by the Senate if made during the session. This purpose was sought to be accomplished by prohibiting the payment of salary to the persons appointed by the President after the expiration of the session of the Senate until such persons were confirmed by the Senate, provided the vacancy they were appointed to fill existed during the session. The limitation of the prohibition to appointments to fill vacancies which existed. while the Senate was in session, and which might, therefore, have been confirmed by the Senate if nominations had been made by the President during the session, clearly indicates this to be the purpose of the section.

The vacancy which existed while the Senate was in session was subsequently actually filled by Mr. Ransom under the appointment which he received from the President in pursuance of the previous nomination and confirmation of February 23, 1895. It is true that that appointment was illegal, and in contemplation of law null and void, and therefore that in contemplation of law it may be said that the vacancy existing during the session of the Senate was never filled, and continued to exist, until August 29, 1895, when by the legal appointment of Mr. Ransom it was first filled. But Mr. Ransom was the actual incumbent and de facto minister to Mexico from March 4 until he ceased to be recognized as such by virtue of the opinion of the Attorney-General of August 15, 1895, and as such de facto officer in fact, if not in law, held the office of minister to Mexico by virtue of an actual, if not a legal, appointment of the President made in pursuance of an actual, if not a legal nomination to and confirmation by the Senate.

The purposes intended to be accomplished by section 1761, Revised Statutes, were all fulfilled by the President and the Senate in the nomination and confirmation of Mr. Ransom on February 23, 1895.

It is a well-established rule of statutory construction that if the purpose of the legislature can be drawn from the whole act, effect must be given to that purpose, and that it should not be defeated by adhering too rigidly to the mere letter of the statute or to technical rules of construction. (Wilkinson v. Leland, 2 Pet., 627; Oates v. National Bank, 100 U. S., 239-244.) The application of this rule is well shown in the two cases of United States v. Mouat (124 U. S., 303) and United States v. Hendee (124 U. S., 309), decided by the Supreme Court upon the same day. In the former it was held that a paymaster's clerk was not an 11268-VOL 2- -14

officer of the Navy within the meaning of the act providing for mileage for officers of the Navy, while in the latter it was held that such a paymaster's clerk was an officer of the Navy within the meaning of the statute respecting longevity pay of officers and enlisted men in the Army or Navy, although such paymaster's clerk was not technically either such an officer or enlisted man.

I am clearly of the opinion that the de facto filling of the vacancy which existed during the session of the Senate by Mr. Ransom, under the circumstances above enumerated, takes his present case, under the appointment made on August 29, 1895, out of the prohibition contained in section 1761, and that the vacancy to which he was appointed on that latter date was not one which existed during the session of the Senate within the meaning of those words as used in section 1761, but first arose when the illegal designation of Mr. Ransom as minister to Mexico was discovered and he ceased to be treated as such an officer. It is not meant to decide that any and every de facto filling of an office would take a case out of the provisions of section 1761, but only that under the facts enumerated in Mr. Ransom's case, where in perfect good faith and by mistake both of the President and the Senate, there was in fact a confirmation by the Senate of a nomination of the President of a person designated for appointment to fill a vacancy existing during the session of the Senate, and an actual appointment to and holding of the office in pursuance of such nomination and confirmation without knowledge of the constitutional incapacity of the person so nominated, confirmed, and appointed to hold the office.

The payment of Mr. Ransom's salary from August 29, 1895, being authorized for the foregoing reasons, the decision of the Auditor is therefore overruled.

R. B. BOWLER,
Comptroller.

IN RE APPEAL OF J. A. MONTGOMERY, CLERK OF THE UNITED STATES CIRCUIT COURT FOR THE DISTRICT OF NORTH DAKOTA.

An Auditor who has once settled an account is not authorized, under the jurisdiction conferred upon him by section 8 of the act of July 31, 1894, to subsequently recharge items which he has erroneously allowed upon such settlement.

Under the act of July 31, 1894, allowing the clerks in North Dakota double fees, a clerk can be allowed such double fees only from and after the passage of the act. and not for the entire fiscal year beginning July 1. TREASURY Department,

OFFICE COMPTROLLER OF THE TREASURY,

October 25, 1895.

In the settlement of the account of J. A. Montgomery, clerk of the United States circuit court for the district of North Dakota, for the quarter ending June 30, 1895, the Auditor took the following action:

"In the settlement of the account for the quarter ending September 30, 1894, per certificate No. 527, clerk was allowed double fees from July 1, 1894, under act of July 31, 1894. This act was not approved until the 31st of July, and fees for services rendered prior to that date do not properly come under the provision of the act. Double fees prior to July 31, 1894, were inadvertently allowed, and are now disallowed and deducted, $179.10."

Section 8 of the act of July 31, 1894 (28 Stat., 207), provides: "The balances which may from time to time be certified by the Auditors to the Division of Bookkeeping and Warrants, or to the Postmaster-General, upon the settlements of public accounts, shall be final and conclusive upon the Executive Branch of the Government, except that any person whose accounts may have been settled, the head of the Executive Department, or of the board, commission, or establishment not under the jurisdiction of an Executive Department, to which the account pertains, or the Comptroller of the Treasury, may, within a year, obtain a revision of the said account by the Comptroller of the Treasury, whose decision upon such revision shall be final and conclusive upon the executive branch of the Government."

Under this section it is clear that an account once settled by an Auditor can not be reopened by him, except possibly in certain rare cases under the well-established practice governing the reopening of accounts for fraud, mistake, newly discovered evidence, or errors in calculation, the proper practice in such cases being left open for determination when a case arises.

A mistake in the settlement of an account by an Auditor can only be corrected by a revision by the Comptroller in the manuer pointed out in the clause above quoted. It follows that the action of the Auditor in the matter now under discussion was erroneous; but as the account in which the alleged erroneous allowance was made was settled by the Auditor

within one year it is subject to revision by the Comptroller upon his own motion, and the real question is therefore properly before the Comptroller for determination.

The act making appropriations for the legislative, executive, and judicial expenses for the fiscal year 1895, approved July 31, 1894 (28 Stat., 2014), contained the following clause:

"Provided, That the marshal, clerk, and district attorney of the districts of Washington, Montana, North Dakota, and South Dakota shall, for the services they may perform during the fiscal year herein provided for, receive the fees allowed by law to like officers performing similar duties in the districts of Oregon and Idaho."

Section 840, Revised Statutes, provides that the clerks in the district of Oregon shall be allowed double the fees allowed in other districts, while section 16 of the act of July 3, 1890 (26 Stat., 215), provides that clerks in Idaho shall receive the same fees as clerks in Oregon.

The clause in the act of July 31, 1894, above quoted, was, according to well-established rules of statutory construction, prospective only, and did not, therefore, of itself authorize the allowance of double fees for services rendered prior to its passage. It is claimed, however, that such allowance may be made by virtue of the joint resolutions providing temporarily for the expenditures of the Government for the early days of the fiscal year 1895.

The joint resolution to provide temporarily for the expenditures of the Government approved June 29, 1894 (28 Stat., 585), provided:

That all appropriations under existing laws which shall remain unprovided for on the thirtieth day of June, eighteen hundred and ninety-four, be, and they are hereby, continued and made available for a period of thirty days **: Provided further, That the total expenditures for the whole of the fiscal year 1895, under the several appropriations hereby continued and under the several appropriation bills now pending, shall not exceed in the aggregate the amounts finally appropriated therefor in the several bills now pending, except in cases where a change is made in the annual, monthly, or per diem compensation, unless

the salary or compensation of any office shall be increased or diminished without changing the grade or the duties thereof, in which case such salary or compensation shall relate to the entire fiscal year and run from the beginning thereof."

The provisions of this joint resolution were extended by

joint resolutions of July 31, 1894, and August 14, 1894 (28 Stat., 587-590), to the 20th of August, 1894.

A distinction may properly be drawn between the fees of a clerk which were doubled by the act of July 31, 1894, and the compensation of the clerk. The fees which a clerk was entitled to have doubled were collectible not only for services rendered to the United States, but for services rendered by him to individuals. These fees in the aggregate constitute a fund from which he is authorized to pay the expenses of his office and to retain as compensation for himself, a sum not exceeding the maximum prescribed in section 840, Revised Statutes. It is clear that the clerk could not claim double fees for services rendered private litigants and which had been duly taxed by the court prior to the passage of the act of July 31, 1894, and there is no reason in the law why he should claim such additional fees from the Government simply because they had not yet been paid to him. The increased or diminished compensation referred to in the joint resolutions, in my opinion, relates to such changes as may be made in the appropriation acts directly proyiding for the salary or compensation of officers, and not to such a clause as is found in the act of July 31, whereby the fees which an officer of the court is entitled to collect, both from the Government and from individuals, are doubled. The action of the Auditor is therefore affirmed.

R. B. BOWLER,

Comptroller.

IN RE APPEAL OF L. M. TOTTEN, UNITED STATES COMMISSIONER FOR THE WESTERN DISTRICT OF NORTH CAROLINA.

A commissioner is entitled to a fee for administering the oath required, by the Attorney-General and the accounting officers, to be taken by a deputy marshal in proving his quarterly account, but can not be allowed for swearing a deputy to the correctness of the fees claimed by him in each case.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,
October 25, 1895.

Mr. L. M. Totten, a United States commissioner for the western district of North Carolina, appeals from the Auditor's settlement of his account for the quarter ending March