rule the case of Converse v. The United States. The court has given no indication of any such purpose; on the contrary, the court refers to and approves that case, and quotes the very words thereof, which show that extra compensation can only be allowed when "the amount of [such] compensation [is] regulated by law." (United States v. Brindle, 110 U. S., 694). This view of the case of Converse v. The United States has always been maintained. Thus, Attorney-General Bates (10 Op. Att.Gen., 440), referring to that case and to a claim made by a salaried officer for compensation for extra services not in the line of his office, under an appointment made by the Secretary of the Interior, said:

"But it was remuneration fixed by the Secretary of the Interior himself, in the exercise of what he doubtless deemed a lawful discretion, and it is precisely this discretion which, according to the court, these statutes have forbidden the head of a Department to exercise. It was perfectly competent for the Secretary of the Interior to employ a person to perform the duties in question, and to agree that he should be paid therefor out of the fund appropriated for the Capitol extension and new dome, the amount which he agreed Mr. Whiting should receive. But since no office was created by law for the performance of those duties and no remuneration therefor fixed by law, it was not competent for the Secretary to add them to the other duties of an officer receiving a fixed compensation therefor, and pay him an additional sum for performing the additional duties. This is the very thing which these statutes, as construed, not only by the majority of my predecessors, but by the Supreme Court, were passed to prohibit." (See 4 Op. Att.-Gen., 538; 15 Id., 362.)

(3). It cannot be so construed, because it would absolutely nullify section 1765 of the Revised Statutes-it would leave the section without any purpose whatever. The steps by which this result would be reached are plain.

a. This section is not needed to prohibit an officer from receiving extra pay for extra services attached to his office. The statutes fix the salaries of officers, and no officer can increase them.

Thus in Goldsborough v. United States (Taney's C. C. Decisions, 80), decided by Chief Justice Taney in 1840, it appeared that Goldsborough, an acting purser in the Navy, having a salary fixed by law, holding no other office, disbursed money in 1835 and 1836 and claimed a commission of 2 per cent. thereon for his services, under a regulation of the Navy Department expressly allowing it.

The Chief Justice in deciding the case said:

"Where an act of Congress declares that an officer of the Government or public agent, shall receive a certain compensation for his services, which is specified in the law, undoubtedly, that compensation can neither be enlarged nor diminished, by any regulation or order of the Presi dent, or of a Department, unless the power to do so is given by act of Congress.

In the case before me, the commission is claimed as a part of the compensation, to which the deceased was entitled as acting purser, for services rendered in the ordinary line of his official duty. Now the compensation to a purser for services of that description, is fixed by the act of Congress of 18 April, 1814, ch. 143, which declares that a purser shall receive $10 per month, and two rations a day; it is the same

compensation which was given by the acts of 17 March, 1794, ch. 12, sect. 6, and 1 July, 1797, ch. 7. And when the law declares that, for certain services, he shall receive $40 per month and two rations per day, by what authority can the head of a Department allow him more? The same act of Congress and the same section, that fixes the compensation of a purser, fixes also the compensation of lieutenants, chaplains, sailing masters, surgeons, and various other officers in the Navy, by giving them a certain sum per month, and a certain number of rations per day. It never has been supposed, that the Secretary of the Navy was authorized to increase the compensation of these officers, by enlarg ing their monthly allowance, or adding to the number of their daily rations; and when the compensation to the purser is fixed by the same law, and in language precisely the same, how can his case be distinguished from that of the other officers named in the law? How can the Secretary increase his compensation by enlarging his monthly allow ance, or adding to the number of his daily rations? And if he cannot do it in this mode, by what authority, or upon what distinctions, can he do it, in the shape of commissions, when no such commissions are given by law? The court can see no ground whatever for distinguishing the case of a purser from that of any other officer mentioned in the act of Congress; and as the Department is bound by the allowance fixed for them, it is equally bound by that fixed for a purser.

Indeed, the objection to the allowance is made still stronger, by the provisions of the second section of the act of 1814, which authorizes the President to make an addition, not exceeding twenty-five per cent., to the pay of the officers, petty officers, midshipmen, seamen and marines engaged in any service, the hardships or disadvantages of which shall, in his judgment, render such an addition necessary. The power given to make this addition, by necessary implication, excludes the power of making any other or greater addition, or under any other circumstances, than those mentioned in this section; and if such a power could have been supposed to exist, in cases where the law merely fixes the compen sation, and says nothing further, yet the well-established rules for the construction of statutes, would exclude it in the present case.

It has, however, been argued, that a purser is neither a commissioned officer nor a warrant officer, and is not so regarded in the Navy, and that, therefore, the provisions in the second section of the act of 1814. do not apply to him. In other words, it is insisted, that the purser does not come within the description of an officer, and, consequently, is not included in the number of persons to whom the President is authorized to make the limited increase of compensation specified in the section.

It would be a sufficient answer to this argument to say, that the compensation of the purser is, undoubtedly, specified in the law, and he is, therefore, within the general principle before stated. But the second section applies to the allowance claimed in this suit, with as much force as it would to the increase of the pay and emoluments of any other officer mentioned in the first section; for, whether a purser is regarded in the Navy as a commissioned officer, or a warrant officer, or neither, it is very certain, that he is always included under the description of an officer, in the acts of Congress which fix his compensation. Thus, in the act 27 March, 1794, ch. 12, the sixth section declares, "that the pay and subsistence of the respective commissioned and warrant officers, be as follows;" it then proceeds to specify their compensation, from the captain down, and the purser is mentioned among them."

When this case was decided there was no statute against dual salaries or extra compensation. The decision antedated the statutes from which

sections 1763, 1764, or 1765 of the Revised Statutes were taken. And Chief Justice Taney distinctly announced that no compensation, in addition to the salary prescribed by law, could be paid to the claimant "for services rendered in the ordinary line of his official duty." (Goldsborough v. United States, Taney's Dec., 80, 88.) In addition to this, at common law, it is extortion, and so a crime, for an officer "under color of his office" to take "any money or thing of value that is not due to him, or more than is due or before it is due." 4 Blackst. Com., 141; 1 Russell on Crimes, 142; Extra-Fee case, 3 Lawrence, Compt. Dec., 427; Martin v. State, 1 Harris & Johnson, Md., 740; Crier-Bailiff case, 5 Lawrence, Compt. Dec., 11. And such extra pay is prohibited by the provisions. of the act of June 20, 1874 (18 Stat. 101, 109).

b. It is now settled that one person may hold two distinct offices and receive the salary and compensation prescribed by law for each.

c. It is also settled that a salaried officer may render unofficial services and be paid compensation therefor, if its amount "be fixed by law."

d. Now, if it be further held that a salaried officer may render unofficial services and be paid compensation therefor not "fixed by law," but by the discretion of some officer, then section 1765 is left without any practical purpose, its mission is at an end. With such a construction it cannot rise to the dignity of a "glittering generality"-it will be less than a "barren ideality"-it will be vox, et præterea nihil. A statute enacted for judicious purposes should not meet judicial death, it should be rescued from the public calamity of such a fate.

3. In the opinion of the Court of Claims it is said that, payment of compensation to General Meigs "has been refused him under instructions given by the First Comptroller, on the ground that,

being a retired officer of the Army and receiving pay as such, he is not lawfully entitled to any compensation for his services, unless an express appropriation be made to pay him therefor."

The opinion of the Comptroller in Meigs's case (ante, 588, et seq.) does not seem to have been examined by the court, for, if so, it would have been seen that the one objection mentioned by the court was not specifically referred to by the Comptroller, and was not by any means his sole objection, as might be inferred from the opinion of the Court of Claims.

#

Section 1765 of the Revised Statutes declares in effect that a salaried officer shall not receive extra compensation "for any service or duty whatever, unless the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensa-tion." The act making the appropriation, from which General Meigs asks payment does not explicitly or otherwise state that such appropriation or any part of it may be applied in making additional or extra pay. Are these words of section 1765 to be ignored or nullified? If not, how is General Meigs excepted from their operation? To this inquiry no satisfactory answer is given.

4. The compensation in the case of The United States v. Brindle was expressly authorized by law; that of the claimant in Meigs's case was not so expressly authorized by any law. Thus, the Indian treaty mentioned in the former case expressly provided that "the cost of surveying, managing, and selling" the Indian lands should be paid from the proceeds of the sales, no matter by whom such service was rendered. If the act of August 7, 1882, had expressly provided that General Meigs should be paid for the services which he might render he would have been excepted from the prohibition of section 1765 of the Revised Statutes—as to him, there would have been a repeal of that section. Without such repeal or exception, which, on well-settled priciples could not arise by implication, he fell within the prohibitions of said section. (McCool r. Smith, 1 Black, 459; Arthur v. Homer, 96 U. S., 140.) But the claimant in the case of the United States v. Brindle did not fall within said prohibition for reasons already stated.*

It is believed, that, if the accounting officers should allow the claim of General Meigs, they would overrule a solemn decision of the Supreme Court, which has stood as their guide for more than a quarter of a century; that they would reverse the uniform practice of the Treasury De partment during the same period; that they would disregard every opinion of every Attorney-General on a smilar question; and that they would supersede repeated and emphatic decisions of the Court of Claims,† and practically nullify section 1765 of the Revised Statutes. Simple justice to the action taken by the accounting officers requires the expression of these views, without the slightest disrespect to any differing conclusion, and, certainly, with the most profound respect personally and officially for the learned and able Court of Claims, whose valuable opinions have become an indispensable part of American judicial literature. Whatever may be finally determined by the Supreme Court of the United States to be the true construction of section 1765 of the Revised Statutes, all will acquiesce in the result, for in that high tribunal all errors may be corrected. And it is the pride and boast of our system of Government, that it, as the judicial oath requires (Rev. Stat., 712), administers "justice without respect to persons," and does “equal right to the poor and to the rich"-to the humblest of all our citizens, and to those high in position and influence, and that the laws are enforced without fear, favor, or affection, alike against those known to fame, and against the obscure. Equal and exact justice is the rule for all. If, in practice, these rules are not adopted, the calamity is one which no time can repair and no history will efface.

TREASURY DEPARTMENT,

First Comptroller's Office, May 17, 1884.

* The case of The United States v. Brindle settles one question: That General Meigs, under the appointment as "engineer and architect," was not an officer. The same view as to a like appointment is supported by Attorney-General Akerman (13 Op. Att.-Gen., 516, 588); and in Daines's case (15 Ct. Cl., 64).

+ See Folger's case (13 Ct. Cl., 86), Major Collins's case (15 Id., 22), Landram's case (16 Id., 74), and Hedrick and Warden's cases (Id., 83).

IN THE MATTER OF THE RIGHT OF A MARSHAL TO BE PAID THE MAXIMUM EXPENSES OF TWO DOLLARS A DAY, WHILE HIS DEPUTY IS EMPLOYED IN ENDEAVORING TO MAKE AN ARREST ON A CRIMINAL CHARGE, WHEN THIS SUM IS THE TOTAL SUM EXPENDED FOR A WHOLE DAY, AND THE DEPUTY DURING A PORTION OF THE DAY IS ATTENDING EXAMINATIONS BEFORE A COMMISSIONER OF THE CIRCUIT COURT.MARSHAL'S EXPENSE CASE.

1. When the total expenses of a deputy marshal for a whole day are two dollars, and on such day he was a portion of the time "employed in endeavoring to arrest under process any person charged with or convicted of a crime," and another portion of the time “attending examinations before a commissioner" of the circuit court, the marshal is not entitled to be paid the full sum of two dollars "for expenses."

2. When an unauthorized and illegal claim is made, without any evidence to show whether any part of it may be authorized and legal, it will be rejected. The legal presumption is against the whole of such claim.

3. The law does not generally recognize fractions of a day. But in contracts and statutes, when the intention is apparent to recognize such fractions, or to regard a day as a given number of hours, determined by usage or otherwise, effect will be given to such intention.

4. Whether payment can be made for expenses actually incurred by a deputy marshal during a fraction of a day "while employed in endeavoring to arrest”—quaere ? The question is presented for the decision of the First Comptroller, whether a marshal is entitled to compensation not exceeding two dola day for expenses, while his deputy is employed in endeavoring to arrest under process any person charged with or convicted of a crine, on the same day when the same deputy is a portion of the time attending examinations before a commissioner?

DECISION BY WILLIAM LAWRENCE, First Comptroller.

Under sections 780 and 841 of the Revised Statutes, deputy marshals are appointed by, and are merely the employés respectively, of the marshal so appointing. Section 829 of the Revised Statutes authorizes each marshal of the United States to receive compensation for services rendered, and expenses incurred by him, or by any deputy marshal as follows:

For expenses while employed in endeavoring to arrest, under process, any person charged with or convicted of a crime, the sum actually expended, not to exceed two dollars a day, in addition to his compensation for service and travel.

*

For attending examinations before a commissioner, and bringing in, guarding, and returning prisoners charged with crime, and witnesses, two dollars a day; and for each deputy not exceeding two, necessarily attending, two dollars a day.