Page images
PDF
EPUB

IN THE MATTER OF THE RIGHT OF A MARSHAL OF THE UNITED STATES TO A PER-DIEM COMPENSATION FOR SUNDAYS DURING A TERM OF THE UNITED STATES CIRCUIT OR DISTRICT COURT ON WHICH HE IS IN ATTENDANCE.-MARSHAL'S SUNDAY PER-DIEM CASE.

1. A Marshal of the United States in attendance on a term of the United States Circuit or District Court is, under section 829 of the Revised Statutes, entitled to a per-diem compensation of five dollars for Sundays during such term.

The Marshal of the Northern District of Texas resides at Dallas. The question is presented to the First Comptroller to decide, whether said Marshal is entitled to per-diem fees of five dollars each for Sundays during terms of the United States Circuit and District courts held at Waco and Graham, which he attended.

DECISION BY WILLIAM LAWRENCE, First Comptroller.

The Revised Statutes contain the following provisions:

"The following and no other compensation shall be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, to district attorneys, clerks of the circuit and district courts, marshals, commissioners, witnesses, jurors, and printers in the several States and Territories, except in cases otherwise expressly provided by law.

FEES OF ATTORNEYS, SOLICITORS, AND PROCTORS.

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 exami nation before a judge or commissioner, of a person charged with crime, ten cents a mile for going and ten cents a mile for returning.

CLERKS' FEES.

For traveling from the office of the clerk, where he is required to reside, to the place of holding any court required by law to be held, five cents a mile for going and five cents for returning, and five dollars a day for his attendance on the court while actually in session.

MARSHALS' FEES.

For attending the circuit and district courts, when both are in session, or either of them when only one is in session, and for bringing in

and committing prisoners and witnesses during the term, five dollars a day.

(Rev. Stat., 823–829).

The statute provides, in effect, as to every marshal, that, for attending the Circuit and District Courts, &c., he shall be allowed, "during the term, five dollars a day." As to each Clerk, the provision is, that he shall be allowed "five dollars a day for his attendance on the court while actually in session." It is to be presumed that Congress had some purpose in employing a different form of expression to describe the time for which a Clerk should receive per-diem compensation, and that for which a marshal should be paid the same compensation. A Clerk is expressly limited to the time "while [the court is] actually in session"; but a marshal is allowed, "during the term, five dollars a day." The latter words are comprehensive enough to include Sundays, although the Court is not in session; but, whether so or not, the usage, to allow a marshal per-diem fees for such days, has been so long continued that it may be regarded as settled executive common law. This usage is, at all events, not clearly against the statute, and, so, will not now be disturbed. Sunday is, at common law, and as a general rule, dies non. But, when a statute gives an officer per-diem compensation for a period of time clearly including Sundays, effect must be given to such statute. It is clearly competent for Congress so to provide, being solely a ques tion of expediency which the law-making power can determine. Compensation will be allowed accordingly.

TREASURY DEPARTMENT,

First Comptroller's Office, July 17, 1884.

IN THE MATTER OF THE COMPENSATION OF INTERNAL-REVENUE AGENTS FOR A DAY ON WHICH AN ACT OF CONGRESS, TERMINATING THEIR AUTHORITY, WAS APPROVED BY THE PRESIDENT-REPEAL-EMPLOYMENT CASE.

1. It is a general rule, that, when no time is prescribed by law for an act of Congress to take effect, it is operative from the first moment of the day on which it is approved by the President.

2. But, when an agent of the United States, entitled to compensation from the Government, rendered services therefor during business-hours on July 7, 1884, and at one o'clock, p. m., of the same day the President approved an act terminating the authority of such agent, he is entitled to compensation for that day. 3. The agent in such case was lawfully in service until one o'clock, p. m., of said day, and, so, acquired a legal right to compensation. This right is property, which is protected by the Constitution, and cannot be divested by an act of Congress. A right to property can only be divested by "due process of law."

Under section 3152 of the Revised Statutes, as amended by the acts of June 19, 1878 (20 Stat., 187), and March 1, 1879 (Id., 329), thirty-five

internal-revenue agents, duly appointed, were employed by the Commissioner of Internal Revenue, rendered services, and were paid as such agents during the fiscal year which ended June 30, 1884, and up to July 5, 1884, when the number of such agents was reduced to twenty-five by the Commissioner, in anticipation of a change in the law to that extent. These twenty-five continued in service, until the number was further reduced to twenty by the legislative, executive, and judicial appropriation act of July 7, 1884 (23 Stat., 172), which makes an appropriation, with a proviso thereto, as follows:

"For salaries and expenses of agents and surveyors, for fees and expenses of gaugers, for salaries of storekeepers, and for miscellaneous expenses two million three hundred thousand dollars.

"And provided, That storekeepers, or storekeepers and gaugers who are assigned to distilleries whose registered capacity is twenty bushels or less shall receive two dollars per day for their services; and no collector in any district shall recommend, nor shall there be appointed or commissioned, more deputy collectors, storekeepers, storekeepers and gaugers, gangers, inspectors, or other officers, or allowed to remain in commission more of any of said officers, at any one time, than fifteen per centum in excess of the number actually engaged in performing duty at the time, and indispensably necessary for the performance of said duty. And hereafter there shall not be employed exceeding twenty agents, in lieu of the number now authorized by law."

The President signed his approval of this act at about one o'clock, p. m., July 7, 1884.

July 17, 1884, the Commissioner of Internal Revenue, by letter to the First Comptroller, said that, on the 7th of July, 1884, five of the twentyfive internal-revenue agents then employed were discharged, and were so informed by telegraph, but that the notice of discharge did not reach them until after the close of business hours, and that each one of the five actually rendered services on the latter day. The Commissioner inquires whether they are entitled to a per-diem compensation for that day.

OPINION BY WILLIAM LAWRENCE, First Comptroiler.

The general rule is well settled, that, when no time is prescribed by law for an act of Congress to take effect, it is operative from the first moment of the day on which it is approved by the President (StatuteTime case, 4 Lawrence, Compt. Dec., 399; 1 Wendell's Blackst., Comm., 47, note; 1 Kent, Comm., 454; Potter's Dwarris, Stat., 169; Sedgwick, Construction Stat. and Const. L., 2d ed., 65). To this rule there are exceptions, as "when a constitutional or other like right would thereby be impaired, the actual hour and minute of its [the art's] receiving the executive approval may be inquired into, and it will date from the instant thus ascertained" (Bishop, Written Laws, 27). A party cannot be convicted of a crime committed before, but on the day of the approval of the act making the deed criminal; because the Constitution declares that "no

ex post facto law shall be passed" (Const.

of the U. S., Art. I, sec. 9, par. 3; Bishop, Written Laws, 29). So, it is said that, the actual time of the approval of an act may be shown "where justice requires" (Bishop, Written Laws, 29, citing Chick e. Smith, 8 Dowl., P. C., 337; Campbell v. Strangeways, 3 C. P. D., 105; Lockett v. Hill, 1 Woods, 552; Combe v. Pitt, 3 Burr., 1423, 1434; Johnson v. Pennington, 3 Green, N. J., 188; Salmon v. Burgess, 1 Hughes, 356; In re Wynne, Chase, Dec., 227, 251; In re Richardson, 2 Story, 571; 3 Op. Att. Gen., 82; People v. Clark, 1 Cal., 406; United States v. Arnold, 1 Gall., 348; Lang v. Phillips, 27 Ala., 311; Kimm v. Osgood, 19 Mo., 60; Gardner v. The Collector, 6 Wall, 499). Any legal evidence may be received to ascertain the precise time when an act was approved (Bishop, Written Laws, 29, citing Gardner r. The Collector 6 Wall., 499; Kennedy v. Palmer, 6 Gray, 316; Turly e. Logan, 17 Ill., 151; Prescott v. Illinois & Michigan Canal, 19 Id., 324; McCulloch v. The State, 11 Ind., 424; Southwark Bank v. Commonwealth, 26 Pa., St., 446). "Every person * is affected by an Act of [Congress] the moment it comes into operation, even although it may be morally certain that he could not know that the statute in question had been passed" (Hardcastle, Statutory Law, 194, citing McNaughton's case, 10 Cl. & Fin., 210; Bailey's case, Russ. & R., 4).

The five internal-revenue agents above mentioned lawfully entered on service on the morning of July 7, 1884. Until one o'clock, p. m., of that day there was no law actually in force which terminated their legal right to continue in service. On the faith of existing law they rendered services for a compensation prescribed by statute. The right to compensation thus earned was, and is, property. Their right to compensation for said day does not alone depend on the justice of their claims, or on the hardship or wrong of refusing to make payments. Be ing property, such right is protected by that clause of the Constitution which declares that "no person shall be deprived of property without due process of law" (Const. U. S., Amendments, Art. V). Until one o'clock, p. m., of July 7, 1884, the claimants had a right to compensation for services rendered on that day. This was, and is, property, and their right to it has not been divested by "due process of law," and cannot be divested by act of Congress.

*

For many purposes an act of Congress takes effect from the first moment of the day on which it is approved. This results from the fiction that a day is an entirety, and from the general rule resulting therefrom, that the law recognizes no fractions of a day. But a fiction cannot defeat the protection which the Constitution has given to property. If, in pursuance of a statute, an officer of the Government lawfully paid out for the benefit of the United States $1,000 at noon of July 7, 1884, with a right by law to re-imbursement therefor, and at one o'clock, p. m., of the same day, an act was approved, repealing the statute, which gave authority to make such payment, and which also gave the right to re-imbursement, would such officer thereby lose his right to re-im

bursement from the United States? Clearly not. His right to such re-imbursement is property. It is sacred under the Constitution. A statute cannot divest this right. Even without Article V of the Amendments to the Constitution, there are certain recognized constitutional limitations on the legislative power of Congress. Legislative power does not exist to the extent of annihilating vested rights of property. The internal-revenue agents, having lawfully served until one o'clock, p. m., of July 7, 1884, are entitled to the per diem compensation prescribed by law for the entire day; since this is one of the cases where the law recognizes no fractions of a day. As they served during the entire official day in good faith, they were legal agents of the United States up to one o'clock, p. m., and after that de facto agents, and their acts as such are valid. An officer de facto is not generally entitled to fees or compensation from the United States (9 Op. Att.-Gen., 433; Hunter's case, 1 Lawrence, Compt. Dec., 2d ed., 151; Evans's case, 3 Lawrence, Compt. Dec., 111). The appropriation, out of which the compensation of internal-revenue agents is to be paid, is for this and for other purposes a gross sum, sufficient in amount to pay all such agents now authorized, and also the five whose periods of service have expired by operation of the act of July 7, 1884.

The Commissioner of Internal Revenue will be advised that payments can lawfully be made to the five internal revenue agents mentioned for the services rendered on July 7, 1884.

TREASURY DEPARTMENT,

First Comptroller's Office, July 23, 1884.

IN THE MATTER OF THE CONSTRUCTION OF THAT PART OF THE DEFICIENCY-ACT OF JULY 7, 1884, (23 STAT., 239) WHICH APPROPRIATES MONEY TO BE PAID TO THE STATE OF CALIFORNIA ON ACCOUNT OF HER QUOTA OF THE DIRECT TAX UNDER THE ACT OF AUGUST 5, 1-61.-(12 STAT., 296)-CALIFORNIA CASE.

The deficiency-act of July 7, 1834 (23 Stat., 239), appropriates specified sums to be paid respectively, to the States named, for "the fifteen per centum of the amount of their quota of the direct tax of eighteen hundred and sixty-one." Fifteen per centum of said quota for California is $38,180.80; the sum specified as appropriated for said State is $37,191.17. Held:

1. In construing this act, and in determining the amount to be allowed to the State of California under it, the intention of Congress is to control.

2. The intention of Congress, as expressed in the act, was, to allow said State the full amount of the fifteen per centum mentioned, which is $38,180.80.

3. Jordan's case (3 Lawrence, Compt. Dec., 274; s. c., 4 Id., 5864) re-affirmed. 4. The opinion of the Court of Claims in Jordan's case (19 Ct. Cl.)—not concurred in.

The deficiency-appropriation-act of July 7, 1884 (23 Stat., 239), makes an appropriation, as follows:

"To enable the Secretary of the Treasury to pay to the States of California, Oregon, and Nevada, respectively, the fifteen per centum of the

« ՆախորդըՇարունակել »