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to a separate fee for attendance upon each court the same day under the principle of the decision in United States v. Eruin (147 U. S., 685).
The paragraph of section 829 above quoted clearly provides one per diem fee only for attendance upon the circuit and district court when both are in session, and therefore the marshal is prohibited from receiving more than one such fee for his attendance upon both such courts upon the same day either in person or by deputy, unless the circumstances are such as to bring his case within the principle of the decision in United States v. King (147 U. S., 676). In that case it was held that notwithstanding the provisions of section 831, Revised Statutes, a clerk attending in persou in one court and by deputy in another division of the same court, held at another place but at the same time, was entitled to receive two per diem fees because
“In such a case a separate staff of officers is necessary for each place and equitably each is entitled to fees for attendance."
The principle of that case has been extended by the Comptroller to a marshal (Bowler's First Comp. Dec., 187), and would apply as well to an attendance upon a circuit and a district court sitting in two different places at the same time as to an attendance upon two different divisions of the same court. It is entirely immaterial whether the marshal attends in person on all the sessions of the courts or whether he attends personally in one court and by deputy in another court, or by different deputies in the different courts; or whether one judge sits as both circuit and district judge at the same time or the same judge holds the circuit court at one hour and the district court at another hour in the same room, or in different rooms, or whether two different judges hold the different courts in the same or different rooms at different hours. He is by statute only entitled to one per diem fee for attendance in both courts, either in person or by deputy, unless, under the principle in the King case, two officers are required to be in attendance at the same time, and this can only be when two judges are sitting at the same time in different places.
In regard to attendance npon the circuit court of appeals upon the same day when a per diem fee is allowed for attendance upon either the circuit or district court, or both, a different rule prevails. Section 2 of the act of March 3, 1891, creating the circuit courts of appeals (26 Stat., 826) provded for the appointment of a marshal by the court who should have
6 The same duties and powers under the regulations of the court as are now provided for the marshal of the Supreme Court of the United States, so far as the same may be applicable."
Said section further provides:
66 The costs and fees in the Supreme Court now provided for by law shall be costs and fees in the circuit court of appeals; and the same shall be expended, accounted for, and paid for, and paid over to the Treasury Department of the United States in the same inanner as is provided in respect of the costs and fees in the Supreme Court."
Section 9 of said act provides :
“That the marshals, criers, clerks, bailiffs, and messengers shall be allowed the same compensation for their respective services as are allowed for similar services in the existing circuit courts."
The appropriation act of July 16, 1892 (27 Stat., 222), contains the following provision:
66 That so much of section two of the act approved March third, eighteen hundred and ninety-one, to establish circuit courts of appeals, as authorizes the appointment of a marshal to each of said courts at a salary of two thousand five hundred dollars be, and the same is hereby, repealed, and the duties and powers imposed upon said marshals under the said act shall be performed by the United States marshals in and for the districts where terms of said courts may be beld, and to this end said marshals shall be the marshals of said circuit courts of appeals."
Section 832, Revised Statutes, provides :
“ The marshal of the Supreme Court of the United States shall be entitled to receive for the service of any warrant, attachment, summons, capias, or other writ, except execution, venire, or a summons or subpæna for a witness, one dollar for each person on whom such service may be made. His fees for all other services shall be the same as are herein allowed to other marshals; but he shall pay into the Treasury of the United States all fees received by him, and render a true account thereof at the close of each term to the Attorney-General.”
Under section 832, Revised Statutes, the marshal of the Supreme Court would be entitled to a per diem fee of $5 for his attendance upon the court. He does not collect the same because he would be obliged to cover it immediately into the Treasury. The marshal of a circuit court of appeals is also
entitled to this $5 fee, because by section 2 of the act creating the circuit courts of appeals he is entitled to the same fees as the marshal of the Supreme Court. He is not, however, required to pay over this per diem fee to the Treasury, notwithstanding the plain language of section 2 of said act which apparently requires such action, because by section 9 the mar. shal is entitled to the same compensation as a marshal of a circuit court, and is therefore authorized to retain the said fee, subject to be accounted for in his emolument returns, in order to make up the maximum amount which a marshal of a circuit court is entitled to retain of the fees and emoluments of his office for his own personal compensation, as provided by section 841, Revised Statutes (see Morton v. United States, 59 Fed. Rep., 349; 65 Fed. Rep., 204; as explained in In re Appeal of Meloney, ante, p. 276, where the distinction between “fees” and “compensation" has been shown). This fee, payable to the marshal of a circuit court of appeals before that office was abolished, and now payable to the marshal of the circuit court while acting as marshal of the circuit court of appeals under the provisions of the act of July 16, 1892, although in fact the same amount as allowed to a marshal for his attendance upon a circuit or district court, is not in fact the same fee and there. fore he is entitled to receive this per diem fee for attendance upon the circuit court of appeals upon the same day that he has received a like per diem fee for his attendance either upon the circuit or district court or both. This arises not only from the fact that the fees are separate, as explained in the first part of this opinion, but also from the fact that the prohibition against the receipt of duplicate per diems for attendance upon the circuit and district courts in section 831, Revised Statutes, has not been extended to the attendance upon the circuit court of appeals, and it is not within the power of the accounting officers or the courts to extend by implication that which has not been specifically provided, nor is it necessary in order to carry out a manifest intention of Congress. Upon the present revision Mr. Swift will therefore be allowed per diem fees for attendance upon the circuit court of appeals for all days which he actually attended in person or was represented by deputy, whether he has also received fees for attendance upon the circuit or district court or both upon the same day or not.
R. B. BOWLER,
IN RE APPEAL OF W. B. FLEMING. A chief of division in the office of the Supervising Architect of the Treas
ury at a salary of more than $2,500 per annum may be paid compensation as a member of a commission appointed under the act of February 20, 1895, to select a site for a public building, service upon such commission not involving the holding of an office within the meaning of section 2 of the act of July 31, 1894.
March 27, 1896. Mr. W. B. Fleming appeals from the settlement by the Auditor for the Treasury Department of his account for services in selecting a site for the new public building at Pottsville, Pa. The Auditor disallowe. Mr. Fleming's claim, which is for $200, because of the provisions of section 1765, Revised Statutes. At the time Mr. Fleming was appointed by the Secretary of the Treasury one of the commissioners to select the site for the public building at Pottsville, Pa., under the act of February 20, 1895 (28 Stat., 675), he was the Chief of the Law and Records Division in the office of the Supervising Architect of the Treasury, which position he has continued to hold.
The office of the Supervising Architect of the Treasury is provided for by section 235, Revised Statutes. In the annual legislative, executive, and judicial appropriation acts for a number of years there has been made the following provision:
"Office of the Supervising Architect, in the construction branch of the Treasury: For Supervising Architect, four thousand five hundred dollars, * * * and the services of skilled draftsmen, civil engineers, computers, accountants, assistants to the photographer, copyists, and such other services as the Secretary of the Treasury may deem necessary and specially order, may be employed in the office of the Supervising Architect exclusively, to carry into effect the various appropriations for public buildings, to be paid for from and equitably charged against such appropriations."
Under that clause and section 161, Revised Statutes, which authorizes the head of each Department “to prescribe regulations not inconsistent with law for the government of his Department, the conduct of its officers and clerks,” the Secretary of the Treasury reorganized the office of the Supervising Architect of the Treasury by an order dated December 1, 1894, to take effect January 1, 1895, in which the following provisions were made:
“The office of the Supervising Architect of the Treasury
Department is reorganized in the following manner, and its business will be conducted in accordance with this order, sub. ject to such changes and additional regulations as the Secretary of the Treasury may hereafter make.”
Then follows the detail organization of the office of the Supervising Architect proper. The order continues:
“All business of an executive or administrative nature not within the jurisdiction and control of the Supervising Architect will be conducted by a chief executive officer, who will act as Supervising Architect in the absence of that official, and whose duties, in general terms, shall be as follows:
“Under his immediate supervision and control there shall be two divisions, as follows:
41. The Law and Records Division, the chief of which will be the law officer of the entire office, and his opinion upon matters of law originating therein shall be binding, subject to the right of reference, through the Assistant Secretary of the Treasury in charge, to the Secretary of the Treasury, or the law officers of the Department. This division will commenco and carry forward the work of putting into permanent record form all deeds and other papers relating to titles for sites for public buildings, marine hospitals, quarantine stations, and all other real estate belonging to, or hereafter acquired by, the United States and under the control of the Secretary of the Treasury.”
Under that reorganization Mr. Fleming received the following appointment:
“SIR: You are hereby transferred and appointed Chief of the Law and Records Division, in the office of the Supervising Architect of the Treasury, with compensation at the rate of twenty-seven hundred and fifty dollars per annum, the appointment to take effect from date of oath. " Respectfully, yours,
6 J. G. CARLISLE,
“ Secretary. “Oath: December 31, 1894. “(Compensation to begin from January 1, 1895, inclusive.)"
The act to erect a public building at Pottsville, Pennsyl. vania” (28 Stat., 675), provides :
“The proposals made in response to said public advertisement at the time named in the advertisement, or within ten days subsequent thereto, shall be received, opened, and considered by a commission of three persons, who shall be appointed by the Secretary of the Treasury, and it shall be the duty of said commissioners to forward to the Secretary of the Treasury, within forty days from the date named in the advertisement for