
    WILLIAM W. GILBERT v. THE UNITED STATES.
    [No. 20511.
    Decided June 4, 1900.]
    
      On the Proofs.
    
    The Supreme Court decides that docket fees are exclusive — i. é., that a docket fee of 51 or 52 or 53 excludes additional compensation.'for making docket entries. Congress abolishes docket fees. The Supreme Court then decides that fees for actual services in mak- • ing entries in dockets are recoverable — i. e., that a commissioner is entitled to compensation for making entries in his docket, and that the compensation is the fee prescribed for services of a similar character, to wit, 15 cents per folio.
    I.The Supreme Court necessarily decided in United States v. Allred (155 TJ. S. B.., 591) that fees for specific services in making entries upon a docket are not forbidden by the Act August 4,11886 (24 Stat. L., 274), abolishing docket fees. The law stands as if there had never been a provision in the Revised Statutes prescribing docket fees of 51, 52, or 53.
    II.This court decided in Knox’s Case (23 C. Cls. R., 367) that there need not be a preexisting rule or order of a court requiring a commissioner to keep a docket to entitle him to docket fees, and the judgment was affirmed (128 U. S. R., 367).
    III. There is no peculiar efficacy in a rule of court; a rule does not make or restrict a law; it is the order or direction of a court reduced to written form. It regulates practice, but does not confer rights.
    IV. Under the decision of the Supreme Court in Allred v. The United States a commissioner is entitled to be paid for his actual services in keeping a docket, if the service was ordered by the court, or if it was directed by the court, or if the items for the sendees were approved by the court.
    Y. In small cases where the United States have an appeal and the claimant has none the court can not be called upon to so decide that its judgments may result in being either a favor to one party or a denial of justice to another.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, William W. Gilbert, was a commissioner of the circuit court of the United States for the northern district of New York from the 15th day of October, 1890, to the 80th day of June, 1896, duly qualified and acting.
    
      II. During said period be kept a docket in which be entered the separate and distinct proceeding's before him. in 316 criminal cases heard and decided on behalf of the United States, consisting of the name of affiant and official position; name of defendant; offense charged; date of issuing warrant and by whom served; names of witnesses examined for prosecution and defense; motions to adjourn examination to a future day; disposition of the case; names of sureties and amount of bail, and the costs of witnesses and commissioner, making 3,015 folios, at 15 cents per folio, $452.25.
    III. No preliminary rule of court existed for the purpose of allowing the commissioner to charge for the service here-inbefore indicated, but he made up an account for said services which was duly verified and presented to the circuit court for approval in the presence of the district attorney, and an order approving the same as being just and according to law was entered of record. No payment for said services has been made by the United States.
    
      Mr. G. G. Lancaster for the claimant.
    
      Mr. P. M. Ashford (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court:

The Revised Statutes (sec. 847) recognized the necessity of commissioners keeping dockets and prescribed docket fees.

The Supreme Court in the case of United States v. Van Duzee (140 U. S. R., 169) decided that these fees were exclusive; that is to say, that the docket fee of $1 or of $2 or of $3 excluded additional compensation for making docket entries.

By the Act 4th August, 1886, Congress abolished docket fees. Faris's Case (23 C. Cls. R., 374).

If the history of the law stopped at this point, it might be said that the docket fees of $1, $2, or $3 prescribed by the Revised Statutes were a commutation for the services involved in keeping a docket, and that when Congress abolished commutation for fees it abolished fees for the services covered by the commutation fee. But the Supreme Court, in United States v. Allred (155 U. S. R., 591), decided that fees for actual services in making entries in dockets are recoverable — i. e., the Supreme Court decided that a commissioner is entitled to compensation for making entries in his docket, and that this compensation consists of the fees prescribed by other provisions of law for services of a similar character, to wit, 15 cents per folio.

It is manifest, therefore, that the Supreme Court necessarily decided that fees for specific services in making entries upon a docket were not forbidden by the act 4th August, 1886. That statute, in the judgment of the Supreme Court, repealed the earlier by necessary implication, and (it must be inferred) did nothing more. The law stands, consequently, as if there had never been a provision in the Revised Statutes prescribing docket fees of $1, $2, or $3.

The statute allowing such docket fees and the statute repealing it being both out of the way, the remaining question, which has been raised by the defendants, is whether there must be a preexisting rule or order of a court requiring a commissioner to keep a docket.

That question was presented in Knox's Case (23 C. Cls. R., 367) while the docket fees of the Revised Statutes still existed, and this court decided that there need not be; and the judgment in the case was affirmed by the Supreme Court (128 U. S. R., 367).

It is true that in the Allred Case, first above cited, there was a rule of court requiring commissioners to keep dockets, and it is true that in the syllabus of the case the reporter has used the words, “when required by rule of court.” That was good reporting; for it is not the province of a reporter to enlarge the scope of a decision by omitting an element which may restrict it. But the opinion of the court does not say so. It is based on the simple facts that the commissioner rendered a service, that the service was ápproved by the circuit court in its approval of his account, and that a statute existed which authorized payment for services of the same character. There is no peculiar efficacy in a rule of court where none is authorized by statute; a rule does not make law or restrict law; it is nothing more than the order or direction of a court reduced to a convenient written form. It regulates practice; it does not confer rights. There is no law requiring the order of a court to these commissioners to be in the form of a rule; and the simple question in these fee cases is whether a clerk or commissioner rendered service by the direction of the court.' The Supreme Court fully recognizes this in its language in the Allred Case. The commissioners, it is said (p. 599), “so far as relates to their administrative action, were intended to be subject to the orders and directions of the court appointing them; ” and (p. 596) “what should be the measure of the requirements in each particular case must be left largely to the discretion of the court;” and where “the items in question were approved by the court they are presumptively correct.” By this last utterance it is not to be understood that the items are presumptively legal, but that, presumptively, the services were performed pursuant to the “ directions of the court. ”

The decision, therefore, of the Supreme Court in the Knox Case stands conclusive that a rule requiring a commissioner to keep a docket is not an essential prerequisite to his being paid for his services in keeping it; and the decision of the court in the Allred Case stands conclusive that a commissioner shall be paid for his actual services in keeping a docket; that is, for his entries therein, if the service was ordered by the court, or if it was directed by the court, or if the items for the services were approved by the court.

In this condition of the declared law by the highest tribunal, this court is not at liberty to say that a commissioner shall not be paid. If its decision in the Knox Case was erroneous the defendants should have procured its reversal by the Supremo Court. That they did not bring it to the attention of the Supreme Court indicates that they were then content with the decision; but it was a fact contained in the case, an item of recovery necessarily affirmed. In these small cases, where the defendants have an appeal and the claimant has none, this court can not be called upon to render its decisions so that they shall operate as a favor to one party or a denial of justice to another.

The judgment of the court is that the claimant recover of the defendants the sum of $452.25.

Howry, J.,

dissenting:

Congress did not intend to have a docket kept at public expense. There is no “docket fee” provided for in section 828 of the Revised Statutes, but a fee for “making dockets, indexes, issuing venire, taxing costs, and all other services on the trial or argument of a cause.” In Wallace v. United States (20 C. Cls. R., 273) this court held that a commissioner who had kept a docket, as required by the order of court, was entitled to charge docket fees. On appeal to the Supremo Court this decision was affirmed (116 U. S. R., 398). In Knox v. The United States (23 C. Cls. R., 367) it was held by this court that the docket fees provided by the Revised Statutes still existed. But that part of the action of this court which touches the issue raised here was not before the Supreme Court on the appeal for want of the necessary assignment of error. There is therefore nothing conclusive in the Knox Case at all (128 U. S. R., 367). The proviso to the act of August 4, 1886 (24 Stat. L., 274), was enacted for the purpose of cutting off all such fees for the future, and was the result of the decision in the Wallace Case. (Faris v. United States, 23 C. Cls. R., 374.)

The theory of the Allred decision (165 U. S. R., 291) is the preliminary rule of the court. That is, notwithstanding the proviso of the statute, if the court makes an order (under its inherent power to supervise the conduct of its officers) requiring dockets to be kept the entries should be paid for. It rests upon the rule requiring the service. (United States v. Van Duzee, 140 U. S., 169, 173.)

No precedent order of the court appears in this case, and where court officers seek to predicate a right of action for the recovery of fees on an order or rule of court it must be shown that such order or rule was made a matter of record. A verbal direction of the judge is insufficient, nor will the subsequent approval of the account after the services have been rendered be sufficient to charge the Government.

The proviso to the act of August 4, 1886 (24 Stat., 274), though embodied in an appropriation act, declared a permanent policy with respect to the compensation of commissioners, and when Congress abolished commutation for fees it abolished fees for the services covered by the commutation fee. The language of the proviso is express that commissioners “shall not be entitled to any docket fees.”

The entries being prohibited by law, and the rule of the court not requiring the dockets to be kept, none of the items of expense, therefore, should be allowed under the statute, as interpreted by the court of highest authority.  