20 Stat., 130.) Their right to its payment is property so sacred that an act of Congress cannot divest it.

Thus it is said:

"A vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. Where it springs from contract, or from the principles of the common law, it is not competent for the legislature to take it away." (Cooley, Const. Lim., [362] 449, citing numerous authorities; Const. U. S., Art. 5, and 14 Amendments; Griffin v. Wilcox, 21 Ind., 370; Johnson v. Jones, 44 Ills., 142; Hubbard v. Brainard, 35 Conn., 563; Bryan v. Walker, 64 N. C., 146).

The right of the proper legal representatives to demand payment most clearly would have remained undoubted and unquestioned, but for that provision of the act of July 7, 1884, which provides for a re-appropriation of $559.11, and makes it "available to pay the widow of General Judson Kilpatrick * the amount found due him on the settlement of his accounts." In ascertaining the intention of Congress rules of construction are to be observed, that, statutes are to be so construed, if practicable, as "to avoid absurd consequences, or injustice." (Bishop, Written Laws, 82, 90, 93, 200 ;) that, "if there are two possible constructions of the statute, the one harmonious with the Constitution and the other opposed, the one harmonious must be adopted." (Id.) In view of these principles, it may be assumed that the object of the re-appropriation was simply to effect the purpose of the original appropriation-to make the payment required by law. The widow had, in fact, been named as an executrix in the will of her deceased husband, and Congress may have assumed, in the act of July 7, 1884, that she had qualified or would qualify as such, and so simply intended to make provision for the legal payment to her, not in her personal right, but in her representative character as executrix. There is nothing to indicate that Congress intended to provide a gratuity to her personally, and it is not to be assumed that it was designed to disregard the obligation to pay the legal representatives or to attempt to divest their legal right to payment. It is only reasonable that, in making any payment, the United States should be protected from any future claim. And, since it is understood that some claim is, or may be, made by said widow for payment, and the one executor named in the will, who has qualified, declines to release in favor of the widow, the honorable Secretary of State will be advised to make no requisition for payment until the widow and the qualified executor shall file a written agreement and proper release of claim, in a form to protect the United States, or determine, by proper legal proceedings, to which of said parties payment shall be made. TREASURY DEPARTMENT,

First Comptroller's Office, December 26, 1884.

IN THE MATTER OF THE RIGHT OF A UNITED STATES DISTRICT ATTORNEY TO MILEAGE, UNDER SECTION 824 OF THE REVISED STATUTES, FOR GOING FROM THE PLACE WHERE THE COURT, ON WHICH HE IS IN ATTENDANCE, IS HELD TO THE PLACE OF HIS ABODE, AND for RETURNING TO SUCH COURT, DURING A SUNDAY OR OTHER ADJOURNMENT OF SAID COURT.-DISTRICT ATTORNEY'S MILEAGE CASE.

1. The right of a United States District Attorney to mileage for travel, and to per diem compensation, rests solely on the statute, and its proper construction.

2. When the statute gives a right to mileage, or compensation fixed in amount, accounting officers have no authority to make any stipulation for the payment of more or less than the amount so prescribed.

3. A district attorney is entitled to a per diem fee, for “attendance” during a term of court away from the place of his abode, for Sundays and holidays included in said term.

4. If a court adjourn over, making a recess during a term, for a period not covered by a Sunday or holiday, the district attorney is not entitled to a per diem fee during such recess.

5. A district attorney is not entitled to mileage for going to his place of abode during such recess, nor for returning therefrom to the court.

6. The Per Diem case (1 Lawrence, Compt. Dec., 2d ed., 258); Sunday Per Diem case, ante, 325; and Marshal's Sunday Per Diem case, ante, 329—reaffirmed.

7. The common law adapts itself to circumstances, but statutes do not.

James Auld, the chief of the Judiciary Division of the office of the First Comptroller, submits a statement and questions for decision, as follow:

"The United States District Attorney for the southern district of Ohio, in his account for the quarter ended June 30, 1884, charged mileage from Cincinnati, the place where United States courts were in session, to Glendale, the place of his abode, and back 15 miles each way, for every Sunday (but no per diem fee for that day) during the April term of the courts, and one round trip when an adjournment of two weeks took place. The said charges are in accordance with a rule of this office established about thirty years ago, which is supposed to have been made in consequence of a decision respecting per diem compensation. By act of February 26, 1853 (Rev. Stat., 824), a per diem is allowed for each day of a term to district attorneys for attendance in the courts when they are held elsewhere than at their respective places of abode. On the 5th of May, 1853, the Comptroller, Mr. Whittlesey, issued circular instructions to the officers of courts, in which the following construction was given to said provision:

"The per diem allowed to attorneys, clerks, and marshals is for attendance on such court or courts while actually in session when held at the place of their abode, but when held at a different place from their abode they are authorized to charge for Sundays or holidays embraced in the term of a court.'

From this construction of the statute it would seem to have resulted that when a district attorney, away from his place of abode in attendance upon court, wished to spend Sundays at home, he was allowed

mileage in lieu of the per diem fees. The question is now raised whether such allowances are authorized by law. The only mileage prescribed for a district attorney is:

'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.' (Rev. Stat., 824.)"

This does not in terms preclude the allowance of mileage for more than one trip for a term or examination. In the case of a marshal the provision is:

For traveling from his residence to the place of holding court to attend a term thereof, ten cents a mile for going only.' (Rev. Stat., 829.) "This seems to imply mileage for one trip. If it be held that mileage for actual travel to spend Sundays at home should be allowed in lieu of the per diem fee chargeable when Sunday is spent at the place where court is held, is the amount charged to be allowed when it exceeds the per diem fee? And if not, what ought to be allowed when there is an adjournment of more than one day? For instance, the United States attorney for Nebraska lives at Lincoln, 68 miles from Omaha, where the court is held, and he generally charges for travel to and from home during several adjournments of from two to six days in the terms-the round trip at each adjournment amounting to thirteen dollars and sixty cents. If in his case five dollars on account of mileage to go home on Sundays is allowable, should there be any deduction from the full mileage ($13.60) for travel at each of the adjournments of several days?"

DECISION BY WILLIAM LAWRENCE, First Comptroller.

The right of district attorneys to mileage rests solely on the statute. Whatever it authorizes can be paid, whatever it does not authorize cannot be paid. (Meigs' case, 4 Lawrence, Compt. Dec., 620, 628; Contempt case, ante, 257; Heller v. Commissioners, 23 Kansas, 128). It is clear that, when the statute gives a right to compensation in a given case, or to mileage under specified circumstances, accounting officers cannot dispense with the statute or make stipulations for allowing more or less than it gives. No statute has given them any dispensing power or authority to give a measure of compensation, or sum as mileage, either greater or less, or in lieu of, the provision so made by law. If the accounting officers can allow, to the district attorney for the southern district of Ohio, three dollars for mileage, in going to and returning from Glendale to Cincinnati, during a Sunday adjournment of court, and in lieu of five dollars as per diem compensation for said Sunday, the United States would profit two dollars by the arrangement. But, if, under similar circumstances, the accounting officers should allow the district attorney in Nebraska $13.60 for going from Lincoln to Omaha, and for returning, in lieu of five dollars per diem for Sunday, the United States would lose $8.60. It is absolutely certain, that the rights of the two district attorneys in the cases mentioned, and in the similar cases

stated, are to be determined by the statute, and not by any commutation, stipulation, or exercise of a dangerous discretion. The real question therefore is, what, if any, allowance is a district attorney entitled to, in the cases stated? This question has been decided in Sunday Per Diem case (ante, 325), in which it was held that a district attorney for "attendance," during a term of court, away from the place of his abode, is entitled to per diem fees for Sundays included in said term. The statute gives this to the district attorney "for his attendance when the court is held elsewhere [than] at the place of his abode," and, hence, in consequence of his absence from his abode. The provision thus made is the full measure of compensation provided by the statute, and being based on the ground, or for the reason, that the district attorney is away from his abode, and in "attendance" at the court, or the place where it is held, he cannot convert a Sunday adjournment into an occasion for returning to his abode, and thence returning to the court and demanding mileage therefor. The statute which authorizes the payment of mileage to a district attorney "for traveling from the place of his abode to the place of holding any court of the United States in his district" (Rev. Stat., 824), comes to us from a period when there were no railroads, and when speedy transit was impossible, in view of which, as well as of the words of the statute, and the provision for a Sunday per diem, it must be held that Congress did intend to authorize payment of such per diem, but did not intend to authorize payment of mileage in lieu thereof. (Act February 26, 1853-10 Stat., 161.) Mileage to district attorneys was first prescribed by act of May 8, 1792. It gave to the clerk of the circuit and district courts "at the rate of ten cents per mile for his expenses and time in traveling from the place of his abode to either of said courts," and to the attorney of the United States for the district "the like compensation for traveling as is above allowed to the clerk of the circuit and district courts." (1 Stat., 277.)

If a district attorney does return from "the place of holding any court to the place of his abode" during a Sunday adjournment, and so is not actually in "attendance," the question will arise, whether he is, in such case, entitled to a per diem for such Sunday. The statute, as it says, gives the district attorney the per diem "for his attendance when the court is held elsewhere" than "at the place of his abode." If he absent himself from the place where the court is held, he cannot be in "attendance" there. If the court be in session, either on Sunday or Monday, and the district attorney should then be at the place of his abode, he clearly would not be in "attendance" at the term, and so would not be entitled to a per diem fee. If the court should adjourn over from Saturday until Tuesday, and the district attorney should be at his place of abode attending to his private business, he would not be in "attendance" at the term of court, and would not be entitled to a per diem fee. It is no answer to this to say that, his actual attendance at the place where the court holds its term could be of no service to

the Government. His actual attendance, when the court is in session, may, for a given day, be of no service to the Government. The compensation is given for the "attendance," without reference to its value. It is given for the real or supposed loss, or inconvenience, resulting from actual attendance, away from his place of abode. Attendance is the condition precedent to the right to compensation, and when the statute requires it, as it does, there is no dispensing power over the law, by which its requirement can be disregarded.

A question of some difficulty arises as to the right of a district attorney to mileage, when a court at which he is in attendance, held away from the place of his abode, adjourns over for several days. If, during such recess, he returns to his place of abode, and remains there or elsewhere during such recess, and returns to the court on its reassemblage, is he entitled to mileage for such travel? General laws of the United States which allow compensation to public officers provide remuneration only for services in behalf of the Government. But travel of a district attorney from a place where court is held to the place of his abode in the recess of a term-is not made in the interest of the Government, it is solely for his personal comfort or convenience. The statute makes the following provisions as to mileage:

For the district attorneys:

"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." For the clerks of courts:

"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 a mile for returning, and five dollars a day for his attendance on the court while actually in session." For the marshal:

"For traveling from his residence to the place of holding court, to attend a term thereof, ten cents a mile for going only."

These provisions are all taken from the act of February 26, 1853 (10 Stat., 161-167).

At the time those provisions were made, and especially during the existence of the act of May 8, 1792 (1 Stat., 277), the present facilities for rapid travel were unknown; when a term of court commenced it usually went on uninterruptedly until its close, except by adjournment for Sundays and holidays, and, in practice, officers of the court never, or rarely ever, returned to their homes during a term. It is in view of these conditions that the statute gives mileage to a marshal, "for traveling from his residence to the place of holding court to attend a term thereof for going only"; to the clerk, "for traveling from to the place of holding any court for returning"; to the district attorney, "for

the office of the clerk and