appropriation act of July 31, 1894 (28 Stat., 203), which specifically authorizes the retention by these clerks for their personal compensation of not exceeding $500 per annum from the fees and costs collected by them. The question whether a clerk of a circuit court of appeals could collect from the United States fees for the services rendered by such clerk to the United States in a case in which they were a party, in accordance with the table of fees prescribed by the rules of the Supreme Court, was not presented in the Morton Case, nor was the question whether such clerk could collect from the United States any of the fees prescribed by section 828 for a clerk of a circuit court. Some of the language used by Judge Woods seems to indicate that he thought fees under section 828 might be collected from the United States by the clerk of a circuit court of appeals, although his language is confused and leaves the matter in serious doubt. Bunn, district judge, concurred in the opinion of Judge Woods; Jenkins, circuit judge, in his concurring opinion negatives the idea that a clerk could collect such fees. As the question was not before the court in the Morton Case any language used by Judge Woods indicating an opinion that such fees might be collected is not binding as a decision upon the question now under consideration.

The distinction between "fees" and "compensation" which seemingly runs through all the statutes relating to the fees and compensation of the officers of the United States courts, and particularly throughout chapter 16 of Title XIII of the Revised Statutes, does not seem to have been considered by Judge Woods and may not have been brought to his attention. Sections 824, 828, and 829, Revised Statutes, relate to the fees of attorneys, clerks of circuit and district courts, and marshals, respectively, but these fees do not constitute the actual compensation of these various officers. They only constitute a fund, as in fact was shown by Judge Woods, from which the compensation of these officers is derived. Sections 835, 839, and 841, Revised Statutes, provide for the compensation of attorneys, clerks of district or circuit courts, and marshals, respectively, and in each of these sections it is provided that these officers shall not "retain of the fees and emoluments which he is required to include in his semiannual return as aforesaid for his personal compensation, over and above the necessary expenses of his office, including clerk hire," a sum exceeding the maximum provided by law for these various officers. The distinction between fees and compensation is well brought out

in sections 837 and 840, Revised Statutes, which provide for double fees for certain officers in Oregon and Nevada. Section 840, in addition to the double fees, authorizes double com pensation, while section 837 specifically prohibits double compensation.

The fee for any particular service performed by the clerk, as, for instance, the fee of 25 cents which a clerk of a circuit or district court is authorized by section 828, Revised Statutes, to charge "for issuing a writ of summons or subpoena," is the amount which is to be paid to the clerk for the services rendered by him for issuing such writ; but this fee is not his compensation for that service, and in fact may not in any manner enter into the compensation of a clerk, for if the full amount of the compensation which he is authorized to retain has already been received by him the fee, without any deduction whatever, would be deposited in the Treasury upon the settlement of his semiannual emolument account.

That the fees of a clerk do not constitute the compensation of the clerk is well shown by the case of the clerk of the Supreme Court, who is authorized to charge against the Government fees for services rendered by him to the Government, as above explained, but which he does not in fact collect, because he receives his entire compensation from the fees collected by him from private litigants.

There is nothing, therefore, in the decision in the Morton Case which requires a change in the Comptroller's ruling that no per diem fees or mileage can be allowed to a clerk of a circuit court of appeals. For the reasons stated in the first part of this opinion he is authorized, however, to receive from the United States the fees prescribed by the rules of the Supreme Court for the clerk of that court for the services rendered by him to the United States in cases in which they are a party. He is obliged to account for these fees as he does for the other costs and fees collected by him. From the fund thus obtained he is authorized to pay his necessary clerk hire and the incidental expenses of his office, certified to by the court, and to retain under the decision in the Morton Case a sum not exceeding $500 per annum.

The action of the Auditor in disallowing the entire account of Mr. Meloney will be reversed, and upon this revision his account will be settled in accordance with this opinion.

R. B. BOWLER,

Comptroller.

IN RE APPEAL OF GEORGE W. S. HART, UNITED STATES COMMISSIONER FOR THE DISTRICT OF SOUTH CAROLINA.

A United States commissioner is not entitled to a per diem fee under section 847, Revised Statutes, as for "hearing and deciding on criminal charges," when the only action taken by him is to admit the defendant to bail to appear before another commissioner for a hearing upon the criminal charge.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

December 5, 1895. Mr. George W. S. Hart, a United States commissioner for the district of South Carolina, appeals from the settlement by the Auditor for the State and other Departments of his account for the quarter ending December 31, 1894. Among the items disallowed by the Auditor were per diem fees of $5 in each of three cases in which the sole action of the commissioner was to bail the defendant to appear before another commissioner for a hearing and deciding of the offense with which the defendant was charged.

It appears that in one of these cases the offense charged was perjury, and that it was committed before the commissioner in the hearing of another case, and therefore that he felt disqualified from hearing the case. In regard to the other two cases the commissioner simply says: "What good reasons I had for sending the Moss and Tate cases to Commissioner Pride for hearing I do not now recall." It appears, however, from this statement that he did not in fact hear and decide upon the criminal charges preferred against these defendants, but sent them to another commissioner for a hearing.

No law has been pointed out authorizing a commissioner to send a case to another commissioner for a hearing, and when asked by the Comptroller for information as to the law under which he claimed to act, Mr. Hart declined to give any, stating that "that is a matter with which your Department has nothing to do."

In United States v. Jones (134 U. S., 483), it was held that in the progress of the hearing of criminal charges in a case properly before a commissioner he was entitled to receive a per diem fee of $5 if the only action taken by him upon the day for which he claimed the fee was to decide on the amount

of bail and the sufficiency thereof. As pointed out in Bowler's 1st Comp. Dec., 172, a commissioner is not entitled to these per diem fees in a case where his only action is to decide on the amount of bail and the sufficiency thereof, and consesequently it was therein decided that where prisoners were brought before a commissioner on a capias from the court, the amount of the bail being fixed in the capias, the commissioner was not entitled to these per diem fees. It was also held by the Comptroller in the case of J. W. Silsby (ante, p. 63) that a commissioner is not entitled to per diem fees for days upon which his sole action was fixing the amount of bail and passing on the sufficiency of the same when the prisoner is surrendered by his bail, such acts alone not constituting a "hearing and deciding on criminal charges" within the meaning of section 847, Revised Statutes. The principle of this case required the disallowance of these per diem fees also upon days when the defendant, after being committed, is subsequently admitted to bail, either by the commissioner who originally conducted the examination or before another commissioner, and such is the practice of the accounting officers. The reason for not allowing these per diem fees is that the deciding on the amount of bail and the sufficiency thereof is, under the circumstances of those cases, not a hearing and deciding on criminal charges for which the fee is given.

The same reasoning would seem to apply to the cases for which Mr. Hart now claims these per diem fees, for by his own statement it appears that he did not hear or decide upon the criminal charges or take any step therein, but simply bailed the defendants to appear before another commissioner for a hearing. Probably the better practice would have been for him to decline to take any action in the premises whatever, if he was not able to hear the cases; but the fact that, instead of taking that course, he bailed the defendants to appear before another commissioner will not authorize him to receive the per diem fee of $5 for hearing and deciding on criminal charges in those cases, even if he had the power to take the action which he did.

The action of the Auditor will therefore be affirmed.
R. B. BOWLER,
Comptroller.

IN RE APPEAL OF GEORGE B. RANDOLPH, UNITED STATES COMMISSIONER FOR THE NORTHERN DISTRICT OF ALABAMA.

Where a State statute authorizes a justice of the peace to issue an attachment for a defaulting witness who was duly summoned, for the purpose of compelling him to appear and testify and not for the purpose of punishing him as for a contempt, a United States commissioner in that State is, by virtue of section 1014, Revised Statutes, entitled to fees for issuing the writ of attachment.

A United States commissioner who committed a defendant for a hearing before him on a future day, and on a later day, but prior to the day set for hearing, admitted him to bail, is entitled to a per diem fee for the day upon which he took and passed upon the sufficiency of the bail, as one of the days in the progress of the "hearing and deciding" on the criminal charge.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

December 6, 1895.

Mr. George B. Randolph, a United States commissioner for the northern district of Alabama, appeals from the settlement by the Auditor of his account for the quarter ending September 30, 1895. Several items claimed by Mr. Randolph were disallowed by the Auditor.

1. "For attachment for defaulting witness, disallowed, as commissioners are not empowered with such authority."

The Auditor evidently made this disallowance under the impression that the attachment was a step in contempt proceedings, which are not within the jurisdiction of a commissioner for the reasons stated in the case of L. M. Totten (Bowler's 1st Comp. Dec., 101, and decision of February 13, 1895, 1 Comp. Dec., 222). Mr. Randolph claims, however, that he is entitled to the fees for issuing this attachment by virtue of the provisions of section 4240 of the Code of Alabama (1886) and of section 1014 of the Revised Statutes of the United States. Section 4240 of the Code of Alabama is as follows:

"The justice, on the application of either party, must issue subpoenas for witnesses, stating therein the name of the party by whom the witness is summoned and the time and place of trial, which must be executed in the same manner as subpœnas in civil cases; and if any witness duly summoned fails to attend, he may be compelled by attachment to appear and give evidence."

From an examination of this and other sections of that code