term.

Opinion of the Court.

For travelling 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. When an indictment for crime is tried before a jury and a conviction is had, the District Attorney may be allowed, in addition to the attorney's fees herein provided, a counsel fee, in proportion to the importance and difficulty of the cause, not exceeding thirty dollars.

"SEC. 825. There shall be taxed and paid to every District Attorney two per centum upon all moneys collected or realized in any suit or proceeding arising under the revenue laws, and conducted by him, in which the United States is a party, which shall be in lieu of all costs and fees in such proceeding.

"SEC. 826. No fee shall accrue to any District Attorney on any bond left with him for collection, or in a suit commenced on any bond for the renewal of which provision is made by law, unless the party neglects to apply for such renewal for more than twenty days after the maturity of the bond.

"SEC. 827. When a District Attorney appears by direction of the Secretary or Solicitor of the Treasury, on behalf of any officer of the revenue in any suit against such officer, for any act done by him, or for the recovery of any money received by him and paid into the Treasury in the performance of his official duty, he shall receive such compensation as may be certified to be proper by the court in which the suit is brought, and approved by the Secretary of the Treasury."

Another section authorizes just and suitable compensation. to be made to District Attorneys in prize causes. Rev. Stat. § 4646.

The above provisions must, however, be construed in connection with sections 1764 and 1765, which are as follows:

"SEC. 1764. No allowance or compensation shall be made to any officer or clerk, by reason of the discharge of duties which belong to any other officer or clerk in the same or any other department; and no allowance or compensation shall be made for any extra services whatever, which any officer or

Opinion of the Court.

clerk may be required to perform, unless expressly authorized by law.

"SEC. 1765. No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation."

It ought not to be difficult under any reasonable construction of these statutory provisions to ascertain the intention of Congress. A distinct provision is made for the salary of a District Attorney, and he cannot receive, on that account, any more than the statute prescribes. But the statute is equally explicit in declaring, in respect to compensation that may be "taxed and allowed," that he shall receive no other than that specified in §§ 823 to 827 inclusive, "except in cases otherwise expressly provided by law." It, also, declares that no officer in any branch of the public service shall receive any additional pay, extra allowance, or compensation, in any form whatever, for any service or duty, unless the same is expressly authorized by law, or unless the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation. No room is left here for construction. It is not expressly provided by law that a District Attorney shall receive compensation for services performed by him in conducting suits arising out of the provisions of the national banking law in which the United States or any of its officers or agents are parties. Without such express provision, compensation for services of that character cannot be taxed, allowed, or paid. Nor can the expenses of the receivership be held to include compensation to the District Attorney for conducting a suit in which the receiver is a party, for the obvious reason that the statute does not expressly provide compensation for such services. Congress evidently intended to require the performance by a District Attorney of all the duties imposed upon him by law, without any other remuneration than

Opinion of the Court.

that coming from his salary, from the compensation or fees authorized to be taxed and allowed, and from such other compensation as is expressly allowed by law specifically on account of services named.

Nothing in the last clause of § 823 militates against this view. On the contrary, the proper interpretation of that clause supports the conclusion we have reached. Its principal object was to make it clear that Congress did not intend to prohibit attorneys, solicitors, and proctors, representing individuals in the courts of the United States, from charging and receiving, in addition to taxable fees and allowances, such compensation as was reasonable under local usage, or such as was agreed upon between them and their clients. But to prevent the application of that rule to the United States, the words "other than the government" were inserted. The introduction of those words, in that clause, emphasizes the purpose not to subject the United States to any system for compensating District Attorneys except that expressly established by Congress, and, therefore, to withhold from them any compensation for extra or special services, rendered in their official capacity, which is not expressly authorized by statute. Whatever legal services were rendered or offered to be rendered by the plaintiff in the McDonald suit were rendered or offered to be rendered by him as United States District Attorney, and in that capacity alone. As such officer he is not entitled to demand compensation for the services so rendered or offered to be rendered.

What we have said is a sufficient answer to the questions certified, and requires an affirmance of the judgment.

Affirmed.

Statement of the Case.

GARDNER v. MICHIGAN CENTRAL RAILROAD

COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN.

No. 72. Argued November 7, 1893. Decided November 27, 1893.

Plaintiff sued defendant in a Circuit Court of the State of Michigan on the cause of action for which this suit is brought. Verdict and judgment were in plaintiff's favor in the trial court. This judgment was reversed by the Supreme Court of the State, and a new trial was ordered. When the case was remanded plaintiff voluntarily withdrew his action and submitted to a nonsuit which was not to prevent his right to bring any suit in any court. He then commenced this action in the Circuit Court of the United States. The defendant contended (1) that plaintiff' was estopped from bringing this action by the judgment in the state court; (2) that the record showed no negligence on the part of the defendant, and that a verdict should have been directed in its favor. The Circuit Court overruled the first contention of the defendant, but accepted the second, and directed a verdict for defendant. Held,

(1) That the plaintiff was not estopped from bringing this action by the proceedings and judgment in the state court;

(2) That the evidence in regard to negligence was conflicting, and the question should have been left to the jury under proper instructions.

The question of negligence in such case is one of law for the court, only when the facts are such that all reasonable men must draw the same conclusion from them: or, in other words, a case should not be withdrawn from the jury unless the conclusion follows as matter of law that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish.

THIS was an action brought in the Circuit Court of the United States for the Western District of Michigan by Frederick Gardner, a citizen of the State of Indiana, against the Michigan Central Railroad Company, a corporation of the State of Michigan, to recover damages for injuries alleged to have been inflicted by reason of the negligence of the defendant in causing, and allowing to remain for some time prior to the accident complained of, a hole in the planking of the cross

Statement of the Case.

ing of a thoroughfare near its station house in Niles, Michigan, known as Fifth Street, contrary to its duty in that behalf, whereby the plaintiff was injured without negligence on his part; and, also, in ordering the plaintiff, who was a night switchman at that station, to do certain coupling and uncoupling of cars, out of the line of his employment as switchman and more dangerous.

Upon the trial before the District Judge, the evidence tended to show that Fifth Street in the city of Niles crossed the defendant company's tracks, of which at this crossing there were, besides the main track, several others, occupying a large portion of defendant's right of way; that the defendant's station house, freight house, and other depot buildings were located at this point; that thirty-two feet of the crossing were planked between the tracks by the defendant; that near the southeast corner of the planking, and about twelve or fifteen feet therefrom, stood a switch, which moved the track south, in adjusting it for the passage of trains; and that a month or so before the injury to the plaintiff, a car wheel had struck the end of a plank next to the rail of the track, by reason of the switch not being properly adjusted, making a hole in the surface several inches in length and width; that it was the duty of the yardmaster and roadmaster of defendant to keep the roadbed and crossings in good condition and repair; that the yardmaster must have known of the fracture of the plank; and that other employés had actual knowledge of its existence, but that plaintiff, who worked only during the night, had not been informed and did not know thereof. The yardmaster testified that he did not remember "seeing any bad spots" in the planking; "not to amount to anything; "there might have been a car off and the ends of the plank broke down a little; there might have been, but nothing that I would think would be dangerous."

The evidence further tended to show that the yardmaster of the company had the control and management of the switches and of the work belonging to the "making up trains;" that in 1881 he employed the plaintiff to tend switches at night; that prior to March, 1882, he had ordered