ute, is in fact, and from the nature of a portion of his duties, the Doorkeeper of the Senate.

From these provisions, it is clear that the Sergeant-at-Arms of the Senate has power to remove the chief engineer if the latter is, as the Senate resolutions of July 17, 1854, and April 25, 1879, say, one of "the several officers and others in the department of the Sergeant-at-Arms.”

When the former resolution was passed, there was no such officer as chief engineer. The mode of heating the Senate was entirely different from that now in use. It was then heated by "Senate furnaces,” and the resolution of the first date named enumerates as among "the persons in the office of the Sergeant-at-Arms," the "Superintendent in charge of Senate furnaces," and "assistant in charge of furnaces."

The act of July 12, 1870 (16 Stat., 231), is the first which makes an appropriation for a chief engineer for the Senate.*

*On December 22, 1859, the President pro tempore of the Senate laid before that body a letter of W. B. Franklin, of the U. S. Army, in charge of the Capitol extension, stating that the heating and ventilating apparatus of the north wing is now ready to be turned over to the control of the officers of the Senate, and inclosing a list of the persons employed thereon, with their rates of pay; which was read and referred to the Committee on Public Buildings and Grounds (Senate Journal, first session Thirty-sixth Congress, p. 20).

Mr. Bright, of the above committee, on the 26th of January, 1860, reported resolutions relating to the heating, &c. (p. 101), which were, on the 29th of February, 1860. considered by the Senate, and having been amended, were agreed to, as follows:

Resolved, That the Committee to Audit and Control the Contingent Expenses of the Senate is hereby authorized to place the names of the persons employed on the heating and ventilating, gas and water apparatus of the north wing of the Capitol upon the pay-rolls of the contingent fund of the Senate; and that they shall be paid from and after the 1st day of January, 1860, the same compensations as are now allowed to the persons in the same positions in the south wing of the Capitol.

"Resolved, That all persons employed on the heating and ventilating, gas and water apparatus of the north wing of the Capitol shall be under the control of, and shall receive directions from, the Sergeant-at-Arms of the Senate."

In pursuance of this resolution the following persons appear on the pay-roll (First Auditor's Report No. 139264) on the account of Asbury Dickins, Secretary of the Senate, commencing January 1, 1860:

Edward Dunn, engineer, at $1,500 per annum; John Kilby, assistant engineer, at $1,200 per annum; E. Fitzsimmons, fireman, at $2 per diem; W. Clements, fireman, at $2 per diem; E. W. Gordon, laborer, at $1.50 per diem; James Smith, laborer, at $1.50 per diem.

The Sergeant-at-Arms at this time (January 1, 1860) was D. R. McNair. Edward Dunn held the office of engineer from January 1, 1860, to October 1, 1861, when he was removed and Joseph Brown was appointed by George T. Brown, Sergeant-atArms, to succeed him. Joseph Brown held the office from October 1, 1861, to January 1, 1863, when he was succeeded by John Kilby, appointed by George T. Brown, Sergeant-at-Arms, vice Joseph Brown, removed. John Kilby held the office from January 1, 1863, to January 3, 1866, when he was succeeded by James Ragan, appointed by George T. Brown, Sergeant-at-Arms, vice John Kilby, deceased. James Ragan held the office from January 3, 1866, to May 4, 1869, when he was succeeded by H. F. Hayden, appointed by John R. French, Sergeant-at-Arms, vice James Ragan, removed. As stated above, the chief engineer and others employed in heating and ventilating were paid from January, 1, 1860, to the end of that fiscal year from the contingent fund, under the resolution of February 29, 1860, as no provision for their payment had

The change made in the mode of heating the Senate, and in the officers and employés performing the service, still left the service, the mode of performing it, and the officers and employés by whom performed, all "in the department of the Sergeant-at-Arms." The words of the reso lution are to be thus construed for manifest reasons. The purpose of each resolution evidently was to place the heating service "in the department of the Sergeant-at-Arms." There is nothing to show that a change in the mode of heating was designed to take the service out of this department. The same necessity which originally existed to place it in this department continued. To hold that the change in the mode of heating, took it out of the department, would remit it to the control of the Senate, but would leave it without control during the recess of the Senate, and, as to this time, create a casus omissus, which is always to be avoided when any fair construction of language will permit. (Bishop Written Laws, 146. Hardcastle Statutory Law, 20.)

The resolutions were evidently designed to meet the service, not a par ticular kind of service. They are sufficiently comprehensive to include the service as it was, and as it might thereafter be. This construction fairly results from the rule that general words are to be construed in a comprehensive sense. (Broom, Leg. Max., 7th ed., 646; The Zanesville Canal and Manufacturing Co. v. The City of Zanesville, 20 Ohio, 488; Audit case, 1 Lawrence Compt. Dec., 2d ed., 41.)

This construction of the resolutions is sanctioned by usage.

The Senate may, by resolution, delegate its power to the Sergeant-atArms to appoint and remove its officers and employés. The Constitution declares that the Senate "shall chuse their officers" other than VicePresident. But long-continued usage has given construction to this language, as not requiring the Senate by a direct vote to choose all its officers and employés. The power to choose is comprehensive and plenary, and under it, the Senate may choose by a vote or provide a mode of choosing as by directing the choice to be made by a designated officer. The Constitution, in giving this power, gave it to be exercised, as it had been previously by similar legislative bodies, whose authority to choose officers had been often delegated. The history of the exercise of a power is a legitimate element in ascertaining its extent and char

been made in the legislative appropriation bill for that year. From July 1, 1860, to June 30, 1870, they were paid from the appropriation "For expenses of heating and ventilating, &c." Since July 1, 1870, specific appropriations have been made for the chief engineer and those employed under him.

By the legislative, &c., appropriation act of March 3, 1881, all engineers and others who are engaged in heating and ventilating the House are subject to the orders, and in all respects under the direction, of the Architect of the Capitol, subject to the control of the Speaker, and no removal or appointment can be made without his approval, but there is no similar provision applicable to the Senate engineers.

The second of the resolutions of February 29, 1859, quoted above, furnishes additional evidence that the engineer is attached to the office of the Sergeant-at-Arms. A resolution of one house of Congress is not a law, but it has the force of law when it relates to the government of its own officers and employés.

acter. (Bishop Written Laws, 50, 74-77, 92a; Kennedy v. Gies, 25 Mich., 83; People v. Fancher, 50 N. Y., 288; the People ex rel. Jackson v. Potter, 47 N. Y., 375; Van Riper v. Parsons, 11 Vroom, 1; Pell v. Newark, 11 Vroom, 71, 550.)

The argument ab inconvenienti, seems appropriate in this connection, It would be extremely inconvenient for the Senate to vote upon the election of every officer required to aid in the transaction of its business. And without a power to remove and appoint during a recess of the Senate, the public interests might seriously suffer. See Agency-Delegation Case, 3 Lawrence Compt. Dec., 63, on the question of the exer cise of the power of removal and appointment by the Sergeant-at-Arms. The Senate may, at any time, resume its original power to remove and choose officers. This proposition is too plain to require either authority or argument in its support. The power which makes can unmake. This is necessarily so with such power as that now in ques tion, which is continuous and permanent, and is not exhausted and complete by one exercise.

Payments of salary to the person appointed in place of Mr. Hayden will be allowed.

TREASURY DEPARTMENT,

First Comptroller's Office, July 7, 1883.

IN THE MATTER OF THE RIGHT OF A DISTRICT ATTORNEY OF THE UNITED STATES, IN A CASE PROSECUTED BY HIM IN THE NAME OF THE UNITED STATES, TO ENFORCE A LIEN FOR INTERNAL REVENUE TAXES, AND WHICH IS COMPROMISED, TO RETAIN FOR SERVICES IN ADDITION TO FEES PRESCRIBED BY LAW, MONEY TAXED BY THE COURT TO BE PAID TO HIM THEREFOR BY THE DEFENDANTS, AND AS PART OF THE CONSIDERATION FOR THE COMPROMISE OR OTHERWISE.-EXTRA-FEE CASE.

1. A district attorney of the United States is not entitled to receive, either from the United States, or from any private party, any compensation beyond that prescribed by statute, for his services in prosecuting a case in court, which the law makes it his duty to prosecute.

2. If such case prosecuted in the name of the United States to enforce the payment of taxes, be compromised, and the defendants charged in such suit with a liability, or other persons, in pursuance with the terms of compromise, pay a specified sum as the consideration for such compromise, a portion of which is under the order of the court taxed and adjudged to be paid to the district attorney, he holds it as money received to the use of the United States, and will be charged with the same accordingly.

3. In such case he will be charged with any sum so taxed in favor of, and received by him, even if it be paid as a gratuity and in addition to the sum agreed upon as the consideration for a compromise.

4. Any sum so received by a district attorney is not to be included as a part of the emoluments of his office, but is to be charged to him as money to be accounted for to the United States.

In the "emolument return" of one of the District Attorneys of the United States for fees and emoluments of his office from July 1, 1881, to December 31, 1881, there is an item charged against him as follows: "Department of Justice adds counsel fee mentioned on next page, $2,500.00." On next page is the following statement, signed by the district attorney:

"I return hereon, at the request of the Department of Justice, not in any way admitting the same to be an emolument of my office, which I am required by law to account for, the sum of twenty-five hundred dollars received by me from the respondents in the case of the United States vs. The Missouri Pacific Railroad et al., determined at the September term of the U. S. circuit court, as taxed by said court in my favor, for expenses incurred and services rendered in said cause." The District Attorney, by letter to the First Comptroller, dated March 9, 1883, says, in substance, among other things:

In September, 1876, a bill in equity was filed by me in the circuit court of the United States, for this district, for the purpose of enforc ing against certain property, formerly owned by the Pacific Railroad of Missouri, the statutory lien for internal revenue taxes alleged to have been evaded by that company in the years 1864 to 1871, inclusive, and which had been reported by the collector of internal revenue to this office for suit.

The delinquent corporation was then insolvent, which necessitated this form of proceeding as the only method of recovery. Suit had been entered in 1874 by * * [the] then district attorney, against the Atlantic and Pacific Railroad as lessee of the delinquent corporation; which suit was afterwards abandoned, as it was evident upon examination into the matter, nothing could be recovered through that channel. The amount of taxes sued for was one hundred and twenty-five thousand dollars, which with interest and penalties, amounted at the time of the subsequent compromise, to nearly two hundred and fifty thousand dollars. The case was argued at length at the September term 1877, before Miller and Dillon, J. J.

The demand for payment made by the collector was held to be insufficient [the United States v. The Pacific R. R. Co. et al., 23 Internal Revenue Record 384]. Whereupon, by my direction, formal demands for the specific amounts were made upon the various offices of the delinquent corporation and a new bill filed, based upon the new demands. Upon demurrer to this bill, the case was argued fully before Judges McCrary and Treat, and decided in February, 1880, adversely to the Government's claim against the property sought to be made subject to the lien [The United States v. The Pacific R. R. Co. et al., 26 Internal Revenue Record 100]. The ruling of the court holding an assessment a prerequisite to a lien, was so utterly at variance, in my opinion, with the decisions of the Supreme Court upon the same question, as expressed by me to the Commissioner of Internal Revenue by letter of March 3, that I assumed the case would be taken up. Commissioner, however, by letter of March 24, advised me that he acquiesced in the decision, and did not desire the case appealed. Some months afterwards, the exact date I am unable to give, the Missouri Pacific Railway, a corporation which had defended the suits mentioned, being the owner of the property sought to be made subject to the taxes due from its predecessor, submitted to the Commissioner an offer to pay one thousand dollars and all costs in both suits, in compromise of the

The

claim of the Government for these taxes. This offer was a renewal of an offer of a like kind, made and rejected just prior to the disposition of the case here.

* *

The offer was accepted in August, 1871, and at the September term following, a motion was made by me to tax in my favor for services rendered and expenses incurred in the two cases twenty-five hundred dollars; and to [another attorney], who, during my necessary absence on one occasion, appeared for the Government aud argued the question of demand, five hundred dollars; together with all other costs in the suits, including all costs in the old suit against the Atlantic and Pacific Railway, payment of which latter costs, although not required by the terms of the compromise, I thought ought to be made by the defendants, were paid and satisfaction entered.

On the 1st February, 1882, before making my emolument returns, for the previous half year, I requested the Attorney-General by letter to advise me whether the fee in question was returnable as an emolument of my office; to which, by letter of the 9th of February, a reply in the negative was made. Afterwards by letter of March 3, the Department of Justice referred me to the provision of Sec. 834, R. S., relating to fees allowed by the court or judge where the United States is bound by the judgment; but not revoking its ruling of February 9. The fee in question, in my opinion, did not fall under the provisions of Sec. 834, inasmuch as it was neither prescribed by law nor an allowance by the court or a judge wherein the judgment bound the United States, nor in any event was it payable out of the Treasury. I therefore advised the Department, by letter of March 20, that the fee did not, in my opinion, fall within the provisions of Sec. 834, and that, therefore, I omitted it from my return. No further communication in the matter was received by me from the Department, and I therefore assumed no objection to my action was entertained, until the following summer, when, upon personal application to the Department, to know the reason of the suspension of all accounts in my favor, both for official fees and for expenditures on behalf of the Government by special authority, I was informed by Mr. Hodges, verbally, that no accounts in my favor would be allowed until the railroad fee was returned by me as an emolument. Whereupon, I amended my emolument return, by including the fee.

In October last, my attention was called to a revocation, which had been made by the Commissioner of Internal Revenue, of the acceptance of the offer of a compromise in this case. I therefore requested the Attorney-General, by letter of October 23, to either cancel or suspend my return, until the question of revocation should be definitely settled.

I submit herewith copies of all correspondence referred to, which I desire may be considered as a part of this report.

I have at no time entertained or exhibited a desire, as my course in this matter shows, to avoid accounting for this fee in such manner as the law directs; but in the light of the foregoing statement, I respectfully submit that no action ought to be taken looking to the compulsory accounting by me for the fee in question, until either the revocation of the compromise is finally accomplished, or the Commissioner withdraws his revocation, leaving the compromise to remain undisturbed."

The following is the journal entry made by the court, which shows the settlement and taxation of costs and attorneys' fees.

United States Complainant vs. Pacific Railroad Defendant. This day comes the District Attorney on behalf of the United States and also comes the defendant by its attorney, and by con