
    JOHN KELLY ET AL. v. THE UNITED STATES.
    [No. 28559.
    Decided March 12, 1906.]
    
      On the Proofs.
    
    The suit is to recover, the per diem compensation oí a bailiff: and of certain criers of Circuit and District Courts. The only defense is that the courts on the days named were opened and adjourned by the marshal in pursuance of the written orders of the judges under Revised Statutes, § 072; and that the services of the officers were unnecessary as no court business was transacted.
    I. The Revised Statutes, § 715, as amended by the Act &cl March, 1895 (28 Stat. L., p. 958), provides that criers and bailiffs “shall he deemed to he in actual attendance when they attend upon the order of the courts." The limitation thus placed upon such officers’ right to compensation is actual attendance.
    
      II.Actual attendance Is when an officer is actually present “ upon the order of the court.” But the statute does not contemplate the issuing of a personal order directed to the officers requiring them to attend. It is sufficient that the court be opened by the marshal unde» the written order of the judge pursuant to Revised Statutes, § 672.
    III. The crier and bailiff of a court are officers of the court and bound to take notice of the orders of the court and “ Be ready to discharge their duties if required.”
    
    IV. The right of a crier or bailiff to compensation does not depend upon its affirmatively appearing that their services were ■ necessary. Their attendance at the proper time is all that the statute requires.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, John Kelly, was the duly appointed and acting crier of the United States District and Circuit Courts for the district of Oregon during the period from February 6, 1899, to October 20, 1900, inclusive, and the claimants, Jacob Proebstel, James N. Fullilove, George Egbert, and H. Lampman, were bailiffs of said courts during said period, duly appointed and acting.
    II. During said period the said claimants, as crier and bailiffs as aforesaid, were in actual attendance on said courts while in session and discharged the duties of their respective offices as provided by section 715, Revised Statutes, as amended by the act of March 2, 1895 (28 Stat. L., 958), on the -following days, to wit:
    John Kelly, crier: February 6, 7; March 23, 24, 25, 27, 28, 29; April 27, 28, 29; May 11, 12, 13, 27; August 17, 18; September 22, and October 13,14, and 16, 1899; and January 26,-27, 29, 30, 31; February 1, 2, 3, 5, 6, 7, 8, 9, 10, 12, 13; August 24, 25; September 21, 22, 29, and October 13 and 20, 1900, making»®, total of 44 days, at $2 per day — $88.
    James N. Fullilove, bailiff: February 6, 7; March 23, 24, 25, 27, 28, 29; April 27, 28, 29; May 11, 12, 13, 27; August 17, 18; September 22, and October 13,14, and 16,1899; and January 26, 27, 29, 30, 31; February 1, 2, 3, 5, 6, 7, 8, 9, 10, 12, 13; August 24, 25; September 21, 22, 29, and October 13 and 20, 1900, making in all 44 days, at $2 per day — $88.
    
      Jacob Proebstel, bailiff: Mar.ch 23, 24, 25, 27, 28, 29; April 27, 28, 29; May 11, 12, 13, 27; August 17, 18; September 22, and October 13, 14, and 10, 1899; and. January 26, 27, 29, 30, 31; February 1, 2, 3, 5, 6, 7, 8, 9, 10, 12, 13; August 24, 25; ‘September 21, 22, 29, and'Octobcr 13 and 20, 1900, making in all 42 days, at $2 per day — $84.
    George Egbert, bailiff: February 6, 7; March 23, 24, 25, 27, 28, 29; April 27, 28, 29; May 11, 12, 13, 27; August 17, 18; September 22, and October 13, 14, and 16, 1899; and January 26, 27, 29, 30, 31; February 1, 2, 3, 5, 6, 7, 8, 9, 10, 12, 13; August 24, 25; September 21, 22, 29, and October 13 and 20, 1900, making in all 44 days, at $2 per day — $88.
    H. Lampman, bailiff: February 0 and 7, 1899, making 2 days, at $2 per clay — $4.
    TIT. Upon said days the courts were opened and adj ourned during the term by written orders of the judges of said courts entered on the minutes, as provided by sections 583 aiid 672, Revised Statutes.
    The first of said written orders of court made’and entered as above is as follows:
    “ In the District Court of the United States for the District
    of Oregon.
    “ To the United States Marshal for the District of Oregon:
    
    “ You are hereby ordered and directed that in case there is no judge present to hold the District Court of the United States for the District of Oregon on Monday, February 6, 1899, that you ojien said court on said day and adjourn’the same from day to. day until such time as there shall be a judge present to hold the same.
    “ CiiaRles B. BelliNgeR. Judge.
    
    “ PORTLAND, Oregon, February 4-th, 1899.”
    
    and the other orders for the opening of said courts are in identical terms except as to the dates. .
    The marshal and clerk of the courts were in actual attendance in addition to the crier 'and bailiffs.
    IV. The accounts of the claimants for their services and per diems aforesaid were duly verified and included in the accounts of the marshal, and were presented to the court for approval in the presence of the district attorney, and orden approving the same as being just and according to law were entered of record, and the United States marshal paid said claimants the amounts of their respective accounts so approved. Said accounts were then presented to the Attorney-General and accounting officers of the Treasury Department for payment, but payment of the fees embraced in finding n was refused.
    After the disallowance of the marshal’s accounts, as aforesaid, the claimants respectively reimbursed the marshal for the money so paid by him on their accounts.
    
      Mr. Gh arles G. Lancaster for the claimant.
    
      Mr. Philip M. Ashford (with whom was Mr. Assistant Attorney-General Pradt), for the defendants.
   Booth, J.,

delivered the opinion of the court: .

The claimants in this case are seeking payment of per diem’s alleged to be due them as crier and bailiffs of the United States District and Circiut Courts for the district of Oregon, from February 6, 1899, to October 22, 1900. Section 715 of the Revised Statutes, page 136, provides as follows:

“The Circuit and District Courts máy appoint criers for their courts, to be allowed the sum of two dollars per day; and the marshals may appoint such a number of persons, not. exceeding five, as the judges of their respective courts may determine, to attend upon the grand and other juries, and for other necessary purposes, who shall be allowed for their services the sum of two dollars per clay, to be paid by and included in the accounts of the marshal, out of any money of the United States in his hands. Such compensation shall be paid only for actual attendance, and, when both courts are in session at the same time, only for attendance on one court.”

The act of March 2, 1895 (28 Stat. L., 958), amending the. foregoing act, provides as follows:

“ For pay of bailiffs and criers, not exceeding three bailiffs and one crier in each court * * *. Provided, That all persons employed under section seven hundred and fifteen of the Revised Statutes shall be deemed to be in actual attendance when they attend upon the crcler of the courts.”

No question is raised as to the regularity of their appointment under the above statute, nor as to any of the facts set forth in the findings.

Objection to the claims arises from the fact that on the day and dates for which compensation is claimed the courts were opened and adjourned by the marshal in pursuance of written authority directing him so to do by the judge thereof, under section 6'72 of the Revised Statutes; that the services of the claimants under these circumstances were not required, and were wholly unnecessary, no court business having been actually transacted.

The statute creating the offices and allowing a stated per diem compensation for each of them would of itself seem a sufficient answer to this contention. The limitation placed by section 715 of the Revised Statutes upon the officers’ right to compensation is actual attendance. The Congress, in the act of March 2, 1895, construes the words “ actual attendance ” to mean when the officer is actually present, “ upon the order of the courts.” Therefore, if the officer is actually present upon the order of the court he brings himself within the statute, and compensation therefor can not be denied him. The mischief sought do be remedied by the 'words “ order of courts ” was to preclude an allowance for days during the regular term of the court when the same was not in session, and when the session had been adjourned by the judge to a day certain during the regular term, thus limiting their right to compensation to days when the court was actually in session during the regular term and the officers were personally present ready to or performing their respective duties. The statute does not contemplate the issuing of a personal order from the court directed to the officers in question to bo present upon the convening of court. The ■words of the enactment negative the contention. The crier is the creature of the court, with certain well-defined duties; the bailiffs are the creatures of the marshal, whose duties are defined bjr the statute to be an attendance upon the grand and petit juries and for other necessary fury oses. They are officers of the court (Ricketts v. Mayor, etc., of New York, 67 Howard, 320; Rowland v. Mayor, etc., City of New York, 83 N. Y., 372; Adam Moser v. Mayor, etc., of New York, 21 Hun., 163), and-as such bound to take judicial notice of their duties, obligated under the law to a proper discharge of the same, and equally liable with any other officer of the court for a dereliction or omission in the performance of the same. In Rowland v. Mayor, etc. (supra), the court said:

“ He not only owes a duty to it (the court), and is to perform such duties as are by it required to be performed, but, as we have already .said, those duties are in aid of the proper business of the court, and therefore, among others, to be present at its sittings, to execute its commands, secure due order in its proceeding's, and attend upon juries, and all are as necessary as the duties intrusted to its clerks or crier.”

The words “ order of the courts ” refer to the manner of convening the court; they express an intent to discriminate between actual open and regular terms of the court, publicly held, when grand and petit juries are impaneled, witnesses examined, and the trial of cases proceeds, and the sessions or terms of the same when judicial business is lawfully transacted in chambers or during vacation, when grand and petit juries are not required, and the business of the judge is largely, if not wholly, limited to the consideration of orders, decrees; etc., in equity, admiralty, and bankruptcy. An officer will be deemed in actual attendance upon the order of the court if he is personally present when the same is regularly convened by the order of the judge in pur sanee of law and the duties of his office command his attendance.

Section 672 of the Revised Statutes, page 124, provides as follows:

“ If neither of the judges of a Circuit Court be present to open and adjourn any regular or adjourned or special session, either of them may, by a written order, directed alternately to the marshal and, in his absence, to the clerk, adjourn the court from time to time,-as the case may require, to any time before the next regular term.”

The Supreme Court in construing the above section uses this language:

“Attendance upon the days when the court is opened under the provisions of these numbered sections (including section 672) is put by Congress upon the same footing as if the judge were actually present and business were actually transacted.” (United States v. Pitman, 147 U. S., 671.)

Thus it will be seen that a regular, adjourned, or special session of the court, opened in pursuance of section .672 of the Revised Statutes, is placed upon the same footing as a public session duly opened by the judge of the court in person and actually transacting the business of the term. It is in legal contemplation such a session of court as requires the attendance of all the officers of the court, the same as if the current business of the term was actually proceeded with, and when so attending they are there by the order of the court. ■

Clerks and marshals in attendance under similar circumstances have been allowed their per diem compensation. (Jones v. United States, 21 C. Cls. R., 1; Finnell v. United States, 185 U. S., 236.) This court, in Robert W. Butler et al. v. United States, No. 23547, and Thomas J. Doyle v. United States, No. 26933, cases exactly similar to this, awarded judgments in favor of the claimants, from which no appeal was taken.

It is to be observed that the statute nowhere predicates the officers’ right to compensation upon an affirmative showing of the necessity of their actual attendance. As before observed, the necessity for their services is fully covered b}r the statute providing for their appointment. The offices held by the claimants are of ancient origin, they have always been considered necessary adjuncts to the proper administration of justice in courts of law, their services are not subordinate or menial, but honorable and coordinate with the other officials of the court. Their right to compensation is limited under the above statutes to the regular, adjourned, or special sessions of the court publicly held, and their actual attendance thereon. Congress have confined their right to per diem allowances within limits much narrower than those imposed upon clerks or marshals; but in so doing it is not to be presumed that Congress intended to impose such unnecessary and unreasonable limitations as to make the obtaining of the payment of their statutory allowances an exceeding hardship.

Great confusion and much litigation would result in the settlement of the accounts of officers of this character if their right to compensation were to be made dependable niton establishing the “ necessity for their attendance.” It would necessarily involve a judicial determination in almost every instance and would subject the officers entitled to allowances to the individual judgment of those charged with the payment of their compensation acting without legal precedent and inharmoniously.

In the case at bar the accounts of the officers for their per diem allowances were duly presented to the court for approval, as set forth in finding iv, were approved by the court and subsequently disallowed by the accounting officers of the Treasury. The course pursued in this case would likewise be pursued in most others and no uniformity in the settlement of their accounts could possibly obtain.

The causes of action herein are several, and no privitj'- or joint interest exists between the..several claimants named in the petition. It is, in fact, a case of misjoinder of parties; and in such cases it is the right of the defendants to raise the objection and to obtain a dismissal of the petition or a severance of the parties. The petition must be regarded as the petition of each and not of all; and the judgment of the court must be in the form of several and distinct judgment for each claimant.

We therefore aAvard judgments as follows: To John Kelly, $88; to Jacob Proebstel, $84; to James N Fullilove, $88; to George Egbert, $88, and to IT. Lampman, $4.

AtiíiNSON, J.,

dissenting:

I can not concur in the opinion of the court that the statute (715) which authorizes the appointment of criers and bailiffs, to attend upon the sessions of United States district and circuit courts, intended to authorize the payment of per diems to such officers except for the days that courts are actually, and not constructively, in session. The authority to pay marshals and clerks per diem fees while courts are constructively sitting has been adjudicated by this court and by the Supreme Court of the United States, notably in the following cases: United States v. Pitman (147 U. S. R., 669) and United States v. Finnell (185 U. S. R., 236).

It is essential that marshals and clerks should be in attendance at the times and places fixed by law for the beginning of terms of courts and during tlieir sessions, and it is also necessary that they should be present when courts are adjourned from day to day, under sections 583, 671, and 672, lie vised Statutes, on account of the absence of the judges, but the services of criers and bailiffs are not essential, except when courts are actually sitting and public business is being transacted by the courts. It is therefore apparent to my mind that sections 583, 671, and 672, which provide for the adjournment of courts by the marshals in the absence of the judges and for the days covered by such adjournment^, do not imply that criers and bailiffs are expected to be present or that they are entitled to be paid per diem fees even if they are present, especially when the appropriation acts are read in conjunction with the statute which authorizes their employment.

Section 715, Revised Statutes, which provides for the appointment of criers and bailiffs, and the act of March 2, 1895 (28 Stat. L., 958), amendatory thereof, which declares “ that all persons employed under section 715 shall be deemed to be in actual attendance -when they attend upon the order of the courts,” I am constrained to believe does not refer to the “ orders ” provided by sections 583, 671, and 672, Revised Statutes, which contemplate the intended absence of the judges, and prescribe the duties of the marshal and clerk (not criers and bailiffs) in relation thereto; but, on the contrary, they do contemplate the absence of the judge only during a session or term of the court, when, such session is suspended or adjourned while awaiting the action of a jury, either grand or petit, or for any other reason which does not necessitate a formal adjournment to a given day. It means, as I understand it, orders or instructions personal to the criers or bailiffs relating to services to be rendered during the absence of the jxidges, and not to an order of adjournment which has been preannounced or predetermined, as in the case at bar.

It is reasonable to infer, from the language to which I have referred, that to authorize a per diem fee to be paid for “ actual attendance ” upon courts, an order of a court would be necessary, and not such an order as is contemplated by the sections above quoted, which relate specifically to the attendance of marshals -and clerks only. The language of section 715 provides that criers and bailiffs shall be paid a per cliem of $2, when in achual attendance upon the orders of the court. I can not believe, therefore, that the Congress intended that subordinate officers of a court, such as these, should be compensated for services in waiting upon courts and executing their orders, when no judges are present to direct the duties which their respective positions required to be executed by them and by them alone. To allow such compensation it will be necessary to place bailiffs 'and criers on an equal standing with marshals and clerks, which, to my mind, was not the purpose of the Congress when the law was enacted.

The language of section 715 provides that “ the- circuit and district courts may appoint criers for their courts, who shall be allowed the sum of two dollars per day.” For what purpose shall they be allowed this compensation? To execute the orders of the courts while public business is being-transacted in open court, because no other official services can be rendered by them. Is it reasonable therefore for us to assume that the Congress intended that they should be paid a per cliem when no public business is being disposed of by the courts, or, in other words, when the judges are not personally present ? I can not believe that such was the purpose of the act.

In refereence to the appointment of bailiffs by'the marshals, the same section defines their duties to be “to attend ■upon the grand and other juries, and for other necessary purposes, who slial] be allowed two dollars per day * * and that “such compensoMon shall he paid only for actual attendance * * Are we to assume from this language that the Congress intended that they should be paid for attendance upon juries when none are in session, because juries can not transact business except when a judge is personally present? I can not believe that a proper construction of this section reveals such intention by the legislative body that enacted it.

No opposition is made to the payment of fees to criers and bailiffs when courts are actually and not constructively in session, consequently the authorities cited in the foregoing opinion of the court can have but little or no bearing upon the case at bar.

For the reasons above stated, I am persuaded that the petition should be dismissed.  