United States v. Berkeness, 275 U.S. 149 (1927)

No. 175. Argued October 11, 1927.—Decided November 21, 1927. p. 150Court for Alaska in favor of Berkeness, in a suit by the United States under the Alaska liquor law to abate a nuisance alleged to be maintained in his dwelling house.

A warrant, issued May 5, 1925, by the U. S. Commissioner at Fairbanks, commanded the Marshal to search the premises then occupied by Berkeness as a private dwelling for intoxicating liquors, alleged there to be kept, p. 151possessed and stored by him contrary to the Act of Congress approved February 14, 1917. The preceding affidavits did not charge the use of the dwelling for unlawful sale of intoxicants or for any business purpose. The trial court declared the warrant invalid and rejected all evidence obtained thereby. This action met approval by the Circuit Court of Appeals.

“ Sec. 17. That if one or more persons who are competent witnesses shall charge, on oath or affirmation, before the district attorney or any of his deputies duly authorized to act for him, presenting that any person, company, copartnership, association, club, or corporation has or have violated or is violating the provisions of this Act by manufacturing, storing, or depositing, offering for sale, keeping for sale or use, trafficking in, bartering, p. 152exchanging for goods, giving away, or otherwise furnishing alcoholic liquor, shall request said district attorney or any of his assistants duly authorized to act for him to cause to be issued a warrant, said attorney or any of his assistants shall cause to be issued such warrant, in which warrant the room, house, building, or other place in which the violation is alleged to have occurred or is occurring shall be specifically described; . .

“Sec. 22. An action to enjoin any nuisance defined in this title may be brought in the name of the United States by the Attorney General of the United States or p. 153by any United States attorney or any prosecuting attorney of any State or any subdivision thereof or by the commissioner or his deputies or assistants. . . .”

“Sec. 33. After February 1, 1920, the possession of liquors by any person not legally permitted under this title to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this title. . . . But it shall not be unlawful to possess liquors in one’s private dwelling while the same is occupied and used by him as his dwelling only and such liquor need not be reported, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him therein; and the burden of proof shall be upon the possessor in any action concerning the same to p. 154prove that such liquor was lawfully acquired, possessed, and used.”

“ Sec. 6. That any officer, agent, or employee of the United States engaged in the enforcement of this Act, or the National Prohibition Act, or any other law of the United States, who shall, search any private dwelling as defined in the National Prohibition Act, and occupied as such dwelling, without a warrant directing such search, or who while so engaged shall without a search warrant p. 155maliciously and without reasonable cause search any other building or property, shall be guilty of a misdemeanor and upon conviction thereof shall be fined for a first offense not more than $1,000, and for a subsequent offense not more than $1,000 or imprisoned not more than one year, or both such fine and imprisonment.”

The relief sought does not involve amendment of the judgment entered. The motion is aimed at the alleged mistake of the Clerk-in including the direction for the p. 158payment of costs in the mandate. Clerical errors of that nature, if occurring, may be corrected after expiration of the term at which the judgment was entered. Compare The Palmyra, 12 Wheat. 1, 10; Bank of the Commonwealth of Kentucky v. Wistar, 3 Pet. 431, 432; Jackson v. Ashton, 10 Pet. 480; Bank of the United States n . Moss , 6 How. 31, 38; Alviso v. United States, 6 Wall. 457; Schell v. Dodge, 107 U. S. 629, 630. There is added reason for allowing correction where the clerical error was made during the vacation of the Court.

The argument is that this suit is a “ subsequent stage ” of the action against the carrier commenced by Spiller in the District Court for western Missouri and prosecuted p. 159there to final judgment. This proceeding arises out of the same cause of action which was the basis for the reparation order and for that action. But it is, in no sense, an “ appeal ” of the action brought in the Western District. In that action Spiller “ finally prevailed ” in 1920, when the judgment in personam recovered against the carriers in the District Court for western Missouri was reinstated by this Court. Spiller v. Atchison, Topeka & Santa Fe Ry. Co., 253 U. S. 117. This proceeding is a new and independent one. It is directed at parties other than the carriers against whom the reparation order and that judgment issued. It is a petition based on that judgment, filed in the receivership proceedings pending in the District Court for eastern Missouri, and seeks to enforce an alleged lien or equity against property which once belonged to the carrier and which passed upon foreclosure sale to other parties. If this were, as contended, “ a subsequent stage ” of the original action, Spiller would have been entitled in this proceeding to an “ attorney’s fee, to be taxed and collected as a part of the costs.” The Circuit Court of Appeals denied recovery in this case even of the attorney’s fees forming a part of the judgment recovered in the Western District. That ruling was acquiesced in by Spiller; and, in this respect, the judgment was affirmed by this Court. 274 U. S. 304, 316. The purpose of Congress in making the provision concerning costs was to discourage harassing resistance by a carrier to a reparation order. It was not to deny in independent litigation against third persons a customary incident of success. What the Clerk did was not contrary to any provision of the Act to Regulate Commerce.

The question remains whether the Clerk was justified by rule and practice in inserting in the mandate the direction concerning costs. Prior to the January Term, 1831, costs were seldom allowed in this Court upon a p. 160reversal. But see Turner v. Enrille, 4 Dall. 7, 8; Wilson v. Mason, 1 Cr. 45, 102; compare Mr. Justice Baldwin, 5 Pet. 724. Rule 37, adopted at that term, made each party chargeable with one-half of the legal fees for a copy of the printed record. 5 Pet. 724. Compare Mc-Knight v. Craig’s Adm’r, 6 Cr. 183, 187; and Rule 22, adopted at the February Term, 1810, 1 Wheat, xvii. Rule 47, adopted at the January Term, 1838, provided that in all cases of reversal, except for want of jurisdiction, costs shall be allowed in this Court to the plaintiff in error or appellant, unless otherwise ordered by the Court. 12 Pet. vii. Rule 24 (3) of the Revised Rules adopted at the December Term, 1858, eliminated the exception concerning reversals for want of jurisdiction. 21 How. xiv. The rule as then revised has remained in force ever since without substantial change. See 108 U. S. 587; 222 U. S. Appendix 29. It is now embodied in Rule 29 (3) of the Revised Rules adopted June 8, 1925. 266 U. S. 675. At no time has the rule expressly prescribed whether costs shall be allowed when the judgment or decree below is reversed only in part. But it has long been the practice of the Clerk to insert in the mandate, in such cases, the provision for payment of costs by the defendant in error, appellee or respondent, in the absence of specific direction by the Court. The acquiescence of the Court in this practice has operated to give effect to it as a practical construction of the rule. We are of opinion that the rule was properly applied in this case. Compare Baldwin v. Ely, 9 How. 580, 602. Therefore, there has been no clerical error for us to correct.