A-41677, MAY 12, 1932, 11 COMP. GEN. 428

A-41677: May 12, 1932

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THE DEPARTMENT IS NOW IN RECEIPT OF A COMMUNICATION FROM THE UNITED STATES ATTORNEY FOR THE WESTERN DISTRICT OF MICHIGAN IN CONNECTION WITH THE TAKING OF A DEPOSITION IN TEXAS FOR USE IN A WAR-RISK INSURANCE CASE PENDING IN MICHIGAN. THE LETTER FROM THE DISTRICT ATTORNEY'S OFFICE AND ALL ENCLOSURES ARE FORWARDED HEREWITH. THE RULE THERE LAID DOWN IS ONE OF CONVENIENCE. THE COURT HAS ASSIGNED NO REASONS FOR HIS CONCLUSION THAT THE STATE STATUTE IS NOT APPLICABLE. THE COURT HAS SUMMARIZED THE VARIOUS OPINIONS AS TO THE LAW GOVERNING THE FEES TO BE PROPERLY TAXED AND REFERENCE IS MADE TO THIS CASE AS OF POSSIBLE ASSISTANCE IN THE MATTER OF AUTHORITIES. YOUR DECISION IS REQUESTED (1) IF THE STATE LAW PROVIDES FOR FEES FOR THE TAKING OF DEPOSITIONS BY DESIGNATED STATE OFFICERS.

A-41677, MAY 12, 1932, 11 COMP. GEN. 428

NOTARIES PUBLIC - COMPENSATION FOR TAKING DEPOSITIONS FOR USE IN FEDERAL COURTS IN THE ABSENCE OF FEDERAL STATUTES FIXING THE FEES AND COMPENSATION OF NOTARIES PUBLIC AND OTHER STATE OFFICIALS FOR SERVICES RENDERED BY THEM IN TAKING DEPOSITIONS FOR USE BY THE GOVERNMENT IN FEDERAL COURTS, THERE APPEARS NO BASIS REQUIRING OR WARRANTING ANY DEPARTURE FROM THE STATED LONG-ESTABLISHED PRACTICE OF ALLOWING THE COMPENSATION PRESCRIBED BY STATE STATUTES FOR SUCH SERVICES.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, MAY 12, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF MARCH 30, 1932, JWG, AS FOLLOWS:

THE DEPARTMENT HAS HAD OCCASION MANY TIMES TO RULE UPON THE FEES TO BE ALLOWED NOTARIES PUBLIC AND OTHER STATE OFFICIALS FOR DEPOSITIONS TAKEN BEFORE THEM FOR USE IN FEDERAL COURTS. IT HAS BEEN THE DEPARTMENT'S PRACTICE FOR A PERIOD OF TWENTY-FIVE YEARS OR MORE TO AUTHORIZE ONLY THE FEES PRESCRIBED BY THE STATE STATUTES FOR SUCH OFFICERS FOR SERVICES RENDERED BY THEM IN THE TAKING OF DEPOSITIONS, THE SINGLE EXCEPTION BEING WHERE THE NOTARY OR OTHER OFFICER UTILIZED THE SERVICES OF A STENOGRAPHER IN THE TAKING AND THE TRANSCRIBING OF THE DEPOSITIONS. IN THE LATTER INSTANCE, REASONABLE ALLOWANCE HAS BEEN MADE FOR STENOGRAPHIC SERVICES.

THE DEPARTMENT IS NOW IN RECEIPT OF A COMMUNICATION FROM THE UNITED STATES ATTORNEY FOR THE WESTERN DISTRICT OF MICHIGAN IN CONNECTION WITH THE TAKING OF A DEPOSITION IN TEXAS FOR USE IN A WAR-RISK INSURANCE CASE PENDING IN MICHIGAN. FOR YOUR BETTER CONSIDERATION OF THE MATTER, THE LETTER FROM THE DISTRICT ATTORNEY'S OFFICE AND ALL ENCLOSURES ARE FORWARDED HEREWITH, CONSISTING OF THE ORIGINAL BILL AND LETTER FROM THE NOTARY, DATED FEBRUARY 24, 1932, THE DEPARTMENT'S AUTHORIZATION OF MARCH 10, 1932, THE VOUCHER PREPARED IN ACCORDANCE WITH SAID AUTHORIZATION, THE NOTARY'S REPLY TO THE DISTRICT ATTORNEY, DATED MARCH 19, 1932, AND A VOUCHER MADE OUT IN ACCORDANCE WITH HIS OWN ESTIMATE OF WHAT THE PROPER CHARGES SHOULD BE. THE NOTARY, AT THE SAME TIME, WROTE TO THE SOLICITOR GENERAL REQUESTING A RULING AND ACCOMPANIED HIS COMMUNICATION OF MARCH 19, 1932, WITH COPIES OF LETTERS HE HAD WRITTEN ON THIS SUBJECT, TOGETHER WITH A BRIEF COVERING FEES FOR NOTARIAL STENOGRAPHERS TAKING DEPOSITIONS FOR USE IN ANY UNITED STATES COURT.

THE NOTARY, MR. J. I. NICHOLLS, SAN ANTONIO, TEXAS, RELIES UPON THE CASE OF JERMAN VS. STEWART, 12 FED. 271 AND UPON UNITED STATES VS. VENABLE, 158 FED. 833. THE FIRST CASE HAS TO DO WITH TAXATION OF COSTS AND INVOLVES THE FEES TO BE ALLOWED IN THAT CONNECTION FOR THE TAKING OF DEPOSITIONS. THE RULE THERE LAID DOWN IS ONE OF CONVENIENCE. IN THE SECOND DECISION CITED, THE COURT HAS ASSIGNED NO REASONS FOR HIS CONCLUSION THAT THE STATE STATUTE IS NOT APPLICABLE. IN THE CASE OF AMERICAN BANK PROTECTION COMPANY VS. CITY NATIONAL BANK OF JOHNSON CITY, 203 FED. 715, 717, THE COURT HAS SUMMARIZED THE VARIOUS OPINIONS AS TO THE LAW GOVERNING THE FEES TO BE PROPERLY TAXED AND REFERENCE IS MADE TO THIS CASE AS OF POSSIBLE ASSISTANCE IN THE MATTER OF AUTHORITIES.

YOUR DECISION IS REQUESTED (1) IF THE STATE LAW PROVIDES FOR FEES FOR THE TAKING OF DEPOSITIONS BY DESIGNATED STATE OFFICERS, DOES SUCH STATUTE CONTROL THE FEES WHICH MAY BE AUTHORIZED IN THE TAKING OF DEPOSITIONS FOR USE IN FEDERAL COURTS. (2) ASSUMING THAT THE STATE LAW PROVIDES SUCH FEES BUT THAT DUE TO INADEQUACY, AGE OF THE STATUTE, ETC., IT IS GENERALLY DISREGARDED IN THE STATE COURTS, IS THE FEDERAL GOVERNMENT AUTHORIZED TO ALLOW REASONABLE COMPENSATION FOR THE SERVICES RENDERED OR, IS IT RESTRICTED TO THE PAYMENT OF THE INADEQUATE FEES ALLOWED BY THE STATE STATUTES. (3) IF YOUR DECISION IS THAT THE STATE FEE BILL DOES NOT CONTROL THE FEES WHICH MAY BE PAID, KINDLY INDICATE YOUR VIEWS CONCERNING THE COMPENSATION WHICH MAY BE ALLOWED NOTARIES AND OTHER SIMILAR OFFICERS FOR THEIR SERVICES.

KINDLY RETURN THE ENCLOSURES TO THE DEPARTMENT WITH YOUR REPLY.

THE CASES CITED IN YOUR LETTER AS RELIED UPON THE NOTARY, MR. NICHOLLS, AS WELL AS THE CASE OF AMERICAN BANK PROTECTION CO. V. CITY NATIONAL BANK, 203 FED.REP. 715, REFERRED TO BY YOU, DO NOT DIRECTLY INVOLVE AND DO NOT DECIDE THE QUESTION OF FEES OR COMPENSATION TO WHICH THE STATE OFFICERS ARE ENTITLED FOR THEIR SERVICES BUT INVOLVE THE MATTER OF TAXATION OF COSTS BY THE COURT IN FAVOR OF THE SUCCESSFUL LITIGANT. THE DISTINCTION BETWEEN THESE TWO QUESTIONS IS INDICATED BY THE COURT IN THE VENABLE CONSTRUCTION COMPANY CASE, 158 FED.REP. 833, 835, CITED BY MR. NICHOLLS, WHERE IT WAS SAID:

* * * AS A MATTER OF FACT, EVEN THE AMOUNT THUS ALLOWED (ON TAXATION OF COSTS FOR TAKING DEPOSITIONS) WOULD BE MUCH LESS THAN THE AMOUNT NECESSARILY EXPENDED IN HAVING, IN THIS WAY, TESTIMONY PROPERLY TAKEN.

IT IS TOO WELL RECOGNIZED TO NEED COMMENT THAT THE TAXATION AND ALLOWANCE OF COSTS BY A COURT IS NOT NECESSARILY COMPENSATORY OF THE ACTUAL COSTS INCURRED BY A LITIGANT AND DOES NOT CONTROL OR DETERMINE THE OBLIGATIONS WHICH MAY HAVE BEEN ASSUMED IN THE PROSECUTION OR DEFENSE OF THE CASE. SOMEWHAT MORE APPLICABLE IS THE STATEMENT OF THE COURT IN INDIANAPOLIS WATER CO. V. AMERICAN-STRAW BOARD CO., 65 FED.REP. 534, 536:

THE TESTIMONY IN THIS CASE WAS TAKEN BY ONE OF THE STENOGRAPHERS IN THE COURTS OF THE STATE, UNDER AN APPOINTMENT OF THIS COURT AS A SPECIAL EXAMINER IN CHANCERY. HE WAS SELECTED BY THE PARTIES FOR APPOINTMENT, AND WAS APPOINTED AT THEIR INSTANCE. EXAMINERS ARE APPOINTED UNDER THE EQUITY RULES, LIKE SPECIAL MASTERS. THERE IS NO STATUTORY RULE OF COMPENSATION OR SCHEDULE OF FEES THAT IS EXPRESSLY APPLICABLE TO THEM. THE COMPENSATION OF SPECIAL MASTERS IS FIXED BY THE ALLOWANCE OF THE COURT. IN MAKING AN ALLOWANCE TO AN EXAMINER, THE FEES OF CLERKS AND COMMISSIONERS FOR TAKING DEPOSITIONS MIGHT FURNISH ANALOGIES FOR THE GUIDANCE OF THE COURT. ON THE OTHER HAND, STENOGRAPHERS IN THE COURTS OF THE STATE HAVE AN ESTABLISHED RATE OF CHARGES FOR THEIR SERVICES, AND THE CLAIM AND TAXATION OF COMPENSATION FOR THE EXAMINER IN THIS CASE ARE FOUNDED THEREON. THERE DOES NOT APPEAR TO HAVE BEEN ANY CONTRACT BETWEEN THE EXAMINER AND THE PARTIES. THEIR ATTORNEYS WERE PRACTICING IN THE COURTS OF THE STATE, AND PRESUMABLY WERE ACQUAINTED WITH THE ESTABLISHED RATE OF CHARGES AMONG STENOGRAPHERS. THE EXAMINER WAS SELECTED BECAUSE HE WAS A STENOGRAPHER. IF THE PARTIES CONSIDERED THE KNOWN AND ESTABLISHED RATE OF CHARGES EXORBITANT, THEY SHOULD HAVE MADE A SPECIAL CONTRACT WITH HIM. IN THE ABSENCE OF ANY SPECIAL CONTRACT, THE EXAMINER HAD A RIGHT TO EXPECT THAT THE ESTABLISHED RATE OF CHARGES IN THE STATE COURTS WOULD GOVERN. BY ACCEPTING THE APPOINTMENT OF EXAMINER, HE DID NOT AGREE TO ACCEPT A LESS COMPENSATION FOR HIS SERVICES AS A STENOGRAPHER THAN HE WAS ACCUSTOMED AND ENTITLED TO RECEIVE FOR THE LIKE SERVICES IN THE STATE COURTS. IT IS NOT DENIED THAT HIS CLAIM, AND THE TAXATION THEREON OF $1,668.05, ARE IN ACCORDANCE WITH THE ESTABLISHED RATE OF CHARGES AMONG THE STENOGRAPHERS IN THE STATE COURTS. BUT THERE IS NO REASON WHY THE PER DIEM CHARGE SHOULD BE TWICE AS LARGE IN THE UNITED STATES COURTS AS IN THE COURTS OF THE STATE. IT IS $5 IN THE COURTS OF THE STATE, AND IT OUGHT TO BE THE SAME HERE. THE CHARGE OF $320 FOR PER DIEM, THEREFORE, WILL BE REDUCED TO THE SUM OF $160, AND THE EXAMINER WILL BE ALLOWED FOR HIS SERVICES THE SUM OF $1,508.05. EXCEPT AS HEREIN MODIFIED, THE MOTION TO RETAX IS OVERRULED.

YOU STATE THAT IT HAS BEEN THE DEPARTMENT'S PRACTICE FOR A PERIOD OF TWENTY-FIVE YEARS OR MORE, TO AUTHORIZE ONLY THE FEES PRESCRIBED BY THE STATE STATUTES FOR SUCH OFFICERS FOR SERVICES RENDERED BY THEM IN THE TAKING OF DEPOSITIONS, EXCEPT THAT REASONABLE ALLOWANCE HAS BEEN MADE FOR STENOGRAPHIC SERVICES WHERE THE NOTARY OR OTHER OFFICER UTILIZED THE SERVICES OF A STENOGRAPHER IN THE TAKING AND TRANSCRIBING OF THE DEPOSITIONS. NOTHING HAS BEEN FOUND, AND NOTHING APPEARS IN YOUR PRESENT SUBMISSION OR IN THE ACCOMPANYING LETTER FROM MR. NICHOLLS, OR IN THE ARGUMENT MADE BY HIM BASED ON COURT DECISIONS DEALING WITH TAXATION OF COSTS (AND WHICH LEAVE THE LAW UNSETTLED EVEN ON THAT POINT, SEE AMERICAN BANK V. CITY BANK, SUPRA, P. 717), REQUIRING OR WARRANTING ANY DEPARTURE FROM THE STATED LONG ESTABLISHED PRACTICE IN THIS RESPECT. YOUR QUESTION (1) IS ANSWERED ACCORDINGLY AND AS TO QUESTIONS (2) AND (3), YOU ARE ADVISED THAT IF IN EXCEPTIONAL CASES THE FEES AND COMPENSATION PROVIDED BY STATE STATUTE ARE DEEMED BY THE DEPARTMENT OF JUSTICE TO BE INADEQUATE, PARTICULARLY WHERE THE ESTABLISHED PRACTICE OF THE STATE COURTS IS TO DISREGARD SUCH STATUTES AS OBSOLETE OR OTHERWISE INAPPLICABLE, CLAIMS FOR FEES OR COMPENSATION GREATER THAN FIXED BY SUCH STATUTES SHOULD BE REFERRED HERE FOR DIRECT SETTLEMENT WITH A FULL ADMINISTRATIVE REPORT AS TO THE CIRCUMSTANCES AND THE STATE PRACTICE INVOLVED, AND WITH THE DEPARTMENT'S RECOMMENDATION IN THE MATTER.