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takes to do is to pay its officers for services performed by them for it, and in the cases of clerks and other officers who are compensated by fees, these fees become due and payable as they are earned or accrue, regardless of the final disposition of the cause or causes in which the services are rendered. This being the law, the fact that the judgment in the Griego case was in favor of the defendant is immaterial, therefore the fees in that case stand upon the same footing as do those in the Densmore case, wherein the defendant was unsuccessful.
As before stated, the Government undertakes only to pay for services performed by it, and these cases having been docketed at the instance of and in behalf of the defendants, it follows that they are liable for all fees except as above indicated; therefore the clerk must look to the defendants for his compensation for all such services as naturally follow the filing and docketing of these appeals. This includes the filing of the transcript on appeal, the docketing, the filing and recording of opinion, order reversing or affirming, and all other services not performed directly for one or the other of the parties litigant.
It will not do to say that because the court, of its own motion, filed these opinions, and that under the rules they must be recorded, the Government must bear the expense of such filing and recording. To follow this to its logical conclusion would charge the Government with the major portion of all fees for services performed by clerks in pending causes, for every proceeding in the actual trial and determination of a cause, whether criminal or civil, is by order of the court or under its rules.
Mandates, however, may or may not be issued, and when, as in the Griego case, the judgment is against the Government and a mandate issues, I think it may be fairly said that its issue is in behalf of the Government, because its office is to put the defendant again on his trial in the court below.
Usually, defendants appealing from judgments of the trial court are required to give security for costs, and where the Government relaxes this rule it is by positive enactment (see sec. 6, act of Feb. 6, 1889, 25 Stat., 656), and such enactment would seem to indicate that the payment of costs and fees. by the United States on appeals by defendants, is not contemplated or authorized by any general law.
Under my view of the law the United States is not liable for any of the itemis enumerated, supra, except for issuing the mandate in the Griego case; therefore, the Auditor's disallowances, subject to the exception noted, are affirmed, and his disallowance of the fee for said mandate and his allowances of fees for entering orders affirming judgment and overruling motion for rebearing and for docketing cause in the Densmore case are overruled.
PER DIEM IN LIEU OF SUBSISTENCE TO SPECIAL
AGENTS OF THE CENSUS OFFICE.
A special agent of the Census Office who is authorized to receive a per
diem in lieu of subsistence during necessary absence from place of residence" is not entitled to such allowance where he fails to perform service by reason of sickness, or for his own convenience, for a substantial period of time, and, for the purposes of computation, each
day will be regarded as a substantial period. (Comptroller Tracewell to the Secretary of Commerce and
Labor, November 29, 1904.) I have received your letter of the 21st instant, as follows:
“There are transmitted herewith two vouchers, one submitted by John F. Little, in the sum of $18 for six days' per diem in lieu of subsistence as special agent, Census Office, during the month of June, 1903, and the other submitted by Charles A. Williams, in the sum of $39, for thirteen days' per diem in lieu of subsistence as special agent, Census Office, during the months of May and June, 1903.
“On the days for which the per diem in lieu of subsistence is claimed by these special agents they were incapacitated for the performance of their duties.
“I will thank you for a decision as to their right to receive per diem in lieu of subsistence for the days indicated in the vouchers upon which they performed no duties as special agents.
“Your attention is invited to the statement of facts presented in the accompanying letter from the Director of the Census, dated October 29, 1904."
The appointments of Mr. Little and Mr. Williams provide:
“Under the act of Congress, entitled 'An act to provide for a permanent census office'approved March 6, 1902, Charles A. Williams, of Washington, D. C., is hereby appointed a special
agent of the Census office at a compensation of $3.30 per day every day, actual and necessary traveling expenses when authorized to travel by the Director, and an allowance in lieu of subsistence of $3 per day during necessary absence from place of residence."
Section 10 of the act of March 6, 1902 (32 Stat., 53), under which the services were performed, provides:
“That the special agents appointed under the provisions of this act
shall receive compensation at rates to be fixed by the Director of the Census: Provided, That the same shall in no case exceed six dollars per day and actual necessary traveling expenses and an allowance in lieu of subsistence not exceeding three dollars per day during their necessary absence from their usual place of residence
During the time for wbich Mr. Little and Mr. Williams claim a per diem in lieu of subsistence they were not actually engaged in the performance of any duty for the Government, although they were absent from their usual place of residence during that period. We must, however, give some force to the word "necessary
” in construing this statute and when we do it is difficult to see how absence other than that occasioned by the performance of duty, or Sundays and legal holidays intervening while performing duty, could have been contemplated as necessary absence. This was the view taken in my decision of September 19, 1904 (11 Comp. Dec., 142), in the case of James D. Boyle, a clerk in the Census Office, detailed for duty in the field under the act of March 6, 1902, supra. This decision expressly overruled the decision of this office of June 3, 1903 (9 Comp. Dec., 722) in the case of Eugene Leamy, special agent of the Census Office, in so far as the two were in conflict.
I am of the opinion that, in determining what is necessary absence within the meaning of said act of March 6, 1902, so far as it affects the right to a per diem in lieu of subsistence, the same principles should be applied in the case of special agents as is applied in the case of clerks in the Census Office detailed for field duty. In both cases the act provides for a per diem in lieu of subsistence during necessary absence only. In my decision of September 19, 1904 (11 Comp. Dec., 145), I held that if an employee failed to perform duty by reason of sickness or for his own convenience for a substantial period he could not be considered as necessarily absent during said period within the purview of said law.
No specific definition of what would constitute a substantial period of time was attempted in said decision. The Director of the Census has, however, since construed this to mean that the minimum period of absence that should be taken into account is one entire working day. The law deals with the day in fixing the per diem, and it seems to me that each day must be considered as a substantial period to be considered by itself. Where Sundays and holidays fall within the period of absence while engaged in the performance of duty on intervening days, the law evidently does not contemplate that such days shall be excluded, though no duty be performed on them. (11 Comp. Dec., 145.) Where, however, Sundays and holidays fall within a period during which the employee is for any reason personal to himself not performing duty, they should not be included in his account as days necessarily absent from his place of residence or the Census Office so as to entitle him to per diem in lieu of subsistence therefor.
The facts show that the claimants failed to perform the duty for which they were appointed for a substantial period of time and can not for that reason be regarded as absent from their usual place of residence during the said period for which they claim a per diem in lieu of subsistence within the purview of said law. (11 Comp. Dec., 145.)
You are not authorized to pay the claims presented.
MILEAGE TO A DEPUTY MARSHAL FOR TRAVEL IN GOING TO EXECUTE A WRIT OF COMMITMENT,
A deputy marshal is not entitled to mileage for travel in going to execute
a writ of commitment, but he may be reimbursed his actual expenses for such travel.
(Decision by Comptroller Tracewell, November 30, 1904.)
The Auditor for the State and other Departments in the settlement of the account for salaries, fees, and expenses of D. C. Bailey, United States marshal for the district of Colorado, for the quarter ending June 30, 1904, per certificate No. 105038, disallowed mileage to a deputy for travel in going to execute a warrant of commitment received by him at Denver, Colo., in the case of prisoner sentenced by the court at Pueblo to imprisonment in the State penitentiary at Canon City, Colo.
From this disallowance the marshal appeals upon the ground that such travel is authorized by clause 25 of section 829 of the Revised Statutes, which reads as follows: “For travel, in going only, to serve any process, warrant, etc., 6 cents a mile,” and that a mittimus is such a process, to serve which the deputy is entitled to compensation, as it represents an actual expense which he was required to incur.
But the decision of the United States Supreme Court in the case of United States v. Tanner (147 U. S., 663) is conclusive on this question, the Court in that case holding, quoting from the syllabus, that "a marshal is not entitled to charge travel in going to serve process when taking a prisoner under sentence to the place of confinement," and that the delivery of a warrant of commitment to a warden of a penitentiary is in no sense the service of a process, warrant, attachment, or other writ within the meaning of the clause above cited.”
There is, however, a special provision in the last clause of section 829, by which “in all cases where mileage is allowed to the marshal he may elect to receive the same or his actual traveling expenses, to be proved on his oath, to the satisfaction of the court."
This provision for expenses in lieu of mileage on any trip is also found in section 11 of the act of May 28, 1896 (29 Stat., 182).
The Auditor's disallowance is sustained with the proviso that the marshal may elect to take actual expenses for the trip from Denver to Pueblo, thence to Canon City, Colo., and the account may be reformed and adjusted in accordance with his election when so made.