B-20628, OCTOBER 18, 1941, 21 COMP. GEN. 347

B-20628, OCTOBER 18, 1941, 21 COMP. GEN. 347

COURTS - COSTS - GOVERNMENT LIABILITY - PAUPER PROCEEDINGS A JUDGE IN A DISTRICT COURT OF THE UNITED STATES HAS NO AUTHORITY UNDER THE ACT OF JULY 20, 1892, AS AMENDED, RELATING TO ACTIONS IN COURTS OF THE UNITED STATES BY POOR PERSONS, TO ORDER THE PAYMENT BY THE UNITED STATES OF THE COSTS OF TAKING TESTIMONY ON BEHALF OF A POOR DEFENDANT BY DEPOSITION OF ABSENT WITNESSES, NOR MAY THE JUDGE AUTHORIZE THE ADVANCE OF PUBLIC FUNDS TO PREPAY SUCH COSTS WITH SUBSEQUENT REIMBURSEMENT TO THE GOVERNMENT BY THE DEFENDANT.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, OCTOBER 18, 1941:

I HAVE YOUR LETTER OF SEPTEMBER 17, 1941, AS FOLLOWS:

TRANSMITTED HEREWITH, APPROVED FOR PAYMENT FROM THE APPROPRIATION " MISCELLANEOUS EXPENSES, UNITED STATES COURTS (TRANSFER TO JUSTICE), 1940," IF LEGALLY PAYABLE, IS THE VOUCHER OF MR. H. V. ABEL, 303 FOURTH AND CHERRY BUILDING, SEATTLE, WASHINGTON. IT REPRESENTS THE SUM OF $29.50 FOR TAKING AND TRANSCRIBING A DEPOSITION IN THE CASE OF UNITED STATES VERSUS GEORGE H. BRINKLER, PURSUANT TO COURT ORDERS DATED FEBRUARY 23 AND APRIL 24, 1940.

IT WILL BE OBSERVED THAT THE ORDERS RELIED ON SECTIONS 644, 646 AND 832 OF TITLE 28, UNITED STATES CODE, AS AUTHORITY FOR CHARGING THE COST OF THE DEPOSITION TO THE UNITED STATES.

THE DETERMINATION IN THIS CASE IS OF INTEREST IN ESTABLISHING THE PRINCIPLE AND WILL CONTROL PAYMENT OF A NUMBER OF OTHER LIKE ACCOUNTS GROWING OUT OF THE SAME CASE AND BASED ON THE SAME OR SIMILAR ORDERS. WAS THE DEPARTMENT'S ORIGINAL POSITION THAT EXPENSES OF TAKING DEPOSITIONS COULD NOT BE CHARGED AGAINST THE UNITED STATES IF THE WITNESSES COULD NOT BE COMPELLED TO APPEAR PURSUANT TO SECTION 656, TITLE 28, UNITED STATES CODE; OR IN OTHER WORDS, THAT THE LANGUAGE COULD NOT BE BORROWED SO AS TO CHARGE THE UNITED STATES WITH DEPOSITION EXPENSE IF THE WITNESSES ARE OUTSIDE THE TERRITORIAL LIMITS FIXED BY THE STATUTE.

A PROMPT DETERMINATION WILL BE APPRECIATED.

BY THE TERMS OF SECTION 866 OF THE REVISED STATUTES (28 U.S.C. 644), AUTHORITY IS VESTED IN THE DISTRICT COURTS OF THE UNITED STATES TO DIRECT THAT DEPOSITIONS BE TAKEN IN CERTAIN CASES. IN SECTION 868 OF THE REVISED STATUTES (28 U.S.C. 646) PROVISION IS MADE AS TO THE METHOD AND MANNER OF TAKING SUCH TESTIMONY. HOWEVER, NO PROVISION IS MADE IN EITHER OF THESE SECTIONS FOR PAYMENT BY THE UNITED STATES OF THE COST OF TAKING SUCH DEPOSITIONS, AND IT IS WELL SETTLED THAT, IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING," THE UNITED STATES NEVER PAYS COSTS.' UNITED STATES V. BARKER, 2 WHEATON 395; HENRY V. UNITED STATES, 15 CT.CLS. 162, 167. ALSO, SEE SUBSECTION (D), RULE 54, FEDERAL RULES OF CIVIL PROCEDURE, 28 U.S.C. 723C.

THE DISTRICT COURT IN THE PRESENT CASE, APPARENTLY RECOGNIZING THAT PAYMENT OF THE COST OF TAKING DEPOSITIONS WAS NOT AUTHORIZED OR PERMITTED UNDER THE ABOVE SECTIONS, PROVIDED IN ITS ORDER OF FEBRUARY 23, 1940, BY WHICH THE DEPOSITIONS WERE AUTHORIZED TO BE PROCURED, THAT "SAID TESTIMONY TO BE TAKEN IN FULL COMPLIANCE WITH SECTIONS 644 AND 646, TITLE 28, U.S.C.A., AT THE COST OF THE DEFENDANT.' ( ITALICS SUPPLIED.)

ON APRIL 24, 1940, A SECOND ORDER WAS ISSUED BY THE COURT AS FOLLOWS:

UNITED STATES OF AMERICA, PLAINTIFF VS. G. H. BRINKLER, DEFENDANT.

ORDER ALLOWING CAUSE TO PROCEED IN FORMA PAUPERIS:

THIS CAUSE COMING ON TO BE HEARD BEFORE ME ON THE APPLICATION OF G. H. BRINKLER, TO BE ALLOWED TO DEFEND THE ABOVE CAUSE TO CONCLUSION IN FORMA PAUPERIS, BASED UPON THE AFFIDAVIT OF THE SAID G. H. BRINKLER FILED IN THIS CAUSE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 832 OF TITLE 28 OF THE U.S.C. ANNOTATED, AND THE COURT BEING DULY ADVISED IN THE PREMISES, IT IS THEREUPON

CONSIDERED, ORDERED, AND ADJUDGED THAT THE SAID G. H. BRINKLER, BE AND HE IS HEREBY ALLOWED TO DEFEND THE ABOVE CAUSE TO CONCLUSION WITHOUT BEING REQUIRED TO PREPAY FEES OR COSTS OR GIVE SECURITY FOR SAME, BECAUSE OF HIS POVERTY AS ALLEGED IN SAID AFFIDAVIT, AND THAT THE COSTS FOR THE TAKING OF THE TESTIMONY BY DEPOSITION OF ABSENT WITNESSES IN THIS CAUSE, TOGETHER WITH THE COST OF THE PREPARATION OF THE RECORD OF SUCH PROCEEDINGS BE PAID BY THE UNITED STATES; AND IT IS FURTHER

CONSIDERED, ORDERED, AND ADJUDGED THAT ALL JUDICIAL OFFICERS WHO HAVE OCCASION TO PERFORM SERVICES HEREIN, SHALL PERFORM THE SAME AS IF THE DEPOSIT FOR COSTS AND SECURITY HAD BEEN GIVEN.

DONE AND ORDERED IN CHAMBERS AT MIAMI, FLORIDA, THIS 24TH DAY OF APRIL A.D. 1940.

(S) JOHN W. HOLLAND,

UNITED STATES DISTRICT JUDGE.

IT SEEMS CLEAR THAT, IF THE COURT IS POSSESSED OF AUTHORITY TO ORDER THE COST OF TAKING AND TRANSCRIBING DEPOSITIONS IN THIS CASE TO BE PAID BY THE UNITED STATES, SUCH AUTHORITY MUST BE GATHERED FROM THE TERMS OF SECTION 832 OF TITLE 28, U.S.C.A., REFERRED TO IN THE ORDER--- AND WHICH READS AS FOLLOWS:

ANY CITIZEN OF THE UNITED STATES ENTITLED TO COMMENCE ANY SUIT OR ACTION, CIVIL OR CRIMINAL, IN ANY COURT OF THE UNITED STATES, MAY, UPON THE ORDER OF THE COURT, COMMENCE AND PROSECUTE OR DEFEND TO CONCLUSION ANY SUIT OR ACTION, OR A WRIT OF ERROR OR AN APPEAL TO THE CIRCUIT COURT OF APPEALS, OR TO THE SUPREME COURT IN SUCH SUIT OR ACTION, INCLUDING ALL APPELLATE PROCEEDINGS, UNLESS THE TRIAL COURT SHALL CERTIFY IN WRITING THAT IN THE OPINION OF THE COURT SUCH APPEAL OR WRIT OF ERROR IS NOT TAKEN IN GOOD FAITH, WITHOUT BEING REQUIRED TO PREPAY FEES OR COSTS OR FOR THE PRINTING OF THE RECORD IN THE APPELLATE COURT OR GIVE SECURITY THEREFOR, BEFORE OR AFTER BRINGING SUIT OR ACTION, OR UPON SUING OUT A WRIT OF ERROR OR APPEALING, UPON FILING IN SAID COURT A STATEMENT UNDER OATH IN WRITING, THAT BECAUSE OF HIS POVERTY HE IS UNABLE TO PAY THE COSTS OF SAID SUIT OR ACTION OR OF SUCH WRIT OF ERROR OR APPEAL, OR TO GIVE SECURITY FOR THE SAME, AND THAT HE BELIEVES THAT HE IS ENTITLED TO THE REDRESS HE SEEKS IN SUCH SUIT OR ACTION OR WRIT OF ERROR OR APPEAL, AND SETTING FORTH BRIEFLY THE NATURE OF HIS ALLEGED CAUSE OF ACTION, OR APPEAL. IN ANY CRIMINAL CASE THE COURT MAY, UPON THE FILING IN SAID COURT OF THE AFFIDAVIT HEREINBEFORE MENTIONED, DIRECT THAT THE EXPENSE OF PRINTING THE RECORD ON APPEAL OR WRIT OF ERROR BE PAID BY THE UNITED STATES, AND THE SAME SHALL BE PAID WHEN AUTHORIZED BY THE ATTORNEY GENERAL.

IT WILL BE NOTED THAT THIS PROVISION CONSISTS OF TWO SENTENCES. THE FIRST SENTENCE WAS ORIGINALLY ENACTED, ALTHOUGH IN SOMEWHAT DIFFERENT FORM, AS SECTION 1 OF THE ACT OF JULY 20, 1892, 27 STAT. 252. IT WAS AMENDED TO ITS PRESENT FORM BY THE ACT OF JUNE 25, 1910, 36 STAT. 866. THE SECOND SENTENCE WAS ADDED BY THE ACT OF JUNE 27, 1922, 42 STAT. 666.

THE ACT OF JULY 20, 1892, IN ADDITION TO SECTION 1, SUPRA, CONTAINED FOUR OTHER SECTIONS--- NONE OF WHICH HAVE BEEN AMENDED SINCE THEIR ORIGINAL ENACTMENT. SEE 28 U.S.C. 833, 834, 835, AND 836. SECTIONS 3, 4, AND 5 OF THE ACT, SO FAR AS PERTINENT TO THE QUESTION HERE PRESENTED, PROVIDE:

SEC. 3. THAT THE OFFICERS OF COURT SHALL ISSUE, SERVE ALL PROCESS, AND PERFORM ALL DUTIES IN SUCH CASES, AND WITNESSES SHALL ATTEND AS IN OTHER CASES, AND THE PLAINTIFF SHALL HAVE THE SAME REMEDIES AS ARE PROVIDED BY LAW IN OTHER CASES.

SEC. 4. THAT THE COURT MAY REQUEST ANY ATTORNEY OF THE COURT TO REPRESENT SUCH POOR PERSON, IF IT DEEMS THE CAUSE WORTHY OF A TRIAL, * *

SEC. 5. THAT JUDGMENT MAY BE RENDERED FOR COSTS AT THE CONCLUSION OF THE SUIT AS IN OTHER CASES: PROVIDED, THAT THE UNITED STATES SHALL NOT BE LIABLE FOR ANY OF THE COSTS THUS INCURRED.

IT WILL THUS BE NOTED THAT THE STATUTE AS ORIGINALLY ENACTED NOT ONLY FAILED TO PROVIDE FOR PAYMENTS OF COSTS BY THE UNITED STATES, BUT SPECIFICALLY STIPULATED THAT THE UNITED STATES SHOULD ,NOT BE LIABLE FOR ANY OF THE COSTS THUS INCURRED.' ( ITALICS SUPPLIED.) WHILE THIS RESTRICTION WAS MODIFIED BY THE 1922 AMENDMENT OF SECTION 1 SO AS TO PERMIT PAYMENT BY THE UNITED STATES IN CERTAIN CASES OF THE "EXPENSE OF PRINTING THE RECORD ON APPEAL OR WRIT OF ERROR," THE PRESENT CASE DOES NOT INVOLVE AN ITEM OF EXPENSE OF THIS CHARACTER. ALTHOUGH THE DISTRICT COURT, UNDER THE FACTS OF THE PRESENT CASE, WAS POSSESSED OF AUTHORITY TO PROVIDE IN THE ORDER OF APRIL 24, 1940, THAT MR. BRINKLER "BE AND HE IS HEREBY ALLOWED TO DEFEND THE ABOVE CAUSE TO CONCLUSION WITHOUT BEING REQUIRED TO PREPAY FEES OR COSTS OR GIVE SECURITY FOR SAME," THE CONCLUSION APPEARS TO BE REQUIRED THAT THE INCLUSION IN SAID ORDER OF THE FURTHER PROVISION THAT "THE COSTS FOR THE TAKING OF THE TESTIMONY BY DEPOSITION OF ABSENT WITNESSES IN THIS CAUSE, TOGETHER WITH THE COST OF THE PREPARATION OF THE RECORD OF SUCH PROCEEDING BE PAID BY THE UNITED STATES," IF INTENDED TO INCLUDE SUCH DEPOSITIONS AS THE ONE HERE INVOLVED, WAS IN DIRECT CONFLICT WITH THE PROVISION IN SECTION 5 OF THE ACT THAT THE UNITED STATES "SHALL NOT BE LIABLE FOR ANY OF THE COSTS THUS INCURRED.'

NOR CAN IT BE CONCEDED THAT, ALTHOUGH THE UNITED STATES MAY NOT BE ORDERED TO PAY THE "COSTS" INCURRED IN SUCH A SUIT, A DISTRICT JUDGE MAY, PURSUANT TO THE PROVISIONS OF SECTION 1 OF THE ACT, AUTHORIZE PAYMENT OF "FEES" BY THE UNITED STATES; AND THAT ANY PAYMENT AUTHORIZED TO BE MADE TO THE NOTARY-REPORTER IN THE PRESENT CASE FOR TAKING AND TRANSCRIBING DEPOSITIONS WOULD BE IN THE NATURE OF A "FEE" RATHER THAN A "COST.' THE FIRST PLACE, THE EXPENSE OF TAKING AND TRANSCRIBING THE DEPOSITIONS IN THIS CASE WOULD APPEAR TO CONSTITUTE AN ITEM OF "COST" RATHER THAN A "FEE.' THUS IT IS STATED IN 15 CORPUS JURIS, AT PAGE 20:

THE TERMS "FEES" AND "COSTS" ARE OFTEN USED INTERCHANGEABLY AS HAVING THE SAME APPLICATION. NEVERTHELESS, COSTS AND FEES ARE ESSENTIALLY DIFFERENT; THE FORMER ARE ALLOWANCES TO A PARTY FOR THE EXPENSES INCURRED IN PROSECUTING OR DEFENDING A SUIT--- AN INCIDENT TO THE JUDGMENT; WHILE THE LATTER ARE COMPENSATION TO PUBLIC OFFICERS FOR SERVICES RENDERED INDIVIDUALS, IN THE PROGRESS OF THE CAUSE.

SEE THE NUMEROUS CASES THERE CITED, PARTICULARLY O-NEIL V. KANSAS CITY, S. AND M. RAILWAY COMPANY, 31 FED. 663, 664, AND BOHART V. ANDERSON, 103 PACIFIC 742, 743-4. IT IS CLEAR THAT THE EXPENSE OF TAKING AND TRANSCRIBING THE DEPOSITIONS IN THE PRESENT CASE DOES NOT REPRESENT COMPENSATION TO A PUBLIC OFFICER FOR SERVICES RENDERED DURING THE PROGRESS OF THE SUIT, BUT RATHER IS AN ITEM OF EXPENSE INCURRED BY OR ON BEHALF OF THE DEFENDANT IN DEFENDING THE SUIT. IN THIS CONNECTION ATTENTION IS INVITED TO THE CASE OF BURDICK V. TUM-A-LUM LUMBER CO., 191 PAC. 654, WHEREIN THE COURT STATED WITH REFERENCE TO COSTS THAT "THEY COMPRISE, INTER ALIA, SUCH AN EXPENDITURE AS THE NECESSARY EXPENSES OF COPYING RECORDS.' IN THE SECOND PLACE, EVEN IF THIS ITEM COULD BE REGARDED AS A "FEE," IT WILL BE NOTED THAT SECTION 1 OF THE ACT DOES NOT PROVIDE THAT THE UNITED STATES MAY PAY FOR "FEES; " AS A MATTER OF FACT, IT IS NOT EVEN PROVIDED THAT THE IMPOVERISHED CITIZEN INVOLVED SHALL NOT BE REQUIRED TO PAY THEM, BUT MERELY THAT HE MAY NOT BE REQUIRED TO PREPAY THEM. THUS, IN THE CASE OF KIMBLE V. WESTERN UNION TEL. COMPANY, 70 FED. 888, 889, THE COURT, AFTER QUOTING THE ENTIRE ACT OF JULY 20, 1892, STATED:

BY THE FIRST SECTION OF THIS ACT, IT WILL BE OBSERVED THAT THE PLAINTIFF IS NOT "REQUIRED TO PREPAY FEES OR COSTS, OR TO GIVE SECURITY THEREFOR," ON FILING A SWORN STATEMENT THAT, BECAUSE OF HIS POVERTY, HE IS UNABLE TO DO EITHER. SECTION 5 PROVIDES THAT JUDGMENT MAY BE RENDERED FOR COSTS AS IN OTHER CASES. IT IS URGED IN OPPOSITION TO THE PENDING MOTION THAT TO GRANT IT WOULD BE TO VIRTUALLY NULLIFY THE ACT OF JULY 20, 1892. WE DO NOT CONCUR IN THIS. IT DOES NOT FOLLOW THAT, BECAUSE THE PLAINTIFF WAS NOT REQUIRED TO PREPAY OR GIVE SECURITY FOR THE COSTS OF THE FIRST ACTION, HE MAY NOT BE COMPELLED TO PAY THE JUDGMENT FOR COSTS THEREIN BEFORE PROSECUTING A SECOND ONE. THE STATUTE DOES NOT EXTEND THAT FAR. * * *

ALSO SEE COLUMBIA V. WEBSTER MFG. CO., 76 FED. 198, 200, AND DAVIS V. ADAMS, 109 FED. 271.

IN THE CASE OF UNITED STATES V. FAIR, 235 FED. 1015, 1016, THERE WAS CONSIDERED THE QUESTION OF WHETHER A DISTRICT COURT OF THE UNITED STATES WAS AUTHORIZED TO ISSUE AN ORDER DIRECTING THE REPORTER OF THE COURT TO TRANSCRIBE, AT THE EXPENSE OF THE GOVERNMENT, TESTIMONY TAKEN AT THE TRIAL IN A CRIMINAL CASE. AFTER QUOTING SECTION 1 OF THE ACT, AS AMENDED, AND SECTIONS 3 AND 5 THEREOF, THE COURT STATED:

THIS STATUTE AS ORIGINALLY ENACTED APPLIED ONLY TO PLAINTIFFS IN A CIVIL ACTION, AND THE PROVISIONS LAST QUOTED WERE NOT CHANGED WHEN THE ACT WAS AMENDED IN 1910 TO INCLUDE DEFENDANTS IN SUITS OR ACTIONS BOTH CIVIL AND CRIMINAL. BUT ONE THING IS QUITE APPARENT, AND THAT IS THAT CONGRESS DID NOT INTEND THAT THE UNITED STATES SHOULD BE LIABLE FORANY OF THE COSTS INCURRED UNDER THE PROVISIONS OF THE ACT. SO THAT IN ANY EVENT THE COURT IS WITHOUT POWER TO ORDER, AS REQUESTED,"THE TRANSCRIPTION OF THE TESTIMONY AT THE EXPENSE OF THE GOVERNMENT.' I AM CONVINCED, TOO, THAT THE COURT IS EQUALLY WITHOUT POWER TO ORDER SUCH TRANSCRIPTION AT THE EXPENSE OF THE REPORTER. THE ACT EVIDENTLY APPLIES ONLY TO SUCH FEES AS THOSE OF THE CLERK OR MARSHAL, OR SOME OTHER OFFICER OF THE COURT. THE REPORTER IS NOT SUCH AN OFFICER. * * *

IN VIEW OF THE ABOVE, THE CONCLUSION APPEARS TO BE REQUIRED THAT THE DISTRICT JUDGE INVOLVED IN THE PRESENT CASE WAS WITHOUT POWER TO ORDER THE TAKING OF TESTIMONY ON BEHALF OF THE DEFENDANT BY DEPOSITION OF ABSENT WITNESSES AT THE EXPENSE OF THE UNITED STATES. FURTHERMORE, SINCE IT IS SPECIFICALLY PROVIDED IN THE STATUTE THAT "THE UNITED STATES SHALL NOT BE LIABLE FOR ANY OF THE COSTS THUS INCURRED," THE JUDGE COULD NOT CREATE ANY SUCH LIABILITY BY THE ISSUANCE OF AN ORDER IN DEROGATION OF THE LAW. THE TERMS OF THE STATUTE ARE CLEAR AND MANDATORY, AND ALL PERSONS INVOLVED IN THIS MATTER, INCLUDING THE NOTARY-REPORTER WHO RENDERED THE SERVICE, WERE CHARGED WITH KNOWLEDGE THEREOF. NOR IS THERE CONSIDERED TO BE ANY BASIS FOR THE VIEW THAT ALTHOUGH THE UNITED STATES MAY NOT BE ORDERED TO PAY SUCH COSTS, NEVERTHELESS, A DISTRICT JUDGE MAY AUTHORIZE THE ADVANCE OF PUBLIC FUNDS FOR THEIR PREPAYMENT, WITH SUBSEQUENT REIMBURSEMENT TO THE GOVERNMENT BY THE PAUPER. WHILE NO CASE HAS BEEN FOUND WHERE A COURT HAS BEEN REQUESTED TO PREPAY COSTS ON BEHALF OF A POOR PERSON, WITH SUBSEQUENT COLLECTION FROM SAID PERSON OF THE AMOUNT EXPENDED, LANGUAGE HAS BEEN EMPLOYED IN AT LEAST ONE CASE CONSIDERED UNDER THE ACT OF JULY 20, 1892, WHICH INDICATES THAT IF SUCH A REQUEST WERE MADE A COURT WOULD BE WITHOUT POWER TO GRANT IT. THUS IN THE CASE OF COLUMBIA V. WEBSTER MANUFACTURING COMPANY, SUPRA, A DISTRICT JUDGE WAS PETITIONED TO FURNISH TO A POOR PERSON, WITHOUT PREPAYMENT OF FEES AND COSTS, A COPY OF THE RECORD OF THE PROCEEDINGS IN SAID COURT FOR USE IN PROSECUTING A WRIT OF ERROR TO A HIGHER COURT. THE FEE-BILL IN QUESTION INVOLVED NO DIRECT DISBURSEMENTS BY THE UNITED STATES ON BEHALF OF THE PETITIONER, BUT CONSISTED OF CHARGES FOR SERVICES RENDERED BY OFFICERS OF THE COURT--- INCLUDING FEES FOR SWEARING IN WITNESSES, DOCKET ENTRIES, DOCKET FEE, TRANSCRIPT OF THE COURT RECORD IN THE CASE, ETC. THE COURT RULED THAT THE COPY OF RECORD MIGHT BE FURNISHED UPON COMPLIANCE BY THE PETITIONER WITH THE REQUIREMENTS OF THE STATUTE, AND WITHOUT PREPAYMENT OF THE FEE-BILL, BUT MADE IT CLEAR IN THE COURSE OF THE OPINION THAT THE COURT COULD NOT HAVE ORDERED THE CLERK TO MAKE ANY OUTRIGHT DISBURSEMENTS ON BEHALF OF THE PAUPER, IT BEING THEREIN STATED:

* * * THE STATUTE IS OBSCURE IN MANY PARTICULARS, AND WITH THE REST A QUESTION ARISES AS TO THE MEANING OF THE WORDS "FEES OR COSTS," FOUND IN IT. WE THINK, HOWEVER, THAT THIS ARISES FROM THE COMBINATION OF TWO SUBJECT MATTERS IN ONE SENTENCE, AND THAT IT IS TO BE CONSTRUED DISTRIBUTIVELY. "COSTS" MEANS "TAXABLE COSTS," TO BE RECOVERED BY THE ADVERSE PARTY, AND THE STATUTE INTENDS THAT NO SECURITY OR DEPOSIT SHALL BE REQUIRED FOR THESE. "FEES" MEANS, FOR THE CASE AT BAR, THE FEES OF THE CLERK IN THE STRICT SENSE OF THE WORD, AND DOES NOT RELATE TO HIS DISBURSEMENTS; AND THE COURTS HAVE NO POWER, UNDER THE ACT, TO REQUIRE HIM TO MAKE DISBURSEMENTS AT THE HAZARD OF RECOVERING THEM AT SOME FUTURE TIME FROM A PERSON WHO CONFESSES HIMSELF PECUNIARILY IRRESPONSIBLE. * * *

FURTHERMORE, SO FAR AS THE PRESENT CASE IS CONCERNED, IT WILL BE NOTED THAT THE ORDER OF APRIL 24, 1940, DOES NOT PURPORT TO BE IN THE NATURE OF AN AUTHORIZATION FOR PREPAYMENT OF THE COST OF TRANSCRIBING THE DEPOSITIONS, WITH SUBSEQUENT REIMBURSEMENT TO THE UNITED STATES BY THE POOR ERSON; IT IS MERELY PROVIDED IN THE ORDER THAT THE COST "SHALL BE PAID BY THE UNITED STATES.'

IT IS NOT TO BE UNDERSTOOD FROM THE ABOVE THAT THE EXPENSES OF TAKING DEPOSITIONS MAY NOT BE PAID BY THE UNITED STATES IN CASES WHERE THE WITNESSES COULD BE COMPELLED TO APPEAR PURSUANT TO THE PROVISIONS OF SECTION 878 OF THE REVISED STATUTES (28 U.S.C. 656), REFERRED TO IN YOUR LETTER. ALTHOUGH THE LANGUAGE OF THIS SECTION REFERS ONLY TO THE SUBPOENAING OF WITNESSES, THE PURPOSE FOR WHICH DEPOSITIONS ARE TAKEN IS ESSENTIALLY THE SAME AS THAT FOR WHICH WITNESSES ARE SUBPOENAED, NAMELY, TO PROVIDE EVIDENCE FOR USE IN THE TRIAL OF A CAUSE. THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO PAYMENT FROM PUBLIC FUNDS OF THE COST OF DEPOSITIONS ORDERED TO BE TAKEN UNDER AUTHORITY OF THIS SECTION. SEE BY ANALOGY UNITED STATES V. JONES, 193 U.S. 528, AND CASES THERE CITED. COURSE, THE AUTHORITY THUS PROVIDED WOULD NOT JUSTIFY THE PAYMENT BY THE UNITED STATES OF AN ITEM OF COST SUCH AS THAT INCURRED IN THE PRESENT CASE BECAUSE "THIS STATUTE LIMITS THE JURISDICTION OF THE COURT TO ISSUE THE ORDER FOR SUCH WITNESSES WHO RESIDE WITHIN THE DISTRICT IN WHICH THE COURT IS HELD, OR WITHIN ONE HUNDRED MILES OF THE PLACE OF TRIAL.' GIBSON V. UNITED STATES, 53 FED. (2D) 721, 722.

THE VOUCHER IN QUESTION IS RETURNED HEREWITH, AND YOU ARE ADVISED THAT PAYMENT THEREON IS NOT AUTHORIZED.