
    COLT’S PATENT FIREARMS MFG. CO. et al. v. NEW YORK SPORTING GOODS CO. (two cases). VICTOR TALKING MACH. CO. et al. v. HOSCHKE et al.
    (Circuit Court of Appeals, Second Circuit.
    March 15, 1911.)
    Nos. 251, 252, 257.
    Clerks of Courts (§ 48) — Clerks op Circuit Courts op Appeals — Duties and Fees.
    Act Feb. 13, 1911, c. 47 (36 Stat. 901) relating to transcripts on appeal to or writ of error from the Circuit Courts of Appeals, and authorizing the use of a printed transcript certified by the court below, makes no provision for an index; and in view of the importance of having the indexes of all records comprehensive and uniform, they should be prepared by the clerk of the Circuit Court of Appeals, and since his fee for preparing and indexing the record under the fee bill in force is fixed at a stated sum per page of the whole, and is indivisible, until such fee bill is changed or further legislation enacted, parties will be required to pay the full fee thereby prescribed, to be held by the clerk until its return is authorized.
    [Ed. Note. — For other cases, see Clerks of Courts, Dec. Dig. § 48.]
    Appeals from the Circuit Court of the United States for the Southern District of New York.
    Suits in equity by Colt’s Patent Firearms Manufacturing Company and John M. Browning against the New York Sporting Goods Company (two cases), and by the Victor Talking Machine Company and another against William H. Hoschke and the Sonora Phonograph Company. On motions by complainants in each case, who are appellants, to be relieved from payment of clerk’s supervision fee.
    Motions denied.
    See, also, 180 Fed. 777.
    
    W. G. McKnight, for the motion.
    Before DACOMBE, COXE, and WARD, Circuit Judges.
   PER CURIAM.

In each of these cases appellant has filed 25 printed transcripts of the record of the Circuit Court, one of which has been certified by the clerk of that court as prescribed by the recent act of February 13, 1911. Appellant asks that the cause be heard thereon without payment of any fee to the clerk of this court for supervision of the record. In conformity with the provisions of the act, this court will hear argument upon such transcript of record. The certification of the clerk of the court below is sufficient guaranty that the printed book is a correct transcription of the record in his court, or of so much thereof as the parties have agreed to take up. There is no necessity, therefore, for any further examination thereof by the clerk of this court. Experience has shown, however, that it is very important to have the indexes of all records on appeal comprehensive and uniform. Therefore the preparation of all indexes will continue under the supervision of the clerk.

The fee bill prescribed February 28, 1898, by the Supreme Court, under Act. Feb. 19, 1897, c. 263, 29 Stat. 536 (U. S. Comp. St. 1901, p. 557), now provides as a fee for—

“preparing the record for the printer, indexing the same, supervising the printing and distributing the copies, for each printed page of the record and index, twenty-five (25) cents.” 150 Fed. cxxxix, 79 C. C. A. cxxxix.

It would seem that, when the only thing, which the i clerk does is to prepare or supervise the preparation of the index, the only fee charged should be 25 cents 'for each page of such index. But in Bean v. Patterson, 110 U. S. 401, 4 Sup. Ct. 23, 28 L. Ed. 190, it was held that the fee was indivisible, and that the whole must be charged if any part of the work is done. Under this decision it would not be safe for the clerk to collect merely the fee per page of index. No regulation of this court could relieve him from the obligation to account to the Treasury Department for the full amount. .It is, however, so plainly the intention of .Congress that, these fees should be reduced that the proper course would seem to be for the clerk to receive the full amount of fees now,. and hold them as a special deposit until the proper authority shall have distributed the “indivisible fee” prescribed by the Supreme Court fee bill. The language of the act of February 19, 1897, is such that there may be some doubt as to the power of the Supreme Court to change the fee bill which it prescribed before May 19, 1898.

The second section of the new act apparently gives the Supreme Court power to fix new fees only in cases when a final judgment or decree is sought to be reviewed in that court. If further legislation be necessary to make the recent act effective, it can no doubt "be secured at the next session. If such change is made, and-is made applicable to appeals or writs of error now pending, so that" the clerk may safely take a fee on the page rate for index only, the balance of each deposit will be returned.  