DEDUCTION FROM A CLAIM OFFSETTING AN AMOUNT PAID FROM THE SAME APPROPRIATION.

Where in the settlement of a claim an amount is withheld or deducted there. from, offsetting an amount paid from the same appropriation and the sum found due claimant merely reduced, no charge should be raised against said appropriation for the amount thus set-off.

An amount set-off in the settlement of a claim against the Government can not be allowed to remain to the credit of the appropriation benefitting by the set-off when the said appropriation would be thereby increased, and said amount must be charged to said appropriation and credited to "Miscellaneous receipts" as money received for the benefit of the United States. Comptroller Downey to the Secretary of the Interior, March 17, 1915:

I have your letter of February 20, 1915, in which you take exception to the action of the Auditor for the State and other Departments in settlement No. 9542, dated January 18, 1915, in authorizing to be deposited in the United States Treasury to the credit of "Miscellaneous receipts" the sum of $4.80, the value of Government property lost in transit, deducted from the amount determined to be due from the appropriation "Construction and operation of railroads in Alaska" to the Copper River & Northwestern Railway.

You state that:

"This is in accordance with the regular practice of the accounting officers of the Treasury Department in such cases, and with rulings of your office, but it does not appear that your office has ruled specifically upon the application of the practice to the appropriation 'Construction and operation of railroads in Alaska.'

"There are a number of objections to such application of the rule, from the administrative standpoint, which are submitted for your consideration.

"The charge of the whole amount of the claim to this appropriation shows an increased cost over the actual cost of the work, as the original price of the material is not offset by the amount realized from the credit for such loss. It seems to be highly desirable that the records should show the actual cost of the work.

"It is suggested that the payment made the carrier was due under a contract for the safe carriage of the goods in question-the liability under that contract was the net amount due the carrier and not the amount that would have been earned had the contract been fully performed.

"I submit, further, that sections 3617 and 3618 of the Revised Statutes relate to 'moneys received' and 'proceeds of sales,' and may therefore be not applicable to this case. The application of these sections has been extended to cases where goods have been lost in transit, by construction; and could only be justified, I believe, in cases where the purpose of those sections is thereby upheld. I assume that the purpose of the sections was to prevent the increase of an appropriation, or an unexpended balance of an appropriation, by the sale of public property; and that such purpose would not be

affected by the reimbursement to the appropriation Construction and operation of railroads in Alaska' of sums representing the value of property paid for out of that appropriation and lost in transit.

"I respectfully request that you will advise me whether the charges to the appropriation may not be limited, in cases like the present, to the sums actually paid to the carriers in settlement of their bills for transportation."

Your request is for a decision upon a question involving payments to be made under you and will be so considered without any action upon the settlement referred to.

The act of March 12, 1914 (38 Stat., 305), authorized the location, construction, and operation of railroads in the Territory of Alaska, the obligation of the United States therefor not to exceed $35,000,000. and appropriated for beginning the work authorized the sum of $1,000,000. The said appropriation denominated "Construction and operation of railroads in Alaska" is available for the necessary expenditures in carrying out the provisions of the act. The cost of the material and supplies required therefor includes the necessary transportation charges from the place of purchase to the place where required for use, in addition to the price paid therefor at the original place of purchase.

The value of the transportation service is determined on the basis of the rates applicable on the property delivered at destination. The amount of a payment by or deduction from the carrier for property lost in transit can not be considered as a reduction in transportation charges, and the said amount whether recovered by collection or deduction can not be allowed to augment the appropriation in excess of that authorized by Congress, but in such a case must be charged to the appropriation benefited and credited to "Miscellaneous receipts" as money received for the use of the United States within the meaning of section 3617 of the Revised Statutes, in accordance with my decision of November 22, 1913. (20 Comp. Dec., 349.)

In the case under consideration, however, the same appropriation is chargeable with the purchase and the transportation of property, the value of which at the destination where required by the Government is represented by the amount paid for purchase and transportation. The amount deducted from the charges for transportation as the value of property lost in transit thus offsets the amount paid therefor from the same appropriation. The effect of said operation is as though said item of property had never been purchased, the total cost of the property which is delivered at destination being the same as though determined on the basis of its initial purchase price and the proper transportation charges thereon. The appropriation is thus charged with the correct cost of the property at des

tination. Charging the appropriation with the amount of said deduction would reduce the appropriation with no return therefor. The amount of said deduction is not required to be charged to said appropriation because it does not operate to increase an appropriation beyond that specified by Congress. This case is clearly distinguishable from my decision of November 22, 1913 (supra).

It may therefore be stated as a general principle that an amount set off in the settlement of a claim against the Government can not be allowed to remain to the credit of the appropriation benefiting by the set-off when the said appropriation would be thereby increased, and said amount must be charged to said appropriation and credited to "Miscellaneous receipts" as money received for the benefit of the United States, but where in the settlement of a claim an amount is withheld or deducted therefrom, offsetting an amount paid from the same appropriation, and the sum found due claimant merely reduced, no charge should be raised against said appropriation for the amount thus set off.

EMOLUMENTS OF CLERK OF UNITED STATES DISTRICT COURTS. Clerks of United States district courts are accountable for all fees earned by them, whether collected or not, unless relieved of such accountability by law or by rule or order of court preventing them from making the collection. Fees must be accounted for at the time provided by law notwithstanding that stipulation or other security for costs may have been given.

Decision by Comptroller Downey, March 18, 1915:

Joseph P. Brady, clerk of the United States District Court for the Eastern District of Virginia, applied February 11, 1915, for a revision of the action of the Auditor for the State and Other Departments in charging the clerk in the settlement of his account for excess of emoluments for the calendar year 1914 by settlement No. 26998, dated January 8, 1915, with certain fees amounting to $229.93 earned from individual litigants but not collected from them by the clerk.

Clerks of district courts are required by law to return and account for all fees and emoluments of office of every kind, and to pay into the Treasury any surplus of such fees and emoluments over and above the amount which they are entitled by law to retain. (Act of June 28, 1902; 33 Stat., 475; secs. 839 and 844, Rev. Stats.)

Under an established practice of long standing the clerks have been held accountable for all fees earned, whether collected or not, unless relieved of such accountability by a statute, rule, or order preventing them from making the collection. (2 Comp. Dec., 589; 7 Comp. Dec., 708, and authorities cited therein; see also 18 Comp. Dec., 543.)

In the case now before me the clerk contends that he should not be held for the fees in question, because of the following state of

facts and certain rules of court governing the collection of costs in his district:

In cases Nos. 489, 642, 727, 1606, 1607, 1608, 1749, 1751, 1752, 1753, and 1740, in which the United States was plaintiff, fees amounting in all to $30.73 were earned from the defendants but have not been collected. The clerk claims that he should not be charged with these fees, because there is no rule of court requiring a defendant to make a deposit or give bond for costs.

When the clerk renders a service for a defendant, he is entitled to demand of the defendant his statutory fee for such service. This right is not dependent upon rule of court except in so far as the rule may permit the defendant to make a deposit or give other security for fees generally instead of paying for each service as it is rendered. The absence of a rule upon the subject does not relieve the clerk of the duty of collecting and accounting for the fee.

The auditor's action in charging the clerk with these fees is affirmed.

In case No. 1708 in admiralty, fees amounting to $11.08 were earned and not collected and have been charged to the clerk by the auditor. A stipulation for costs was given by the libellant under rule of court. Shortly after the proceeding in admiralty was insti. tuted the libellant filed a petition in bankruptcy. The admiralty case was dismissed with judgment for costs against libellant, who was bankrupt and had no assets out of which to pay the costs. For this reason the clerk claims exemption from accountability for the fees.

The rule providing for stipulation for costs requires at least one surety resident in the district. The very purpose of the stipulation is to secure the costs in case the libelant is unable or unwilling to pay the same. No reason is given why the surety on the stipulation may not be held for these fees. If the security is insufficient, the clerk is not thereby relieved from responsibility for the fees which he has earned and for which he is accountable.

The auditor's action in charging the fees is affirmed.

In case No. 1711 admiralty fees amounting to $3.05 were earned. The libelant was in possession of the vessel libeled, claiming salvage. The rule of court in such cases provides that libelant shall not be required to give security for cost in the first instance, although the court may later order the usual stipulation for costs. The schooner sank and the court officers lost their fees.

The libelant was not released from liability for the clerk's fees merely because no security therefor was required. If, as a matter of fact, the rule prevented the clerk from exacting security, and it was subsequently impossible to collect the fees, he should not in justice be held to account for them, but there is no showing here that

the fees could not have been collected or that any effort was made to collect them.

Upon the evidence before me the auditor's action in charging the items will not be disturbed.

In cases Nos. 1502, 1503, and 1511 fees amounting to $25.85 were earned from petitioners for habeas corpus. The petitioners were aliens in the custody of an immigration inspector, who was holding them for deportation. The court dismissed the case and discharged the prisoners from custody. They were without means to pay the costs and are now residents of Canada.

I do not find any statute which gives to a person without means the right to the clerk's services in habeas corpus proceedings without security for the payment of fees therefor, nor is any rule or order to that effect cited in this case. It is not probable that habeas corpus would be denied petitioners merely because they were without funds to pay the clerk's fees. The fact of poverty should be satisfactorily established, and the usual and proper course is to require an affidavit to that effect. There is no affirmative showing that such affidavit was made, and the writ granted upon condition that advance payment of clerk's fees or security for payment thereof should not be demanded.

In the absence of such showing the auditor's action in charging the fees will not be disturbed.

Fees amounting to $158.70 have been earned by the clerk but have not been collected because of rules of court, one of which provides for stipulation for costs, and another provides that in actions brought by nonresidents of the district the plaintiff shall give security for costs, and in default of such security the counsel shall be held responsible therefor, except when the suit may be in forma pauperis.

It does not appear that any of the suits in question were brought in forma pauperis, nor is it shown that any of these fees are uncollectible. The clerk's contention is that he should not be held to account for any of the fees unless and until he actually collects them.

A stipulation or security for costs is designed to secure the payment of clerk's fees among other costs of an action; but it does not supersede or interfere with the clerk's statutory right to demand and collect from a party his lawful fees for services rendered, nor does it postpone such right until final judgment has been rendered. (Cavender v. Cavender, 10 Fed. Rep., 828.)

The clerk is required to account at stated intervals for all fees and emoluments earned by him, and it is his right to demand and collect all fees due him at the time of each accounting. Whether or not a party paying such fees shall recover on a judgment for costs against the other party, the amount thus paid is not material to the issue now before me.