United States v. Smith Smith v. United States

• Decision Date: 20 May 1895
• Docket Number: Nos. 289 and 345,s. 289 and 345
• Citation: 39 L.Ed. 1011,158 U.S. 346,15 S.Ct. 846
• Parties: UNITED STATES v. SMITH. SMITH v. UNITED STATES
• Court: U.S. Supreme Court

158 U.S. 346

15 S.Ct. 846

39 L.Ed. 1011

UNITED STATES

v SMITH.

SMITH

v. UNITED STATES.

Nos. 289 and 345.

May 20, 1895.

These were cross appeals from certain allowances and disallowances in the accounts of the claimant, who was district attorney of the United States for the territory of New Mexico from January 1, 1886, to December 31, 1888.

His accounts for the services performed by him during that time were duly rendered, with vouchers and items, to the proper district court, and were duly approved by said court in the sum of $19,230.80, as just and according to law. The accounts were afterwards presented to the treasury department, and certified as correct to the amount of $18,605.80, of which $14,266.34 was paid, leaving an unpaid balance of $4,339.36.

This balance the accounting officers of the treasury refused to certify for payment, upon the ground that the claimant had been paid for the three years in question the maximum compensation of $3,500 per annum prescribed by the act of August 7, 1882, for the attorney of the United States for New Mexico, and on the further ground, in respect to another item of $595, that it had been disallowed by the attorney general, as being in excess of just compensation.

The unpaid balance of $4,339.46 is composed of certain services performed by him in a claimed unofficial capacity under the direction of the attorney general, of mileage, and of per diem compensation.

The court of claims rendered judgment in his favor for the mileage, amounting to $1,270.80, but disallowed his claim for per diem compensation, amounting to $2,843.66, and for special services, $225.

Both parties thereupon appealed to this court.

Eppa Hunton and J. Althens Johnson, for plaintiff.

Asst. Atty. Gen. Dodge and Felix Brannigan, for the United States.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

This case involves the question whether the three items of travel fees, per diems, and extra services should be included in the fee and emolument account of the district attorney, as belonging to the 'fees, charges, and emoluments' to which a district attorney is entitled by reason of the discharge of the duties of his office. Rev. St. §§ 833, 834. If these items are included, his compensation would exceed the maximum allowed by law, and he would not be entitled to the excess. The court of claims held that he was entitled to his travel fees, but not to the other items.

The case depends upon the construction given to certain provisions of chapter 16, tit. 13, of the Revised Statutes, with respect to the fees of officers of the United States courts. Section 823 provides that 'the following and no other compensation shall be taxed and allowed to attorneys, solicitors, and proctors of the courts of the United States, to district attorneys, etc. Section 824 fixes the fees of district attorneys, among which r e the following: '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.' 'For traveling from the place of his abode to the place of holding any court of the United States in his district, or to the place of any examination before a judge or commissioner, of a person charged with crime, ten cents a mile for going and ten cents a mile for returning.'

By section 833, every district attorney is required to make a semiannual return to the attorney general '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'; and by section 834 he is bound to include in such semiannual return, with the exception of fees in revenue cases, 'all other fees, charges, and emoluments to which a distriet attorney * * * 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.' By section 837 the district attorneys and marshals of certain districts were awarded 'for the like services, double the fees hereinbefore provided,' and by the act of August 7, 1882 (22 Stat. 344), this allowance of double fees was extended to the territories of New Mexico and Arizona, with a provision that the district attorney should not, by fees and salaries together, receive more than $3,500 per year.

1. The first item relates to the allowance of the claim for mileage. While an allowance for travel fees or mileage is, by section 823, included in the fee bill, we think it was not intended as a compensation to a district attorney for services performed, but rather as a reimbursement for expenses incurred, or presumed to be incurred, in traveling from his residence to the place of holding court, or to the office of the judge or commissioner. The allowance of mileage to officers of the United States, particularly in the military and naval service, when traveling in the service of the government, is fixed at an arbitrary sum, not only on account of the difficulty of auditing the petty items which constitute the bulk of traveling expenses, but for the reason that officers travel in different styles; and expenses, which in one case might seem entirely reasonable, might in another be deemed to be unreasonable. There are different standards of traveling, as of living; and, while the mileage in one case may more than cover the actual expenses, in another it may fall short of them. It would be obviously unjust to allow one officer a certain sum for traveling from New York to Chicago, and another double that sum, and yet their actual expenses may differ as widely as that. The object of the statute is to fix a certain allowance, out of which the officer may make a saving or not, as he chooses or is able. And while, in some cases, it may operate as a compensation, it is not so intended, and is not a fee, charge, or emolument of his office, within the meaning of section 834. It is much like the arbitrary allowance for the attendance of witnesses and jurors, which may or may not be sufficient to pay their actual expenses, depending altogether upon the style in which they choose to live.

The fact that these travel fees are treated in section 823 as an item of the 'compensation' allowed to district attorneys, and are enumerated in section 824, under the head of 'Fees of Attorneys, Solicitors, and Proctors,' undoubtedly lends some support to the claim of the government that they were designed to be included in the returns to the district attorneys of the fees, charges, and emoluments of their offices. But we think that these facs , though pertinent, are not controlling, if the travel fees were designed, as we think they are, as a reimbursement or commutation of traveling expenses. In this connection there is an apparent inconsistency in the action of the claimant, which is not noticed in the opinion of the court below, and is not presented on this record for our revision, although it may have some bearing argumentatively upon the question under consideration. This is the fact that while, under section 837, and the act of August 7, 1882, allowing to certain district attorneys 'double fees' for like services, he charges double mileage (twenty cents) as a 'fee,' he at the same time claims that such mileage is not to be accounted for as one of 'the fees and emoluments of his office.' It would seem almost too plain for argument that, if such mileage be a fee to be charged for, it is also a fee to be accounted for.

In view of the fact that by section 824 the district attorney is allowed 10 cents a mile travel fees each way, it is somewhat singular that by section 828 the clerk is allowed a travel fee of only 5 cents each way, although both are allowed a per diem of $5. This discrepancy appears to have existed only since the act of February 26, 1853 (10 Stat. 161), inasmuch as by the act of February 28, 1799 (1 Stat. 624), both the clerk and district attorney were allowed travel fees of 10 cents per mile from the place of their abode to the place of holding court,—one way.

Undoubtedly, however, the strongest argument in favor of the position assumed by the government—that the travel fees in question were intended as compensation...