40 F. 226 -

H'm:RHOT;r'. UNITED STATES.

223

vision Is not intended to have a wider scope than the expenditure of the nloney. appropriated by this portion of the bill. As a matter of fact, though it is not proven in this record, the comptroller, disallowing these fees, has allowed them to commissioners in this circuit without question since the passage of the act of August, 1886; thus construing the proviso as operating only to prevent the use of the money thereby appropriated to the payment of such docket fees earned during the fiscal year of 1886 and prior years. The act in question was simply a deficiency appropriation bill. Its function was only to appropriate money to pay sums already due from the government. It contains no single provision other than an appropriation of public money for this purpose; and that this proviso was intended to repeal a general law on the subject of fees of over 30 years' standing, without any reference to it, and without any clause repealing it in terms, and without any general repealing clause, will not be imputed to congress, and the court ought not to so presume. These fees should therefore be allowed to the plaintiff. 2. The fees of chief supervisors of election are prescribed by section 2031 of the Revised Statutes, which provides that they shall be allowed and paid, for services as such,certain "compensation apart from and in excess of all fees allowed by law for the performance of any duty as circuitcourtcommissioner."· Their duties are mainly prescribed by sec2020,2026, Rev. St. (a.) The plaintiff here, as chief supervisor, prepared and furniShed instructions to the supervisors concerning their duties at the registration of voters at Louisville, for which he claims $322.50, and like instructions for their guidance at the election in that city for member of congress, his charge for which is $427.05, together with instructions for the election supervisors in other towns (of less than 20,000 inhabitapis) where there was no registration, claiming therefor $161.70; in all $911.25. The statute requires the chief supervisor to prepare and furnish·· the supervisors with all necessary "instructions" for their "direction" in the discharge of their duties; and ·an examination of the various provisions of the law on this subject will show that their functions are different in the large cities of over 20,000 population, from what they are in amallercities and in theoountry; hence these different sets of instructions for which plaintiff claims compensation at 15 cents per folio,some being 10, others 11, and the rest 13 folios in length. There are tWo reported cases as to these fees for instructions by chief supervisors: I'll, Conrad, 15 Fed. Rep. 641, and GayfJl' v. U. S., 33 Fed. Rep. 625: the former decided in 1883, and the latter in 1888. In the Conrad Case, the chief supervisor was held entitled to be paid for such instructions 15 cents per folio; while in the GayfJl' Case he seems to have been allowed that fee for preparing the instructions, and a fee of 10 cents a folio for the copies of them sent to the supervisors. Since this case was submitted to the court, plaintiff has furnished an additional brief, showing recent rulings by the accounting officers of the treasury, made with the approval of the attorney general, under which such instructions arll paid for at the. rate' claimed hete; and there has been filed the ·original

FEDERAL REPORTER,

vol. 40.

report from the first comptroller's offioe, dated June 8, 1889, allowing to the. chief supervisor in Indiana, on a rehearing of the disallowances in his acoount, the fees for similar instructions at 15 cents a folio; and other supervisors in this judicial circuit have since been paid similar fees, as I arn informed. These instructions seem to have been issued to the supervisors generally; but the proof shows that upon notice they appeared before the chief supervisorin person,and were orally instructed as to their duties, 10 addition to each receiving one of the printed instructions, and it is not conceived that under such circumstances the officer's fees would be different from what they would where original instructions were issued to each supervisor, and addressed to him over the signature of the chief supervisor, though the latter is certainly the safer and better course. And while, .of course, the construction given by the accounting officers to a statute is not binding upon the courts, it would seem to be a hardship to adjudioate the question against the petitioner, where there is really no contest between the parties over it, and where it is conceded the amount charged is correct. It is accordingly al(b) As to the special instructions issued respectively to 23 supervis-

.

<lrs at one time, and to 22 at another, concerning particular subjects and particular names of voters,-on the one hand appearing on the registration lists, and on the other hand denied registratioIi,-there can be no doubt that each was an original, and should be paid for at 15 cents per folio,.the feesfor which amount, respectively, to $14.75 and 87.70; and the same are allowed, together with the fee of 10 cents for filing returns of same, $4.50. (c) The petitioner charges 15 cents each for notices sent by him as supervisor to the various supervisors by mail; the fees amounting in all to $79.35: The court appointed these snpervisors upon information furnished to it by the chief supervisor, (section 2026, Rev. St.;) and it was his duty to receive, preserve, and file their oaths as such, to properly instruct them as to their duties, and to receive from them" all certificates, returns, reports, and records of every kind and nature," under the provisions of the act authorizing their appointment. The statute does not provide how these officers shall be notified of their appointment, nor, in terms, whose duty it is to so notify them; but the chief snpervisor is in a sense their immediate superior, and such notification by him is eminently proper, and there should be some provisions made to pay for the service, but the courts cannot make a statute, or supply its omissions by strained constructions. It seems that no statute has taken notice of such items of official service by the chief supervisors, and provided a fee for them. (d) In the correspondence between the attorney general and the chief supervisor and marshal at Louisville (a copy of which is filed in this record) concerning the payment by the latter of the election supervisors and deputy-marshals, the petitioner was required to furnish the marshal with copies of.all their oaths of office, for which he claims here $135.90. The oaths were on file in his office, and he was their proper custodian.

M'DERMOTT V. UNITED STATES.

225.

Rev. St. § 2026. For a copy of any paper on file, the statute allows him 15 cents a folio. Id. § 2031. It was his duty to make and furnish these copies, and the statute fee therefor is certainly chargeable to the government. The petitioner has computed the copies at 15 cents a folio for the copy, and 15 cents for his certificate thereto; which makes this claim $135.90 for the copies, and $67.95 for the certificates thereto, for which he is entitled to judgment. (e) In addition to these copies of their oaths, the chief supervisor was required to furnish his own official certificate, to be attached by the marshal to each deputy-marshal's and supervisor's account, showing the number of days each performed service as such officer. The instructions contained in the correspondence above referred to, as well as the correspondence between the petitioner and the district attorney, show this beyond any question; and the fee of 15 cents for each such certificate is charged in accordance with the statute, and amounts to $67.95 in all. (f) Petitioner was obliged to attend the United States court at Covington in the performance of his official duties as chief supervisor, and and he charges mileage at 10 cents a mile one way for 110 miles. The statute gives neither commissioners nor chief supervisors mileage in any case whatever; nor can the court. It was doubtless the petitioner's duty to attend the court as he did; and, as it will not be presumed that the law requires duties and expenses from an officer without compensation, perhaptl petitioner's expenses on this trip to Covington might be recoverable, were they sued for; but the claim for mileage must be allowed. (g) Section 2026, Rev. St., prescribes, among other duties of the chief supervisor, that he shall cause the names of those who may register and vote, or either, "whose right to register or vote is honestly doubted, to be verified by proper inquiry and examination," etc.; and, in pursuance of this authority, petitioner administered an oath to each of 23 voters who were refused the right to register, and he charges 10 cents each for same. and 15 cents for the certificate or jurat to such oath. As these are the fees prescribed by law, plaintiff should be allowed this compensation for his services in this behalf, in the sum of $5.75, as claimed. (h) The remaininll; item of $125 is for a per diem fee of $5 a day for attendance on the circuit courts of Kentucky, 25 days, in the discharge of his duties as chief supervisor. Section 2011, Rev. St., provides that "within not less than ten days prior to the registration." or election, if there be no registration, the court shall be open for the transaction of the business contemplated by the statutes, (title 26,) and" shall proceed to appoint and commission, from day to day, and from time to time," the election supervisors, (Rev. St. § 2012.) The chief supervisor is required to receive all applications for the appointment of supervisors; and, "upon the opening * * * of the circuit court for the judicial circuit in which the commissioner so designated [as chief supervisor] acts, he shall present such app)ications to the judge thereof, and furnish information to him in respect to the appointment by the court of such .8Uv.40F.no.4-10