The amount of counsel fee to be allowed to a district attorney
under Rev.Stat. § 824 for trial before a jury of a person indicted
for crime is discretionary with the court, within the limits of the
statute, and the action of the court in this respect is not subject
to review by the Attorney General or by the accounting officers of
the Treasury.
The supervisory powers of the Attorney General over the accounts
of district attorneys, marshals, clerks and other officers of the
courts of the United States under Rev.Stat. § 368 are the same
which were vested in the Secretary of the Interior before the
creation of the Department of Justice.
The powers of an auditor in the Treasury Department are limited
to the examination and auditing of accounts, to the certification
of balances, and to their transmission to the comptroller, and do
not extend to the allowance or disallowance of the same.
A Comptroller in the Treasury Department has no power to review,
revise, or alter items in accounts expressly allowed by statute, or
items of expenditures or allowances made upon the judgment or
discretion of officers charged by law with the duty of expending
the money or making the allowances.
This was an action against the United States to recover an
allowance to a district attorney by the trial court under Rev.Stat.
§ 824, disallowed by the Attorney General and by the accounting
officers of the Treasury. Judgment for claimant, from which the
defendants appealed. The case is stated in the opinion.
Page 133 U. S. 209
MR. JUSTICE LAMAR delivered the opinion of the Court.
This is an action brought in the Court of Claims on the 18th of
February, 1885, by a district attorney of the United States to
recover a balance of $320 alleged to be due him for services
performed under § 824 of the Revised Statutes, and withheld from
him by the accounting officers of the Treasury Department, under
instructions from the Attorney General.
The material facts in the case, as found by the court below, are
substantially as follows: the claimant, Charles C. Waters, for six
years immediately preceding the commencement of the action had been
United States District Attorney for the Eastern District of
Arkansas, and, in his official capacity, during that period had
tried twenty-two indictments for crimes before a jury, securing a
conviction in each case. The district court before which those
causes were tried, allowed him $30 counsel fee in each case, in
addition to the fees otherwise provided for, in accordance, as is
claimed, with the provisions of section 824 of the Revised
Statutes. When his accounts were forwarded to the accounting
officers of the Treasury Department, they were submitted to the
Attorney General for his supervision, Rev.Stat. § 368, who reduced
the amounts allowed claimant $10 in five, $15 in fourteen, and $20
in three of the cases -- in all, $320. The accounting officers of
the Treasury Department followed the action of the Attorney
General, and passed the accounts as reduced. The practice of
reducing the allowances made to district attorneys for counsel fees
first began about 1878, when Attorney General Devens issued the
following circular:
"Department of Justice, Washington, _____, 1878"
"_____ _____, Esq., United States Attorney, District of
_____:"
"Sir: Your attention is invited to the concluding clause of
section 824 of the Revised Statutes of the United States,
permitting an allowance not exceeding $30, in addition to the
Page 133 U. S. 210
other legal fees of the United States attorney, in proportion to
the importance and difficulty of the cause, when a conviction is
had before a jury on an indictment for crime. Whenever you have
obtained the approval of the court to a special fee under this
clause, you will forward, with your account of the same, to the
First Auditor, a brief statement of the points and circumstances in
each case which render it one of the importance and difficulty
contemplated by the statutes. Your account, together with the
statement, will be submitted by the First Auditor, in such cases as
he deems necessary, to the Attorney General in order to determine
from the means afforded whether such special counsel fees should be
allowed in the final settlement."
"Very respectfully,"
"CHARLES DEVENS"
"
Attorney General"
Previously to that time, such allowances by the court were
accepted without alteration. The claimant's whole counsel fees
would not exceed the maximum of $6,000 in anyone year.
It is to recover this balance of $320 that the suit is brought.
The Court of Claims, upon the foregoing facts, rendered judgment in
favor of claimant for the amount in dispute. 21 Ct.Cl. 30. The
assignment of errors is a general one, and is merely to the effect
that the court below erred, upon the facts found, in its conclusion
of law that the appellee was entitled to recover from the United
States the sum of $320.
The fees in question were allowed by the court under sections
823 and 824 of the Revised Statutes. Section 823 provides that
"The following, and no other, compensation shall be taxed and
allowed to attorneys, solicitors, and proctors in the courts of the
United States, to district attorneys, clerks, . . . except in cases
otherwise expressly provided by law."
Section 824, after limiting the fees to the district attorneys
for their official services therein named, each at a specific
amount, irrespective of the labor and responsibility involved,
provides in its concluding clause that,
"When an indictment for crime is tried before a jury and a
conviction is
Page 133 U. S. 211
had, the district attorney may be allowed, in addition to the
attorney's fees herein provided, a counsel fee, in proportion to
the importance and difficulty of the cause, not exceeding thirty
dollars."
The exact amount of the allowance, within the prescribed limit
thus authorized, is left discretionary, but the section does not in
so many words designate the person or tribunal by whom that
discretion shall be exercised. The contention of the United States
is that this discretionary power is vested in the Attorney General,
and that the fixing of the amount of a special counsel fee, in the
absence of express legislative provision, is not a judicial, but an
executive, act, to be exercised by the Attorney General as chief of
the department to which district attorneys belong. The view on
which the court below rested its decision was that this
discretionary power pertains to the judicial functions of the court
before which the cause was tried, and by which Congress manifestly
intended that its importance and difficulty should be determined,
and that therefore the allowance by the district court of the fees
in question was conclusive upon the Attorney General and the
accounting officers of the Treasury Department.
It will be observed that none of the provisions of these
sections has any reference whatever to the matter of rendering or
revising accounts or to the powers and duties of the Attorney
General or of the accounting officers of the Treasury Department in
relation to the accounts of district attorneys. They relate
exclusively to the compensation or fees to be taxed and allowed
those officers, and the concluding paragraph applies alone to the
allowance of the additional fee to the district attorney, for
services rendered within the court on the trial of a cause, all the
steps and incidents of which, including the taxation of costs
arising in the course of the proceedings, are within the knowledge
and under the jurisdiction of the court. They in express terms
require the district attorney's fees to be taxed, and no other
tribunal can tax them except the court having jurisdiction. In the
case of
The Baltimore,
8 Wall. 377, referring to the provision of the statute of February
26, 1853, 10 Stat. 161, part of the first section of which
Page 133 U. S. 212
was incorporated
in haec verba into these two sections
of the Revised Statutes, it was held that fees and costs allowed to
attorneys solicitors, and proctors in admiralty cases were taxable
as costs as an incident to the trial and judgment. Said the Court
in that case, page
75 U. S.
392:
"Fees and costs allowed to the officers therein named are now
regulated by the Act of the 26th of February, 1853, which provides
in its first section that in lieu of the compensation now allowed
by law to attorneys, solicitors, proctors, district attorneys,
clerks, marshals, witnesses, jurors, commissioners, and printers,
the following, and no other, compensation shall be allowed.
Attorneys, solicitors, and proctors may charge their clients
reasonably for their services, in addition to the taxable costs,
but nothing can be taxed as cost against the opposite party, as an
incident to the judgment, for their services, except the costs and
fees therein described and enumerated."
No distinction is made by the Court or by the statutes between
the fees prescribed in admiralty cases as an incident to the
judgment and those so incident in other cases. All the costs and
fees "therein described and enumerated" are put on the same footing
as taxable costs incident to the judgment. The discretionary fee
that "may be allowed" to a district attorney for securing a
conviction in a case of indictment for a crime tried by a jury is
nonetheless an incident to the trial and judgment because its
allowance is contingent upon a conviction. Both before and since
the enactment of the statute of 1853, courts, in the exercise of
their discretion, have allowed counsel fees in many cases without
question when reviewed by this Court. In
The
Apollon, 9 Wheat. 362,
22 U. S. 379,
and in
Canter v. American & Ocean
Insurance Companies, 3 Pet. 307,
28 U. S. 319,
the allowance of counsel fees by the court below was affirmed by
this Court as a matter within the sound discretion of the court
before whom the cause was tried, and those decisions were cited
with approval in
Elastic Fabrics Co. v. Smith,
100 U. S. 110, and
Paper-Bag Cases, 105 U. S. 766,
105 U. S. 772.
In
United States v. Ingersoll, 1 Crabbe 135, suit was
brought by the United States against a United
Page 133 U. S. 213
States district attorney for money had and received. He pleaded,
as a set-off, among other items, $5,083.20 for costs taxed and
allowed in criminal cases, payment of which had been withheld by
the Treasury Department. It was held that those costs, which were
attorneys' fees, constituted a fair and legal set-off, and the
court laid down the principle, as concisely stated in the syllabus,
that "the allowance of costs to a district attorney is altogether
in the jurisdiction of the judge, and not within the power of the
officers of the Treasury."
In harmony with those decisions and in accordance with the
practical construction placed by the courts, by the Attorney
General himself, and by the accounting officers of the Treasury
Department upon the Act of February 26, 1853 (now sections 823,
824, Rev.Stat.), the judge before whom the case was tried always
exercised the discretion of allowing an additional counsel fee to
district attorneys in the specified cases, without the revision of
any executive officer, from the passage of that act until 1878.
But in 1878, the Attorney General, in the circular letter
hereinbefore set forth, assumed the authority to change the uniform
practice and to revise and alter the allowances of those counsel
fees made by the judge. In our opinion, this attempted change was
not warranted by law. In allowing the counsel fee to the district
attorney, the court acted in its judicial capacity, and such
allowance, being a judicial act of a court of competent
jurisdiction, was not subject to the reexamination and reversal of
the Attorney General.
United States v.
O'Grady, 22 Wall. 641;
Butterworth v. Hoe,
112 U. S. 50,
112 U. S. 67;
Hayburn's Case,
2 Dall. 409,
2 U. S. 410,
note
a.
If the Attorney General has the right, upon information derived
from a statement made to him by a district attorney as to the facts
and circumstances of a trial in court, to reduce a fee allowed by
the court, he may with equal right and propriety increase such fee
should he determine that the judge had underestimated the
importance and difficulty of the cause tried before him and had
undervalued the services of such district attorney.
Page 133 U. S. 214
It is contended that the power of the Attorney General to make
the reduction in question is vested in him by virtue of section 368
of the Revised Statutes, which provides as follows:
"The Attorney General shall exercise general supervisory powers
over the accounts of district attorneys, marshals, clerks, and
other officers of the courts of the United States."
The supervisory powers given in this section are precisely those
which were exercised by the Secretary of the Interior before the
Department of Justice was established, and which were transferred
from the Secretary of the Interior to the Attorney General by the
fifteenth section of the Act of June 22, 1870, c. 150, 16 Stat.
164. That section provides that
"The supervisory powers now exercised by the Secretary of the
Interior over the accounts of the district attorneys, marshals,
clerks, and other officers of the courts of the United States shall
be exercised by the Attorney General, who shall sign all
requisitions for the advance or payment of moneys out of the
Treasury on estimates or accounts, subject to the same control now
exercised on like estimates or accounts by the First Auditor or
first Comptroller of the Treasury."
It was never claimed by the Secretary of the Interior nor
considered by the officers of the Treasury Department that those
supervisory powers over accounts gave him any authority to make an
allowance of fees under section 824 of the Revised Statutes, or to
review and reverse a judicial order allowing such fees.
A close examination of the statutes by which these supervisory
powers are defined shows, as well stated in the opinion of the
court below, that they extend to seeing that the accounts are in
due form, in accordance with the law and regulations; that all
receipts are properly credited; that all items of payments and
allowances are authorized by law; that nothing is retained beyond
the maximum fixed by the statute, and that in every respect the law
relating to the same has been fully complied with, and does not
include the power of reviewing the discretion of a judge in making
allowances, or of altering his orders and decrees therein.
We are unable to perceive the pertinence and force of the
Page 133 U. S. 215
argument drawn from the authority of the Attorney General, as
chief of the Department of Justice, exercising the power of
superintendence and direction over the district attorneys as
subordinate officers belonging to that department. This authority
is purely of an executive character, analogous to that of all the
other chiefs of their respective departments. The superintendence
and direction which he exercises, however comprehensive and minute
it may be, over the duties of those officers which are purely
administrative and executive, cannot by any stretch of construction
be made to extend over the proceedings, the judgments, or the
orders of the courts under whose jurisdiction the district
attorneys, under the law, are required to perform their duties.
With regard to the supervisory power of the accounting officers
of the Treasury Department in this connection, it is to be observed
that, according to the record in the present case, those officers
simply "followed the action of the Attorney General," which, as we
have already seen, was unauthorized by law. The counsel for the
United States, while insisting that the discretion in question is
vested in the Attorney General, concedes in his brief that it was
not meant to be given to the accounting officers. In this
connection, he says:
"The accounting officers of the Treasury could never have been
given this discretion in fixing an additional allowance, for, from
the nature of the case, they know nothing about the difficulty and
importance of the work done by a district attorney, and because
fixing compensation for services is foreign to their ordinary
business. The discretion is of a kind the never exercise, and
moreover, when exercised by another, they cannot alter or amend
what is done."
Further discussion of this point is not necessary. The powers
and duties of the accounting officers are well described by the
court below in the allowing language, with which we agree:
"Those powers and duties are well understood. The auditor merely
examines and audits accounts, neither allowing nor disallowing the
same, certifies balances, and transmits the same to the Comptroller
for his decision thereon. The Comptroller decides whether or not
the items are authorized by statute,
Page 133 U. S. 216
and are legally chargeable. He has no power to review, revise,
and alter items expressly allowed by statute, nor items of
expenditures or allowances made upon the judgment and discretion of
other officers charged with the duty of expending the money or of
making the allowances. His duty extends no further than to see that
the officers charged with that duty have authorized the
expenditures or have made the allowances."
21 Ct.Cl. 37, 38.
For the foregoing reasons, the judgment of the Court of Claims
is
Affirmed.