Show A of MS in the third court tb Is morn IQ illg adge barlan dellver fd hie lion jolk in the case of tho the stales ur ot Ln arloa plain plaintiff tift vie ve henry 0 mcmillan john J daly and worden P noble defendant argued mud and submitted recently it was an action brought the fondant dreN dant mcmillan Mo Millan and his sureties on his bond as a clerk ut of the feird uis ois cour ano ani it was alleged that he be filid fiad tailed to mke m ke returns of certain boneys tec received elved by him bim as emoluments ot of his bie office from june ath to december slat lot 1889 1 he be complaint gated that between those dates mr he aa clerk collected and received de lived from different daffe reut sources as aa fee febe abd emoluments emu lumento of his bis i mee the eum bum of 70 of which was received in united baates amatea buei busi neap neep for declarations vf of intention ano ima natural tural bation and from private persons in civil litigation and from the territory of utah on 00 account of territorial bUBin buol nese eee the point that arose in the case was wae on a demurrer to the complaint on the aroud that neither or the counts state i lacta tacta sufficient ciet t to constitute a cause ol of action the oti said his honor was wag as aa to w whether nether the defea defendant daut wera waa ae under the law of the united staica to make returns ui ter emol emoluments emolument dment thal thai frow froin territorial busin business eks and from naturalization the plaintiff claimed mst at uder the law he was waa required tu snake biake these returns return and the ue denied that be was waa so ao required under tle statute this required a construe tion t of the act relating to lees fees tor or these officers and whether that act applied t territorial business the act tu regulate arves feeland and costs coate tu to be allowed clerks marshals an i attorneys of the me circuit and district courts of the united ac passed february 1853 1858 and provides or ovidea that thai in lieu of the campen maion now allowed by law to ator solicitors and th tbt proctors in cyb ag yg united states to united state stales drI gilet attorneys attorney clerks of the district and d circuit courts macabale ma fabale witnesses it nesses J Ju sr arlo coin and printers in aw jh several states time following rod and no ito 0 aber be taxed axed and allowed 21 A ad then followed a of leb fees tu to be allowed in the conduce of the eks in i 13 tole act remarked the court the wre not included and its did not apply to oleria of territorial ri borlo courts courte out but only to 10 clerks 0 of 0 and courts ut ol e save irAl atella of we he united bratec ep there wan no al kusion whatever of ita n territorial 60 gwi or orla criminal eri minal irgal basi ba BineM nor 0 was abo Ally rote redee to naturalization the act wits waft passed to regulate 4 the fees for united business in 1 be e alveral and there could be no whatever nv ilig been wade made tu lu lou ibe territories or ot of the territories that at the time of its ito it was waa not lute lad to these thebe territories rieR the law so continued without refer edre eto to the terri territories until march 30 I 1 alen ehlt it was wae enacted that the of the so act of or fedj bally ty ak hundred ad a to bertete Beg tete t th n lee ud costs to be allowed clerks marshals mare balis and ty raey vf the circuit aid aiho dist district riat courts of wh the united mcatee antt tor for otner purposes te bre hereby extended to the ter rito rieB a of minnesota Minne eota ngaw ngew mexico and utah ail aa fully full in ID all alj particulate as aney would be bad the word territories tori esi been in ertee in the sixth line hue alter the word estates and the same name had bad tend lead ain in the several states and lu in the he territories of the united states P chis to take effect from and after the date of said bald act and the so ao will settle fictile the accounts within its purview ly IJ it seemed clear then his honor went on tu to say aay that up to this time the clerks of the territorial courts were not required to report the fees in question tion rhe supreme court of the states an the ease of the united slated vs hill hili held that the act did nut not apply to naturalization cases and that anat the clerks need not make returns of their fees feea received in that olau clam ot of cases this was for the district of massachusetts but the same ruling would also aino to the territories ur or the united tita iea the section upon which counsel for reli relle edir that I 1 art which is IH i in u point here provided that the clerk snail at the time ot of making his nail limit yearly return retura to the attorney getie getheral ne oeral ral pay into the treasury or deposit to lo the credit of the treasurer me aa he may oe ne u erected by the attorney general any surplus of the tees ieee anu ana emoluments emo lumenta or 01 taie office which said eaid return showed to to exist over aud abide the me compensation and allowances authorized by law to be re tattled by hiro him this section would be broad enough to include all fees of tue tae clerk if the law just referred to applied to territorial aud add naturalization counsel tor for plaintiff claimed crainic d that there wag wae a conflict between tile the oae cake of the united states vs ve hill and that thai of tue the united states vs VB averald which was waa found 1 US ki his Is honor had exam neu nou the abe original papers iu in toe latter case and found that that thai was an ab action brought against Clerk Averill 11 tor for tees teea due to the united states there was waa no refer reference esice wun tevor in th the corn com plaint to territorial tees fees or to nt natural ural mattion few fee and under the ruling lu in thiet case it was certainly very clear in view of the pleadings plea draga dIdgs that the clerk must account feea fee comparing the two decisions which were were written watten by the mafte justice he be could see no conflict in the lormer former case the qu quee tion was wae raised as aado to naturalization naturalisation in fe febe P which were oot not included in the fee bill of the tate mud aud the court aoun therefore held that the law did not apply it in that bat claw of oases jn in the latter case the united states Vs VB averill there was waa no mention maue matie either of territorial business huai or naturalization territorial business was wae not referred to in the statute providing the fees for united states bust beai new he thought therefore the same were boere being to no reference whatever in the fee bill to territorial ot or terri tortal hi r to naturalization tiong be w opinion that ane oae or abb be united its ate mil fal cab ooh trolie strolled t tn in this tbt particular base in ahe th ohm daw of abe he knifed areat vs VB averill the complaint made no ia the fee in abit cattle cwerenc t at r artal 1 khot nese at aad naturalization and be catis considered dared tho that I 1 he huld bo be mover sail by bi the ifie ruling stiling of of the united states vs ashill hill there was wa further reason for this it would be ito impossible possible 0 o conceive what Inte ireat the united state could havo ib buor nees that a as artly ly the united states was hot affected thereby it if there as aa way any equity it would be in ID faar of the parties who were vere compelled to pay these feets it the clerk but it was waa not so eo in this cube had charged illegal leee fees or of had bad charged fees that he be was not dot entitled to under knoer the law tien jiin in equity equit the return should be made tu ti the ito lerson ereon from whom those tees were taken certainly Cena the united states would have n interest inte reet in this auy more inure than it would in naturalization calep elf and this held true to terri territorial criminal business as well As 68 territorial civil business the demurrer he thought should be sustained and he so 80 held judge judd 1 I desire to enter an ex certion to the action ackloo of the court I 1 do nut not know what course coune the attorney general at washington mey aay desire we me to take but I 1 shall communicate with him and it he be desires it I 1 shall take au an appeal attorney W H dickmon if your bom r please I 1 understand anut it to 18 not possible to make ail ad amendment to me ne complaint and therefore we ask aak judgment of dismiss so that thai it if they desire to appeal the emu will be in such shape that they can do so I 1 ask that the complaint be dismissed judge bartch it may be so ordered judge judd then I 1 desire to enter an exception to the action ot of the court in dismissing the complaint |