
    THOMAS E. MILCHRIST v. THE UNITED STATES.
    [No. 18273.
    Decided June 29, 1896.]
    
      On tile Proofs.
    
    At the request of the Attorney-General, the district attorney in Chicago tates depositions there in cases pending in other districts. He also advises with the secretary of the World’s Columbian Exposition concerning a claim against the United States. He also investigates and reports concerning other matters connected with the Exposition. The Attorney-General approves his account “for $125 from special compensation, district attorneys, 1894; 1893, $50.” A counterclaim is set up for a larger amount.
    I. Service rendered by a district attorney, at the request of the Attorney-General, in attending at the taking of a deposition in a. case pending in another district, comes within the sixth clause of the fee bill. (Rev. Stat., § 824.)
    
      II.If tlie deposition was not used it is for the defendants to show the fact. The presumption is that such depositions were used.
    III. Service rendered by a district attorney, at the request of the-Attorney-General, in relation to the World’s Columbian Exposition at Chicago, is service for which no compensation is provided by salary or fee, and where special compensation may be fixed by the Attorney-General.
    IV. Where it is evident that the Government has some interest in the result of litigation in which the United States are not parties and in which the district attorney acts at the request of the Attorney-General, the service will be deemed to come within § 299 and the-attorney be entitled to assimilated fees.
    V.Where it does not appear what disposition was made of a case in which the district attorney appeared for the United States, the lowest assimilated fee will be allowed under § 824, $10.
    VI.All of the foregoing fees and allowances come within the provision of § 838, that a district attorney shall return to theAttorney-Gen-eral an account “of all the fees and emoluments of his office of every name and character.” Whatever compensation is paid to a district attorney as such becomes a part of the fees and emoluments of the office, except the fees received for services rendered under §§823, 827.
    VII.The bringing of an action for compensation by a district attorney opens his accounts and enables the defendants to maintain a counterclaim. Whether this counterclaim can be reduced by allowances now made by the court in favor of the district attorney will depend upon whether he received his -maximum compensation. But these are matters for adjustment in the Treasury Department under the decision in the Supreme Court in United States v. Harmon (147 U. S. R., 268.)
    VIII.The acts appropriating $3,000 annually to pay district attorneys uspecial compensation” contain no repealing clause, cover only a p'ortion of the subject, and are not repugnant to the statutes prescribing duties and fixing compensation. Therefore the “ special compensation” must be restricted to services falling within their official duties for which no compensation has been prescribed by statute. The Attorney-General can not allow special compensation for services regulated by the fee bill.
    
      The Reporters' statement of the case:
    The following are tbe facts of tbis case as found by the court:
    I. The claimant was United States attorney for the northern district of Illinois from August 2, 1890, to December 11, 1894.
    II. January 9, 1894, he presented to the Attorney-General two accounts for special services, as follows:
    
      “(a) For services April 25, 1893, at Chicago, in his district,.
    
      in appearing on bebalf of tbe United States, at tbe request of tbe Attorney-General, at tbe taking of testimony for Kate Holland, claimant in tlie case of United States v. One Blue Serge Costume, etc., being a case then pending in tbe United States District Court for tlie district of New Jersey, $25.
    
      “(b) For services,May 22, 1893, at Chicago, in his district, in appearing on bebalf of tbe United States at tbe request of tbe Attorney-General at tbe taking of tbe deposition of a witness for tbe defendant in tbe case of The United States v. The Copper Queen Consolidated Mining Company (a corporation), being a case then pending in tbe District Court of tbe first judicial district of Arizona, sitting as a court of tbe United States, $25.
    “ (c) For services on October 5, 1893, and on other days ■during that month, at the request of tbe Attorney-General, at Chicago, in bis district, in consulting with and advising tbe •secretary of tbe board of management of tbe United States Government exhibit at tbe World’s Columbian Exposition, and ■in conferring with tbe officers of tbe board of directors of tbe said Exposition concerning tbe large claim of tbe directors for sodding around tbe United States Government building, and for water furnished, and concerning their threat to turn off tbe water and lights if tbe same were not paid, $50.
    
      u (d) For services November 9, 1893, in bis district, at tbe request of tbe Attorney-General, in investigating and reporting upon tbe matter of tbe attachment by the sheriff of Cook County, at tbe instance of Sells Bros.’ circus, of certain gold nuggets, part of tbe exhibit at tbe World’s Columbian Exposition of tbe Government of New South Wales, and in'advising tbe United States customs officers in tbe premises, $50.
    “ (e) For services November 16,1893, at Chicago, in bis district, at tlie request of tbe Attorney-General, in advising tbe secretary of tbe board of management of tbe United States Government exhibit at tbe World’s Columbian Exposition in tbe matter of a garnishment proceeding against him in favor of Michael Needham, a judgment creditor of one James Dug-gan, a subcontractor under Lyon & Son, creditors of the Government, on account of work done in connection with tbe Government exhibit, and obtaining tbe dismissal of tbe said proceedings, $25.”
    That tbe depositions taken as set forth in items a and b were mot used does not appear.
    III. Tbe services were performed by tbe claimant, and said accounts, verified by bis oath, were approved by tbe District Court of tbe United States for tbe northern district of Illinois as just and in accordance with law, and tbe orders of approval were entered of record.
    
      IY. The Attorney-General approved the accounts and indorsed thereon as follows :
    “Department oe Justice,
    •* “January 23,1894.
    
    “Respectfully referred to the First Auditor of the Treasury,, approved for $125.00,from sp. comp. dist. attys.,1894; 1893, $50..
    “Olnby, Attorney-General.”
    Y. The accounts having been allowed by the First Auditor,, were referred to this court, under section 1063 of the Revised Statutes, by the Secretary of the Treasury on the certificate-of the Comptroller, as follows:
    “This claim is referred to your court at the request of the First Comptroller, who certifies that it involves controverted questions of law, and that the decision will affect a class of cases, and will furnish a precedent for future action in the adjustment of a class of cases.”
    YI. Counterclaim.
    For the calendar year 1891 claimant was paid for his services rendered in that year the sum of $8,222.
    •In the settlement of his emolument returns for the same year he was charged with said sum of.. $8,222.00-
    And received credit as follows:
    Maximum compensation. $6,000.00
    Office expenses and clerk hire. 899.45
    - 6,899.45-
    And a balance was found due the United States of. 1,322.55
    To liquidate this balance in part the accounting officers retained • and paid into the Treasury of the United States fees earned by claimant in the years 1892 and 1893 to the amount of. 450.00-
    Which reduced said balance to. 872. 55-
    Said balance of $872.55 has not yet been p'aid to the United States.
    Upon the foregoing findings of fact the court decides as-conclusions of law—
    (1) That the claimant is entitled to the sum of $75 on finding 31, as follows: Items a and b, $2.50 each; c, $50; and ond and «, $10 each.
    (2) That the defendants are entitled on their counterclaim to the sum of $872.55 against the claimant.
    
      That final judgment herein is suspended for adjustment in the Treasury Department as to the claimant’s maximum compensation.
    
      Mr. Bichará, B. McMahon for the claimant:
    From the statutes which bring us down to 1863 and show us the whole duty of a district attorney as set forth in section 771 of the Revised Statutes, it will be seen that there were still cases outside of the official duty of a district attorney in which the heads of Departments were at liberty, as theretofore, to employ counsel; and they continued so to do, employing either district attorneys or other counsel as they saw proper until the passage of the Act of June 22,1870 (16 Stat. L., 162), when the Department of Justice was organized.
    The Attorney-G-eneral thereupon became possessed of the duty of furnishing all counsel of which any of the Departments might be in need; and he continued the practice which had always prevailed of employing counsel for such services as were unofficial to a district attorney; and, if the counsel so employed was a district attorney, he paid him as theretofore by reference to the act of 1856, above mentioned (now sec. 299, R. S.).
    By the Act of June 20, 1874 (18 Stat., 109), Congress expressly recognized, approved, and sanctioned the employment and payment of district attorneys for services not covered by their salaries or fees.
    In 1887, a contention arose between the First Comptroller of the Treasury and the Attorney-General. The Comptroller, Mr. Durham (contrary to the practice that had always previously prevailed), began to fix the compensation in these cases. Claiming that the services rendered were part of the official duty of the district attorney, he undertook to apply the fee bill to them the same as prescribed for official services. The Attorney-General stood upon the prerogative which had always been exercised by his predecessors of himself fixing the compensation.
    The act of 1853 had committed the matter, in express terms, to the head of the Department; and the act of 1856 had simply enjoined upon the head of the Department a rule to be considered by him in fixing the compensation; and the judgment of the head of the Department was not to be reviewed by the accounting officers; and. the Act of June 20, 1874 (18 Stat., 109), showed that no change in the law in this regard had been made or intended.
    To end this controversy, Congress, in 1888, made the legislative declaration on an appropriation act, which has been adhered to in all subsequent appropriations, confirmatory of the practice which had previously prevailed of permitting the Attorney-General (formerly the head of the Department employing him) to fix the compensation of a district attorney for services which were unofficial.
    In order that there might be no doubt or misunderstanding in regard to this matter, Congress coupled the appropriations for special compensation with another, which other is declared to be “for payment of the regular fees provided by law for official services.” The appropriation theretofore had been expressed simply “for payment of United States district attorneys” (24 Stat. L., 541); and, by thus breaking the appropriation up under specific heads, Congress declared as to the questions of dispute which had arisen between the accounting-officers and the Attorney-Gen eral.
    In the Act of March 2,1889 (25 Stat. L., 977), we find the same legislative declaration.
    The same in the Acts of August 30, 1890, and March 3, 1891 (26 Stat. L., 409, 986).
    Again, in the act of August 5, 1893, making appropriations for sundry civil expenses for the fiscal year ending June 30, 1893, we find the same provisions.
    In the act of March 3,1893, making like appropriations for the fiscal year 1894, and in subsequent acts making apxiropria-tions for the fiscal years 1895 and 1896, Congress has, by the same express words, placed the appropriation for special compensation at the disposal of the Attorney-General.
    And that the Department of Justice has continued to regard as correct the construction of the law which is here given, and the practice which has prevailed thereunder, as above described, is apparent from Mr. Attorney-General Qlney’s action in approving the plaintiff’s accounts, and directing them to be paid from the appropriations for special compensation to district attorneys for the respective years 1893 and 1894.
    In the case of Smith v. The United States (26 O. Cls. K,., 568), this court recognized the authority given to the Attorn ey-General in the act of October 2, 1888, repeated in each subsequent year since, as already shown.
    
      Congress, as bas been shown, by express and positive language, jfiaced the appropriation of $5,000 at the disposal of the Attorney-General. For what purpose? To pay district attorneys. For what? For services not covered by salary or fees.
    Had the services in this case been covered by the plaintiff’s salary or fees, the Comptroller would have passed his account. The Auditor had no doubt as to the meaning of the law. The evidence shows that he allowed the account and forwarded it to the Comptroller. The latter certified that it involved controverted questions of law, and it was therefore referred to this court, under section 1063 of the Revised Statutes.
    The counsel for the Government contends that the decision in the case of Gibson v. Peters is against the plaintiff in this case.
    There is a very great “ difference in principle” between that •case and the case at bar; and the facts are wholly different. The record in that case shows that Gibson, the district attorney for the eastern district of Virginia, brought an action .against Peters as receiver of the Exchange National Bank of Norfolk, Va., “to recover the value of legal services alleged to have been rendered, or offered to be rendered, by him as United •States district attorney,” in a certain suit brought in the name of that receiver against one McDonald, which suit was subsequently, in August, 1885, dismissed.
    The appellant’s contention was that he was entitled to reasonable compensation to be paid from the funds in the hands of the receiver, under section 5238 of the Revised Statutes, which provides that “ all expenses of any receivership shall be paid out of the assets of such association before distribution of the proceeds thereof.” The Supreme Court held that he was not.
    In passing upon the case, the court held that for the performance by a district attorney of all the duties imposed upon him by law there were three sources of remuneration:
    First. That coming from his salary.
    Second. From the compensation or fees authorized to be taxed and allowed.
    Third. From such other compensation as is expressly allowed by law specifically on account of services named.
    Said the Supreme Court in the case of United States v. tBashaw (152 U. S., 436):
    “But * * * it must be admitted that even if the rulings of the Department were erroneous and its practice not controlling, upon wbioli we express no opinion, whatever sum was to be paid was left to be determined by the Secretary of tlie Treasury as he should deem reasonable and just, and this involved the exercise of judgment and discretion on his part. The courts can not control, though in proper cases they may direct, the exercise of judgment or discretion in an executive officer.”
    
      Mr. Samuel A. Putman (with whom was Mr. Assistant Attorney-General Dodge) for the defendants:
    The account in this case consists of three classes of items:
    First. Two items for taking depositions in claimant’s district in cases which were pending in other districts.
    As to these items, I adhere to my original theory of extra compensation to district attorneys, insisted upon in my briefs in Garter’s Case, Winston’s Case, and Herron’s Case, that if the work is of a legal character and the United States has any interest in it, and it is located in his district, it is the duty of the district attorney to perform it, and he is compensated by the fees and salary of his office.
    Second. One item for advising the board of managers of the Government exhibit at the World’s Fair concerning a claim of the directors of the fair against the Government, but in which no suit was pending.
    Third. Two items for services in matters growing out of the World’s Fair where suits were pending in which the United States were interested. Such services as these have, I think, been the duty of the district attorney since the establishment of the office, and he has always been compensated for them; if not by fees, then by his salary. The same arguments which I have made as to other items charged are equally applicable so far as this question is concerned to this item.
    In Gibson v. Peters (150 U. S. R., 342), the Supreme Court held that it was the duty of the district attorney to render legal services to the receiver of a national bank in his district, and that he was not entitled to extra compensation therefor. I am unable to see the difference in principle between that case and these items of this case. In both cases the parties were entitled to look to the Government for legal assistance, and if it was the duty of the district attorney to render it in one it was his duty to render it in the other, and he was no more entitled to extra compensation in one case than in the other.
   Peelle, J.,

delivered tbe opinion of tbe court:

Tbe claimant seeks to recover special compensation for services performed by bim as district attorney witliin bis judicial district, wbicb services, be claims, are “not covered by salary or fees.”

Tbe claim was transmitted to tbe court by tbe Secretary of tbe Treasury, at tbe request of tbe First Comptroller of tbe Treasury, under tbe provisions of Revised Statutes, section 1063, as set forth in finding v, as involving controverted questions of law, etc.

Tbe first two items of bis claim (a and b) are for services, rendered witbin bis judicial district at tbe request of tbe Attorney-G-eneral in taking the depositions of < ertain witnesses to be used in cases pending, respectively, in tbe district courts for tbe districts of New Jersey and Arizona.

Tbe next three items of charge are for services rendered witbin bis district at the request of tbe Attorney-General (e) in consulting with and advising tbe secretary of tbe board of management of tbe United States Government exhibit at the World’s Columbian Exposition at Chicago, concerning a claim against tbe defendants for sodding around their building, etc.; (cl) for investigating and reporting to tbe Attorney-General concerning certain attachment proceedings instituted against certain gold nuggets, part of tbe exhibit of tbe Government of New South Wales, and for advising tbe customs officers in relation thereto, and (e) for advising tbe Secretary aforesaid concerning, and for securing tbe dismissal' of, certain garnishee proceedings against bim in favor of one who bad done work for a subcontractor under a contractor and creditor of tbe defendants, etc.

In tbe case of Garter (31 C. Cls. R., 344), recently decided, tbe court held that it was witbin tbe scope and authority of the Attorney-General, under Revised Statutes, sections 363 and 366, to employ one who was at tbe time a district attorney as special counsel to assist in a cause on appeal to tbe Circuit Court of Appeals sitting witbin bis judicial district from a judgment rendered by a district court for another district.

Tbe right of recovery in that case turned on tbe question as to whether tbe services bad been performed by tbe claimant as district attorney, for if tbe services bad fallen witbin bis official duties tbe Attorney-Gen eral could not have changed tbe official character of it by employing bim as special counsel.

So, in this case, if the services were such as the claimant was required to perform as district attorney, his employment therefor by tbe Attorney-General, or his performing the service at his request, would not relieve him from the official character of such services.

The duties of district attorneys, in respect to all civil and criminal cases arising within their respective districts, are set forth in Bevised Statutes, section 7715 and the salary and fees to which they are entitled, except perhaps in prize cases, are covered by Bevised Statutes, sections 770, 823, 824, 825, 827, 299, and such statutes as 1980, 3085, and Act March 1,1879 (1 Supp. to R. S., par. 9, p. 227), except that where the fees and emoluments of his office, over and above the necessary expenses, including necessary clerk hire, exceed $0,000 iier year, the excess of such fees, other than those accruing under sections 825 and 827, is to be paid into the Treasury of the United States as provided by Bevised Statutes, sections 835 and 844.

That the fees and emoluments of district attorneys might be regulated and limited as provided in the foregoing sections, Bevised Statutes, section 1705, prohibits them from receiving “any additional pay, extra allowances, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.”

It would be difficult to conceive of stronger or more explicit language. The purpose and effect of that statute was construed in the case of Hoyt v. United States (10 How., 109, 141) in these words:

“It cuts up by the roots these claims by public officers for extra compensation on the ground of extra services. There is no discretion left in any officer or tribunal to make the allowance, unless it is authorized by some law of Congress. The prohibition is general and applies to all public officers, or quasi public officers, who have a fixed compensation.”

That statute thus construed stands as the law, and Congress, by the Act June 20, 1874 (1 Supp. to R. S., 2d ed., p. 18), still further provided:

“Sec. 3. That no civil officer of the Government shall hereafter receive any compensation or perquisites, directly or indirectly, from the Treasury or property of tlie United States beyond bis salary or compensation allowed by law: Provided, That this shall not be construed to prevent the employment and payment by the Department of Justice of district attorneys as now allowed by law for the performance of services not covered by their salaries or fees.”

So that, unless there is some- law authorizing the employment of district attorneys by the Department of Justice “for the performance of services not covered by their salaries or fees,” they can not be so employed.

Nor can they receive “any additional pay, extra allowance, or compensation in any form whatever” as district attorneys unless “authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.”

In respect to the litigation and law business in which the United States are interested as parties or otherwise, the Attorney-General, under Devised Statutes, sections 355 to 366,, and especially under section 362, has the supervision and control, as held by this court in Perry’s Case (28 C. Cls. R., 483, 491).

In this same connection the Supreme Court, in the case of United States v. Smith (158 U. S., 346, 356), said:

“ It is essential to the interests of the Government that in all suits, criminal and civil, in which it is interested, the Attorney-General shall be at liberty to call upon the district attorney to represen tit, and his compensation therefor, whether measured by the fee bill or not, is a part of the fees and emoluments of his office.”

If such be the rule concerning the duties of district attorneys in respect to suits in which the Government is interested, we see no reason why the same rule should not apply in matters other than suits, requiring professional services where the Government is interested, arising within their respective districts.

A district attorney may be required to perform additional duties, germane to his office, without extra compensation, “but if employed to render services in an independent employment, not incidental to his official duties, he may recover for such services,” as was held in the case United States v. King (147 U. S., 676, 679).

It was upon this latter holding that the court awarded judgment to the claimant in the Garter Case (supra).

In the ease of Gibson v. Peters (150 U. S., 342), the court, in construing Kevised Statutes § 380, held that it was the duty of a district attorney to appear in a suit in his district in behalf of the receiver of a national bank without other remuneration than that coming from his salary and authorized fees and such additional compensation as was expressly authorized by law.

And so, by the Act March 3, 1803 (Supp. to R. S., vol. 2, last clause, par. 7, p. 125), it is made the duty of district attorneys to represent the Indians “ in all suits at law and in equity ” in “ States and Territories where there are reservations or allotted Indians,” leaving their compensation to be regulated by the fee bill, and, of course, limited to their maximum compensation.

The claimant bases his right to recover special compensation for the services performed under the several appropriation acts beginning October 2, 1888 (25 Stat. L., 541), and repeated each year since, as follows:

“ For payment of district attorneys, the same being for payment of such special compensation as may be fixed by the Attorney-General for services not covered by salary or fees, five thousand dollars.”

In later acts Congress, in making appropriations for payment to district attorneys of their regular fees, uses this language:

“ For payment of United States district attorneys, the same being for payment of the regular fees provided for by law for official services, two hundred and fifty thousand dollars.”

And because of the language there used, as contradistin-guished from the language in the appropriation for payment of special compensation” for services “not covered by salary or fees,” the claimant’s counsel ably contends that the one is for official and the other for unofficial services. But we do not so understand the act.

One was the appropriation to pay the regular fees, i. e., the fees provided for by law as expressed in the act, while the other was an appropriation of $5,000, placed under the control of the Attorney-General, not to pay special counsel or attorneys provided for under Kevised Statutes, sections 363 and 366, but to pay district attorneys for services performed by them “ not covered by salary or fees.”

These, appropriation acts do not define the duties of district attorneys nor determine the character of the services performed by them, but merely provide the money with which to pay— first, for services performed for which the law provides regular fees; second, for such services as are “ not covered by salary or fees.”

It does not follow that because there is no provision In the fee bill for payment that therefore the services performed do not come within their official duties.

Under Eevised Statutes, section 355, the Attorney-General may require district attorneys to perform certain services in respect to the title to public property within their respective districts, for which no fee or other compensation is provided unless covered by their salaries; and in reference to this the court, in Garter’s Case (supra), said:

“The salary of $200 a year given-by section 770 was evidently intended by Congress to cover such incidental services as are not provided for by specific or analogous fees, such as those which may be required of them by the Attorney-General under Eevised Statutes, section 355, in respect to the title to real estate.”

The language used in the appropriation of $5,000 presupposes some law requiring district attorneys-to perform services for which no compensation by way of salary or fees is provided; and in such cases the Attorney-General, by the language of the appropriation, is authorized to pay them “ such special compensation ” as he may fix.

Such special compensation can only be paid to district attorneys, and of course for services performed by them as such; bence such services, though not covered by salary or fees,” come within their official duties, otherwise no payment could be made to them out of the appropriation. (See United States v. King, supra.)

In this view the appropriation is in the nature of an amendment to the fee bill (sec. 824), leaving to the discretion of the Attorney-General the application of the appropriation to such services as district attorneys are required to and may perform, u not covered by salary or fees.”

This, we think, is a wise provision, as it is next to impossible for Congress to provide by law specific fees for every item of service which a district attorney may be required to perform.

Their maximum compensation is fixed at $6,000 per year (sec. 835); and that they may not be deprived of earning that sum if their services warrant it, Congress by the appropriation provides that for any services rendered by them for which no compensation is provided by salary or fees, they shall be paid therefor “ such special compensation as may be fixed by the Attorney-General.”

Did Congress by this brief appropriation method intend to change the policy so stringently outlined in the statutes cited against the payment of any additional or extra compensation ?

Such statutes to be modified or appealed sliouid be by language so clear and explicit as to admit of but one meaning.

“Nothing is better settled than that repeals, and the same may be said of annulments, by implication, are not favored by the courts, and that no statute will be construed as repealing a prior one unless so clearly repugnant thereto as to admit of no other reasonable construction.” (Cope v. Cope, 137 U. S., 682, 686.)

The appropriation act contains no repealing clause — covers only a portion of the subject — and we are unable to see any repugnancy between it and the statutes prescribing the duties and fixing the compensation of district attorneys,- lienee the special compensation provided for to district attorneys by the-appropriation, we hold, was intended to cover services falling within their official duties for which no compensation by way of salary or fees had theretofore been provided. (District of Columbia v. Hutton, 143 U. S., 18, 27.)

The jn’oviso to the Act June 20, 1874 (supra), presupposed the existence of some law authorizing the Department of Justice to employ and pay district attorneys “ for the performance of services not covered by their salaries or fees.”

But we are aware of no such law. This was the view of Comptroller Lawrence, but he held that, because it had been the practice or custom of the Attorney-General to approve-accounts for like services, the proviso had the effect to legalize-such practice.

This court, however, in SmitWs Case (26 C. Cls. R., 568, 576)-said:

“If there were an existing practice or custom to employ and pay district attorneys in cases not then allowed by law, this proviso clearly implies that it is not excepted from the preceding general prohibition.
“But if Congress acted upon a mistaken understanding of the existing law, we can not see how the proviso made a new law. It was held by the Supreme Court in Postmaster- General v. Early (12 Wheat., 148) thate a mistaken- opinion of the legislature concerning the law does not make the law,’ unless ‘the mistake is manifest from words competent to make the law for the future.’
“We find no words in this proviso competent'to make the law for the future, as held by the Comptroller.” ; • ■

This of course would not apply where a district attorney was “employed to render services in an independent employment not incidental to his official duties,” as held in the case United States v. King (supra).

The language of the appropriation of $5,000, as we have said, presupposes some law requiring district attorneys to perform services for which no compensation is provided.

The Attorney-General is not thereby authorized to require of district attorneys the performance of any service not theretofore required of them.

The only authority or discretion thereby lodged in him is that for services rendered for which no compensation is provided they shall be paid “such special compensation” as he may fix.

Not special compensation because the services performed were not within their official duties, but special because differ: ent from their regular fees; designed for a particular purpose and confined within a definite field of action, i. e., “for services not covered by salary or fees.”

For instance, the Attorney-General is not authorized to fix special compensation for services performed by them for which specific fees are provided.

In reaching the conclusion we have we are not unmindful of the fact that Congress at times have made appropriations to pay district attorneys for services designated as “unofficial,” as by the Deficiency Appropriation Act March 2,1889 (25 Stat. L., 905, 925).‘

But such appropriations are made in the exercise of political power, which of course is not lodged in the courts, and hence we are not at liberty to allow fees or other compensation to district attorneys unless the same be authorized by law.

Tested by what we have said, how stands the claimant’s account?

Items a and b, for services rendered in taking depositions, clearly fall within the sixth clause of the fee bill (sec. 824), ' “For each deposition taken and admitted in evidence in a cause, two dollars and fifty cents.”

Although these depositions were taken to be used in causes pending in the courts in districts other than the claimant’s, we see no reason why the fee bill in this respect will not apply, and hence no additional pay, extra allowance, or compensation can be made.'

If the depositions were not used, that we think was for the defendants to show, as the depositions were taken in causes pending in courts outside of the claimant’s district. The presumption is they were used.

It is to the interest of the Government and within the scope and authority of the Attorney-General to require that in such incidental matters official reciprocity and mutual action should be recognized.

Item o appears to have been for services for which no compensation is provided by salary or fee, and therefore we think the special compensation so fixed by the Attorney-General is allowable.

It was within the scope and authority of the Attorney-General to require this service to be performed by the claimant as district attorney. He is the law officer of the Government and, under Revised Statutes, section 362, may call upon district attorneys to render . such service within their respective districts.

Items d and e are more difficult to determine. The services appear to have been rendered in cases in which the United States were interested, though not a party of record.

In respect to this class of service, Revised Statutes, section 299, provides:

“All accounts of the United States district attorneys for services rendered in cases instituted in the courts of the United States or oí any State when the United States is interested, but is not a party of record, or in cases instituted against the officers of the United States or their deputies or duly appointed agents for acts committed or omitted or suffered by them in the lawful discharge of their duties shall be audited and allowed as in other cases, assimilating the fees, as near as may be, to those provided by law for similar services in cases in which the United. States is a party.”

It is of course difficult for the court to determine the extent of the interest of the United States in the cases mentioned in the two items of charge, but it is evident from the findings that they had some interest in the result of the litigation, otherwise the claimant would not be seeking compensation from them for the services so rendered.

So, without stopping to critically examine the Act April 25, 1890 (26 Stat. L., 62), authorizing the celebration of “the four hundredth anniversary of the discovery of America by Christopher Columbus,” and providing for the appointment by the President of a commission therefor, to be known as the “World’s Columbian Commission,” we hold that the services so rendered come within section 299.

But at this point we are met with the difficulty of fixing the fee in item cl, as the findings do not show what disposition was made of the cause. But, assuming that the cause has been disposed of by trial or dismissal, the lowest assimilated fee to which the claimant would be entitled is $10, under clause 3 of the fee bill (sec. 824), as “in cases at law, when judgment is rendered without a jury,” and so we decide to allow that fee. If the case was disposed of by jury trial it was for the claimant to show that fact.

As to item e, the findings show that the cause was dismissed, and hence the assimilated fee of $10 will be allowed.

The next question arising is, are the allowances thus made a part of the fees and emoluments of his office?

Certainly those coming under the fee bill are, but are those accruing under the appropriation for special compensation?

Bevised Statutes, section 833, provides:

“Every district attorney, clerk of a district court, clerk of a circuit court, and marshal shall, on the first days of January and July in each year, or within thirty days thereafter, make to the Attorney-General, in such form as he may prescribe, a written return for the half year ending on said days, respectively, of all the fees and emoluments of his office, of every name and character, and of all the necessary expenses of his ■office, including necessary clerk hire, together with the vouchers for the payment of the same for such last half year. He shall state separately in such returns the fees and emoluments received or payable under the bankrupt act; and every marshal shall state separately therein the fees and emoluments received or payable for services rendered by himself personally, those received or payable for services rendered by each of his deputies, naming him, and the proportion of such fees and emoluments which, by the terms of his service, each deputy is to receive. Said returns shall be verified by the oath of the officer making them.”

By that section the claimant was required to make to the Attorney-General written return “of all the fees and emoluments of his office of every name and character,” etc. There can be no mistake about what that language means. _

So "that whatever compensation was paid to Mm as district-attorney becomes a part of the fees and emoluments of bis office.

Then, by Eevised Statutes, section 834, it is provided:

“The preceding section shall not apply to the fees and compensation allowed to district attorneys by sections eight hundred and twenty-ñve and eight hundred and twenty-seven.
“All other fees, charges, and emoluments to which a district attorney or a marshal may be entitled, by reason of the discharge of the duties of his office, as now or hereafter prescribed by law, or in any case in ivhich the United States will be bound by the judgment rendered therein, whether jmescribed by stat-uteor allowed byacourt,or anyjudge thereof, shall be included, in the semiannual return required of said officers by the preceding section.”

There an exception is made in respect to the fees and compensation he receives for services rendered under Eevised Statutes, sections 825 and 827 — that is, he is not required to include in his written return to the Attorney-General such fees, so that they are excluded from his emolument account — but as to all the other fees and emoluments of his office which he is required to include in such semiannual return (sec. 833), he shall not be allowed “for his personal compensation, over and above the necessary expenses of his office, including necessary clerk hire, to be audited and allowed by the proper accounting-officers of the Treasury Department, a sum exceeding $6,000 a year, or exceeding that rate for any less time than a year ” (R. S., sec. 835), and any surplus over and above the amount allowed to be retained by him is to be paid into the Treasury, as provided by Eevised Statutes, section 844.

The court is not at liberty to add an exception which Congress did not make.

If Congress by the appropriation of $5,000 had intended that such sum should be in addition to or in excess of the maximum compensation of district attorneys they would have so said. What they did not see fit to do in this respect the court can not remedy.

• Therefore, when Congress has said that a district attorney shall include in his semiannual returns “all the fees and emoluments of his office of every name and character,” except such-fees and compensation as may accrue to him under sections-825 and 827, and then provides that as to such fees and emoluments so returned he shall not be allowed for his personal compensation, as aforesaid, “a sum exceeding $6,000 a year,. the court must hold that in the absence of a statute giving him extra or additional compensation in excess of $6,000 a year he can not recover.

This view is sustained by the decision in the ease United, States v. Smith (supra).

But' whether the fees and compensation herein allowed will or will not exceed the claimant’s maximum compensation is a question which still remains open for adjustment in the Treasury Department, as was held in the case of The United States v. Harmon (147 U. S., 268, 282).

And this applies to the special compensation fixed by the Attorney-General in item e under the appropriation act (supra).

The defendants have interposed a counterclaim, which is rather in the nature of an offset, growing out of the settlement of the claimant’s accounts for the year 1891, whereby he was charged during that year with $8,222, and credited with his maximum compensation, $6,000; with Office expenses and clerk hire, $899.45 ($6,899,45), leaving due the defendants the sum ■of $1,322.55.

But this latter sum was still further reduced by the accounting officers retaining and paying into the Treasury fees which, had been earned by the claimant during the years 1892 and 1893, amounting in all to $450, leaving a final balance against him of $872.55, which is still due and payable to the defendants.

Whether this balance arose from the claimant’s failure ta account for and pay over, as provided by law, all the fees and emoluments of his office, or whether the amount was paid to hint by mistake in law or otherwise, we deem it immaterial now to inquire, as the bringing of this action had the effect to open up such settlement, if made, and the court is thereby invited to go behind such settlement to correct any errors which may have occurred, as was held in the Yoes Case (30 C. Cls. R.., 370), following the decision in the McHlrath Case (102 U. S., 426, 441).

A later case, and one perhaps still more applicable to the case at bar, is that of United States v. Burchard (125 U. S., 176, 180).

In this latter case a retired officer of the Navy had been allowed more pay than the law entitled him to, and the court held that “overpayments made at one time by mistake could be corrected and properly charged against credits coming in afterwards. His pay was fixed by law, and the disbursing officers of tbe Department bad no authority to allow hira any more. If they did, it was in violation of law, and be bas no right to keep what be thus obtained.”

That case seems to be directly in point, for tbe overpayments which were made to tbe claimant in the year 1891, or tbe fees earned in that year for which he failed to account, were reduced by.credits coming in afterwards. In either event “he has no right to keep what he thus obtained,” and the defendants are therefore entitled to recover the sum of $S72.55.

Whether this sum shall be reduced by the allowances herein made to the claimant for his services in the year 1893 will depend upon whether he received in that year his maximum compensation, for if he did he can not be paid or credited with the amount so allowed, as such compensation can only be' allowed from the fees and emoluments as provided by Revised Statutes, section 843.

But if he did not receive in that year his maximum compensation, then he will be entitled to credit for the amount, or so much thereof as may bo necessary to make up his maximum compensation for that year, as provided by section 835; and to the extent of any sum which may thus be credited to him, he will be entitled to have the same set off against so much of the amount herein found due the defendants.

As these are matters for adjustment in the Treasury Department, as hereinbefore stated, judgment will be suspended for such adjustment in accordance with this opinion.  