Fees allowed by the court to the district attorney for his
services in defending habeas corpus cases, brought to release from
the custody of masters of vessels Chinese emigrants whom the
collector of the port had ordered detained, should be accounted for
by him in the returns made by him to the government of the fees and
emoluments of his office.
It would require a strong case to show that services for which
the district attorney is entitled to charge the government a fee
are not also services for the earnings of which he should make
return to the government in his emolument account.
Page 163 U. S. 343
This was a petition by the District Attorney for the District of
California for certain fees for services rendered by direction of
the Attorney General in connection with various habeas corpus cases
of Chinamen desiring to enter this country, the total amount of
disallowances in this connection being in the vicinity of $7,000.
Defendants filed a counterclaim for moneys claimed to be
erroneously and illegally allowed and paid by the accounting
officers of the Treasury Department in the sum of $930 in excess of
the fees and compensation prescribed by law.
In this connection, the Court of Claims made a finding of facts
to the effect that the claimant appeared and resisted certain
proceedings in cases prosecuted in the proper court of the United
States wherein writs of habeas corpus had been issued on behalf of
subjects of the emperor of China, to masters of certain vessels
arriving at the port of San Francisco, by whom persons were
detained by order of the collector of said port, acting under color
of the authority of the Act of Congress of May 6, 1882, c. 126, 22
Stat. 58, and of July 5, 1884, c. 220, 23 Stat. 115. Judgment was
rendered without a jury in each case. For these services the judge,
upon approving claimant's accounts under the Act of February 22,
1875, taxed and allowed him an assimilated fee of $10 in each case,
certified it to be a just and reasonable compensation and that it
had been assimilated to such fee as is prescribed by section 824 of
the Revised Statutes for similar services in cases in which the
United States are a party, and where judgment is rendered without a
jury.
The case involved several other points not questioned upon this
appeal, and resulted in a judgment in favor of the petitioner for
$594.60, and a dismissal of the counterclaim. From this judgment
petitioner appealed, assigning as error that the Court of Claims
erred in holding that the assimilated fees earned by him in
resisting the habeas corpus proceedings were to be included in his
emolument return or counted in making up his maximum compensation,
and that the judgment of the court should have been for the sum of
$8,230.
Page 163 U. S. 344
MR. JUSTICE BROWN, after stating the facts, delivered the
opinion of the Court.
The only question presented by this appeal is whether the
assimilated fee of ten dollars allowed by the court to the district
attorney for his services in defending a large number of habeas
corpus cases brought to release from the custody of masters of
vessels certain Chinese immigrants, whom the collector of the port
had ordered detained, should be accounted for by him in the returns
made by him to the government, of the fees and emoluments of his
office. No showing was made of any special employment of the
district attorney in these cases, either by the court or by the
Attorney General, or any other officer, and apparently his
appearance for the United States, and his defense of these
proceedings, were construed as a proper part of his duties as
district attorney, and as voluntary. The question is whether these
service were so far a part of the official duties of the district
attorney as to require him to make return to the government of the
fees earned therefor as emoluments of his office within the meaning
of Rev.Stat. 833, which directs the district attorney to make a
return on the first days of January and July of each year of all
fees and emoluments of his office, and of all the necessary
expenses. By sec. 834, "the preceding section shall not apply to
fees and compensation allowed to district attorneys by section
eight hundred and twenty-five" (a percentage upon moneys collected
in suits under the revenue laws) "and eight hundred and
twenty-seven" (compensation certified by the court and approved by
the Secretary of the Treasury in actions against officers of the
revenue).
"All other fees, charges and emoluments to which a district
attorney or a marshal may be entitled by reason of the discharge of
the duties of his office as now or hereafter prescribed by law or
in any case in which the Untied states will be bound by the
judgment rendered therein, whether prescribed by judgment rendered
therein, a court, or any judge thereof, shall be included in
the
Page 163 U. S. 345
semi-annual return required of said officers by the preceding
section."
In determining whether the fees in these cases were earned by
reason of the discharge of the duties of his office, we are
referred to section 771, in which it is enacted that
"it shall be the duty of every district attorney to prosecute,
in his district, all delinquents for crimes and offenses cognizable
under the authority of the United States, and all civil actions in
which the United States are concerned, and, unless otherwise
instructed by the Secretary of the Treasury, to appear in behalf of
the defendants in all suits and proceedings pending in his district
against collectors, or other officers of the revenue, for any act
done by them or for the recovery of any money exacted by or paid to
such officers, and by them paid into the Treasury."
It is argued by the petitioner in this connection that these
fees were earned not in the prosecution, but in the defense, of
civil actions in which the United States were concerned, and as at
the time when this statute was originally enacted, the United
States could not be sued in the circuit or district courts, it was
never contemplated that the district attorney would be called upon
to defend the United States, except, of course, in suits against
officers of the revenue, and hence that the law only imposed on him
the duty of prosecuting suits in which the United States were
concerned as a party plaintiff. This precise question, however, was
considered and passed upon by this Court in
Smith v. United
States, 58 U. S. 346,
in which we held that the fact that the government was interested
as defendant in some of the cases in which fees were claimed was
immaterial, and that the words, "to prosecute all civil actions,"
were not to be interpreted in any technical sense, but should be
construed as covering any case in which district attorneys are
employed to prosecute the interests of the government, whether such
interests be the subject of attack or defense. We only desire to
add in this connection that it would require a strong case to show
that services for which the district attorney is entitled to charge
the government a fee are not also services for the earnings of
which he
Page 163 U. S. 346
should make return to the government in his emolument account.
In section 834 there are two express exceptions to this rule, and
the implication from these is that no others should be permitted.
We do not mean to say that there may not possibly be others, but we
think it should appear by a clear inference that they were not
intended to be included. The government can only be called upon to
pay for services earned by the district attorney in his official
capacity, and for the fees earned in the performance of these
services he should account to the government in his fee and
emolument returns, unless there be some express exception taking
them out of the general rule.
The judgment of the court below is therefore
Affirmed.
MR. JUSTICE FIELD took no part in the consideration of this
case.
