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Opinion of the Court.

Stat. 395; 16 Stat. 164. By the act of August 16, 1856, c. 124, § 1, reënacted in section 846 of the Revised Statutes, their accounts were to be examined and certified by the District Judge, before being presented to the accounting officers of the Treasury for settlement; and to be then subject to revision upon their merits by those officers. 11 Stat. 49.

The case of United States v. Hill, 120 U. S. 169, arose in this way: It was an action brought December 4, 1884, in the Circuit Court of the United States for the District of Massachusetts, by the United States upon the official bond of the clerk, appointed in 1879, of the District Court for that district, to recover a large amount of fees of one dollar and two dollars each, respectively, charged and received by him for a declaration of intention to become a citizen, and for a final naturalization and certificate thereof: The judgment of the Circuit Court, reported in 25 Fed. Rep. 375, in favor of the defendants, was affirmed by this court, speaking by Mr. Justice Blatchford, at October term, 1886, upon the following grounds: Section 823 of the Revised Statutes, reënacting section 1 of the act of 1853, applies prima facie to taxable costs and fees in ordinary suits between party and party prosecuted in a court. There is no specification of naturalization matters in the fees of clerks. From as early as 1839, it had been the practice of the clerks of the courts of the United States for that district to charge the fees of one dollar and two dollars in naturalization proceedings, in gross sums, without any division for specific services according to any items of the fee bill. The clerk of the District Court had never included these fees in his returns of fees and emoluments. From 1842 and including 1884 his accounts were examined and approved by the District Judge; they then went from 1842 to 1849 to the Secretary of the Treasury, from 1849 to 1870 to the Secretary of the Interior, and since 1870 to the Attorney General; and they were, during this long period, examined and adjusted by the accounting officers of the Treasury, with the naturalization fees not included. This long practice amounted to a contemporaneous and continuous construction of the statute by the concurring interpretation of judicial and executive officers

Opinion of the Court.

charged with the duty of carrying out its provisions. 120 U. S. 181, 182.

After that decision, the clerks of the courts of the United States in Massachusetts, and in some other States, at least, continued to omit, in the returns of their official fees and emoluments, sums received for their services in naturalization proceedings; and attempts made, from time to time, to require them to include such fees in their returns, have proved unsuccessful. United States v. Hill, 123 U. S. 681; Attorney General's Report for 1890, xx; 52d Congress, 1st sess. H. R. Bills 9612, 9613, and Reports No. 1966, pp. 22, 23, and Nos. 1969, 1970; 53d Congress, 1st sess. H. R. Bill 3963, and Report No. 111.

In the Fifty-second Congress, on July 21, 1892, the Committee on the Judiciary of the House of Representatives reported a bill, approved by the Attorney General and by the First Comptroller of the Treasury, entitled "A bill to amend section 833 of the Revised Statutes of the United States, relating to semi-annual returns of fees by district attorneys, marshals and clerks," and purporting to amend that section by inserting, after the words "all fees and emoluments of his office, of every name and character," the words "including all naturalization fees," and by requiring each clerk's return to contain " a true statement of all naturalization fees.". On January 17, 1893, the bill was amended in the House by adding at its close these words: "That in each of the three judicial districts of the State of Alabama there shall be a district attorney and a marshal"; and, as amended, was passed by the House and sent to the Senate. On February 13, 1893, the Committee on the Judiciary of the Senate reported that the bill be amended by striking out all after the enacting clause, except the words which had been added by amendment in the House; and the bill in this shape, with its title amended accordingly, and thus leaving out everything relating to returns of fees, was passed by both Houses, vetoed by the President and passed over the veto. 52d Congress, 1st sess.

H. R. Bill 9612, Report No. 1969; 24 Congr. Rec. 649, 1508, 1582, 1656, 1661, 2287, 2381, 2433, 2523, 2524; Act of March 3, 1893, c. 220; 27 Stat. 745.

Opinion of the Court.

The Judiciary Committee of the House of Representatives, on the same day on which they reported that bill, also reported a bill, having the like approval, entitled "A bill to amend section 828 of the Revised Statutes of the United States, relating to clerks' fees," and purporting to amend that section by adding, at the end thereof, these words: "For filing declaration of intention to become a citizen by an alien, one dollar; for final papers and all services connected therewith, two dollars." This bill, after being passed by the House, was referred to the Committee on the Judiciary of the Senate, and no further proceedings thereon appear to have been had. 52d Congress, 1st sess. H. R. Bill 9613, Report No. 1970; 24 Congr. Rec. 650, 684.

In the next Congress, a bill embodying the provisions of those two bills was reported by the Committee on the Judiciary of the House of Representatives, passed by the House, referred to the Committee on the Judiciary of the Senate, and not afterwards heard of. 53d Congress, 1st sess. H. R. Bill 3963, Report No. 111; 25 Congr. Rec. 2608, 2657, 2663, 2710.

Congress not having legislated upon the subject since the decision of this court in United States v. Hill, 120 U. S. 169, and no special usage or sound reason being shown for not applying a uniform rule in all the courts established by authority of Congress in the States and in the Territories, the Supreme Court of the Territory of Utah rightly held, in accordance with that decision, that the appellee was not obliged to return to the United States, as a part of the emoluments of his office, sums received for his services in naturalization proceedings.

But the erroneous ruling of that court upon the other branch of the case requires its

Judgment to be reversed, and the case remanded (pursuant to the act of July 16, 1894, c. 138, § 17; 28 Stat. 111;) to the Circuit Court of the United States for the District of Utah for further proceedings in conformity with this opinion.

Statement of the Case.

SMITH v. VULCAN IRON WORKS.

NORTON v. WHEATON.

PETITIONS FOR WRITS OF CERTIORARI TO THE COURT OF APPEALS FOR THE NINTH CIRCUIT.

Nos. 200, 639. Argued January 19, 1897. Decided February 15, 1897.

Under the act of March 3, 1891, c. 517, § 7, an appeal to the Circuit Court of Appeals from an interlocutory order or decree of the Circuit Court, granting an injunction and ordering an account, in a patent case, may be from the whole order or decree; and upon such an appeal the Circuit Court of Appeals may consider and decide the case on its merits, and thereupon render or direct a final decree dismissing the bill.

In each of these cases, the Circuit Court of the United States for the Northern District of California, upon a bill in equity for the infringement of a patent for an invention, an answer denying the validity and the infringement of the patent, a general replication and a hearing, entered an interlocutory decree, adjudging that the patent was valid and had been infringed, granting an injunction, and referring the case to a master to take an account of profits and damages. From that decree, in each case, the defendant appealed to the Circuit Court of Appeals for the Ninth Circuit.

In the first case, the defendant, at the time of taking the appeal, filed in the Circuit Court an assignment of errors, alleging error in holding that the patent was valid, and that it had been infringed. The plaintiff moved the Circuit Court of Appeals to dismiss the appeal, so far as it involved any question except whether an injunction should be awarded. But that court denied the motion; and, upon a hearing, examined the questions of validity and infringement, decided them in favor of the defendant, and entered a decree reversing the decree of the Circuit Court. 15 U. S. App. 217, 577. On petition of the plaintiff, this court, on January 28, 1895, granted a writ of certiorari to the Circuit Court of Appeals.

In the second case, the Circuit Court of Appeals affirmed the decree of the Circuit Court; 29 U. S. App. 409; but, upon

Opinion of the Court.

a rehearing, decided that there had been no infringement, reversed its own decree and that of the Circuit Court, and remanded the case with instructions to dismiss the bill; and afterwards denied a petition for a rehearing, and a motion to certify questions of law to this court. 44 U. S. App. 118, 425. The Circuit Court, upon receiving the mandate of the Circuit Court of Appeals, and without hearing the plaintiffs, entered a final decree dismissing the bill. An appeal from this decree was taken by the plaintiff to the Circuit Court of Appeals, and upon the defendant's motion, and without any hearing on the merits, was dismissed by that court. The plaintiff, on November 9, 1896, presented to this court a petition for a writ of certiorari; and the court thereupon granted a rule to show cause why the writ should not issue to bring up the decree of the Circuit Court of Appeals, "so that it may be determined whether, upon an appeal from an interlocutory decree granting a temporary injunction in a patent case, the Circuit Court of Appeals can render or direct a final decree on the merits."

That question was now, by leave of the court, orally argued in both cases; the parties in the first case stipulating in writing that, if the decision of this court upon that question should be in favor of the jurisdiction of the Circuit Court of Appeals, the case should be dismissed by the appellees.

Mr. Calderon Carlisle (with whom was Mr. William G. Johnson on the brief) for the Vulcan Iron Works.

Mr. John II. Miller (with whom was Mr. M. Estee on the brief) for the petitioners in both cases.

Mr. Milton A. Wheaton in person for himself.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The act of March 3, 1891, c. 517, establishing Circuit Courts of Appeals, after providing in section 5, for appeals from the Circuit Courts and District Courts directly to this court in

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