
    BENJAMIN GARDNER v. THE UNITED STATES.
    [No. 15785.
    Decided December 2, 1889.]
    
      On the Proofs.
    
    Prior to the Act 4th August, 1886, a Circuit Court commissioner earns certain docket fees. The defendants now insist that that statute took away the right to them.
    I.The Act 4th August, 1886 (24 Stat. L., p. 274), which appropriates money for commissioners’ fees for the past iiscal year, but provides that “ theg shall not be entitled to any doelcet fees,” does not extend to fees earned before the law was passed.
    II.A statute will not be deemed retroactive unless it bo beyond doubt that it was so intended. The legislature must expressly declare a statute to be applicable to past transactions, or the intent must appear by unavoidable implication.
    III.An appropriation act may withhold the moneys appropriated from past transactions, but that will not make the statute retroactive.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. That claimant, Benjamin G-ardner, was a commissioner of the Circuit Court of the United States for the middle district of Alabama from January 18, 1886, to June 30, 1886.
    II. That the Circuit Court of the United States for said district, in compliance with a request by the Attorney-General, made, an order requiring, among other things, that each of the commissioners of said court should keep a docket, in which he should enter, on the day the transaction should occur, the issuance of each warrant, the name of the persou upon whose complaint and request the same was issued, the nature of the offense, and the name of the officer to whom the warrant was delivered for service, together with the proceedings had under said warrant; that there should also be entered therein the names of the witnesses present and examined, and their fees; the name of the guard, if any, and his fees ; and also the marshal’s and deputy marshal’s fees, together with the mileage and expenses allowed by law; and the said order has continued of force.
    
      III. That from the said January 18,1886, to June 30, 1886, claimant, as such commissioner, issued his warrants iu thirty-three cases, in twenty-five of which issue was joined but no testimony taken, and in eight of which issue was not joined the defendant was discharged and no testimony taken, and he ■duly made his docket entries in each and all of said cases as authorized by sections 828 and 847 of the Revised Statutes of the United States.
    IN. That his accounts for his fees for keeping said docket were, as required by law, duly verified by oath and presented to the said court in presence of the district attorney, and approved by the court, and an order approving the same, as being in accordance to law and just, duly entered upon the records of the said court. In said accounts, as approved by the court, he was allowed a fee of $3 in each case where issue was joined and testimony taken, a fee of $2 in each case where issue was joined but no testimony taken, and $1 where issue was not joined and the defendant was discharged or cause dismissed; amounting in all to $83.
    Y. That his accounts therefor have never been paid by the accounting officers of the Treasury, and payment for said services was refused by them.
    ilir. O. G. Lancaster for the claimant.
    
      Mr-F. P. Dewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendant.
   Scofield, J.,

delivered the opinion of the court:

The claimant was a commissioner of the Circuit Court of the United States for the middle district of Alabama, from January 18, 1886, to June 30, 1886; during that time he kept a docket, as required by the court, in which he entered proceedings in each case heard by him. The docket fees amounted to $83.

In the case of Wallace v. The United States (20 C. Cls. R., 273) this court held that a commissioner, Under entirely similar circumstances, was entitled to charge docket fees. The case was appealed to the Supreme Court and affirmed (116 U. S. R., 398).

The defendants concede that the claim falls within these rulings. The only question raised is whether payment is prohibited by the proviso in the act of August 4, 1886, “ making appropriations to supply deficiencies for the fiscal year ending June 30, 18S6, and for prior years, and for other purposes’7 (24 Stat. L., 274). The appropriation and proviso are as follow:

“ Fees of commissioners : For fees of commissioners and justices of the peace acting as commissioners, fifty thousand dollars : Provided, That for issuingany warrant or writ and for any other necessary service commissioners may be paid the same compensation as is allowed to clerks for like services ; but they shall not be entitled to any docket fees.”

It will be observed that the law was passed after the fees were earned, and does not therefore prohibit payment, unless held to be retroactive.

The rule of construction applicable to such statutes is concisely stated by Justice. Miller, of the Supreme Court, while presiding at the circuit in the case of Schench v. Peay (1 Woolworth’s B.., 175), as follows:

When we are called upon to construe statutes claimed to be retroactive, the rule is firmly settled that we can only give them that effect when there is something on their face putting it beyond doubt that the legislature so intended'; or, to express it in other words, the legislature must have expressly declared the statute to be applicable to past transactions, or the intent must appear by an unavoidable implication.”

In this case the statute does not expressly declare that it is to be applicable to past transactions,” nor does such “ intent appear by an unavoidable implication.”

It may well be inferred that docket fees, already earned, are not to be paid out of this particular appropriation; but certainly that does not make the proviso retroactive.

Judgment will be entered for the claimant in the sum of $83.  