
    NOBLE C. BUTLER v. THE UNITED STATES.
    [No. 15047.
    Decided February 27, 1888.]
    
      On the Proofs.
    
    The only question presented by this case is whether the clerk of a Circuit and District Court maj' charge his per diem compensation against either as he may elect, when both coqrts are sitting on the same day.
    I.Where, in the construction of the statute fixing the compensation of a public officer, the words are loose and obscure and admit of two meanings, they should be construed in his favor.
    II.When one clerk performs the duty of two he can not be compelled to make his charges so as to reduce his emolument below a single fee, if there exist a fund from which he may properly be paid.
    III.A clerk who is a clerk both of a Circuit and District Court can not receive a dual compensation though both courts be sitting on the same day (Rev. Stat., § 831), but may elect against which court he will charge his fee; and the accounting officers can not apportion the per diem compensation of clerks in such cases between the two courts in proportion to the earnings of each.
    
      The Reporters’’ statement of the ease.
    The following are the facts of this case so far as they relate to the only question of law presented and determined :
    For services rendered to the United States in the District Court during said year 1885 the fees and emoluments of the clerk amounted to the sum of $2,062.65. For services .rendered in the Circuit Court during said year the fees and emoluments were $117.70, aggregating the sum of $2,180.35 for both courts.
    In the adjustment of the accounts of clerks of District and Circuit Courts the judges, prior to and during the said year 1885, in approving said accounts, construed the statutes in that behalf as authorizing the clerk to charge his per diem for attendance, when both courts were in session on the same day, to the District Court, ,and the accounts rendered by the said claimant during said year were duly presented to said judge by the plaintiff, and were duly certified with said per diem for attendance charged to said District Court, as required by section 846, Revised Statutes and were also proved in court and their approval entered of record, as required by the act approved February 22, 1875.
    Prior to the year 1885 the accounting officers of the Treasury Department construed the statutes as authorizing the clerk of this district and circuit to charge such per diem for attendance as he might elect, where both courts were in session on the same day, and upon such construction and interpretation of the statutes it had been the practice to adjust and allow such accounts.
    This practice and construction prevailed till the adjustment of the account of the claimant for the year 1885, made March 12,1886, when, for the first time, the First Comptroller of the Treasury changed the practice in this regard, placed upon the said statutes the construction that the expenses of both courts must be apportioned ratably between the two courts in proportion to the earnings of said courts, respectively.
    Pursuant to section 833, Revised Statutes the Attorney-General issued forms for the rendition of accounts by clerks, appended to which is a note, as follows:
    “ Note 2. If the officer making these returns be the clerk of both the Circuit and District Courts, he will separate or apportion the vouchers for office expenses, so as to show as nearly as possible the amount expended in each court.”
    The plaintiff made returns to the Attorney-General, pursuant to the requirements of said statute 833, in which his per diem was charged to the said District Court, and no exception was taken to such charge by the Attorney-General.
    
      
      Mr. Samuel Shellabarger for the claimant.
    
      Mr. Heber J. May (with, whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Davis, J.,

delivered the opinion of the court:

Plaintiff holds the dual office of clerk of the Circuit Court and clerk of the District Court of the United States for the district of Indiana, and,, while other questions were raised, the course of the argument has reduced the issue to one point of law, to wit, against which court, both being in session at the same time, he is to charge his per diem allowance. The clerk ha's charged it against the District Court, for the reason, probably, that the receipts in that court are small enough to enable him to obtain from them the full amount of his compensation. To this the accounting officers object, saying that to do this is to subordinate the law to the clerk’s personal advantage, and they have adjusted his accounts upon the following theory:

The total earnings of both courts is ascertained, and also the total expenses. The earnings of the District Court are found to be a certain percentage of the total earnings of both courts, so the accounting officers charge against the District Court this percentage only of the expenses, thus reducing plaintiff’s emolument proportionately. The plaintiff, on the contrary, believes that he is entitled to a full fee for each day’s attendance on court, and when both sit at the same time that he may charge his per diem to that court whose receipts are of such a character as permit him to receive the larger compensation.

A clerk can charge to the Government only those fees prescribed by law (Rev. Stat., § 823), and among those fees the only one not dependent upon the amount of labor performed, but whose amount is fixed by the character of the rervice alone, is the per diem of $5 for each day’s attendance on the court while actually in session (§ 828, Bell v. The United States, ante), and the amount of the fee is again limited to this extent, that when the two courts, the circuit and district, sit at the same time, no greater per diem or other allowance shall be made to the clerk than for an attendance upon one court (§ 831), nor is the clerk holding both offices, to wit, the clerkship of the Circuit Court and the clerkship of the District Court, jiermitted to retain from the fees and emoluments of both offices, above necessary expenses, a sum exceeding $3,500 a year, or exceeding that rate for any time less than a year (§ 839), and no balances can be carried from year to year to the clerk’s advantage (§ 843.)

Section 828 (Revised Statutes), secures to a clerk, whether of one of the two courts, or whether, as in this case, holding a dual office, a fixed fee of $5 a day “for his attendance on the court while actually in session,” holding both offices he is to get no less when only one court sits, and no more when both courts sit at the same time (§ 831), but the statute lacks airy provision as to the fund against which the fee is to be charged in the latter instance. In this case both courts were in session two hundred and eighty-five days; to charge the per diem against the District Court upon the percentage basis adopted at the Treasury would materially reduce the plaintiff’s emolument. In exercising his option as to the court against which he shall charge his per diem plaintiff may come nearer to reaching the maximum of fees permitted by statute by charging it to the District Court than by following a fixed rule of apportionment in relation to it.

As the statute makes no provision in terms on this question, the rule announced by this court in Moore v. United States (4 C. Cls. R., 141) would seem to apply:

In the construction of statutes which fix the compensation of public officers the rule of interpretation, as held by the courts, is that where the words of a statute are loose and obscure and admit of two meanings, they should be construed in favor of the officers. (Citing U. S. v. Morse, 3 Story, 87; see also U. S. v. Collier, 3 Blatchf., 333.)”

This fee is a fixed fee, the only fee that depends entirely upon the class of service as distinct from the amount; for a full day’s service in two courts plaintiff receives but one per diem; conversely, for a short day’s service in one court the law allows the same fee. It was not intended that this fee should in any way depend upon the amount of business transacted by the court, a matter over which the clerk can have no control, but it was intended that for each day’s attendance upon one or both courts he should receive $5, provided this with his other-fees do not exceed the maximum of $3,500. (§ 839.)

If there were two clerks holding these offices instead of one clerk holding the dual office, each would charge his per diem against, the court upon which he attended, and the Government would pay a double fee. When one clerk does the duty of two it would seem to be unjust to so force him to make his charges as to reduce his emolument below a single fee for the double labor performed when there exists a fund from which it may properly be paid. If the District Court in Indiana sat alone the claimant without doubt could have charged his per diem against it, and would have received the full compensation he asks. Is he to be placed in a worse position because the Circuit Court sits at the same time and he attends that also ? Such a conclusion, in the lack of statutory provision to the contrary, seems to us unjust, for it results in reducing compensation as labor increases. (United States v. Bassett, 2 Story, 389.)

We conclude that the previous rulings of the Department, to which we are informed it has' returned since this controversy arose, were correct.

Judgment for the plaintiff in the sum of $731.47.  