
    EDWARD H. McLEAN v. THE UNITED STATES.
    [No. 15718.
    Decided June 18, 1888.]
    
      On the Proofs-.
    
    The claimant is appointed hy a United States marshal “to attend upon juries, and for other necessary purposes.” For a number of days he waits upon the attorneys and officers of the court and tafees care of the court-rooms and offices of the clerks. He is paid only for days when the court is in session.
    I. The Revised Statutes (§ 715) authorize the appointment of persons “to attend upon juries, and for other necessary purposes,” the compensation to be paid “only for actual attendance; and token loth courts are m session at the same time, only for attendance on one cov/rt.” The duties thus authorized are those of a bailiff, not of a laborer, and the person can not recover for services essentially those of a laborer.
    II. Under the Revised Statutes (§ 715) it is not the session of the court which determines the appointee’s right to compensation, but actual attendance in the performance of the duties imposed upon him by the statute.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. The claimant, Edward H. McL.ean, is, and has been since April 15, 1881, one of the persons appointed by the marshal of the United States for the northern district of Ohio, under the second clause of section 715 of the Revised Statutes of the United States, to attend upon the grand and other juries, and for other necessary purposes.
    II. Since the 1st day of August, in the year 1881, the claimant has performed services in and about the court-house in the city of Cleveland, Ohio, for three hundred and ninety-two days, for which he has received no per diem or other compensation. The nature of his services upon those days was to wait on the officers and attorneys of the court, to take charge of the grand and petit juries, to look after and take care and charge of the court-rooms and the offices of the clerks of the circuit and district courts, to sweep out the court-rooms and other offices of the court, to ru# errands of an official nature between the officers of the court and the attorneys, and to do other work of the same general character. This work was required of, and performed by, the claimant on all week-days, without regard to whether the circuit and district courts of the United States, or either of them, were in actual public session at the city of Cleveland or not. Plaintiff has been paid for all days when the court was in session.
    III. The only reason why no per diems were paid to the claimant for the aforesaid three hundred and ninety-two days of service was that on nearly all of said days the courts of the United States were not in open public session at said city of Cleveland. The claimant from time to time presented his account to.the marshal for payment, which was refused on the ground that the marshal could only pay for days when the journal of the court showed the transaction of business in open public session of the court.
    IV. The claimant has expended the sum of $19.70 in taking testimony in this case.
    V. The following are the orders under which the plaintiff held his position:
    “The United States oe America,
    
      “Northern .District of Ohio, Eastern Division, ss :
    
    “At a stated term of the circuit court of the United States within and for the eastern division of the northern district of Ohio, begun and held at the city of Cleveland, in said district, on the first Tuesday in April, being the fifth day of said month, in the year of our Lord one thousand eight hundred and eighty - one, and of the Independence of the United States the one hundred and fifth.
    “Present, the honorable Martin Welker, district judge.
    “ Among the proceedings then and there had were the following, to wit:
    “ Friday, April 15,1881.
    
      11 Appointment of E. U. McLean, bailiff.
    
    “Upon the application of the marshal the court appoints-Edward H. McLean as one of the court bailiffs for the present term of tbis court, wbo appear:. 5 open court and was sworn according to law.”
    “The United States of America,
    
      Northern District of Ohio, ss :
    
    “ At a stated term of the district court of the United States within and for the northern district of Ohio, begun and held at the city of Cleveland, in said district, on the first Tuesday in April, being the fifth day of said month, in the year of our Lord one thousand eight hundred and eighty-one, and of the Independence of the United States of America, the one hundred amlfifth.
    
      u Present, the honorable Martin Welker, district judge.
    proceedings there had were the following, to wit:
    “Friday, April 15,1881.
    
      “Appointment of bailiff.
    
    “ With the approval of the court the marshal this day appointed Edward H. McLean as bailiff to assist him during the present term of this court. Whereupon the said Edward H. McLean appeared in open court and was sworn as such bailiff.”
    VI. It does not appear whether claimant was in attendance, upon juries or performing other necessary service similar in kind or incident to such attendance upon any day when the court was not in session.
    
      Mr. George A. King for the claimant.
    The words of the law, “ to attend upon the grand and other juries, and for other necessary purposes,” are certainly very’ comprehensive,' and the “necessary purposes ” named in the! law would certainly seem by any reasonable and fair construction to include exactly the kind of services performed by this claimant, viz, taking care and charge of the court-rooms and clerks’ offices, sweeping out those rooms, running errands of an official character for the clerks and marshal, and other work of that sort. (Legal Tender Case, 110 U. S. B. 431, 440; Union Faeifie Railway Company v. United States, 2 0 C.Cls. B., 70, 108,109; Harper v. United States, 21 G. Gis. B., 56.)
    This construction of the statute is strengthened by the terms of the last sentence of section 715, which provides that “ such compensation shall be paid only for actual attendance,” which cleaily requires that when the officer is in actual attendance he shall be paid for his work.’ I or many important purposes, indeed, the courts of the United States are always open and in session. (Rev; Stats., §§ 574-57G, G38, 2013, 4973; 24 Stat. L., 385; Rules of Practice for Courts of Equity of the United States, No. 1.)
    The principle involved in this case has been settled by this court in the cases of Jones v. United States (21 O. Cls. R., 1) and Harper v. United States (21C. Cls. R'., 50.) These cases are based upon the broad- principle that where the officer is paid by per diem compensation the performaiiCCX>f_hjs_ duties^.0T,l-iii'6 day entitles him to the per diem. It is true that in the cases of clerks the court limits their per diem to attendance on the court when actually in session (21 C. Cls. R., 2), but with regard to the persons appointed under section 715 there is no such limitation. The reason is obvious. For services performed by a clerk in his office, out of the actual public session of the court, the law prescribes other fees than per diem compensation. (Rev. Stat., § 828.) The persons appointed under section 715, however, are paid by no other compensation than a per diem, and if they lose that they are deprived of all compensation for their services, though required by their official superiors to perform them under penalty of dismissal. United States v. Powell, 14 Wall., 493, is strong authority in favor of this claim.
    
      Mr. F. P. Pewees (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Davis, J.,

delivered the opinion of the court:

Section 715 of the Revised Statutes of the. United States provides as follows:

£í The circuit and district courts may appoint criers for their courts, to be allowed the sum of two dollars per day; and the marshals may appoint such a number of persons, not exceeding five, as the judges of their respective courts may determine to attend upon the grand and other juries, and for other ncessary purposes, who shall be allowed for their services the sum of two dollars per day, to be paid by and included in the accounts of the marshal out of any money of the United States in his hands. Such compensation shall be paid only for actual attendance, and, when both courts are in session at the same time, only for attendance on one court.”

Under this section plaintiff received an appointment as one of “ tbe number of persons not exceeding five * * * to attend upon the grand and other juries, and for other necessary purposes,” and has been paid for such services at the statutory rate for the days during which the court was in session. He now claims compensation for other days when he was employed in waiting on the officers and attorneys of the court in taking charge of the grand and petit juries, in looking after and taking charge of the court-rooms and the clerks’ offices, in sweeping out the court-rooms and other offices, in running errands of an official nature between the officers of the court and the attorneys, and in doing other work of the same general character. This contention is based upon the clause providing compensation for “ other necessary purposes.” This clause should be construed in connection with the principal definition of his duties — that is, “ attendance upon the grand and other juries.” For time occupied necessarily in performance of duties incident to attendance upon these juries, or of duties similar in their nature and kind to attendance on juries, plaintiff would be entitled to compensation. The duties óf a janitor or messenger are entirely different in character from those contemplated by this section of the Revised Statutes, and for time employed in their performance plaintiff should not be compensated. H'is duties were in their essence those of a bailiff, although he is not given that title; they were not the duties of a laborer or messenger.

We do not understand that recovery can be had for those days only when the court was in session. The statute does not impose this limitation; it forbids double pay when both courts are in session, and demands “ actual attendance ” — that is, attendance in the case of the plaintiff upon the juries, or attendance in the performance of other necessary duties similar in kind. Usually the court would be in session at such times, but on the other hand the grand jury might be in session when the court was not. It is not the session of the court which determines plaintiff’s rights, but actual attendance in the performance of- the duties imposed upon him by law. It does not appear whether he was so in attendance upon the juries or otherwise upon any day when the court was not in session.

Holding this view of the case, we do not consider the point made as to the phraseology of the orders of court and the marshal under which plaintiff acted.

Petition dismissed.  