TO SUCH CLERKS THE AMOUNTS HERETOFORE RETAINED BY THEM, I HAVE TO ADVISE THAT SINCE THE PRACTICE HAS CONTINUED FOR A NUMBER OF YEARS WITH THE APPARENT SANCTION OF YOUR DEPARTMENT AND OF THE ACCOUNTING OFFICERS, SUCH REOPENING AND RECHARGING IS NOT DEEMED NECESSARY AND PROPER AT THIS TIME, PARTICULARLY SINCE THE COLLECTING OFFICERS APPEAR TO HAVE ACTED IN GOOD FAITH IN THE MATTER AND THERE BEING ROOM FOR REASONABLE DOUBT AS TO THE CORRECT CONSTRUCTION, IN SO FAR AS THEY ARE CONCERNED, OF THE STATUTES OF 1906 AND 1919, CITED AND QUOTED, SUPRA. THEREFORE, IN THE ABSENCE OF ANY FURTHER RECOMMENDATION FROM YOU IN THE MATTER, NO ACTION IN THAT RESPECT WILL BE TAKEN BY THIS OFFICE WITH RESPECT TO ACCOUNTS HERETOFORE SETTLED.