The receiver of a national bank is an officer and agent of the
United States within the meaning of those terms as used in
Rev.Stat. § 380, providing that all suits and proceedings
arising out of the provisions of law governing national banking
associations in which the United States or any of its officers or
agents are parties shall be conducted by the district attorneys of
the several districts under the direction and supervision of the
Solicitor of the Treasury.
If a district attorney of the United States, acting under the
provisions in Rev.Stat. § 380, conducts a suit or proceeding
arising out of the provisions of law governing national banking
associations, he is entitled to no remuneration other than that
coming from his salary, from the compensation and fees authorized
to be taxed and allowed, and such additional compensation as is
expressly allowed by law specifically on account of services
named.
The plaintiff in error brought this action against the defendant
in error, as receiver of the Exchange National Bank of Norfolk, to
recover the value of legal services alleged to have been rendered,
or offered to be rendered, by him as United States district
attorney in a certain suit brought in the name of that receiver
against one R. H. McDonald, and which suit was subsequently, in
August, 1885, dismissed, on motion of the receiver, as settled.
Pursuant to a written stipulation of the parties, the case was
heard by the court without a jury. Judgment was rendered for the
defendant in conformity with the opinion of the circuit judge. 35
F. 721, 729; 36 F. 487. The case is before this Court upon a
certificate of division of opinion.
Page 150 U. S. 343
There was evidence on behalf of the plaintiff as to the extent
and value of the services rendered or offered to be rendered by him
as United States district attorney. The defendant introduced
evidence tending to show that the plaintiff had neither rendered
nor been requested by the receiver to render any services in the
action against McDonald; that by direction of the Comptroller of
the Currency, the receiver employed other counsel; that the
plaintiff's present claim had never been presented to the Treasury
Department, nor been allowed by the Comptroller of the Currency,
and that he had not been directed by the Solicitor of the Treasury
to render the alleged services.
The following are the questions upon which the judges were
divided in opinion:
1st. Whether the United States district attorney is entitled by
virtue of his office to appear and act as counsel for the receiver
of a national bank in collecting its assets and winding up its
affairs without the request or consent of said receiver, and
without the direction of the Solicitor of the Treasury.
2d. Whether, conceding his rights so to appear, and he does so
appear of his own motion, is he entitled to any extra compensation
beyond that prescribed by law for his official services?
3d. Whether, conceding his right so to appear and act, he is
entitled to any extra compensation beyond that provided by law for
his official services except such as the Comptroller of the
Currency may allow after his claim therefor has been presented to
the Treasury Department, according to the provisions of section 299
of the Revised Statutes.
4th. Whether the United States district attorney, whose official
service had been tendered to such receiver and declined by him for
the reason that he had employed other counsel, acting under the
directions of the Comptroller of the Currency and Solicitor of the
Treasury, is entitled to extra compensation for such offer of
services, whether the service was rendered by the district attorney
or not.
5th. Whether, conceding his right so to receive extra
compensation
Page 150 U. S. 344
when he has offered to appear and act as official counsel
without the request or consent of the receiver, is such
compensation payable out of the assets of the bank in the hands of
the receiver or out of the funds provided by law for the payment of
district attorneys for their official services?
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
It is provided by section 380 of the Revised Statutes of the
United States that all suits and proceedings arising out of the
provisions of law governing national banking associations in which
the United States or any of its officers or agents are parties
shall be conducted by the district attorneys of the several
districts, under the direction and supervision of the Solicitor of
the Treasury.
The suit brought against McDonald was one arising out of the
provisions of the act of Congress governing such associations, and
the receiver in whose name it was instituted was an officer and
agent of the United States within the meaning of the above section.
Kennedy v.
Gibson, 8 Wall. 504;
Price v. Abbott, 17
F. 506;
Frelinghuysen v. Baldwin, 12 F. 396;
Hendee v.
Connecticut &c. Railroad, 26 F. 677;
Pacific Bank v.
Mixter, 114 U. S. 463.
But the important inquiry is whether a district attorney is
entitled to special compensation for services rendered by him in a
suit of the class mentioned in section 380.
The appellant's contention is that he is entitled to reasonable
compensation, to be paid from the funds in the hands of the
receiver under that clause of the statute relating to the
dissolution and receivership of national banking associations which
provides that all expenses of any receivership shall be paid out of
the assets of such association before distribution of the proceeds
thereof. Rev.Stat. § 5238.
Page 150 U. S. 345
Section 770 of the Revised Statutes fixes the sum which a
district attorney is entitled to receive on account of salary.
Sections 823 to 827, inclusive, prescribe certain fees that may
be taxed and allowed to attorneys, solicitors, and proctors in the
courts of the United States, to district attorneys, and to other
officers. Those sections are as follows:
"SEC. 823. 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. But nothing herein
shall be construed to prohibit attorneys, solicitors, and proctors
from charging to and receiving from their clients, other than the
government, such reasonable compensation for their services, in
addition to the taxable costs, as may be in accordance with general
usage in their respective states or may be agreed upon between the
parties."
"SEC. 824. On a trial before a jury, in civil or criminal
causes, or before referees, or on a final hearing in equity or
admiralty, a docket fee of twenty dollars,
provided that
in cases of admiralty or maritime jurisdiction where the libelant
recovers less than fifty dollars, the docket fee of his proctor
shall be but ten dollars. In cases at law, when judgment is
rendered without a jury, ten dollars. In cases at law, when the
cause is discontinued, five dollars. For
scire facias and
other proceedings on recognizances, five dollars. For each
deposition taken and admitted in evidence in a cause, two dollars
and fifty cents. For services rendered in cases removed from a
district to a circuit court by writ of error or appeal, five
dollars. For examination by a district attorney, before a judge or
commissioner, of persons charged with crime, five dollars a day for
the time necessarily employed. 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
Page 150 U. S. 346
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 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 percentum 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 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
Page 150 U. S. 347
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
Page 150 U. S. 348
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 or 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 of 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.
