
    CHARLES H. BILL v. THE UNITED STATES.
    
      [No. 15570.
    Decided February 13, 1888.]
    
      On the Proofs.
    
    The only question involved in this case is one previously decided — whether a clerk is entitled to his per diem compensation for days when the court is in actual session, but adjourns without transacting business.
    The great respect entertained for the opinion of the accounting officers by the judges of this court has induced them to reconsider the question determined in the case of Jones (21 C. Cls. K., 1), but only to arrive at tho same conclusion, viz: that when a court is in actual session, so as to require the attendance of the clerk, although he may perform no duty, except to record the facts of the opening and the adjournment, he is entitled to the per diem compensation allowed by the Revised Statutes, section 828.
    
      The Reporters'* statement of the case:
    The following are the facts of this case as found by the court:
    I. The claimant, Charles H. Bill, was clerk of the District Court of the United States for the northern district of Ohio from June 19,1885, to June 15, 1886.
    II. Said District Court was in session on one hundred and thirty-seven days, from January 2, 1886, to June 14,1886, and the judge of said court was present, and the said Bill as clerk in attendance on all of said days. His accounts for fees at the rate of five dollars a day for his attendance, on said court while in session on said one hundred and thirty-seven days were duly verified by oath and presented to the said court and ajjproved. Said accounts were duly presented for payment to the accounting officers of the Treasury, and the fees for twenty-five days were allowed and paid, but the one hundred and twelve days’ payment was refused for the reasons stated in Finding IY.
    III. The personal compensation of the claimant as clerk, including the amount of this claim, does not exceed that prescribed by section 839 of the Eevised Statutes.
    IY. The full amount claimed, viz, $685, was suspended by the accounting officers of the Treasury, as follows:
    “ Suspended for full explanation. Please furnish a detailed statement from information supplied by the court records of the proceedings on each day on which public business was transacted sufficient to enable the accounting officers to judge as to what days you should be allowed for your attendance. Simply opening and adjourning the court is not such public business as would entitle you to charge per diems, nor such entries as are made as to which it makes no particular difference on what days they are entered of record. This in reference to the letter you wrote to Miss Brown, copy of which is with the account.
    “ $125 allowed per report 100543.”
    
      Mr. George A. King for the claimant.
    
      Mr. JF. JP. Dewees (with whom was Mr. Assistant Attorney-General Howard) for the defendant.
   Scofield, J.,

delivered the opinion of the court:

The only'question involved in this case is whether a clerk of the United States District Court can lawfully claim per diem compensation for days on which the court meets in actual session, but adjourns without transacting any business.

In the case of Jones v. The United, States (21 C. Cls. R., 1), in which the same question was presented, the court said:

“ The law of the case is presented in the following extract from section 828 of the Revised Statutes, which prescribes the fees of the clerks:
For traveling from the office of the clerk, etc,, * * * and five dollars a day for his attendance on the court while actually in session.’
“Was the court i actually in session,’ within the meaning ■of this section, on those days in which it met, at the time and place appointed by law, but adjourned without transacting any business %
“ Upon that question this court entertains no doubt. The court was not the less in actual session because no suitors appeared, nor because for any other reason the court, in its discretion, adjourned to a future day. The clerk’s fee became taxable when the court assembled and opened for business, regardless of the time of adjournment.”

The counsel for the defendant, in his printed brief, states that—

“ The accounting officers of the Treasury, notwithstanding the decision in that case, still maintain the view that simply opening and adjourning the court is not such public business as would entitle the clerk to charge per diems.”

The great respect entertained for the opinion of these officers by the judges of this court has induced them very carefully to reconsider the question, but only to arrive at the same conclusion.

If the law had provided pay by the half day, hour, or minute, there would be no difficulty in making an apportionment of the fees according to the time consumed. But i Lie prescribed fee is “ five dollars a day for attendance while in actual session.”

How long must a court remain in actual session to make a court day ? Nobody would say the whole day — that is, twenty-four hours. How many hours, then, are required? We find no rule by which to divide the day. On some days the court may sit ten or fifteen hours ; on others, only as many minutes; but the attendance of the clerk is required on each of these days, and the law gives him the same compensation.

Whenever there is such an actual session of the court as requires the attendance of the clerk, although he may be called upon to perform no duty except to record the facts that the court assembled at the time and place fixed by law; that the judge was present, and the court was regularly opened for business, and then adjourned to some future time, we see no way to avoid the conclusion that this constitutes a court day, for which the clerk is entitled to his fee.

Judgment will be entered for $560.  