The only question presented by this appeal is whether the assimilated fee of $10 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. St. 833, which directs the district attorney to make a return on the 1st days of January and July of each year of all fees and emoluments of his office, and of all the necessary expenses. By section 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, shal be included in the semi-annual return required of said officers by the preceeding 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. U.S., 58 U.S. 346, 15 Sup. Ct. 846, 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 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.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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