account of salary, the question of the exact amount due to him being left for consideration upon the statement of his account. While this is true as a general rule in the settlement of consular accounts, yet it can not, in my opinion, be applied to a case like the present, where the question is whether a consular officer who has, in pursuance of law, drawn a draft specifying that it is for salary from May 23 to June 30, which includes the period prior to the approval of his bond, can be called upon to refund the compensation covering his service as a de facto officer. Mr. David will therefore be credited with his salary from May 23 to June 11, 1894, inclusive. A United States attorney is not entitled to fees under section 824, nor to assimilated fees under section 299, Revised Statutes, for services rendered, by direction of the Attorney-General, in a hearing before a United States land office, such a proceeding not being in a "court of the United States" within the meaning of those sections. Whether he could be paid special compensation, if allowed by the AttorneyGeneral, is not decided; nor is the question of his right to credit in his emolument account for expenses actually incurred in such a proceeding, if approved by the Attorney-General, now determined. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, July 25, 1895. Mr. William H. Brinker, the United States attorney for the district of Washington, appeals from the settlement by the Auditor of his account for certain fees and expenses in the case of Susan, widow of Andrew, an Indian, v. Charles D. Burbank, involving a homestead entry, the matter pending before the United States land office at Spokane, Wash. It appears that he was directed by the Attorney-General to appear on behalf of this Indian, and for his services and expenses on that account makes the following charges: October 7 and 8, 1894. To travel from Seattle to Spokane, and from Spokane to Chewelah, 414 miles, at 20 cents per mile... October 9 and 10, 1894. To services rendered in taking testimony in the above-entitled contest, before Scott, commissioner, two days...... $82.80 40.00 Testimony for contestant taken and hearing continued until November 20, 1894, at Spokane land office, on application of contestee. October 11, 1894. To return travel of United States attorney from Chewelah to Spokane and thence to Seattle, 414 miles, at 20 cents per mile .... November 19, 1894. To travel from Seattle to Spokane to appear November 21, 1894. To return travel from Spokane to Seattle, 348 Total........ $82.80 69.60 20.00 69.60 50.00 414.80 The settlement of the Auditor thereon was in the following language: "All the services in this case, with the exception of a $50 charge, were performed in the calendar year 1894, for which the attorney has received his maximum personal compensation. Therefore, charges for services performed in said year are disallowed. See certificate No. 2491, $364.80. "In lieu of the services performed in the calendar year 1895 ($50) there is allowed a docket fee of $40 (double fees in Washington), as for a final decree before referees, and the remainder of the charge disallowed as unauthorized, $10." No amount was specifically allowed by the Attorney-General as specially payable to Mr. Brinker from the appropriation, "Special compensation, district attorneys," the account hav ing simply received the administrative examination of the Department of Justice, payable from the appropriation for "Fees of district attorneys, United States courts." The fee bill contained in section 824, Revised Statutes, is, by the terms of section 823, applicable to cases "in the courts of the United States," but not elsewhere, although the statement therein contained that attorneys may charge to and receive from their clients "other than the Government," reasonable compensation, may prohibit district attorneys from receiving other compensation unless otherwise provided by law. Section 299, Revised Statutes, authorizes assimilated fees in certain cases and applies only to "cases instituted in the courts of the United States or of any State." It therefore does not apply to a hearing before the officers of the General Land Office, who certainly can not be construed to be a "court” of the United States. See Todd v. United States (158 U. S., 278), where it was held that a preliminary examination before a commissioner of a United States circuit court is not a proceeding in "any court of the United States." If a hearing before a circuit court commissioner is not a hearing in any court of the United States, a fortiori, would it seem that a hearing before the officers of a land office is not a hearing in a court of the United States. That the officers of the land office are not "referees" within the meaning of that word, as used in paragraph 1 of section 824, Revised Statutes, seems clear. Referee, as there used, means an officer to whom the court has referred for determination all or part of the issue arising in a cause before such court. (Central Trust Company v. Wabash, etc., R. R., 32 Fed. Rep., 684.) Mr. Brinker can not, therefore, be allowed the fees provided IN RE CLAIM OF THE POST OR DEPOT EXCHANGE The post exchange (formerly canteen) is an association or soldiers' club TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, July 26, 1895. In April, 1893, F. O. Johnson, first lieutenant Third United States Cavalry, in charge of the exchange (formerly canteen) at Jefferson Barracks, Mo., a cavalry recruiting depot, filed a claim with the Second Auditor for $86, alleged to be due from 43 recruits to the exchange for credit sales to them under circular letters from the Adjutant-General's Office, Washington, D. C., to the superintendent of the recruiting service, New York City, dated, respectively, March 20, 1890, and February 11, 1891. It appears that of the 43 recruits indebted to the exchange at the time the claim was filed 11 were absent on desertion, 11 had been discharged, 1 was on recruiting service, and 19 had been sent to regiments, and that all the deserters and discharged men, 22 in number, were indebted to the Government. It is reported that 10 of the 43 men were charged on their descriptive lists with the amounts due the exchange, and that the amount, $20, has presumably been collected by paymasters and reported by them as miscellaneous receipts. In May, 1894, the Second Auditor submitted the case to the Second Comptroller, asking his opinion whether" the accounting officers should assume jurisdiction of this class of claims and undertake to examine and settle the same." The matter is now before this office as a part of the unfinished business of the Second Comptroller's Office, October 1, 1894. In reply to a letter from this office dated June 11, 1895, the Secretary of War has transmitted as expressing his views the opinion of the Judge-Advocate General, as follows: "Concurring in general with the opinion of the Comptroller of the Treasury as expressed in his within communication, it is deemed clear that the post exchange (or canteen) is (or was) in no sense a post trader, but an establishment created solely by orders, and intended in fact to take the place of the trader on his being done away with under the operation of the act of January 28, 1893." (Indorsements Judge Advocate-General, July 9, 1895, and Secretary of War, July 11, 1895.) It clearly appears from the laws relating to post traders, section 3 of the act approved July 24, 1876 (19 Stat., 100), section 3 of the act approved June 30, 1882 (22 Stat., 122), and the act approved January 28, 1893 (27 Stat., 426), and those in which the exchange or canteen is mentioned, to wit, the act approved July 13, 1890 (26 Stat., 154), and the act approved July 16, 1892 (27 Stat., 178), and the orders under which the exchange or canteen was established, and has been conducted, that it has been, since its organization under General Orders, No. 10, Adjutant-General's Office, February 1, 1889, an association or soldiers' club owning and operating a cooperative store. It never was in any sense a trader within the meaning of the acts of July 24, 1876, June 30, 1882, and January 28, 1893. It could give credit to soldiers, but defaulters could not be punished otherwise than by being disbarred the privileges of the exchange, and the Government assumed no responsibility for its debts. (General Orders, No. 10, Adjutant-General's Office, 1889.) It could exist at the same post with a trader. (General Orders, No. 75, Adjutant-General's Office, 1889.) It had no lien upon the soldier's pay. (Circular No. 7, Adjutant-General's Office, 1890, section 5, and Circular No. 1, Adjutant-General's Office, 1891, section 6.) I am of the opinion that the accounting officers have no duty to perform in connection with the claims or accounts of any post exchange, unless they are involved in the improper disbursement of Government funds. The evidence examined in connection with this case shows that the exchange has suffered very little loss on its credit sales to recruits, and that the majority of the soldiers indebted to the exchange are also indebted to the Government. It appears that there are now no post traders (AdjutantGeneral's indorsement dated June 22, 1895), and that by direc tion of the Secretary of War in orders dated June 19, 1895, the Subsistence Department will furnish each recruit the arti cles necessary for his comfort and cleanliness heretofore furnished by the trader and exchange. (General Orders, No. 38, Adjutant-General's Office, 1895, and Revised Statutes, section 1144.) R. B. BOWLER, Comptroller. JURISDICTION OF THE COMPTROLLER-LIABILITY No jurisdiction is conferred upon the Comptroller of the Treasury to ren |