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immigration treaty, between the United | defendant before the commissioner were States and China, signed at Peking on the without authority of law; for the treaty it17th day of November, 1880 (the 15th day self does not provide any particular method of the tenth month of Kwanghsii, sixth by which Chinese laborers may be prevented year), it is hereby understood and agreed from entering the United States, or for sendthat Chinese laborers or Chinese of any oth ing them out of the country if they illegally er class, either permanently or temporarily enter, although both nations expressed in residing in the United States, shall have for the treaty a desire to co-operate in preventthe protection of their persons and property ing the immigration or coming to this coun. all rights that are given by the laws of the try of such persons. China itself recognized United States to citizens of the most favored it to be its duty to co-operate with the Unitnation, excepting the right to become natu- ed States to that end, "in view of the antagoralized citizens. And the government of the nism and much deprecated and serious disUnited States reaffirms its obligation, as orders to which the presence of Chinese lastated in said*article 3, to exert all

its power borers has given rise in certain parts of the to secure protection to the persons and prop- United States." As both countries were erty of all Chinese subjects in the United agreed that this result should be attained, States,

the court ought to hesitate to adopt any con"Art. V. The government of the United struction of the treaty that would tend to States, having by an act of Congress, ap- defeat the object each had in view. We must proved May 5th, 1892, as amended by an act assume that the two governments knew that approved November 30, 1893, required all a general prohibition of the coming of ChiChinese laborers lawfully within the limits nese laborers to the United States would be of the United States before the passage of ineffectual if no provision were made for dethe first-named act to be registered as in termining whether a particular Chinaman said aets provided, with a view of affording seeking to enter the country, and whose right them better protection, the Chinese govern- to enter was denied, belonged to the class ment will not object to the enforcement of prohibited from coming within our territo such acts, and reciprocally the government of rial limits. the Untied States recognizes the right of the It is not disputed that such provision ex. government of China to enact and enforce ists if § 12 of the act of May 6th, 1882, as similar laws or regulations for the registra- amended by the act of July 5th, 1884, and as tion, free of charge, of all laborers, skilled continued in force by the act of May 5th, or unskilled (not merchants as defined by 1892, be held not to have been repealed or susaid acts of Congress), citizens of the United perseded by the treaty of 1894. States in China, whether residing within or That it was competent for the two counwithout the treaty ports. And the govern- tries by treaty to have superseded a prior ment of the United States agrees that within act of Congress on the same subject is not to twelve months from the date of the exchange be doubted; for otherwise the declaration in of the ratifications of this convention, and the Constitution that a treaty, concluded in annually thereafter, it will furnish to the the mode prescribed by that instrument, government of China registers or reports shall be the supreme law of the land, would showing the full name, age, occupation, and not have due effect. As Congress may by number or place of residence of all other statute abrogate, so far at least as this citizens of the United States, including mis. country is concerned, a treaty previously sionaries, residing both within and without made by the United States with another na. the treaty ports of China, not including, tion, so the United States may by treaty suhowever, diplomatic and other officers of the persede a prior act of Congress on the same United States residing or traveling in China subject. În Foster v. Neilson, 2 Pet. 253, upon official business, together with their 314, 7 L. ed. 415, 435, it was said that a body and household servants.

treaty was "to be regarded in courts of jus"Art. VI. This convention shall remain in tice as equivalent to an act of the legisla. force for a period of ten years, beginning ture, whenever it operates of itself without with the date of the exchange of ratifica- the aid of any legislative provision.” In the tions, and if, six months before the expira- case of The Cherokee Tobacco, 11 Wall. 616, tion of the said period of ten years, neither 021, sub nom. 207 Half Pound Papers Smokgovernment shall have formally given notice ing Tobacco v. United States, 20 L. ed. 227, of its final termination to the other, it shall 229, this court said "a treaty may supersede remain in full force for another like period a prior act of Congress, and an act of Conof ten years." 28 Stat. at L. 1210.

gress may supersede a prior treaty. So, in The first proposition made on behalf of the the Head Money Cases, 112 U. S. 580, 599, defendant is that the treaty of 1894 should sub nom. Edye v. Robertson, 28 L. ed. 798, be construed as covering the whole subject 804, 5 Sup. Ct. Rep. 247, 254, this court of Chinese exclusion, and that its failure to said: "So far as a treaty made by the prescribe any judicial procedure for deporta- United States with any foreign nation can tion, or to continue in force any prior stat- become the subject of judicial cognizance in ute on that subject, shows that the commis- the courts of this country, it is subject to sioner was without jurisdiction.

such acts as Congress may pass for its en* If the words of the treaty of 1894, reason forcement, modification, or repeal.”. Again, ably interpreted, indicate a purpose to cover in Whitney v. Robertson, 124 U. S. 190, 194, the whole subject of Chinese exclusion, in- 31 L. ed. 386, 388, 8 Sup. Ct. Rep. 456, 458: cluding the methods to be employed to effect "By the Constitution a treaty is placed on that result, then the proceedings against the the same footing, and made of like obliga

tion, with an act of legislation. Both are If not repugnant to the Constitution, it is declared by that instrument to be the su made by that instrument a part of the supreme law of the land, and no superior effi- preme law of the land, and should never be cacy is given to either over the other. When held to be displaced by a treaty, subsequentthe two relate to the same subject, the courts ly concluded, unless it is impossible for both will always endeavor to construe them so as to stand together and be enforced. So far to give effect to both, if that can be done from there being any inconsistency between without violating the language of either; the statute and treaty here in question, the but if the two are inconsistent, the one last 12th section of the act of 1882, as amended in date will control the other, provided al. in 1884, and continued in force for ten years ways that the stipulation of the treaty on from and after the passage of the act of the subject is self-executing." See also Tay- 1892, is in absolute harmony with the treaty, lor v. Morton, 2 Curt. c. c. 454, 459, Fed. and can be enforced without affecting or im. Cas. No. 13,799; Clinton Bridge Case, pairing any right secured by the treaty. On Woolw. 155, Fed. Cas. No. 2,900; Ropes v. the contrary, the enforcement of that section Clinch, 8 Blatchf. 304, Fed. Cas. No. 12,041; as amended will serve to advance the pur. 2 Story, Const. § 1838. Nevertheless, the pose of the two countries in respect of Chi. purpose by statute to abrogate a treaty or nese laborers, as avowed in the treaty of any designated part of a treaty, or the pur- 1894. Despite the ingenious argument to pose by treaty to supersede the whole or a the contrary, we do not perceive any diffipart of an act of Congress, must not be light. culty whatever in reaching this conclusion, ly assumed, but must appear clearly and dis- after carefully scrutinizing the treaty and tinctly from the words used in the statute the statute. A different conclusion would be or in the treaty.

hostile to the objects which, as avowed in the In the case of statutes alleged to be incon- treaty, both the United States and China de sistent with each other in whole or in part, sired to accomplish. This is so clearly the rule is well established that effect must manifest that argument cannot, as we think, be given to both, if by any reasonable inter make it more so. pretation that can be done; that "there must The question certified is answered in the be a positive repugnancy between the provi- negative, and an order so declaring will be sions of the new laws and those of the old; sent to the Circuit Court of Appeals. and even then the old law is repealed by implication only pro tanto, to the extent of the Mr. Justice Gray did not hear the argurepugnancy and that “if harmony is im- ment, and took no part in the decision.

possible, and only in that event, the former Sulaw is repealed, in part or wholly, as the case may be." "Wood v. United States, 16

(185 U. S. 236) Pet.* 342 363, 10 L. ed. 987, 995; United States v. Tynen, 11 Wall. 88, 93, 20 L, ed.

UNITED STATES, Appt. 153, 154; South Carolina v. Stoll, 17 Wall. 425, 431, 21 L. ed. 650, 654. In Frost v.

JOSEPH C. FINNELL Wenie, 157 U. S. 46, 58, 39 L. ed. 614, 619, 15 Sup. Ct. Ref. 532, 537, this court said: Clerks of court--- per diem compensation "It is well settled that repeals by implica statutes departmental construction. tion are not to be favored. And where two statutes cover, in whole or in part, the same A clerk of a district and circuit court of the matter, and are not absolutely irreconcila United States must be deemed entitled to the ble, the duty of the court-no purpose to re per diom compensation recognized as his peal being clearly expressed or indicated right by the act of March 3, 1887, chap. 362 is, if possible, to give effect to both. In oth (24 Stat. at L. 509, 541), "when the court is er words, it must not be supposed that the open for business or business is actually

transacted in court," for those days on which, legislature intended by a later statute to re

in the absence of any judge, he entered on peal a prior one on the same subject, unless

the journal certain orders, decrees, and other the last statute is so broad in its terms and

proceedings transmitted to him for that pur. so clear and explicit in its words as to show

pose by the different Judges composing the that it was intended to cover the whole sub courts of such district, since to decide other. ject, and, therefore, to displace the prior wise would be to overrule a uniform constatute."

struction glven to this statute by the TreasThe same rules have been applied where ury Department, which is not obviously or the claim was that an act of Congress had

clearly wrong, but is, at the most, subject abrogated some of the provisions of a prior

to a doubt of Its soundness. treaty between the United States and China. Chew Heong v. United States, 112 U. S. 536,

(No. 523.) 550, 28 L. ed. 770, 774, 5 Sup. Ct. Rep. 255. In that case it was held that the treaty Submitted February 28, 1902. Decided could stand with the subsequent statutes,

April 21, 1902. and, consequently, it was enforced. question is whether an act of Congress has A PEAL. from the Court of Claims to re

view a judgment allowing per diem been superseded in whole or in part by a compensation to a clerk of a District and subsequent treaty. A statute, enacted by Circuit Court of the United States. Af Congress expresses the will of the people of firmed. the United States in the most solemn form. The facts are stated in the opinion.

Assistant Attorney General Pradt and by the judge). For the purpose of entering Mr. Philip M. Ashford for appellant. said orders, decrees, and other proceedings Mr. Charles C. Lancaster for appellee. the claimant made the following entries on

the journal for opening, and adjourning Mr. Justice Harlan delivered the opinion court on the dates for which attendance is of the court:

claimed: "Court met: Present, Hon. John The appellee was clerk of the district and W. Barr, sitting as circuit judge' (or Judge circuit courts for the Kentucky district Taft, or Judge Lurton, or whoever may have from July 1st, 1894, to June 30th, 1898, his been the judge sending the order. Then fol. office, during that period and previously, be lows the entry of the order or other proceeding in the city * of Covington, one of the ings of the court for that day), and, 'It is places at which those courts were held. The now ordered that the court stand adjourned district judge resided in the city of Louis- until . The date to which adjournment ville, while the circuit judges resided in oth- was had was left blank, and when another er states.

such order, decree, or other proceeding was The clerk presented to the proper officers received to be entered said blank was filled of the Treasury for payment his account for by entering therein the date on which the certain services rendered during the above same was received, and another entry, simiperiod, amounting to $995.

lar to the above, opening and adjourning the The account was sworn to and approved as court to a blank date, was made. The recrequired by the act of February 22d, 1875, ord containing the entries of the opening and which provides, among other things, that be adjourning of court, the certified presence of fore "any account payable out of the money the judge, and the orders, decrees, and other of the United States shall be allowed by any proceedings of the court, was afterwards officer of the Treasury, in favor of clerks, signed by the judge sending such orders, demarshals, or district attorneys, the party crees, and other proceedings, to be entered claiming such account shall render the same, as the record of the court for the days on with the vouchers and items thereof, to a wbich the same were respectively entered. United States circuit or district court, and, The Exhibits A, B, and C, attached to and in presence of the district attorney or his made a part of these findings, are illustrasworn assistant, whose presence shall be tive copies of the record of the court upon noted on the record, prove in open court, to such days. the satisfaction of the court, by his own oath “The nature and character of business or that of other persons having knowledge of transacted on the days on which court was the facts, to be attached to such account, opened and adjourned, as aforesaid, is best that the services therein charged have been shown by the following statement of the actually and necessarily performed as there subject matter of said orders, decrees, and in stated; and that the disbursements other proceedings entered as aforesaid on the charged have been fully paid in lawful mon- days actually claimed for: ey; and the court shall thereupon cause to "Entry of order granting additional time be entered of record an order approving or to plead, four days. disapproving the account, as may be accord "Entry of order directing drawing of jury ing to law and just.” 18 Stat. at L. 333, by jury commissioners, eighteen days. chap. 95, 81.

"Entry of order granting restraining order, Payment of the account having been re- five days. fused, this suit was brought against the "Entering orders disposing of sundry de United States, the petitioner averring that murrers and motions, twenty-one days. “his whole compensation, if said fees were *"Entry of orders granting rule, ten days. added, would not exceed the maximum com "Entry of orders granting application for pensation of $7,000 for any one year." writ of certiorari, four days.

Judgment having been entered in favor of "Entry of orders granting petition for the plaintiff for the amount sued for, the witnesses on behalf of the defendant at the government has prosecuted this appeal. cost of the United States, seven days.

The findings of fact upon which the judg “Entry of orders approving report of rement below was based were as follows: ceivers, authorizing compromise by receiver,

"1. The claimant, Joseph C. Finnell, was instructions issued to receiver, and various clerk of the district and circuit courts of the other orders pertaining to the appointment United States for the district of Kentucky and conduct of receivers, thirty-three days. from July 1st, 1894, to June 30th, 1898, duly "Entry of orders, and decrees finally dis qualified and acting.

posing of cases, seventeen days. 2. During said period he entered orders, "Sundry entries of orders granting writs decrees, and other proceedings of the court of possession, approving bond of clerk of mon 199 days, extending through said time. court, granting leave to withdraw exhibits,

None of the judges of said courts were per granting leave to file intervening petition, sonally present at the time of the entry of ordering sale of property, confirming sale of such orders, decrees, and proceedings, but property, determining the priorities of liens, said orders, decrees, and proceedings were continuing cases, and granting appeals, transmitted to the claimant by mail by the eighty days. different judges composing the courts of said 23. Claimant made his account for said district. Said orders, decrees, and proceed services as attendance on court when the ings were indorsed: 'Enter this order same was opened and adjourned by order of (signed by the judge); or, 'Enter this' the judge, and while the same was actually (signed by the judge); or, 'Enter' (signed in session and business actually transacted,

* 240

which was verified and presented to the certified in the approval of their accounts. United States court for approval in the pres. 24 Stat. at L. 509, 541. ence of the district attorney, and orders ap The sections of the Revised Statutes re-proving the same as being just and according ferred to in the act of 1887 are as follows: to law were entered of record. Said ac *«g 383. If the judge of any district court** counts were then presented to the account is unable to attend at the commencement of ing officers of the Treasury Department for any regular, adjourned, or special term, the payment, and payment of fees as per diems court may be adjourned by the marshal, by in finding 4 was refused.

virtue of a written order directed to him by "4. Item 1. Per diems for attendance on the judge, to the next regular term, or to any court on the days on which said orders, de earlier day, as the order may direct. crees, and other proceedings were entered, "§ 584. If the judge of any district court, 199 days, at $5 per day, $995.

in Alabama, California, Georgia, Indiana, "5. Charges for similar services have been Iowa, Kentucky, North Carolina, Tennessee, made by the claimant in every account ren or West Virginia is not present at the time dered since 1882, and were always allowed for opening the court, the clerk may open and paid by the accounting officers of the and adjourn the court from day to day for Treasury up to June 30th, 1893."

four days; and if the judge does not appear By $ 828 of the Revised Statutes, a clerk by 2 o'clock after noon of the fourth day, the of a circuit or district court of the United clerk shall adjourn the court to the next reg. States was allowed "$5 a day for his attend. ular term. But this section is subject to the ance on the court while actually in session.” provisions of the preceding and next sec

*This section was similar to one in the act tions." of February 26th, 1853, chap. 80 (10 Stat. "§ 671. If neither of the judges of a cir. at L. 161, 163). Under that act clerks were cuit court is present to open any session, the allowed $5 a day for attendance only, wheth- narshal may adjourn the court from day to er business was transacted or not by the day until a judge is present: Provided, court. After many years had expired, Comp- that if neither of them attends before the troller of the Treasury Durham held that in- close of the fourth day after the time apo terpretation of the statute to be erroneous, pointed for the commencement of the session, and ruled that the transaction of business the marshal may adjourn the court to the was a condition precedent to the right to a next regular term. per diem compensation for attendance, al. "§ 672. If neither of the judges of a cir. though the court may have been, in fact, reg. cuit court be present to open and adjourn ularly opened for business, and awaited the any regular or adjourned or special session, coming of suitors. But the court of claims either of them may, by a written order, die held, in 1885, that the Comptroller was in rected alternatively to the marshal, and, in error, and adjudged that within the mean. his absence, to the clerk, adjourn the court ing of $ 828 the clerk was entitled to $5 a from time to time, as the case may require, day for his attendance on court, even when to any time before the next regular term.” no business was transacted. Jones v. United " 2013. The circuit court, when opened States, 21 Ct. Cl. I.

by the judge as required in the two precedThe judgment of that court did not, how. ing sections, shall, therefrom and thereafter, ever, put the matter at rest; for, by the sun- and up to and including the day following dry civil appropriations act of August 4th, the day of election, be always open for the 1886, chap. 902, it was provided that no part transaction of business under this title, and of the money appropriated by that act the powers and jurisdiction hereby granted should "be used in payment of a per diem and conferred shall be exercised as well in compensation to any clerk or marshal for vacation as in term time; and a judge sitattendance in court, except for days when ting at chambers shall have the same powers business is actually transacted in court, and and jurisdiction, including the power of when they attend under $$ 583, 584, 671, keeping order and of punishing any contempt 672, and 2013 of the Revised Statutes, which of his authority, as when sitting in court." fact shall be certified in the approval of their Section 2013 had reference to the funcaccounts." 24 Stat. at L. 222, 253. That tions of the circuit court in election matters, act, by its terms, was temporary.

and has been repealed. At the subsequent session of Congress the The account here in suit is not for the atsubject was again considered, and resulted tendance of the clerk under $8 583, 584, 671, in a permanent provision to be found in the and 672, but for attendance under s} 574 sundry civil appropriations act of March 3d, and 638, which are hereafter given in this 1887, chap. 362. By that act it was pro- opinion. vided “that hereafter no part of the appro

It will be observed that the act of 1887 priations made for the payment of fees for recognizes the right of the clerk to a per United States marshals or clerks shall be liem compensation in two states of case, used,

nor shall any part of any namely, "when the court is opened for busimoney appropriated be used in payment ness, or business is actually transacted in of a per diem compensation to any attorney, court." clerk, or marshal" for attendance in court, What do those words mean! We are in. except for days when the court is opened by formed by the representatives of the governthe judge for business, or business is actu- ment that for nearly forty years prior to ally transacted in court, and when they at- 1886 it bad been the practice of its accounttend under $8 583, 584, 671, 672, and 2013 of ing officers to allow a per diem compensathe Revised Statutes, which facts shall be'tion to clerks for attendance, when court


was opened by the judge and adjourned with. I may be transacted under the orders of the out transacting any business; and that such judge, who may at the time be absent from practice had been sanctioned by an unbroken the place, room, or building in which the line of decisions in the Federal courts. And court is held. The business transacted by it is suggested that the purpose of the act of the appellee was such as could be transacted 18$6 was to break up that practice. All this by the clerk under the orders of the judge.

nly serves to prove that Congress used the It is too narrow an interpretation of the words found in the act of 1887 with full statute to hold that such business was not knowledge of the former practice, and of the actually transacted in court. This whole change made, or supposed to be made, by the subject was carefully considered, and the act of 1886. It is clear that the words used, statutes relating to it fully analyzed, by reasonably interpreted, indicate a purpose Judge Baker in Butler v. United States, 87 to allow the per diem compensation for at Fed. 655. tendance as well when the court was opened These views are justified by long practice for business, whether any business was actu- in the Department, and upon that we may ally transacted or not, as when business was properly rest our affirmance of the judgment actually transacted in court. It is said that of the court of claims. It is found as a fact no business could be lawfully transacted "in that the present appellee, in every account court" unless the judge was personally pres- rendered by him since 1882," has charged for ent. We do not assent to that view. It services similar to those set out in the acrests upon a construction which is too liter count here in suit, and such accounts were al. The services for which Finnell's account uniformly allowed and paid up to June 30th, was rendered constituted business actually 1893. And on his account for the period transacted in court, unless it be that a clerk from January 1st, 1892, to June 30th, 1894, could never enter any order unless the judge he obtained judgment in the court of claims, was, at the time, in the place, room, or build which judgment was paid, -no appeal have ing where his court was ordinarily held. But ing been prosecuted by the United States. we cannot so adjudge. There are many Finnell v. United States, 32 Ct. Cl. 634. It things that may be legally done by a clerk thus appears that the government has for pursuant to the written order of a judge many years construed the statute of 1887 as sent to him, and which, being done, may be meaning what we have said it may fairly be fairly held to constitute business "actually interpreted to mean, and has settled and transacted in court.” This much is to be closed the accounts of clerks upon the basis implied from $8 574 and 638 of the Revised of such construction. If the construction Statutes, which are as follows:

thus acted upon by accounting officers for so “574. The district courts, as courts of many years should be overthrown, we appre admiralty and as courts of equity, so far as hend that much confusion might arise. Of equity jurisdiction has been conferred upon course, if the departmental construction of them, shall be deemed always open, for the the statute in question were obviously or purpose of filing any pleading, of issuing clearly wrong, it would be the duty of the and returning mesne and final process, and court to so adjudge. United States v. Graof making and directing all interlocutory ham, 110 U. s. 219, 28 L. ed. 126, 3 Sup. cts motions, orders, rules, and other proceedings, Rep. 582; Wisconsin C. R. Co. v. United preparatory to the hearing upon their mer states, 164 U. S. 190, 41 L. ed. 399, 17 Sup. its of all causes pending therein. And any Ct. Rep. 45. But if there simply be doubt district judge may, upon reasonable notice as to the soundness of that construction, to the parties, make, and direct and award, and that is the utmost that can be asserted at chambers, or in the clerk's office, and in by the government,-the action during many vacation, as well as in term, all such process, years of the Department charged with the commissions, orders, rules, and other pro-execution of the statute should be respected, ceedings, whenever the same are not granta- and not overruled except for cogent reasons. ble of course, according to the rules and Edwards v. Darby, 12 Wheat. 206, 210, 6 Le practice of the court."

ed. 603, 604; United States v. Philbrick, 120 "§ 638. The circuit courts, as courts of U. S. 52, 59, 30 L. ed. 559, 7 Sup. Ct. Rep. equity, shall be deemed always open for the 413; United States v. Johnston, 124 U. S. purpose of filing any pleading, of issuing 236, 253, 31 L. ed. 389, 8 Sup. Ct. Rep. 446; and returning mesne and final process, and United States v. Alabama G. S. R. Co. 142 of making and directing all interlocutory U. S. 615, 621, 35 L. ed. 1134, 12 Sup. Ct. motions, orders, rules, and other proceed. Rep. 306. Congress can enact such legislaings, preparatory to the hearing upon their tion as may be necessary to change the existmerits of all causes pending therein. Anding practice, if it deems that course conduany judge of a circuit court may, upon rea-cive to the public interests. sonable notice to the parties, make, and di The judgment of the Court of Claims is rect and award, at chambers or in the clerk's affirmed. office, and in vacation, as well as in term, all such process, commissions, orders, rules, and Mr. Justice Gray took no part in this de other proceedings, whenever the same are not cision. grantable of course, according to the rules and practice of the court.”

Mr. Justice Brown dissenting: As will be seen from those sections, the From the passage of the act of 1791, district and circuit courts of the United ing the compensation of officers of the courts States are always open for the transaction of of the United States, the subject of* fees for certain kinds of business which, we think, attendance upon the circuit and district

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