In proceedings taken by a district attorney of the United
States, by order of the Attorney General at the request of the
Secretary of War, and conducted under directions of the latter, to
secure the condemnation of private lands within the limits of his
district for the purpose of erecting
Page 173 U. S. 364
fortifications thereon for the use of the United States, he is
performing his official duties as district attorney of the United
States, and is not entitled to any extra or special compensation
for them.
The case is stated in the opinion.
MR. JUSTICE HARLAN delivered the opinion of the Court.
In the Circuit Court of he United States for the Eastern
District of New York, a judgment was rendered against the
government and in favor of the defendant in error, Johnson, for the
sum of $6,513.95. Of that amount $6,500 represented the value of
legal services rendered for the United States by Johnson while he
held the office of district attorney for that district in
proceedings in that court for the condemnation of certain lands for
public purposes.
The case having been carried by writ of error to the circuit
court of appeals, certain questions of law arose as to which
instructions are desired from this Court, the controlling question
being whether Johnson was entitled, for the services rendered, to
any compensation beyond the salary and emoluments attached to his
office.
The sections of the Revised Statutes (Title XIII, c. 16) upon
the construction of which the answers to the questions propounded
more or less depend are the following:
"SEC. 355. No public money shall be expended upon any site or
land purchased by the United States for the purpose of erecting
thereon any armory, arsenal, fort, fortification, navy yard,
customhouse, lighthouse, or other public building, of any kind
whatever until the written opinion of the Attorney General shall be
had in favor of the validity of the title, nor until the consent of
the legislature of the state in which the land or site may be, to
such purchase, has been given. The district attorneys of the United
States, upon the application
Page 173 U. S. 365
of the Attorney General, shall furnish any assistance or
information in their power in relation to the titles of the public
property lying within their respective districts. And the
secretaries of the departments, upon the application of the
Attorney General, shall procure any additional evidence of title
which may be deemed necessary, and which may not be in possession
of the officers of the government, and the expense of procuring it
shall be paid out of the appropriations made for the contingencies
of the departments respectively."
"SEC. 767. There shall be appointed in each district, except in
the Middle District of Alabama and the Northern District of Georgia
and the Western District of South Carolina, a person learned in the
law to act as attorney for the United States in such district. . .
."
"SEC. 770. The district attorney for the Southern District of
New York is entitled to receive quarterly for all his services a
salary at the rate of six thousand dollars a year. For extra
services, the district attorney for the District of California is
entitled to receive a salary at the rate of five hundred dollars a
year, and the district attorneys
for all other districts
at the rate of two hundred dollars a year."
"SEC. 771. 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
or 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."
"SEC. 823. 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
of the circuit and district courts, marshals, commissioners,
witnesses, jurors and printers in the several states and
territories, except in cases otherwise expressly provided by law.
But nothing herein shall be construed to prohibit attorneys,
solicitors
Page 173 U. S. 366
and proctors from charging to and receiving from their clients,
other than the government, such reasonable compensation for their
services, in addition to the taxable costs, as may be in accordance
with general usage in their respective states or may be agreed upon
between the parties."
"SEC. 824. . . . For examination by a district attorney, before
a judge or commissioner, of persons charged with crime, five
dollars a day for the time necessarily employed.
For each day
of his necessary attendance in a court of the United States on the
business of the United States, when the court is held at the
place of his abode, five dollars, and for his attendance when the
court is held elsewhere, five dollars for each day of the
term."
"SEC. 825. There shall be taxed and paid to every district
attorney two percentum upon all moneys collected or realized in any
suit or proceeding arising under the revenue laws and conducted by
him in which the United States is a party, which shall be in lieu
of all costs and fees in such proceeding."
"SEC. 827. When a district attorney appears by direction of the
Secretary or Solicitor of the Treasury on behalf of any officer of
the revenue in any suit against such officer for any act done by
him or for the recovery of any money received by him and paid into
the Treasury in the performance of his official duty, he shall
receive such compensation as may be certified to be proper by the
court in which the suit is brought, and approved by the Secretary
of the Treasury."
"SEC. 833. Every district attorney, clerk of a district court,
clerk of circuit court, and marshal, shall, on the first days of
January and July in each year, or within thirty days thereafter,
make to the Attorney General, in such form as he may prescribe, a
written return for the half year ending on said days, respectively,
of all the fees and emoluments of his office, of every name and
character, and of all the necessary expenses of his office,
including necessary clerk hire, together with the vouchers for the
payment of the same for such last half year. He shall state
separately in such returns the fees and emoluments received or
payable under the Bankrupt Act, and every marshal shall state
separately therein the fees and emoluments
Page 173 U. S. 367
received or payable for services rendered by himself personally,
those received or payable for services rendered by each of his
deputies, naming him, and the proportion of such fees and
emoluments which, by the terms of his service, each deputy is to
receive. Said returns shall be verified by the oath of the officer
making them."
"SEC. 834. The preceding section shall not apply to the fees and
compensation allowed to district attorneys by sections eight
hundred and twenty-five and eight hundred and twenty-seven. 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 United States will be bound by the judgment
rendered therein, whether prescribed by statute or allowed by a
court, or any judge thereof, shall be included in the semi-annual
return required of said officers by the preceding section."
"SEC. 835. No district attorney shall be allowed by the Attorney
General to retain of the fees and emoluments of his office which he
is required to include in his semi-annual return, for his personal
compensation, over and above the necessary expenses of his office,
including necessary clerk hire, to be audited and allowed by the
proper accounting officers of the Treasury Department,
a sum
exceeding six thousand dollars a year, or exceeding that rate
for any time less than a year."
"SEC. 844. Every district attorney, clerk, and marshal shall, at
the time of making his half-yearly return to the Attorney General,
pay into the Treasury, or deposit to the credit of the Treasurer,
as he may be directed by the Attorney General, any surplus of the
fees and emoluments of his office, which said return shows to exist
over and above the compensation and allowances authorized by law to
be retained by him."
"SEC. 1764. No allowance or compensation shall be made to any
officer or clerk by reason of the discharge of duties which belong
to any other officer or clerk in the same or any other department,
and no allowance of compensation shall be made for any extra
services whatever which any officer or clerk may be required to
perform, unless expressly authorized by law. "
Page 173 U. S. 368
"SEC. 1765.
No officer in any branch of the public
service, or any other person whose salary, pay, or emoluments
are fixed by law or regulations, shall receive
any additional
pay, extra allowance, or compensation, in any form whatever,
for the disbursement of public money,
or for any other service
or duty whatever, unless the same is authorized by law, and the
appropriation therefor expressly states that it is for such
additional pay, extra allowance, or compensation."
By section 3 of the Act of June 20, 1874, c. 328, 18 Stat. 85,
109, it was provided that
"
no civil officer of the government shall hereafter
receive any compensation or perquisites, directly or indirectly,
from the Treasury or property of the United States
beyond his
salary or compensation allowed by law: provided that this
shall not be construed to prevent the employment and payment by the
Department of Justice of district attorneys as now allowed by law
for the performance of services
not covered by their salary or
fees."
The facts to be considered in connection with these statutory
provisions are set forth in a statement accompanying the
certificate of questions. They may be thus summarized:
By the Fortification Act of August 18, 1890, 26 Stat. 315, 316,
c. 797, appropriations were made for gun and mortar batteries, as
follows:
"For construction of gun and mortar batteries for defense of
Boston Harbor, two hundred and thirty-five thousand dollars; New
York, seven hundred and twenty-six thousand dollars; San Francisco,
two hundred and sixty thousand dollars."
The same act contained the following provision:
"For the procurement of land, or right pertaining thereto,
needed for the site, location, construction, or prosecution of
works for fortifications and coast defenses, five hundred thousand
dollars, or so much thereof as may be necessary, and hereafter the
Secretary of War may cause proceedings to be instituted in the name
of the United States, in any court having jurisdiction of such
proceedings, for the acquirement by condemnation of any land, or
right pertaining thereto, needed for the site, location,
construction, or prosecution of works for fortifications and coast
defenses, such proceedings to be prosecuted in accordance
Page 173 U. S. 369
with the laws relating to suits for the condemnation of property
of the states wherein the proceedings may be instituted:
provided that when the owner of such land or rights
pertaining thereto shall fix a price for the same which in the
opinion of the Secretary of War shall be reasonable, he may
purchase the same at such price without further delay:
provided
further that the Secretary of War is hereby authorized to
accept on behalf of the United States donations of land, or rights
pertaining thereto, required for the above-mentioned purposes:
and provided further that nothing herein contained shall
be construed to authorize an expenditure, or to involve the
government in any contracts for the future payment of money in
excess of the sums appropriated therefor."
By the subsequent Act of July 23, 1892, 27 Stat. 257, 258, c.
233, five hundred thousand dollars, or so much thereof as was
necessary, was appropriated
"for the procurement of land, or right pertaining thereto,
needed for the site, location, construction, or prosecution of work
for fortifications and coast defenses."
In the year 1891, at the special written request of the
Secretary of War, Johnson, being then United States District
Attorney for the Eastern District of New York, was instructed by
the Attorney General of the United States to institute proceedings
on behalf of the government of the United States for the
condemnation for a mortar battery of certain lands on Staten
Island, New York, adjacent to Fort Wadsworth, in that district.
With such instructions the Attorney General enclosed a copy of the
Secretary's request and stated that he acted agreeably thereto.
Proceeding under the above employment in the name of the
government of the United States, Johnson took steps to acquire such
lands by proceedings for their condemnation, and obtained decrees
against the persons interested in them. In order to carry on such
proceedings, it was necessary that he should search and ascertain,
and he did search and ascertain, the titles to the lands sought to
be condemned. After rendering these services, he presented two
bills against the government, which were approved and allowed by
the Attorney
Page 173 U. S. 370
General, one being for $4,000 and the other for $2,500. These
services were rendered by him in 1892, and were worth those sums
respectively.
In the statement that accompanies the questions certified, it is
said that for many years before 1892, and for many years prior to
Johnson's employment, it was the custom and usage of the government
to pay to district attorneys, under like employment and for like
services, compensation outside of their annual salaries as fixed by
statute at the sum of two hundred dollars.
Johnson had received from the United States for services (other
than those above mentioned) rendered for the government in the year
1892, either as district attorney or under employment or directions
of the Attorney General, the sum of $2,250.
In 1891, he rendered services to the government in and about the
acquisition of other lands in his district by condemnation
proceedings. These services were rendered under employment similar
to that above stated in acquiring lands for like purposes. For the
services thus rendered in 1891 he was paid by the government a sum
exceeding six thousand dollars. He had also been paid for other
services rendered to the government in 1891 further and additional
sums. The aggregate so paid for services in 1891 exceeded six
thousand dollars by a sum which, together with the amounts paid to
him as above stated for services rendered in 1892, equaled the sum
of six thousand dollars. Such excess over six thousand dollars
existed and appeared after crediting and allowing on the sums so
received by him the necessary expenses of his office, including the
necessary clerk hire, as audited and allowed to him in the years
1891 and 1892.
After the services rendered in 1892, and after the above sum of
six thousand five hundred dollars had been allowed by the Attorney
General as stated, the accounting officers of the United States
caused a warrant on funds appropriated for the War Department to be
drawn for the sum of six thousand five hundred dollars, and
"conveyed into the Treasury of the United States." That warrant
"was drawn and conveyed"
Page 173 U. S. 371
against and in payment of the amount which Johnson, for services
rendered in 1891, had been paid in excess of the maximum fixed by
section 835 of the Revised Statutes. Such conveyance and
application were made by the government without his consent, and,
except as above stated, his claim for six thousand five hundred
dollars has not been allowed or paid.
After the above services were rendered in 1892, Johnson
requested that the amounts so allowed be paid by the officers of
the Treasury, but those officers refused to audit or allow his
bills, or any part of the same, except as above stated, and refused
to allow of pay to him any part of the same.
Upon the trial in the circuit court, it was admitted that the
expense account of Johnson was $1,018.23, which was allowed by the
Attorney General; that, if the amounts he received for services in
obtaining lands in said district (which services were similar in
nature, employment, etc., to those here claimed for) are to be
computed as part of the amount limited by section 835 of the
Revised Statutes, then he had received in excess of the amount so
limited for the year 1891 a sum which, added to the amounts
received by him for the year 1892 (and which are fees and
emoluments referred to by section 835 of the Revised Statutes),
equaled the sum of six thousand dollars and the legitimate office
expenses of his office, and that, if the services involved in this
action, and the other similar services stated above, are to be
accounted as a part of the maximum fixed by section 835 of the
Revised Statutes, and if the government, having paid him for one
year in excess of such maximum, has the right to recoup, set off,
or counterclaim such overpayment against an amount otherwise due,
then Johnson had no cause of action as set forth in his present
suit.
The circuit court of appeals desires information upon the
following questions of law arising out of the above facts:
1. Whether Johnson is entitled to be paid the said sum of six
thousand five hundred dollars for the services rendered by him in
the year 1892. This question is submitted without reference to the
provisions of section 855 of the Revised Statutes.
Page 173 U. S. 372
2. Whether, if the first question be answered in the
affirmative, such compensation should be included in the fees and
emoluments of claimant's office, within the meaning of sections
834, 835, and 844 of the Revised Statutes.
3. Whether, if both of the above questions are answered in the
affirmative, the government of the United States can, under the
circumstances stated, apply the six thousand five hundred dollars
as such sum was applied, on account of the payments made by the
United States for services rendered by Johnson in the year
1891.
The government contends that the services in question were such
as the law required the district attorney to render, and
consequently that he could receive no special compensation
therefor.
In support of this proposition, the Assistant Attorney General
refers to
Gibson v. Peters, 150 U.
S. 342,
150 U. S. 347.
That was an action against the receiver of a national bank to
recover the value of legal services alleged to have been rendered,
or offered to be rendered, by a district attorney of the United
States in a suit brought in the name of the receiver against one
McDonald. In its opinion in that case, this Court referred to
section 380 of the Revised Statutes, providing that
"all suits and proceedings arising out of the provisions of law
governing national banking associations, in which the United States
or any of its officers or agents shall be parties, shall be
conducted by the district attorneys of the several districts under
the direction and supervision of the solicitor of the
Treasury,"
and observed that the suit against McDonald was one embraced by
that section, and that the receiver was, within its meaning, an
officer and agent of the United States.
After referring also to sections 770, 823 to 827, inclusive,
1764, and 1765, the Court said:
"It ought not to be difficult, under any reasonable construction
of these statutory provisions, to ascertain the intention of
Congress. A distinct provision is made for the salary of a district
attorney, and he cannot receive, on that account, any more than the
statute prescribes. But the statute is equally explicit in
declaring, in respect to compensation that may be 'taxed and
allowed,' that he shall
Page 173 U. S. 373
receive no other than that specified in sections 823 to 827,
inclusive, 'except in cases otherwise expressly provided by
law.'"
It also declares that no officer in any branch of the public
service shall receive any additional pay, extra allowance, or
compensation in any form whatever for any service or duty, unless
the same is expressly authorized by law, or unless the
appropriation therefor explicitly states that it is for such
additional pay, extra allowance, or compensation. No room is left
here for construction. It is not expressly provided by law that a
district attorney shall receive compensation for services performed
by him in conducting suits arising out of the provisions of the
national banking law in which the United States or any of its
officers or agents are parties. Without such express provision,
compensation for services of that character cannot be taxed,
allowed, or paid. Nor can the expenses of the receivership be held
to include compensation to the district attorney for conducting a
suit in which the receiver is a party, for the obvious reason that
the statute does not expressly provide compensation for such
services. Congress evidently intended to require the performance by
a district attorney of all the duties imposed upon him by law,
without any other remuneration than that coming from his salary,
from the compensation or fees authorized to be taxed and allowed,
and from such other compensation as is expressly allowed by law
specifically on account of services named. Nothing in the last
clause of section 823 militates against this view. On the contrary,
the proper interpretation of that clause supports the conclusion we
have reached. Its principal object was to make it clear that
Congress did not intend to prohibit attorneys, solicitors, and
proctors representing individuals in the courts of the United
States from charging and receiving, in addition to taxable fees and
allowances, such compensation as was reasonable under local usage,
or such as was agreed upon between them and their clients. But to
prevent the application of that rule to the United States, the
words "other than the government" were inserted. The introduction
of those words in that clause emphasizes the purpose not to subject
the United States to any system for compensation
Page 173 U. S. 374
district attorneys except that expressly established by
Congress, and therefore to withhold from them any compensation for
extra or special services rendered in their official capacity,
which is not expressly authorized by statute. Whatever legal
services were rendered or offered to be rendered by the plaintiff
in the
McDonald suit were rendered or offered to be
rendered by him as United States district attorney, and in that
capacity alone. As such officer, he is not entitled to demand
compensation for the services so rendered or offered to be
rendered.
The full scope of the decision in
Gibson v. Peters is
shown by this extract from the opinion in that case. The point in
judgment was that the services rendered by Gibson were in discharge
of duties imposed upon him by law in relation to suits of a
particular kind, and, as no statute made provision for additional
or special compensation for such services, his claim against the
United States for extra pay could not be allowed.
In
United States v. Winston, 170 U.
S. 522,
170 U. S. 525,
which involved the question whether the District Attorney of the
United States for the District of Washington could be allowed
special compensation for service rendered by direction or at the
instance of the Attorney General in a case in the Circuit Court of
Appeals for the Ninth Circuit sitting at San Francisco, it was held
that the duties of the claimant as district attorney of the United
States were limited by the boundaries of his district, and that,
while he was required to discharge all his official duties within
those boundaries, he was not required to go beyond them. The Court
said:
"Whenever the Attorney General calls upon a district attorney to
appear for the government in a case pending in the court of
appeals, he is not directing him in the discharge of his official
duties as district attorney, but is employing him as special
counsel. The duties so performed are not performed by him as
district attorney, but by virtue of the special designation and
employment by the Attorney General, and the compensation which he
may receive is not a part of his compensation as district attorney,
or limited by the maximum prescribed
Page 173 U. S. 375
therefor. It seems to us that this is the clear import of the
statutes, and we have no difficulty in agreeing with the court of
appeals in its opinion up on this question."
In
Ruhm v. United States, 66 F. 531, 532, it was held
that, as it is the duty of a district attorney to prosecute in his
district all civil actions in which the United States are
concerned, he is not entitled to extra compensation for conducting
a suit to recover pension money fraudulently secured.
The controlling question, therefore, in the present case is
whether Johnson was under a duty imposed upon him as district
attorney to perform the services for which he here claims special
compensation. If such was his duty as defined by law, then he is
forbidden by statute from receiving any special compensation on
account of such services -- this for the reason that no
appropriation for such compensation has been made by any statute
explicitly stating that it was for such additional pay, extra
allowance, or compensation. §§ 1764, 1765. On the other hand, if
his duties as district attorney did not embrace such services as he
rendered, and for which he here claims special compensation, then
he is entitled to be paid therefor without reference to the regular
salary, pay, or emoluments attached to his office.
What relations did the district attorney have, by virtue of his
office, with the proceedings instituted in his district for the
condemnation of land under the act of 1890, relating to gun and
mortar batteries for the defense of New York? That act authorized
the Secretary to cause condemnation proceedings to be instituted in
the name of the United States, such proceedings to be prosecuted in
accordance with the laws relating to suits for the condemnation of
property in the states wherein the proceedings were instituted. The
application of the Secretary to the Attorney General was doubtless
made under the provisions of the Act of August 1, 1888, 25 Stat.
357, c. 728, providing that in every case in which the Secretary of
the Treasury
"or any other officer of the government has been, or hereafter
shall be, authorized to procure real estate for the erection of a
public building or for other public uses, he shall be, and hereby
is, authorized to acquire the same for
Page 173 U. S. 376
the United States by condemnation under judicial process
whenever in his opinion it is necessary or advantageous to the
government to do so, and the United States circuit or district
courts of the district wherein such real estate is located shall
have jurisdiction of proceedings for such condemnation, and it
shall be the duty of the Attorney General of the United States,
upon every application of the Secretary of the Treasury, under this
act, or such other officer, to cause proceedings to be commenced
for condemnation within thirty days from the receipt of the
application at the Department of Justice."
By the same act it was provided that
"the practice, pleadings, forms and modes of proceeding in
causes arising under the provisions of this act shall conform as
near as may be to the practice, pleadings, forms and proceedings
existing at the time in like causes in the courts of record of the
state within which such circuit or district courts are held, any
rule of the court to the contrary notwithstanding."
This statute being in force, the Attorney General directed the
defendant in error, as district attorney, to institute on behalf of
the government the condemnation proceedings desired by the
Secretary of War. It was, of course, not contemplated by Congress
that the Attorney General should be away from the national capital
in order to give his personal attention to the conduct of such
proceedings. He therefore directed the district attorney of the
district in which the lands were situated to institute and
prosecute the require proceedings. Could the district attorney have
declined to represent the United States in such proceedings upon
the ground that he was not required by law to do so in his official
capacity? The answer to that question depends upon the construction
to be given to section 771 of the Revised Statutes, which defines
generally the duties of district attorneys. That section, as we
have seen, makes it the duty of every district attorney to
prosecute in his district not only all crimes and offenses
cognizable under the authority of the United States, but "all civil
actions in which the United States are concerned." We are of
opinion that, within the reasonable meaning of that section, the
proceedings instituted in the federal court by District
Page 173 U. S. 377
Attorney Johnson to condemn the lands in question for the
benefit of the United States constituted a civil action in which
the government was concerned, and that, in following the directions
of the Attorney General to institute such proceedings and have the
lands referred to condemned for the United States, he was only
discharging an official duty imposed upon him by statute. It would
involve a very narrow construction of section 771 to hold that
judicial proceedings in a court of the United States to condemn
lands for the use of the government were not civil actions in which
the United States was concerned. We think that when he attended
court in the prosecution of those proceedings, he was, within the
meaning of section 824, "on the business of the United States."
Under the interpretation placed by us upon sections 771 and 824,
it results that, according to the principle announced in
Gibson
v. Peters, the defendant in error having been under a duty to
represent the United States in the condemnation proceedings
referred to, and there being no statute explicitly allowing him
extra compensation for the services rendered by him in and about
those proceedings, his present claim must be disallowed.
This conclusion, it is contended, is not consistent with the
usage or custom which has obtained in the executive departments of
the government for many years prior to the year 1892. How long such
usage or custom prevailed, upon what specific grounds it rested,
and in what way it is evidenced do not appear from the statement of
facts accompanying the certificate of questions. The opinions of
Attorneys General to which our attention has been called by counsel
certainly do not cover the precise question now before us. Some of
them hold that a district attorney is entitled to special
compensation for representing the interests of the United States in
suits in state courts, services in such courts not being required
by the statutes regulating his official duties. That is a question
not involved in the present case. We perceive no reason for holding
that there has been any such long continued practical
interpretation by the executive departments
Page 173 U. S. 378
of the government of sections 1764 and 1765 of the Revised
Statutes, brought forward from the Acts of March 3, 1839, 5 Stat.
337, 349, c. 82, § 3, August 23, 1842, 5 Stat. 510, c. 183, § 2,
and August 26, 1842, 5 Stat. 525, c. 202, § 12, as to justify this
Court in departing in any degree from such an interpretation of
those sections as is required by the obvious import of the words
found in them. Such a practice may be resorted to in aid of
interpretation, but it cannot be recognized as controlling when the
statute to be interpreted is clear and explicit in its language,
and its meaning not doubtful.
United States v. Graham,
110 U. S. 219,
110 U. S. 221;
United States v. Healey, 160 U. S. 136,
160 U. S.
141.
It may, however, be observed that some of the opinions of
Attorneys General rest upon rules of construction that forbid the
allowance of the claim of the defendant in error. In 1885, special
or extra compensation was claimed by a district attorney for
services rendered under employment by the Navy Department in a
certain case in a circuit court of the United States in which the
government was a party. Attorney General Cushing referred to the
Act of February 26, 1853, regulating "the fees and costs to be
allowed clerks, marshals and attorneys of the circuit and district
courts of the United States, and for other purposes." 10 Stat. 161,
c. 80. That act declared, among other things, that in lieu of the
compensation then allowed to the officers named, no other
compensation should be taxed and allowed. It also established for
district attorneys a fee for each day "of his necessary attendance
in a court of the United States on the business of the United
States." The provisions of the act of 1853 have been preserved in
Chapter sixteen of Title XIII of the Revised Statutes. After
referring to some former opinions given by him, Mr. Cushing
said:
"But in a matter like that now before me, which is of the direct
official business of a district attorney in the court of the United
States for his district, which is of the very class of business for
which the act of 1853 expressly and in plain terms provides, and as
to which any other compensation is emphatically excluded by the
strong terms of that act, it does not appear to me that
Page 173 U. S. 379
any extra or special compensation can be lawfully paid to the
district attorney. Nor, in my judgment, is the case taken out of
the general rule by the fact that the suit concerns immediately the
business of the Navy Department, and has been the subject of
instructions from the Secretary of the Navy. All the civil business
of the government concerns some one of its departments, and may
require the attention of its head. It cannot be that a suit in the
name of the United States, pending in the district or circuit
court, is out of the scope of the regular duty of a district
attorney because of its arising in the business of the Navy
Department, rather than the Treasury or any other department; nor
that in such a case the service of the district attorney becomes
that of counsel specially retained by the department. This latter
enactment must have been designed, it seems to me, for
contingencies, where a head of department needs professional
services in a case not provided for by the particular terms of the
law, and the special compensation to a district attorney for the
performance of such a service must depend on that fact, not on the
fact that he has been instructed by the head of department. A
contrary construction would lay the foundation for extra
compensation to district attorneys in almost every case in which
they appear in civil actions in which the United States are
concerned."
7 Op. 84, 86.
At a later date, May 25, 1858, Attorney General Black had before
him an application for special allowance to a district attorney for
services rendered by him. The claim, he said, involved three
questions, the first of which was can the district attorney in any
case charge more for his services than the fee bill expressly
allows? He said:
"The first question does not for a moment admit of any other
reply than a direct negative. The district attorney can receive
such compensation, and such only, as the fee bill gives. This is
not only the general policy of the government, but it is expressly
declared to be the will of Congress by the act of 1853. When,
therefore, a district attorney makes a charge against the Treasury
for services, he must support it by showing some clause in the fee
bill which authorizes him to receive what he
Page 173 U. S. 380
claims. When a duty is enjoined upon him by the law of his
office, and not merely by the request of a department, he is bound
to perform it and take as compensation what the law gives him. That
is his contract, and if it be a bad one for him, he has no remedy
but resignation. The subject is not open to a new bargain between
him and any other officer of the government. All criminal
prosecutions and all civil suits in which the United States are a
party of record fall within this principle. In them no charge for
extra services can be legally allowed, though it be true that some
of them require an amount of labor and skill for which the
compensation allowed by the fee bill is altogether inadequate. I
cannot make out in any way satisfactory to my own mind the
ingenious distinction which would pay the officer as attorney what
the fee bill gives and then pay him besides a
quantum
meruit for managing the same case as counsel."
9 Op. 146-147.
In an opinion rendered March 13, 1888, Attorney General Garland,
upon an extended review of the adjudged cases, said:
"From these authorities it may be derived that the elements
necessary to justify the payment of compensation to an officer for
additional services are that they shall be performed by virtue of a
separate and distinct appointment authorized by law; that such
services shall not be services added to or connected with the
regular duties of the place he holds, and that a compensation,
whose amount is fixed by law or regulation, shall be provided for
their payment."
19 Op. 121, 125-126.
The same views were expressed by the second Comptroller of the
Treasury in an opinion delivered by him as late as 1893, in
Earhart's Case, Cousar's Dig. 12.
We are of opinion that Congress intended by sections 1764 and
1765 to uproot the practice under which, in the absence of any
statute expressly authorizing it, extra allowances or special
compensation were made to public officers for services which they
were required to render in consideration only of the fixed salary
and emoluments established for them by law. Our duty is to give
effect to the legislation of Congress, and not to defeat it by an
interpretation plainly inconsistent with the words used.
Page 173 U. S. 381
The conclusion is that, as the defendant in error was under a
duty, as district attorney, to represent the United States in the
condemnation proceedings referred to (§ 771); as his attendance in
court on those proceedings was on the business of the United States
(§ 824); as no statute provides for extra or special compensation
for services of that character, and as the existing statutes
declare that no officer in any branch of the public service shall,
directly or indirectly, or in any form whatever, receive from the
Treasury of the United States any additional pay, extra allowance,
or compensation unless the same be authorized by law, and the
appropriation therefor expressly states that it is for such
additional pay, extra allowance, or compensation, Rev.Stat. §§
1764, 1765; Act of June 30, 1874, c. 328, the claim of the
defendant in error must be rejected, and judgment rendered for the
United States.
For the reasons stated, the first question is answered in
the negative, and under the certificate, the answer to the other
questions becomes both unnecessary and immaterial.
MR. JUSTICE SHIRAS and MR. JUSTICE PECKHAM dissented.