which they are retired; that, by section 1094, the officers of the Army on the retired list are a part of the Army of the United States, and, therefore, no one can be upon that list who is not an officer appointed in the manner required by section 2 of article 2 of the Constitution; that an officer of any grade, on the active list, thus appointed may be retired with a different rank from that which belongs to his office, when Congress so provides; but this is not to appoint him to a new and different office, but is to transfer him to the retired list, and to change his rank while he holds the same office, and that in connection with this change of rank his pay may be changed. These views appear to be sound. General Wood, holding the office of colonel of cavalry in the Army, his retirement with the rank of major-general, under the act of 1868, did not confer on him the office of major-general. He remained in the office of colonel of cavalry, and acquired a higher rank, and a higher pay, as a retired officer. Such rank not being an office, Congress could change his rank, and with it his pay, as it did by the act of 1875.' "It will be seen from the foregoing that I did not state the case fully and clearly in my former letter of June 24, 1904, and I therefore respectfully ask for a reexamination by the honorable Comptroller." The provision in section 2 of the act of July 31, 1894 (28 Stat., 205), to which you refer, is as follows: "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 be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate." It appears that at the time of the passage of this act you were holding two offices. One of these offices was that of captain of the Army, the compensation of which is less than $2,500 per annum. The other was that of clerk of the United States circuit court for the district of Oregon. The compensation of this office consists of fees, not to exceed $7,000 per annum. (Secs. 828, 840, Rev. Stat.) These fees consist of a fixed sum for various kinds of particular service specified by the statute. The amount earned by you since the passage of the act has exceeded $2,500 per annum. If the compensation of the latter office was a fixed sum amounting to $2,500 per annum, there can be no doubt that the above provision in the act of July 31, 1894, would prohibit you from continuing to hold both of these offices after the passage of the act. But where the compensation of an office consists of fixed fees for particular services, the question whether the provision of the statute is applicable thereto is not free from doubt. In United States v. Durlacher (63 Fed. Rep., 672), referred to by you, it was held that the provision in the statute "an office the salary or annual compensation attached to which amounts to the sum of $2,500, plainly imports a fixed compensation of at least that amount," and that it does not apply to compensation fixed by fees for particular services, even where the amount of such fees earned exceeds $2,500 per annum. In the case of United States v. Harsha (172 U. S., 567, 572), one of the offices had compensation fixed by fees. In that case the facts were that at the time of the passage of the act Mr. Harsha was holding the two offices of clerk of the circuit court for the eastern district of Michigan, the compensation of which also consisted of fixed fees for particular services and amounted to more than $2,500 per annum, and of clerk of the circuit court of appeals, having a salary of $3,000 per annum. In the opinion of the court Mr. Justice Gray said: "If the compensation of each office were a fixed salary of $2,500 or more, an election by the incumbent would be the only possible method of determining which office he should continue to hold. He must have the same right of election between the two offices when the one is paid by a fixed salary and the other by fees." But I do not think this opinion can be regarded as overruling the construction of the statute adopted in United States v. Durlacher, which was not referred to in the opinion. It also appears that on May 24, 1904, the President, subject to confirmation by the Senate, placed you on the retired list, with the rank of major. The Senate not then being or having since been in session, this action of the President has not yet been confirmed by the Senate. I can not concur with you in your contention that you were appointed by the President, by and with the advice and consent of the Senate, major on the retired list, and that there 28007-Vol. 11—05—16 fore your case is excepted from the provisions of section 2 of the act of July 31, 1894 (28 Stat. L., 205). I think the fact is that you were not appointed to the office of major of the Army at all. It appears that under the provisions of the act of April 23, 1904 (33 Stat. L., 264), you were, while holding the office of captain of the Army, "placed on the retired list of the Army with the rank and retired pay of one grade above that actually held" by you at the time of retirement. The act of placing an officer on the retired list is not an appointment; and the fact that by so placing you on the retired list, by the provisions of this act you would become entitled, should such action be confirmed by the Senate, to the rank and pay of a major, did not or will not confer on you the office of major of the Army. You still continued in the office of captain of the Army. (Wood v. United States, 107 U. S., 414.) Moreover, the exception contained in section 2 of the act of July 31, 1894, supra, applies only to retired officers of the Army or Navy where elected or appointed to another office. The terms of the exception are as follows: "But this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office, or whenever the President shall appoint them to office by and with the advice and consent of the Senate." But according to the facts of this case you have not been elected to any public office or appointed to any office by the President by and with the advice and consent of the Senate. Therefore your case is not within the exception. Nor can I concur with you in your opinion that neither the office of clerk of the circuit court nor that of captain of the Army, where the officer has been placed on the retired list with the rank and pay of major and is entitled to credit for twenty years' service, has compensation attached thereto amounting to $2,500. Section 1264 of the Revised Statutes provides that officers retired from active service shall receive 75 per centum of the pay of the rank upon which they are retired. The act of April 23, 1904, supra, provides that an officer of the Army retired thereunder shall be placed on the retired list "with the rank and retired pay of one grade above that actually held by him at the time of retirement." I am of opinion that the pay thus provided for is annual compensation attached to the office held by the retired officer so placed on the retired list within the meaning of section 2 of the act of July 31, 1894, quoted by you. I am, therefore, of opinion that you were and still are authorized to hold the office of clerk of the circuit court now held by you and to receive the fees of the office; but that if the Senate should confirm the action of the President in placing you on the retired list with the rank of major, or that whenever you become entitled to the pay of major on the retired list, the provision in section 2 of the act of July 31, 1894, supra, will prohibit you from thereafter continuing to hold both the office of captain of the Army and the office of clerk of the circuit court. But you will no doubt have the right to elect which of the two offices you will continue to hold. (United States v. Harsha, supra.) FEES OF CLERKS OF COURTS. The United States is not liable for fees for services performed by clerks for defendants except where they are expressly authorized by statute, and on appeals by defendants to the supreme court of New Mexico the clerk must look to defendants for his compensation for all services which naturally follow the filing and docketing of the appeal, the United States being liable only for such services as are directly performed for it. (Decision by Comptroller Tracewell, November 29, 1904.) The Auditor for the State and other Departments, in finally passing upon certain items theretofore suspended in the account of José D. Sena, clerk of the supreme court of the Territory of New Mexico, for the quarter ending March 31, 1904, disallowed, per certificate dated September 30, 1904, the following charges, to wit: 1. The United States * * *appellee, v. Benito Griego, appellant, appeal from district court, first judicial district: For filing opinion of the court. For recording same.. For entering order reversing judgment. For issuing mandate.... For docketing cause $0.20 2.70 .60 2.00 2.00 2. The United States * * appellee, v. Lewis E. Densmore, appel lant, appeal from district court, second judicial district: For filing opinion... For recording same from which claimant, November 16, 1904, appealed. $.20 9.60 The Attorney-General, on the administrative examination of the account, disproved all the items disallowed by the Auditor except that for issuing mandate ($2) in the Griego case, and in addition to those disallowed in the Densmore case disproved the following items: For entering order affirming judgment.... For entering order overruling motion for rehearing. For docketing cause.. Total $0.60 .30 2.00 2.90 The Auditor based his disallowances upon the theory that the services having been rendered by reason of defendants' action, and consequently for them, the United States is not liable for fees therefor, and the deductions by the AttorneyGeneral were made for the same reasons. Claimant defends his right to the fees claimed in the Densmore case upon the grounds that the opinion was filed by the court and not at the request or in behalf of the defendant, and the opinion recorded in accordance with the rules of the the court and the statute requiring him to record all opinions of the court, and it being immaterial to defendant whether the opinion be recorded or not, the expense thereof must be borne by the United States, it being a United States case; and in the Griego case upon the same grounds with the additional ground that "the defendant had won his case in this court, and all costs are paid by party losing case." He also states that the mandate in the Griego case was issued at the request of the United States attorney, and not at the request of the attorney for defendant, as the rules of this [his] office are that no mandate in any case (except where United States pays the costs) are issued until all costs are paid; the mandate having been issued at the request of the United States attorney, makes it an expense payable by the United States." 66 It is a well-established rule of the law that the United States is not liable for fees and costs unless there be an affirmative statute allowing them, therefore it is immaterial whether the judgment be for or against it. All the Government under |
