cer" at all, it is apparent that his "salary, pay or emoluments" are not "fixed by law or regulation," but are entirely dependent upon the contract which may be entered into between such assistant and the district attorney, and that therefore, if an "officer" at all, he is not such an officer as to fall within the prohibition of the statute. Neither is he a "person whose salary, pay or emoluments are fixed by law or regulation," but by contract between himself and his employer, the district attorney. (Reward Case, 2 Lawrence, Compt. Dec., 545.)

An assistant to the attorney of the United States is not "an officer" in any branch of the public service.

The Constitution (Art. II, Sec. 2) provides for the modes in which officers of the United States are to be appointed. For the most part the appointment is by the President, by and with the advice and consent of the Senate. "But the Congress may by law vest the appointment of such inferior officers, as they may think proper, in the Presi dent alone, in the courts of law, or in the heads of Departments," and the Supreme Court of the United States in the case of The United States vs. Germaine (99 U. S., 510) says "That all persons who can be said to hold an office under the Government were intended to be included within one or the other of these modes of appointment, there can be but little doubt"; and it was held that'a surgeon appointed by the Commissioner of Pensions under Sec. 4777, R. S., U. S., was not an officer of the United States. The same reasoning would clearly apply to an assistant appointed by a district attorney.

When Richard Harrington, who was an assistant to the United States attorney at a compensation of $2,500.00 per annum, was appointed sec retary of the District of Columbia, under section 11, R. S., D. C., and presented his accounts for salary of that office it was objected that he could not be paid because he was already in receipt of the emoluments of another office amounting to $2,500.00 per annum (Sec. 1763, R. S., U. S.), but after due consideration, it was determined by the then comptroller (Mr. Tayler) that the place of assistant to the U. S. attorney for this District was not "an office" within the meaning of the law.

The decision of the Comptroller in the Bliss case is to the effect that the proviso contained in the 3d section of the act of June 20, 1874 (18 Stat., 109), in effect contains a grant of power to employ and pay district attorneys for services not covered by their salaries or fee bills.

The letter to District Attorney Corkhill evidences a proper exercise of this power, and from the moment of its receipt it was one of the "duties" to the District Attorney to "protect" the Treasurer in the case referred; as much so as if the duty were imposed directly by statute instead of by executive authority exercised under a statutory grant of authority.

SEC. 363 Revised Statutes provides that, "The Attorney-General shall, whenever in his opinion the public interest requires it, employ and retain, in the name of the United States, such attorneys and counsellors at law as he may think necessary to assist the district attorneys in the discharge of their duties," &c., &c.

The Attorney-General, finding that the district attorney was disquali fied from representing the Treasurer by reason of his previous relation to the case, directed me to assist him in the discharge of the duties of his office by assuming this particular duty, which I did.

Attorney-General Black, in 9 Opinions, 146, at a time when heads of Departments were authorized to employ counsel in the defense of officers of their Departments, held that, when district attorneys were em. ployed in such case, it was competent to employ and pay assistants to aid them therein.

DECISION BY WILLIAM LAWRENCE, First Comptroller.

The question presented by the claimant in this case is substantially decided in the Bliss case (ante, 38). Under section 363 of the Revised Statutes, the Attorney-General is authorized to employ any attorney at law to assist district attorneys. "in the discharge of their duties "-that is, in the discharge of official duties, required by law of district attorneys. The Attorney-General is not authorized to employ an attorney at law, who is not a district attorney, to render a service which does not pertain to or constitute a part of the official duty of a district attorney. There are many cases in which the Government is interested and should be represented by an attorney at law, but in which a district attorney is not, by virtue of his office, required to appear. The statute provides for service in such cases, by authorizing the Attorney-General to send the Solicitor-General, or any officer of the Department of Justice, to any district to attend to the interests of the United States in any suit pending in any court (Rev. Stat., 367). And this is supplemented by the proviso to section 3 of the act of June 20 1874, (18 Stat., 109), which authorizes the Attorney-General to employ "district attorneys" to render services not covered by their salary or fees," that is, for unofficial services requisite to protect the interests of the Government. There can be no other mode of furnishing services not pertaining to the official duty of district attorneys, for two reasons:

First: Express provision is made for them as authorized in section 367 of the Revised Statutes, or by the employment of district attorneys under the proviso to section 3 of the act of June 20, 1874. And an express provision for a given service is equivalent to a denial of any other mode of procuring it (Reward Case, 2 Lawrence, Compt. Dec., 2d ed., 545; Stacy v. Bank of Illinois, 5 Ills., 91).

And second: The authority given to the Attorney-General is a special statutory power, and hence is to be strictly construed. It "must be pursued in strict compliance with the terms of the statute." (Bishop, Written Laws, 119, citing authorities; Sedgwick Statutes, 2d. ed., 76). It is immaterial whether it was wise or otherwise for Congress to limit the authority to employ district attorneys. This is what the law has done. It may be that Congress merely assumed that such limitation would more certainly secure the services of faithful and skilled attorneys. The services rendered by the claimant did not pertain to the duties of the district attorney. No law required him to appear in the mandamus proceeding. This has been sufficiently shown in the Bliss case. The Attorney-General had authority to employ any district attorney to render the service now in question. He had no authority to employ any other attorney. Hence the claimant cannot be paid. On the construction now given to the statute, the claim cannot be paid. After the close of the current fiscal year, this construction will be adhered to. The usage, heretofore, has been to pay such claims. The

question is reserved for consideration and decision hereafter, whether the usage heretofore prevailing will be applied as to this claim.

TREASURY DEPARTMENT,

First Comptroller's Office, June 3, 1884.

IN THE MATTER OF THE RIGHT OF AN ATTORNEY AT LAW, WHO IS NOT A DISTRICT ATTORNEY, TO RECEIVE, WHEN ACTING UNDER AN APPOINTMENT OF THE ATTORNEY-GENERAL, COMPENSATION FOR SERVICES RENDERED UNDER THE ACT OF MARCH 3, 1875 (18 STAT., 506).— THOMAS'S CASE.

1. An attorney at law, who is not a district attorney of the United States, is not entitled to compensation for services rendered under the act of March 3, 1875 (18 Stat., 506), although employed to perform such services by the AttorneyGeneral.

The account of O. B. Thomas, for the quarter ended March 31, 1884, for services as special assistant to the Attorney-General, to represent the interests of the United States in legal proceedings under the act of March 3, 1875 (18 Stat., 506), entitled, "An act to aid in the improvement of the Fox and Wisconsin Rivers in the State of Wisconsin," is now before this office for settlement. The said Thomas is an attorney at law but not a district attorney. The account is approved by the acting Attorney-General, but is not certified in the manner prescribed by section 365 of the Revised Statutes.

June 7, 1884, the Hon Benjamin Harris Brewster, Attorney-General, by letter, submitted a written argument to the First Comptroller, as follows:

The act of March 3, 1875, Ch. 166, directed "the Department of Justice" to "represent the interests of the United States in legal proceedings" thereunder, &c. Upon the 16th of April afterwards, my predecessor, Mr. Williams, accordingly appointed Charles P. Gill, esq., to be an Assistant Attorney-General, to represent the interests above mentioned. Upon Mr. Gill's resignation, Attorney-General Pierrepont (March 3, 1876), appointed R. L. D. Potter, esq., as his successor, and in turn upon the resignation of the latter, Attorney-General Devens (May 2, 1878), appointed Mr. Thomas. The last two commissions are substantially copies of that to Mr. Gill.

I am not informed of the reasons upon which Messrs. Williams, Pierrepont, and Devens acted in conferring the above commissions; and have examined the matter only since the receipt of your note.

I submit that, apart from the respect due to the official opinions and action of those distinguished gentlemen, as well as of their contemporaries, your own distinguished predecessors, a respect which no doubt you concede as readily as I, or any one-apart from these, I say, upon

giving the question thus by them decided that revision which in such cases now and then becomes necessary-it will appear to have been properly decided.

The act of 1875, required this Department to " represent" the litigation therein contemplated. There was something special in such express requirement, inasmuch as without it, the business would have fallen under the general provisions of law; provisions by which, in case the district attorney could not give it attention, an assistant, or special assistant district attorney, or Attorney-General would have been assigned thereto. I suppose that, inasmuch as district attorneys and their assistants are not members of the Department of Justice, the act of 1875 appeared to suggest that the Attorney-General should exercise his power of appointing (under Section 366, R. S.) an assistant to himself, who would, of course, be a member of such Department-and thereby fulfill the express provision that the Department of Justice should represent, &c. Presumably the litigation and other legal work in prospect was seen by Congress to be important, and therefore to require an officer who should have immediate relations with the Attorney-General. Such is the literal signification of the act. Very possibly it might have been construed to include as well the commissioning of an assistant district attorney,— under the argument that "represent" in the act, is satisfied by, cause to be represented. But the formal meaning is that which was adopted in practice, and properly adopted, as it seems. For there is no very substantial difference betwixt the two sorts of assistants mentioned in section 366; and it is plain that none of the regular staff of the Department of Justice could execute the duty in question. It follows that the hint given by the Statute was enough to decide Attorney-General Williams and his successors to select an Assistant Attorney-General, and that action, as I have said, seems to have been ratified by the consideration of the then Comptroller. Whether an Attorney-General shall nominate a regular or a special assistant district attorney, or a special Assistant Attorney-General to perform a particular service, which the regular district attorney and the regular staff of this Department cannot perform, is not of the essence.

So far as I can judge, Mr. Thomas is lawfully an Assistant AttorneyGeneral, and as such entitled to the pay from time to time certified by this Department.

DECISION BY WILLIAM LAWRENCE, First Comptroller.

The act of March 3, 1875 (18 Stat., 506), is as follows:

"That whenever, in the prosecution and maintenance of the improvement of the Wisconsin and Fox Rivers in the State of Wisconsin, it becomes necessary or proper in the judgment of the Secretary of War to take possession of any lands, or the right of way over any lands, for canals and cut-offs, or to use any earth-quarries or other material lying adjacent or near to the line of said improvement and needful for its prosecution or maintenance, the officers in charge of said works may, in the name of the United States, take possession of and use the same after first having paid or secured to be paid the value thereof, which may have been ascertained in the mode provided by the laws of the State wherein such property lies. In case any lands or other property is now

or shall be flowed or injured by means of any part of the works of said improvement heretofore or hereafter constructed for which compensation is now or shall become legally owing, and in the opinion of the officer in charge it is not prudent that the dam or dams be lowered, the amount of such compensation may be ascertained in like manner. The Department of Justice shall represent the interests of the United States in legal proceedings under this act, and for flowage-damages herein before occasioned.

"SEC. 2. That a portion of the appropriation now made for the further prosecution of the improvement aforesaid, not exceeding in amount twenty-five thousand dollars, may be applied in payment for the property and rights taken and used as aforesaid."

The decision in Bliss's case (ante, 38), and in Coyle's case (ante, 52), is substantially in principle conclusive against the claim in this case. The act of March 3, 1875, declares that "the Department of Justice shall represent the interests of the United States in legal proceedings under this act." This, by a fair construction of its terms, seems to impose the duty required by it on such officers of the Department of Justice as the Attorney-General may designate—that is, on officers of the Executive Department of Justice at Washington. The services required by the act of March 3, 1875, did not pertain to the official duties of a district attorney. This officer is not required to attend to the interests of the United States in a State court. The services rendered were in a State court so far as they were in a court. If, therefore, the act of March, 3, 1875, does not require the services to be performed under it, to be rendered by officers of the Executive Department of Justice, but authorizes the Attorney-General to employ a proper attorney at law for the purpose, the authority is controlled by the proviso to section 3 of the act of June 20, 1874 (18 Stat., 109), which limits the employment to a district attorney. All the statutes on the subject are in pari materia, and are to be construed together. The act of March 3, 1875, is not a repeal in any sense of the proviso mentioned, nor does it make an exception thereto. As a general rule, neither repeals nor exceptions, arising by implication, are favored.

The claim is disposed of in the same manner as that in the preceding

case.

TREASURY DEPARTMENT,

First Comptroller's Office, June 9, 1884.