
    
      JOHN R. TANNER v. THE UNITED STATES.
    [No. 14904.
    Decided December 9, 1889.]
    
      On the Proofs.
    
    A marshal is allowed mileage of 10 cents per mile “for transporting criminals” by tbe Revised Statutes, § 829. He now claims 6 cents per mile additional for serving warrants of commitment of criminals-sentenced to tbe penitentiary under the same section.
    
      I. The provisions of the Revised Statutes, § 829, are ambiguous concerning the mileage fees of a marshal for “ transporting criminals,” and for “travel in going only io serve” any process, warrant, attachment, or other writ.
    31. Where it is doubtful whether a marshal is entitled to one fee for transporting criminals and to another for the travel incident thereto, and the accounting officers for a series of years hold that the one fee is to compensate him for his services and the other is to re-imburse him for his expenses, the court will not disturb the construction.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. The plaintiff, John R. Tanner, was, in the years 1884 and 1885, marshal of the United States for the southern district of Illinois.
    II. As such marshal he rendered to the district court of the United States his account for executing warrants of commitments of certain prisoners to the penitentiary at Chester, Ill.
    III. Said district court approved said accounts, amounting to $128.16,
    IY. Said accounts were disallowed by the First Comptroller of the Treasury on the following ground:
    “In view of the fact that the travel on which the mileage is claimed has already been allowed for as ‘transportation’ for the deputies who executed the writs, I have to inform you that there is nothing due to you on said account.” The allowánce for transportation was made as stated by the Comptroller. '
    Y, Prior to about the 1st of October, 1885, it had been the usual practice of United States marshals to charge mileage in their accounts for going to serve writs of commitment within their respective districts 6 cents a mile, in addition to 10 cents a mile each, for transportation of themselves or deputies, prisoners and guards; and such charge when made had been allowed by the accounting officers of the Treasury until the date named, when the practice was changed and sucü mileage was thereafter not allowed.
    YI. The personal compensation of the claimant as marshal, including the amount of this claim, does not exceed that prescribed by section 841 of the Revised Statutes.
    
      
      Mr. George A. King, for claimant.
    If there is any question whatever as to the validity of this charge, the long-continued practice of the accounting officers prior to 1885 should conclusively settle the question in favor of the allowance. The witnesses testify that such charges were always allowed up to about October, 1885, and the Comptroller himself officially certifies to the same fact. The case comes within the rule laid down in United States v. Moore (95 U. S. R., 700), and a long line of other cases, that contemporaneous construction of a statute by the officers charged with its execution is entitled to great weight. In addition to which we are entitled to the benefit of the rule laid down in Moore v. United, States (4 C. Gis. R., 141), and re-affirmed in Butler v. United States (23 C. Ols. R., 162), that in the construction of statutes fixing the compensation of public officers, where the words admit of two meanings, they should be construed favorably to the officer.
    
      Mr. James H. Nixon (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    The doctrine of statutory interpretation which we respectfully ask the court to adopt in this case is that laid down in the case of Alexander v. Mayor, etc., of Alexandria (5 Crunch Sup. Ct,, I, and The Elizabeth Case, Paine’s Circuit Court Reps., Yol. I, p. 10).
    This claim does not come under the ruling in the case of Butler v. United States (23 C. CIs. R., 162), cited by counsel for claimant. That case was decided mainly on the ground that the clerk of the court had performed double duty, by acting as clerk of two courts sitting at the same time. The statute provided pay for a clerk for each court, and the anomaly of the same person acting for both courts was doubtless not contemplated, and the court held that the officer should have more pay for serving two courts than for serving one. There is no double service claimed in this case.
    The doctrine that where the words of a statute fixing the compensation of a public officer are loose and obscure and admit of two meanings they should be construed in favor of the officer is not disputed. It is well settled in United States v. 
      Morse (95 U. S. R., p. 760) and Moore v. United States (4 C. Ols. R., p. 141).
    Bat our contention is that there is no looseness or ambiguity in the statute applying to this. case. It is clear and explicit. Because there has been a practice long continued by the First Comptroller of the Treasury to pay the double mileage, can not, we think, affect this case. Practice can not alter a plain law. An error in the interpretation of a law by an administrative officer may continue a long time without a judicial investigation of the subject, but that fact can not govern the decision of the court; otherwise there is no remedy for an old error. Wrong becomes‘right by age. If any error has previously prevailed in the interpretation of the law in the case under investigation, that error can not justify its continuance.
    The right oi accounting officers to revise and reject accounts of marshals being settled by the case of Turner v. United States (19 C. Cls. R., 629), we respectfully ask that the petition of the claimant be dismissed.
   Davis, J.,

delivered the opinion of the court:

This is a claim by a marshal for mileage, at 6 cents a mile, earned, it is alleged, in serving warrants of commitment of criminals s'entenced to imprisonment in the penitentiary. The claim is made under the clause of section 829, Revised Statutes, which provides a fee of 6 cents a mile for “ travel, in going only, to serve any process, warrant, attachment, or other writ.” The fees have been denied plaintiff on the ground that 10 cents a mile had already been allowed him under another clause of the same section, which provides a fee of 10 cents a mile for “transporting criminals.” Prior to October, 1885, it had been the custom in the Treasury to allow charges such as those now claimed, but about that date the practice was changed, and the fee of 6 cents a mile for travel is no longer allowed. It appears, then, that for fifteen years the accounting officers consistently construed the statute as authorizing the payment to the marshal of the two fees — one for travel in the service of a warrant of commitment, the other for transporting the criminal named in the warrant. The effect of such long-continued construction has thus been stated by the Supreme Court. (Moore’s Case, 95 U. S. R., 760.)

“ The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons. The officers concerned are usually able men and masters of the subject. Not unfrequently they are the draughtsmen of the laws they are afterwards called upon to interpret.”

The rule thus stated is, however, subject to the very material limitation thus formulated by the Supreme Court. (Graham's Case, 110 U. S. R., 219.)

“ In Temple’s Case it was said the language of the act of 1870 was so clear and explicit as not to be open to construction, and to our minds the same is true of the act of 1835. Under both acts all traveling expenses are to' be paid by mileage, and there is not in either of them any indication of an intention of Congress to make a distinction between travel by sea or on land, in foreign countries or in the United States. * * * Such being the case, it matters not what the practice of the Departments may have been or how long continued, for it can only be resorted to in aid of interpretation, and “ it is not allowable to interpret what has no need of interpretation.” If there were» ambiguity or doubt, then such a practice, begun so early and continued so long, would be in the highest degree persuasive if not absolutely controlling in its effect. But with language clear and precise, and with its meaning evident, there is no room for construction, and consequently no need of anything to give it aid.” (Swift, Courtney and Beecher Company's Case, 105 U. S. R., 691.)

We have, then, first to decide whether the statute is so ambiguous as to require interpretation; if so, the case falls under the decision in Moore’s Case, and the plaintiff will recover.

On the one hand the claim for mileage is within the strict letter of the law, for the plaintiff did travel, and he did deliver to the warden of the penitentiary a warrant of commitment, bin the other hand travel is a necessary incident of transporting, and it might well be argued that as the greater includes the less, so a larger fee for transporting would include a smaller fee for the travel incident thereto. Service, also, might technically be held to be the delivery of a writ to an individual with intent to compel his appearance in court as defendant or witness against his wish, and not to be the delivery by one officer of the law to another officer of the law of the court’s command which both are charged to execute. But the warden of the penitentiary is a State officer, while the marshal is a United States officer, and while both are officers of the law, both are not subject to the same superior.

So it might be contended that Congress would not pay one fee for the complete service of transporting and an addi? tional fee for a portion of that service, the travel incident thereto} but, it might be urged, serving a warrant is not an incident of transporting, but a separate act for which a fee is fixed by law to be measured by the amount of travel, as there is a specific fee for the commitment of prisoners.

We think enough has been indicated in the line of possible argument to show at least that the statute is open to interpretation, that there is some ambiguity and the case falls within the principle enounced by the Supreme Court in the case already cited. Therefore, without stating what would be the opinion of this court did the case come here without the long-continued executive interpretation, but placing our decision entirely upon the rulings in Moore’s and Graham’s Oases, judgment will be entered for plaintiff in the sum of $128.16.  