IN THE MATTER OF THE RIGHT OF A UNITED STATES DISTRICT ATTORNEY TO PER DIEM COMPENSATION FOR APPEARING BEFORE A JUDGE, OR A COMMISSIONER OF THE CIRCUIT COURT, AT THE APPLICATION AND HEARING FOR THE ISSUE OF WARRANTS TO ARREST PERSONS CHARGED WITH CRIME.-BRAZEE'S CASE.

1. A district attorney of the United States is not entitled to compensation under section 824 of the Revised Statutes for services rendered in the case of a person charged with crime prior to the time when the accused is brought before a judge or commissioner.

2. The jurisdiction of the Secretary of the Interior, to decide on appeals by officers of courts from the decision of the First Comptroller, having been taken away by the statute which created the Department of Justice, the First Comptroller can now revise decisions made while such jurisdiction on appeal existed.

3. The decision of the Secretary of the Interior, based on the opinion of the AttorneyGeneral of June 7, 1858 (9 Op. Att.-Gen., 170), and in accordance therewith, reexamined, and the principle thereof held not applicable in the adjustment of accounts.

DECISION BY WILLIAM LAWRENCE, First Comptroller.

Andrew W. Brazee, United States district attorney for the district of Colorado, in his account for official services during the quarter which ended September 30, 1883, charges per diem fees for appearing before a commissioner on application and hearing for the issue of warrants to arrest persons charged with crime.

When the account was submitted by the attorney to the United States district court for the district of Colorado, the charges in question were not approved; because, says the attorney, "Judge Hallett decided that such charges were unauthorized."

A like opinion was held by a former First Comptroller, and was applied in the adjustment of accounts. But, in the spring of 1858, an appeal, as then authorized, from his ruling, was taken by the United States attorney for the southern district of New York, to the Secretary of the Interior; and by him the question was referred to the AttorneyGeneral, who gave an opinion June 7, 1858 (9 Op. Att.-Gen., 170), in favor of the appellant, which was concurred in by the Secretary.

The clause of the statute, prescribing per diem fees for the attendance of district attorneys before commissioners, is contained in section 824 of the Revised Statutes, as follows:

"For examination by a district attorney, before a judge or commissioner, of persons charged with crime, five dollars a day for the time necessarily employed."

receive it, especially in cases, where, as a voluntary and authorized payment, or for other cause, money so paid cannot be reclaimed.

As to estoppel, see Sanborn's case, 3 Lawrence, Compt. Dec., 210; Kilbourn's case, 2 Lawrence, Compt. Dec., 2d ed., 578.

As to voluntary payment, see Reeside's Appeal, ante, 156; Sanborn's case, 3 Lawrence, Compt. Dec., 210.

Since the appeal referred to was decided, such charges, as are now in question, have rarely appeared in the accounts of district attorneys, because the practice, which the Attorney-General describes in his opinion, is not a common one. Hence, it cannot be said, that usage has settled the construction of the statute. District attorneys in most of the judicial districts do not appear before the commissioners to procure warrants of arrest.

The question is now presented, whether the charges made by Mr. Brazee, but not approved by the court, shall be allowed in the adjustment of the account?

The expression in the statute, "examination by a district attorney, before a judge or commissioner, of persons charged with crime," means the examination or prosecution, either, or both, of a criminal charge. It has been said, "that examination of the person charged means investigation of the case." And the pertinent inquiry has been made: "This being settled, why should we make any distinction between the investigation which takes place before the warrant and that which comes before the committal?" And it has been further said: "They are both equally investigations of the case, and one is no more an examination of the person than the other. It follows that the district attorney is entitled to his fee of five dollars per day for the time necessarily employed in the preliminary proceedings of a criminal prosecution, both before and after the arrest" (9 Op. Att.-Gen., 171). This reasoning cannot be concurred in. Whether the service of the district attorney, for which the per diem compensation is authorized, consists of the "investigation of the case," or of conducting the prosecution of a criminal charge, either or both, as seems reasonable, not only the charge, but also the arrest, must precede the service.

*

1. This is the necessary effect of the words of the statute, which gives the per diem "for examination of persons charged with crime"; not of an allegation of crime before a charge. A person is not, in a legal sense, "charged with crime," until the proper affidavit is filed with an officer having authority to hear a charge. Not only so, the statute gives the per diem, not for services commencing so soon as the charge is made, but "for examination [whatever that may include before a judge or commissioner, of persons charged with crime." By explicit language, the "examination"-the service-is to be "before a judge or commissioner," and, at a time when, in such presence, persons are "charged with crime." This clearly points to a time and a service, not only after arrest, but after a party "charged with crime" appears "before a judge or commissioner."

2. The inquiry, "why should we make any distinction between the investigation which takes place before the warrant and that which comes before the committal?" is sufficiently answered by saying that the statute so requires.

But reasons are not wanting to justify what Congress has provided

There should evidently be some time in connection with an allegation of crime when the compensation for services of a district attorney should commence to accrue. Congress might have provided compensation for his advice to every person or officer who might give him information of a real or supposed criminal act, or for inquiry into and examination of allegations of crime, or for causing proper proceedings to be commenced generally. It may well be supposed that such provision would open a wide door for claims to compensation, and hence Congress, by the act of February 26, 1853 (10 Stat., 162), now section 824 of the Revised Statutes, authorized a per diem compensation to commence with the "examination before a judge or commissioner."

3. This conclusion may be reached from the immediate connection in which the provision in question is used, and from the subjects with which Congress was dealing. The next clause of the statute gives the district attorney per diem compensation "for each day of his necessary attendance in a court of the United States," &c.

4. If the clause now under consideration authorized compensation for the "investigation of a case" prior to the hearing before a commissioner, section 838 of the Revised Statutes, taken from subsequent statutes, would have been in part, at least, unnecessary. It requires "every district attorney, to whom any collector of customs or of internal revenue shall report" certain violations of law, "to cause the proper proceedings to be commenced and prosecuted ⚫ ⚫ unless, upon

inquiry and examination," such district attorney shall otherwise determine; and it is provided, that, "for the expenses incurred and services rendered in all such cases," he shall receive "such sum as the Secretary of the Treasury shall deem just."

In view of all this, it is held, that no per diem compensation can be paid to a district attorney, under section 824 of the Revised Statutes, for services rendered in criminal charges prior to the time when the accused is brought before a judge or commissioner. The claim in this case is disallowed.

TREASURY DEPARTMENT,

First Comptroller's Office, October 26, 1883.

33 D 83

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF NEW YORK,

IN THE MATTER OF THE ACCOUNT OF JOHN J. ALLEN, CHIEF SUPERVISOR OF ELECTIONS, NOVEMBER 12, 1883.—ALLEN'S ACCOUNT CASE.

1. Section 2031 of the Revised Statutes does not operate "to bring the accounts of a chief supervisor of elections within the scope of the subsequent act of February 22, 1875" (18 Stat., 333), which "has no application to" such accounts, but "is. by its terms, limited to the accounts of clerks, marshals, district attorneys, and United States commissioners." *

2. As to the constitutionality of an act "which seeks to authorize the proving of an account in open court' before a circuit or a district court, and at the same time provides for the revision of the action of the court by the accounting officers of the Treasury" Department, quære? †

Hon. Charles L. Benedict, Judge, delivered the following opinion: "The account of John J. Allen, the Chief Supervisor of Elections in this District, was presented to the District Judge of the District, and was certified by him pursuant to section 2031 of the Revised Statutes in the manner heretofore adopted with reference to other similar accounts.

The same account is now submitted to the District Court by the District Attorney for the purpose of having the account passed on in open Court in the manner provided for the accounts of Clerks, Marshals, District Attorneys, and United States Commissioners by the act of February 22, 1875 (18 Stat., 333).

"This action on the part of the District Attorney has raised, among others, the question, whether the effect of section 2031 is, to bring the accounts of a Chief Supervisor of Elections within the scope of the subsequent Act of February 22, 1875; which Act is, by its terms, limited to the accounts of Clerks, Marshals, District Attorneys, and United States Commissioners. Upon this question my opinion is, that no such effect can be given to section 2031, and that the Act of February 22, 1875, has no application to the accounts of a Chief Supervisor of Elections (Election Supervisors' Case, 3 Lawrence, Compt. Dec., 153). For this reason, therefore, if there were no other, the Court is constrained to decline to enter upon the inquiry tendered by the District Attorney in reference to this account, without passing upon the validity of a statute like this of February 22, 1875, which seeks to authorize the proving of an account (in open Court) before a Circuit or a District Court, and at the same time provides for the revision of the action of the Court by the accounting officers of the Treasury. See United States v. Ferreira (13 How., 40, United States v. Todd (Id., 52, note), Ex parte Gans (Vol. XVII Federal Reporter, 471, No. 6, September 11, 1883).

The account is, therefore, directed to be returned to the District Attorney, to be dealt with by him as he may be advised."

* The opinion of the learned judge in this case sustains the decision of the First Comptroller in Election Supervisors' case (3 Lawrence, Compt. Dec., 153).

The syllabus of this case, prepared by the First Comptroller, embraces what he deems to be the conclusions arrived at in the opinion herein.

IN THE MATTER OF THE RIGHT OF THE LEGAL REPRESENTATIVES OF A DECEASED ATTORNEY, TO RECEIVE THE TREASURER'S DRAFT ISSUED IN PAYMENT OF A CLAIM PROSECUTED TO ALLOWANCE BY SUCH ATTORNEY, WHILE LIVING, UNDER A POWER OF ATTORNEY AUTHORIZING HIM TO DO SO, AND TO RECEIVE SUCH DRAFT.— DECEASED-ATTORNEY CASE.

1. A claimant gave a power of attorney to his attorney, employed at a reasonable compensation, to prosecute, in the Treasury Department, a claim against the United States, and to receive the Treasury draft to be issued in payment thereof. Such power of attorney did not contain any provision declaring, that, in case of the death of the agent, his legal representatives should be anthorized to receive the draft. After successfully prosecuting the claim, and after the issue of a draft by the Treasurer of the United States, payable to the order of the claimant for the amount of the claim, the attorney died before receiving such draft. Held: (1). That the power of attorney did not vest in the attorney a power coupled with an interest in, nor give him any lien upon, the draft, or the money thereon payable. (2). That the death of the attorney terminated his agency. (3). That the legal representatives of the deceased attorney have no authority to receive the draft. (4). That a power might be executed in terms which would give the legal representatives of an attorney the right to receive the draft in such case. A claimant gave a power of attorney to his attorney-at-law, employed at a reasonable compensation, to prosecute a claim against the United States before the Treasury Department, and to receive the Treasury draft to be issued in payment thereof, but without any provision in such power of attorney that, in the event of the death of the agent, his legal representatives should have a right to receive the draft. The attorney successfully prosecuted the claim, and a warrant on the Treas urer of the United States was granted by the Secretary of the Treasury, and countersigned by the First Comptroller, authorizing payment to the claimant of a specified sum. The Treasurer accordingly issued a draft on an assistant treasurer, payable to the order of the claimant; but, before its delivery to the attorney, he died. The First Comptroller is asked to decide, whether, under the power of attorney, the draft can be delivered to the legal representatives of the deceased attorney.

DECISION BY WILLIAM LAWRENCE, First Comptroller.

The power of attorney did not vest in the attorney a power coupled with an interest in, nor give him any lien upon, the draft or the money thereon payable (McAllister's case, 2 Lawrence, Compt. Dec., 2d ed., 179). The death of the attorney terminated his agency. Thus, in Wharton on Agency (109), it is said, that:

66

Agency necessarily ceases on the death of the agent, and so rigorously is this rule applied, that, where a firm is appointed to an agency, such agency ceases upon the death of one of the members of the firm,