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No repeal is, in terms, declared by the act of June 16, 1880, and a repeal by implication should not be inferred, especially for an isolated claim.

This leaves the conflict in the words of the statutes to be disposed of. They must be reconciled in some form. The purpose and policy of the laws are to govern when apparently conflicting words cannot: qui haeret in literâ haeret in cortice. Each statute must be construed by the aid of the maxim Ut res magis valeat quam pereat. And, again, quando res non valet ut ago, valeat quantum valere potest.

If the act of June 16, 1880, be held to provide an exceptional mode of paying a single claim or class of claims, the anomaly thus produced complicates the systein of payment and of accounts. It would be an invasion of general methods. In such case there is a principle of law which may well be applied: “Where the law is doubtful, and not clear, the judges ought to interpret the law to be as is most consonant to equity and least inconvenient.” (Broom, Leg. Max., 186.) This is founded on the maxim, Nihil quod est inconveniens est licitum. And, again, argumentum ab inconvenienti plurimum valet in lege.

In the light of these principles the statutes must be construed to mean that claims of this class must be audited and paid as claims generally against the District. This does not defeat the general meaning of the act of June 16, 1880. Inasmuch as all the revenues of the District are to be "deposited in the Treasury

to be drawn therefrom only on requisition of the Commissioners," and as money can only be so drawn on warrants issued by the Secretary of the Treasury, (Rer. Stats., 248,) the payment is made by the Secretary sufficiently to meet the words of the law.

Claims of this class, then, must be presented to the Commissioners of the District for payment, as other claims generally are.

III.—The claimant, being, as assistant clerk, an officer of the United States, is not entitled to payment.

1. If the position of referee were an office, then the claimant could take his salary as clerk and the fees as referee. (Wade's case, 1 Lawrence, Compt. Dec., 302; Herndon's case, Id., 49; Collins's case, 15 Ct. Cls., 22.) But as referee he is not an officer. (Wood's case, 1 Lawrence, Compt. Dec., 8; Bender's case, Id., 317; U.S. vs. Germaine, 99 U. S.


2. The naked question is presented, therefore, whether the claimant, as assistant clerk, with an annual salary less than $2,500, is authorized to receive fees as referee.

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This question arises upon the following provisions of law:

“Sec. 1763. No person who holds an office, the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars, shall receive compensation for discharging the duties of any other office, unless expressly authorized by law.

"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 or compensation shall be made for any extra services whatever, which any officer or clerk may be required to perform, unless expressly authorized by law.

"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 explicitly states that it is for such additional pay, extra allowance, or compensation."

The act of June 20, 1874, (18 Stats., 101, 109,) provides: “ That

hereafter it shall be unlawful to allow or pay to any of the persons designated in this act any additional compensation from any source whatever

The assistant clerk of the Court of Claims is one of the persons designated in this act. (18 Stats., 108.) It is further provided in the same act:

“SEC. 3. 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 salaries or fees.” (See Rev. Stats., 1835.)

a. There has been some contrariety of opinion as to the proper rule of construction applicable to these statutes. (Audit case, 1 Lawrence, Compt. Dec., 44; Herndon's case, Id., 51; Bender's case, Id., 325.)

b. The Attorney-General, in an opinion, June 11, 1877, (15 Op., 307,) said of sections 1763, 1764, and 1765 of the Revised Statutes:

"The construction which has been given to these statutes (especially in the case of Converse vs. The United States, 21 How., 463) is that the intent and effect of them is to forbid officers holding one office to receive compensation for the discharge of duties belonging to another, or additional pay, extra allowance, or compensation for such other services or duties where they hold the commission of but a single office, and, by virtue of that office, or in addition to the duties of that office, have assigned to them the duties of another office. *

“The evil intended to be guarded against by these statutes was not so much plurality of offices as it was additional pay or compensation

H. Ex. Doc. 219-2

to an officer holding but one office for performing additional duties, or the duties properly belonging to another."

In the annual report of the First Comptroller for the fiscal year ending June 30, 1879, he says:

“It has been steadily held under these several provisions that to no officer or clerk performing additional services in the same line of duty or performing duties which belong to another officer or clerk, can an extra allowance or compensation be made for such aditional service."

C. Section 1763 of the Revised Statutes does not touch the question in this case. It relates only to an officer who discharges “the duties of any other office” than the one he holds. The officer who is claimant now is not asking pay for discharging the duties of any other office. (Herndon's case, 1 Lawrence, Compt. Dec., 48.)

Section 1764 does not touch the question in this case, because the services performed as referee were not, within the words of the section, "extra services

which any officer or clerk may be required to perform."

The services as referee were in no sense attached to the office of assistant clerk, or required of the claimant because he was such. (Herndon's case, 1 Lawrence, Compt. Dec., 48.)

The claimant is clearly prohibited from receiving payment for services as referee by section 1765 of the Revised Statutes, and by the act of June 20, 1874. (18 Stats., 101, 109.)

These provisions have been construed in cases which in principle determine the question now presented. (Reporter's case, 1 Lawrence, Compt. Dec., 307; Wade's case, Id., 302; Bender's case, Ia., 317; Herndon's case, Id., 45; 10 Op. Att.-Gen., 439, 446.)

There is an appropriation to pay for services of referees, and to that extent the requirements of the last clause of section 1765 are met, but the other condition of said clause does not exist; that is, “the appro. priation therefor” does not explicitly state that it is for such * compensation" of an officer. The cases cited sustain this view.

The opinion of the Attorney-General of February 7, 1877, (15 Op., 608,) has not been overlooked. It holds that where a given service is required by law, but not of any particular official, and compensation therefor is fixed by competent authority, and is appropriated,” payment may be made to an officer.

In Converse vs. U. S., 21 How., 473, the court say, in effect, that, in the case of such services, an officer cannot be paid unless the remuneration for them is “ fixed by laro."

Not only the right of officers to expend contingent funds, but also the authority given by many general appropriations, enable them, in


their discretion, to select agents and fix compensation. That is "competent authority.” To hold that extra compensation may be fixed in amount by such “competent authority” of a court would seem to defeat the whole purpose of the statute. No payment can be made in any case unless the amount is fixed by competent authority."

If, in erery case where services are (1) authorized, (2) appropriated for, and (3) fireil in amount by such “competent authority,payment can be made, what class of cases can arise in which officers cannot obtain extra or additional compensation? None will be excepted; the whole purpose of the law would be defeated.

And the act of June 20, 1874, (18 Stats., 101, 109,) is entitled to consideration in this matter, which did not affect the question decided in 15 Op., 608.

There has been a legislative construction of section 1765 of the Revised Statutes, in accordance with principles herein stated. (Reporter's case, 1 Lawrence, Compt. Dec., 312; see Rev. Stats., 215, 235, 393, 416, 440; 18 Stats., 101; 20 Stats., 198.)

It may be suggested that the fees of referees are not paid from the Treasury of the United States.

If they were paid from taxes collected from the people of the District of Columbia, these are levied and collected under the authority of the United States, and by force of laws enacted by Congress. The prohibitions against extra compensation, by their terms, object, spirit, and policy, are all aimed against the right to extra allowances paid from any source under the authority of the National Government.

As a matter of law and fact, the fees of the referee are to come from the Treasury of the United States. The act which makes the appropri

. ation to pay them has been cited above, and shows that this is the fact. (Act June 4, 1880, 21 Stats., 162, sec. 2.)*

And by the act of June 11, 1878, (20 Stats., 104,) one-half of the fees of referees is paid from revenues of the United States. (Richey's case, 1 Lawrence, Compt. Dec., 90.)

The claim made by Mr. Randolph cannot be paid.

First Comptroller's Office, January 5, 1881.

* NOTE -By the act of March 3, 1881, “to provide for the expenses of the government of the District of Columbia for the year ending June thirtieth, eighteen linndred and eighty-two, and for other purposes,” (21 Stats., 455, 464,) Congress appropriated

** For payment, upon order of the Court of Claims, of referees appointed by said court, under the act approved June sixteenth, eighteen hundred and vightý, two thousand dollars.”



1. Where an appropriation act charges the head of a Department with the duty of

repairing a building, but does not specifically provide for ageats to superintend the work, or disburse the appropriation, such head of a Department has implied

authority to appoint the necessary agents to perform these duties. 2. Such head of a Department may appoint as such special agent a clerk in his De

partment, who, during the time he is employed as such, may receive his salary

as clerk, but cannot lawfully be paid compensation for services as agent. 3. A special agent, appointed for either of the purposes named, is not by virtue of

such appointment an officer. 4. The office of “disbursing clerk" is created, and the salary thereof fixed, by law.

But the position of special agent, charged with the duty of disbursing public moneys,” is not created, nor is any salary prescribed, by law, and hence it is

not an office. 5. The head of a Department can, by virtue of section 161 of the Revised Statutes,

give a clerk leave of absence without pay, but cannot, without the assent of a

clerk, deprive him of his right to salary. 6. While a person continues to hold the oftice of clerk, and consents that his salary

be suspended for a time by the head of a Department, he does not thereby become entitled to extra compensation for services the payment of which is

prohibited by section 1763 of the Revised Statutes. 7. The case of The United States l'8. Jones, 18 How., 93, considered. 8. When the law vests an officer with a particular power, to be exercised or not, in

his discretion, and authorizes him to examine and ılecide on facts essential to the exercise of this discretion, his decision is generally conclusive, unless there be some other law giving other officers a right to revise his decision. But this principle has no application to the accounting officers who are charged with a duty tv examine and pass upon claims against the United States. Such duty is not discretionary, but imperative. Hence, when officers other than the accounting officers of the Treasury Department are intrusted with the decision of questions affecting the payment of claims, their decision is subject to review and control by the proper accounting officers, by express provision of law. (Rev.

Stats., 191, 269, 277.) 9. These classes of cases illustrate the rule of construction, verba generalia restringuntur

ad habilitatem rei rel personam. 10. The cases of Martin vs. Mott, 12 Wheat., 19, and Allen r8. Blunt, 3 Story, C. C., 74.,

distinguished in principle from those cases in which the allowance of claims loy certain officers is by law subject to revision by the accounting ofticers of the Treasury Department. Kaufman rs. United States, 96 U. S., 567, considered.

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