Berkman v. United States/Opinion of the Court
Section 828, U.S. Revised Statutes (Comp. St. § 1383), which specifies the compensation to be taxed and allowed to clerks of District Courts, among other things provides:

'For receiving, keeping, and paying out money, in pursuance of any statute or order of court, one per centum on the      amount so received, kept, and paid.'

In each of the criminal causes entitled The United States v. Emma Goldman and the United States v. Alexander Berkman, some days subsequent to defendants' arrest (June, 1917), evidently upon applications in their behalf consented to by the District Attorney, the court below directed:

'That the sum of $25,000 cash, be deposited in the registry      of this court in lieu and place of bail for the appearance of      the above-named defendant before the United States District      Court for the Southern District of New York, in accordance      with the provisions of the recognizance to be given by said      defendant.'

Defendants were afterwards convicted and sentenced to imprisonment.

Upon motions duly presented the clerk was afterwards directed to pay to defendants' counsel funds deposited under the above orders, less costs. He retained 1 per centum as compensation, and the court refused to declare this sum unlawfully withheld and direct its return. The matter is here by writ of error to the District Court.

It is now maintained that section 828 does not apply to criminal cases. Further, that if construed to be applicable where cash is deposited in lieu of bail for appearance of one charged with crime, it conflicts with the federal Constitution, Fifth Amendment, 'No person shall * * * be deprived of * * * liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation;' also with article 4, § 2, cl. 1, 'The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states;' and with the Eighth Amendment, 'Excessive bail shall not be required.'

Our jurisdiction depends upon whether the case really and substantially involves the constitutionality of the section in question as construed and applied. Judicial Code, § 238 (Act March 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. § 1215]); Rakes v. United States, 212 U.S. 55, 58, 29 Sup. Ct. 244, 53 L. Ed. 401; Lamar v. United States, 240 U.S. 60, 65, 36 Sup. Ct. 255, 60 L. Ed. 526. And we deem it too clear for serious discussion that, as enforced below, the statute deprived plaintiffs in error of no right guaranteed by any of the constitutional provisions relied upon. With full knowledge they voluntarily asked to deposit money with the clerk, and later requested that he be required to pay it out. Having thus obtained his services, they now deny his claim for compensation. Obviously, nothing was taken from them without due process of law; their property was not taken for public use; they were not deprived of any privilege or immunity enjoyed by citizens of other states; and the record reveals no relation between the contested charge and any excessive bail. We think the suggested constitutional questions are wholly wanting in merit and too insubstantial to support our jurisdiction. Brolan v. United States, 236 U.S. 216, 218, 35 Sup. Ct. 285, 59 L. Ed. 544. The writ of error must be

Dismissed.

Mr. Justice HOLMES and Mr. Justice BRANDELS dissent. 

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