
    JOHN A. JONES v. THE UNITED STATES.
    [No. 14699.
    Decided December 14, 1885.]
    
      On the Proofs.
    
    Tbe clerk of a United States Circuit Court is not allowed by tbe accounting officers of tbe Treasury his statutory per diem, fee of $5 for days when tbe court was merely opened and adjourned.
    I. Tbe Revised Statutes'(§ 838) prescribe for tb'e clerk of a Circuit Court a fee of “ ¡§15 a day for his attendance on the court while actually in session.”- This includes days when tbe court, opened at tbe time and place appointed by law, was adjourned without transacting business.
    II. A court opened at tbe time and place appointed by law is in actual session though no suitors appear and it be adjourned to a future day without transacting any business whatever.
    
      The Reporters’ statement of tbe case :
    There was no dispute as to the facts in this case, and they will be found stated in the opinion of the court.
    
      Mr. George A. King for the claimant.
    
      Mr. JSdward M. Watson for the defendants.
   Scosteld, J.,

delivered the opinion of the court:

The claimant was appointed clerk of the Circuit Court of the United States for the southern district of Illinois in 1867, and has continuously held the office to the present time.

From June 30, 1884, to January 4, 1885, the court was in session one hundred and sixty-one days. On forty-four of those days no business was transacted; the court merely met and adjourned. The judge and clerk were present. The claimant charged a fee of $5 for each of the one hundred and sixty-one days. In the Treasury Department he was allowed and paid $585 for one hundred and seventeen days. The claim for the other forty-four days, amounting to $220, was rejected for the reason that upon those days the court adjourned without transacting any business.

This suit is brought to recover the fees which were disallowed for the forty-four days.

The law of the case is presented in the following extract from section 828 of the Revised Statutes, which prescribes the fees of the clerks:

“ For traveling from the office of the clerk, &c., * * # and $5 a day for his attendance on the court while actually in session.”

Was the court “ actually in session,” within the meaning of this section, on those days in which it met, at the time and place appointed by law, but adjourned without transacting any business?

Upon that question this court entertains no doubt. The court was not the less in actual session because no suitors appeared, nor because for any other reason the court, in its discretion, adjourned to a future day. The clerk’s fee became taxable when the court assembled and opened for business, regardless of the time of adjournment.

In .this view of the case, it follows that the claimant was entitled to charge a fee of $5 for each of the forty-four days in question. And' it further appearing that the personal compensation of the claimant as clerk, including the amount of this claim, does not exceed that prescribed by section 839 of the Revised Statutes, judgment will be entered in his favor for $220. •  