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the cost of deportation of aliens from the port where deportation commences to the point where they are disembarked.
No one would contend for a moment that such latter cost of deportation did not include more than the price of a ticket or carriage of the person being deported. In order to deport the person so being deported, he would necessarily have to be lodged and fed during the time consumed in the passage between such ports.
Transporting an improper immigrant overland necessarily includes more than the mere price of a ticket.
It can not be presumed that Congress intended that the person so transported would make such trip alone, but that he should be properly guarded, fed, and lodged.
When speaking of the shipowners bearing half the cost of inland transportation of such improper immigrant, Congress necessarily meant half of the cost of effective transportation between the points aforesaid and over the usually traveled routes between said points. It would necessarily follow that the steamship company in the case under consideration would be chargeable with more than the price of a half ticket between Chicago and Boston.
When demand is made upon the steamship company to bear its part, share, or proportion of this inland transportation, it should be for the one-half of the actual cost of the transportation of these aliens.
I have not alluded to the fact that one of the aliens was transported by way of New York for the reason that when a proper voucher is submitted to show the cost of actually transporting the three immigrants, the fact of transporting the particular alien by way of New York may then not figure in the matter, as such method may have resulted in reducing the amount which one steamship company would have been chargeable with for its share of the transportation for the particular immigrant if made independently from Chicago to Boston.
FEES OF CLERKS OF COURTS.
Fees and costs collected by the clerk of a circuit court of appeal prior to
June 6, 1900, in cases commenced before but not disposed of until after that date, must be accounted for in the fiscal year in which they were earned and collected; and the Auditor is authorized to reopen accounts which have been settled more than a year for the purpose of charging such fees and crediting amounts inadvertently included in such settlements.
(Decision by Comptroller Tracewell, December 22, 1904.) These are appeals filed September 26, 1904, by John G. Stetson, clerk of the United States circuit court of appeals for the first circuit, from settlement of his emolument account for the fiscal years 1901 and 1902, made by the auditor for the State and other Departments per certificates Nos. 98151 and 98153, respectively, dated January 14, 1904.
These settlements were made in conformity with my decision of April 13, 1903 (10 Comp. Dec., 137), wherein it was held, quoting from the syllabus:
Fees earned but not collected by a clerk of the circuit court of appeals prior to the passage of the act of June 6, 1900 (31 Stat., 639), which act changed the method of accounting, belong to the Government, and when collected must be accounted for by the clerk.”
Prior to the passage of the act referred to clerks of circuit courts of appeals were required to account (by fiscal years) only for costs collected “in cases disposed of during the preceding year,” while under that act they were required to account for all fees and emoluments earned during the preceding year.
Pending the settlement of these accounts it came to the knowledge of the accounting officers that fees, amounting to a considerable sum, earned in cases commenced prior to June 6, 1900, but not disposed of until later, had not been accounted for by Mr. Stetson, whereupon he was charged with them ($1,708.56) and balances aggregating $1,518.86 found due from him to the United States.
The reasons for this action, and the facts as well, are quite fully set out in the decision of August 13, 1903, and it is not necessary to recount them here.
In his very comprehensive brief submitted on these appeals, claimant very fully gives his views of the law, his contention being, to state it briefly, that under the law in force prior to July 1, 1900, fees and costs in cases did not belong to the United States until the cases had been finally determined, and in support of this contention cites Parkin's case (7 Comp. Dec., 540), in which it was held that the act of June 6, 1900, was not declaratory of the law in force prior to its passage, and that the clerk, under those prior laws, was only required to account for fees and costs in cases.
The contention in the Parkin case, however, was not over fees and costs in cases, but related to certain other emoluments of his office, such as fees or compensation received from attorneys on admission to practice, etc., which the courts had declared were not official emoluments (see Converse's case, 8 Comp. Dec., 56); so it is seen that the Parkin case has no special application here.
In the brief referred to claimant presents no question of law that was not before me and duly considered when my said decision of August 13, 1903, was rendered, but he states some facts that were not then before me.
He says that the fees with which he was charged by the Auditor were not collected during the fiscal years 1901 and 1902, but practically at the time the services therefor were rendered, and after quoting the syllabus quoted supra says, no emoluments earned or received by him come within that description. In other words, that the decision of August 13, 1903, is based upon erroneous assumption of fact, and a careful reading of the decision shows that one of the facts upon which it was based, as stated by the Auditor, was that Mr. Stetson had not included in his returns “ certain fees earred in cases commenced prior to June 6, 1900, but not terminated until later, which fees were earned prior to that date, but not collected until subsequent thereto."
This, however, is not the main or basic foundation of the decision that being the fact that, in my opinion, the fees in question belonged to the United States and should be accounted for. I am still of that opinion, and while that decision may be erroneous as to the particular period or manner in which they shall be accounted for, yet I have no doubt
upon the main proposition, iz, that they belong to the Government.
Claimant also calls my attention to the fact that from July 31, 1894, to June 6, 1900, he included in his emolument returns certain earnings which, under the Parkin decision, should not have been included, and suggests that if his emolument accounts for the years in which the fees now in question were earned and collected, be reopened for the purpose of charging him with said fees, that he be allowed credit for emoluments improperly included in his said returns.
These facts present the matter in a new light and make a strong case in favor of claimant, and I think that it is the duty of the accounting officers in all matters of account, between the Government and its officers, to see that equal justice is done, if they can do so without violating the rules of law and good accounting.
I am now satisfied that the better plan in this case is to require the clerk to account for these fees in the fiscal years in wbich they were earned and collected. Whether this would require the reopening of the accounts, already settled, for those years I can not decide, because more than a year bas elapsed since they were settled, but I am free to say that if I had jurisdiction I would not hesitate to reopen them for the purpose of crediting claimant with nonofficial emoluments included and charged therein, upon the theory that they were inadvertently so included and charged, and I have no doubt of the Auditor's power and authority, under the principles announced in Campbell's case (+ Comp. Dec., 303), to reopen these accounts for the purpose of correcting these inadvertent
It is true that in the Converse case, supra, the Auditor declined to reopen a former settlement for the purpose of crediting emoluments improperly or inadvertently included, but in that case the year had not elapsed and I had jurisdiction, which on appeal I exercised, correcting the error, and I have no doubt that, if the year had elapsed, the Auditor could and would have reopened the account and corrected the error.
As I view the matter there is nothing in the act of June 6, 1900, or in the acts superseded by that act, militating against the mode of accounting indicated, supra, and indeed, there
being nothing in them specifically covering the fee now in question or the manner in which they shall be accounted for, we are ex necessitate rei relegated to the general laws relating to the accounting for moneys belonging to the Government, and adverted to by the Auditor in his decision (p. 139), which was affirmed by my decision of August 13, 1900, supra.
I am constrained, therefore, to modify my said decision of August 13, 1900, in so far as it relates to the time and manner of accounting, and the Auditor is directed to restate the accounts now under revision, crediting claimant with the fees in question, and state accounts charging him with said fees for the years in which they were earned and collected.
There are no data before me upon which the date these fees were earned and collected can be definitely fixed, but this information can and doubtless will be given by claimant. If the Auditor concludes to reopen former settlements for the purpose of charging these fees and crediting amounts inadvertently included, there would seem to be no legal objection to that course, but as before indicated it is a matter entirely within his jurisdiction and discretion; all that I have jurisdictional authority to do is to direct him to restate and state accounts as above set out.
TIME OF TAKING EFFECT OF APPOINTMENT.
The provision in the act of March 3, 1901, for the appointment each year
of six ensigns from among the boatswains, gunners, or warrant machinists of the Navy, such appointments to take effect "as of July 30,"
entitles the appointee to the pay of an ensign from that date. (Assistant Comptroller Mitchell to the Secretary of the Vavy,
December 23, 1904.)
I have received by your reference of the 17th instant, with a request for decision of the matter submitted, a letter to you from D. C. Crowell, assistant paymaster, U. S. Navy, requesting to be advised as to the time Ensign C. S. Vanderbeck, U. S. Navy, became entitled to the pay of an ensign. The facts shown are as follows:
By commission bearing date October 21, 1904, Mr. Vanderbeck was appointed ensign (from July 30, 1904) from the