personal compensation of $3,500 in each of the courts, or whether the fees of each of the two offices, as well as the expenses of each, should be accounted for separately and practically in the same manner as though two individuals held the two offices.

Second. Whether the Attorney-General has authority to determine the amount of the necessary expenses properly allowable in the separate emolument accounts of a person holding the offices of clerk of the circuit court and clerk of the district court, and whether the approval by the AttorneyGeneral of the necessary expenses of a clerk of a particular court is binding upon the accounting officers of the Treasury in the settlement of the account in which such expenses are so approved, or whether the accounting officers are authorized to disregard such approval and substitute therefor their judgment, or that of the clerk, as to the correct amount of expenses allowable.

1. As to the first question I do not think there is any doubt that when a person is appointed by the circuit judge as clerk of the circuit court under section 3 of the act of February 6, 1889 (25 Stat., 655), or section 619, Revised Statutes, and when the same person is appointed as clerk of the district. court by the district judge under section 555, Revised Statutes, such person, upon qualifying under the two appointments, is holding two separate and distinct offices. His right to hold these two offices is recognized by section 839, Revised Statutes (quoted hereafter).

In the present case the claimant is acting under two separate appointments made by judges of separate courts, has subscribed to separate oaths, has executed separate bonds, and has since the year 1879 rendered separate fee accounts and separate semiannual emolument returns for the circuit and district courts (which accounts and returns have always been settled separately), and no other conclusion is justifiable than that he is holding two separate offices. This clerk seems to admit this so far as the fees of the two offices are concerned, but presents the novel contention that in relation to the expenses in the circuit and district courts he is holding but one office practically, that the total or consolidated expenses are expenses of "his office," and that he has a legal right to deduct said expenses at his pleasure (and for his

personal gain) from "the aggregate fees and emoluments of the said offices"" before the ascertainment and retention of his personal compensation, and by so doing have these expenses defrayed out of any surplus of fees and emoluments that may exist in either or both of them.

I am unable to agree with the clerk's contention. I find nothing in the law or the decisions to warrant the conclusion reached by him. The law on the subject (sec. 839, Rev. Stat.) contemplates that the necessary expenses incurred in either office, as approved by the Attorney-General, shall be a charge against the fees of the particular office or court in which the fees were earned and the expenses were incurred, and I find nothing in the decision of the Court of Claims in the case of Butler v. United States, as reported in 23 Ct. Cl., 162, cited by the clerk, which holds otherwise. The following is from the syllabus in that case:

"The only question presented by this case is whether the clerk of a circuit and district court may charge his per diem compensation against either as he may elect when both courts are sitting on the same day."

What the court actually decided apparently was that a clerk of both courts could elect, under such circumstances, in which court to charge his per diem, the per diem being earned in one court as much as in the other, and section 831, Revised Statutes, prohibiting the allowance of more than one per diem.

It is obvious that in the present case the auditor has not denied the clerk his right to elect in which court a per diem, earned in both courts on the same day, may be charged. Nor is such question now before me; if it were, I should have no hesitancy in following the decision of the learned judge of the Court of Claims.

I hardly deem it necessary to lengthen this decision by further discussion of this point (which is more or less involved in the next and more important question), as I am clear that under the law and the practice the clerk is not authorized to use the fees collected as clerk of one court to defray the expenses arising in the other court, so as to have his accounts settled on that basis.

2. In properly considering the second question raised by this appeal it is necessary to call attention to certain legisla

tion concerning the compensation, expenses, and accounts of clerks of the United States courts, and the Attorney-General's authority in relation thereto.

Section 833, Revised Statutes, provides:

"Every district attorney, clerk of a district court, clerk of a circuit court, and marshal, shall, on the first days of January and July, in each year, or within thirty days thereafter, make to the Attorney-General, in such form as he may prescribe, a written return for the half year ending on said days, respectively, of all the fees and emoluments of his office, of every name and character, and of all the necessary expenses of his office, including necessary clerk hire, together with the vouchers for the payment of the same for such last half year. * *

See also act of June 28, 1902 (32 Stat., 475), prescribing what the term "emoluments" of the clerk shall include.

Section 839, Revised Statutes, provides:

"No clerk of a district court, or clerk of a circuit court, shall be allowed by the Attorney-General, * * * to retain of the fees and emoluments of his office, or, in case both of the said clerkships are held by the same person, of the fees and emoluments of the said offices, respectively, for his personal compensation, over and above his necessary office expenses, including necessary clerk hire, to be audited and allowed by the proper accounting officers of the Treasury, a sum exceeding three thousand five hundred dollars a year for any such district clerk or for any such circuit clerk, or exceeding that rate for any time less than a year."

The act of June 22, 1870 (16 Stat., 164), established the Department of Justice, and section 15 of said act provides: "And be it further enacted, That the supervisory powers now exercised by the Secretary of the Interior over the accounts of the district attorneys, marshals, and clerks, and other officers of the courts of the United States, shall be exercised by the Attorney-General, *

(See also section 368, Revised Statutes.)

Section 844, Revised Statutes, provides:

"Every district attorney, clerk, and marshal shall, at the time of making his half-yearly return to the Attorney-General, pay into the Treasury, or deposit to the credit of the Treasurer, as he may be directed by the Attorney-General, any surplus of the fees and emoluments of his office, which said return shows to exist over and above the compensation and allowances authorized by law to be retained by him."

Section 845, Revised Statutes, provides:

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"In every case where the return of a district attorney, clerk, or marshal shows that a surplus may exist the Attorney-General shall cause such returns to be carefully examined, and the accounts of disbursements to be regularly audited by the proper officer of his department, and an account to be opened with such officer in proper books to be provided for that purpose."

Section 13 of the act of July 31, 1894 (28 Stat., 210), provides:

*

"Before transmission to the Department of the Treasury the accounts of * * clerks, and other officers of the made out and apshall be sent with

*

* ** **

courts of the United States, proved as required by law, their vouchers to the Attorney-General and examined under his supervision."

Attention is called to the fact that the law as it stands amended fixes stated salaries for district attorneys and marshals, and those officials are no longer required to render emolument returns (the district attorney in the District of Columbia excepted), but the allowance of their "office expenses" is still in the hands of the Attorney-General, section 14 of the act of May 28, 1896 (29 Stat., 183), providing:

"That the necessary office expenses of the district attorneys and marshals shall be allowed when authorized by the Attorney-General."

It may be remarked here that there is no apparent reason why clerks should be exempt from supervision as to their office expenses to an extent not permitted district attorneys and marshals, especially when it is well settled that the fees collected by the clerks belong to the United States. (Bean v. Patterson, 110 U. S., 401-403; United States v. Mason, 129 Fed. Rep., 742; 7 Comp. Dec., 585.)

Section 839, Revised Statutes, above quoted, is taken bodily from the act of February 26, 1853 (10 Stat., 166), with no material change except to give the Attorney-General such authority over allowances to clerks of courts as was granted by the act of 1853 to the Secretary of the Interior.

In 1855 Attorney-General Cushing was called upon to decide whether the Secretary of the Interior had "power to regulate and limit the expenses of clerks of the circuit and district courts of the United States, and to define the number

and compensation of deputies, or designate a gross sum to cover all the expenses of their respective offices" under the act of 1853. In an able opinion (7 Op. Att. Gen., 543), addressed to the Secretary of the Interior, he held that the Secretary had such power under that act, and further says:

"It is clear that by this enactment, compared with its context, and the history and general tenor of the statute in which it occurs, a right, a duty, and a responsibility are conferred or imposed on the Secretary of the Interior and the accounting officers of the Treasury, in respect to this class of accounts.Necessary expenses' of office, including necessary clerk hire' are to be credited to the clerks of the circuit and district courts. If, after making this credit, and also crediting the maximum compensation of the officer, there be a surplus, it is the property of the Government. It is not merely the surplus left in the hands of the clerk after unlimited and discretionary expenditure for the objects mentioned, but surplus after expenditures of necessity alone; that is, such as the public service truly requires. And the Secretary of the Interior has to judge officially as to the reasonableness or the necessity of the clerk hire and other expenses charged by the clerks. So to judge is by law his right, it is incumbent on him as a duty; he does or omits to do it on his responsibility as an administrative officer of the United States.

* * *

"Undoubtedly, therefore, he may suspend any charge for clerk hire or other expense, which seems to him excessive, and require explanations on the subject, and ultimately reject the same, upon satisfactory affirmative evidence, internal or external, or upon the insufficiency of the explanations rendered, even although it be a case of money returned as actually paid out by a clerk in the particular case.

"All the heads of department are under the necessity by law of presenting to Congress annually an estimate of what is needed for the various branches of the public service, including the number and rate of compensation of the clerks. employed by them, and the necessary expenses of their respective offices and of the other subordinate executive offices of the Government. I can not imagine any reason why those clerks of the courts, whose emoluments exceed the legal maximum, and who are thus in fact salaried officers, should enjoy unlimited discretion in the use of the balance for clerk hire and office expenses; that is, unlimited use of the funds of the Government for that purpose.

"In a word, it seems to me that the statute authorizes, and that it is consistent with the nature of the subject, and