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Opinion of the Court.
nesses, who are citizens of the United States, to be produced and examined in open court.
"Ordered, that before such applications are presented, all necessary papers shall be filed with the clerk, who shall report to the court, when the application is made, that he has examined the same, and whether they are all in due form and in conformity with the requirements of law, or how otherwise.""
This fact, as to these rules made in 1855, was not made a part of the agreed statement of facts, but the counsel in the cause, in this court, stipulated in open court, that the fact should be taken as agreed.
The opinion of the Circuit Court then proceeds: "It is for services rendered under these rules, and as a special officer of the court, and not as clerk, that these fees have been permitted. They were not duties pertaining to the office of clerk. They could as well have been performed by any other person designated by the court for the purpose; as by the district attorney, or a commissioner of the Circuit Court, or an attorney, or any suitable person not an officer of the court.
"Reference has been made to the circular of Attorney General Devens of January 14, 1879, issued to the clerks. In it he says, referring to § 833: This language embraces every possible fee or emolument accruing to you by reason of your official capacity, and does not allow the withholding of any. Whatever is done by you that you could not do if out of office has an official color and significance that brings it within the compass of the language of the statute.' This is undoubtedly a forcible and accurate statement of the meaning of the statute. But the naturalization fees do not come within this rule. They did not accrue to the clerk by reason of his official capacity, and were for work which might as well have been done by him when out of office as when in. It is also to be noticed that this circular calls upon the clerks for a statement of sums received for searches, for all copies for naturalization papers and oaths, and all other sums received through your office,' but makes no mention in terms of naturalization fees. Regul'ns Dept. Justice, 1884, p. 223.
Opinion of the Court.
"No complaint of these fees has ever come to the ear of the court from any quarter. On the contrary, this service performed by the clerks has been of great advantage to those seeking to be admitted as citizens. It has had the effect, as originally intended, to simplify the process of becoming a citizen, and to make it more expeditious and inexpensive. It saves the parties the expense of employing an attorney, and the fee charged therefor is much less than would be allowed by the fee-bill, if the application is to be treated and entered on the docket of the court as an ordinary suit. In rejected cases no fee has been charged. This practice has prevailed for more than forty years, ever since the act of 1842, which first required returns, and has been perfectly well known to everybody conversant with the courts. It was begun by Judge Story and Judge Sprague, and has had the approval of all the judges of this district since their day. It has also had the sanction successively of the Department of the Treasury, the Department of the Interior, and the Department of Justice. Until this suit was brought it has never been called in question by any accounting officer of the government; nor has Congress seen fit to put a stop to it by legislation. This construction of the statute in practice, concurred in by all the Departments of the government, and continued for so many years, must be regarded as absolutely conclusive in its effect. Edwards' Lessee v. Darby, 12 Wheat. 206; United States v. Temple, 105 U. S. 97; Ruggles v. Illinois, 108 U. S. 526; United States v. Graham, 110 U. S. 219.
"It was stated at the bar that a bill was introduced in the last Congress to require the clerks to make returns of all fees which they should receive for naturalizations and as masters and commissioners, but failed to become a law. If a change in the practice should be thought desirable, it is obvious that it should be made by Congress, and not by the courts.
"It is also to be noticed as significant, that the clerks of the courts of Massachusetts, under a fee-bill much like ours, and a statute requiring them to make to the county treasurer yearly a return of all fees received by them for their official acts and services,' were never required to include in their returns
Opinion of the Court.
Rev. Stat. of 1836,
the fees received in naturalization cases. c. 88, § 15; Gen. Stat. of 1860, c. 121, § 22. This was changed by the act of 1879, c. 300, which defined what the fees in such cases should be, and directed the clerks to include them in their returns.
"The decision of the court is, that, upon the agreed facts in this case, this action cannot be maintained."
Viewing the whole subject in the light in which it appears on the face of the statute, in regard to the fees of the clerk, we are met by the fact that § 823 of the Revised Statutes, taken from § 1 of the act of February 26, 1853, c. 80, 10 Stat. 161, provides that "the following, and no other, compensation shall be taxed and allowed" to clerks of the District Courts. This applies prima facie to taxable fees and costs 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 December, 1839, the practice set forth in the agreed statement of facts has obtained in the District Court in Massachusetts, of charging the fees of $1 and $2, as gross sums, in naturalization proceedings, without any division for specific services, according to any items of the fee-bill. The act of March 3, 1841, before referred to, the first one on the subject of returns, implied that there should be reports of "fees and emoluments" by the clerk to the Secretary of the Treasury. The act of May 18, 1842, provided for semiannual returns to that officer, and included, specifically, fees and emoluments under the bankrupt act. But the clerk never has included in these returns his fees and emoluments for naturalization proceedings, and his action from 1842 to and including 1884 has been with the knowledge of the successive district judges, to whom his accounts have been semiannually exhibited. From 1842 to 1849 these accounts went to the Secretary of the Treasury; from 1849 to 1870, to the Secretary of the Interior; and since 1870 they have gone to the Attorney General. From 1856 the statute has required that these accounts, before going forward, "shall be examined and certified by the district judge," and that, after being sent to the several heads of departments, they shall be subject to revis
Opinion of the Court.
ion on their merits by the accounting officers of the Treasury Department. The agreed statement of facts shows that this course has been pursued; that the district judge has examined and certified the accounts, knowing that they did not include naturalization fees; and that those accounts have been revised on their merits by these accounting officers, for this long series of years, and been examined and adjusted by them with the naturalization fees not included.
With this long practice, amounting to a contemporaneous and continuous construction of the statute, in a case where it is doubtful whether the statute requires a return of the disputed fees, judges of eminence, heads of departments, and accounting officers of the Treasury having concurred in an interpretation in which those concerned have confided, the surety in the present bond, as well as his principal, had a right to rely on that interpretation in giving the bond; and the semiannual accounts of the principal having been actually examined and adjusted at the Treasury, with the naturalization fees excluded, down to and including the one last rendered five months before this suit was brought, a court seeking to administer justice would long hesitate before permitting the United States to go back, and not only as against the clerk, but as against the surety on his bond, reopen what had been settled with such abundant and formal sanction. This principle has been applied, as a wholesome one, for the establishment and enforcement of justice, in many cases in this court, not only between man and man, but between the government and those who deal with it, and put faith in the action of its constituted authorities, judicial, executive, and administrative.
In Edwards' Lessee v. Darby, 12 Wheat. 206, 210, it was said: "In the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect." To the same effect are United States v. Dickson, 15 Pet. 141, 145; United States v. Gilmore, 8 Wall. 330; Smythe v. Fiske, 23 Wall. 374, 382; United States v. Moore, 95 U. S. 760, 763;
United States v. Pugh, 99 U. S. 265, 269; Hahn v. United States, 107 U. S. 402, 406; and Five per cent. Cases, 110 U. S. 471, 485. In the case of Brown v. United States, 113 U. S. 568, the same doctrine was applied, the cases in this court on the subject being collected, and it being said, that a “contemporaneous and uniform interpretation" by executive officers charged with the duty of acting under a statute "is entitled to weight" in its construction, "and in a case of doubt ought to turn the scale." A still more recent case on the subject is United States v. Philbrick, ante, 52, where this language is used: "A contemporaneous construction by the officers upon whom was imposed the duty of executing those statutes is entitled to great weight; and since it is not clear that that construction was erroneous, it ought not now to be overturned."
PHOENIX LIFE INSURANCE COMPANY v. RADDIN.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.
Argued December 20, 21, 1886. Decided January 31, 1887.
Answers to questions propounded by insurers in an application for life insurance, unless they are clearly shown by the form of the contract to have been intended by both parties to be warranties, to be strictly complied with, are to be construed as representations, as to which substantial truth in everything material to the risk is all that is required of the applicant.
Where upon the face of an application for life insurance, a direct question
of the insurers appears to be not answered at all, or to be imperfectly answered, the issue of the policy without further inquiry is a waiver of the want or imperfection of the answer, and renders the omission to answer more fully immaterial.
A policy of life insurance stated that it was issued and accepted by the assured upon certain express conditions, one of which was that “if any of the declarations or statements made in the application for this policy, upon the faith of which this policy is issued, shall be found in any respect untrue, this policy shall be null and void." The application contained a