I dissent. The items of $366.38, $750, and $641.20, allowed the plaintiff by the court below, and for which he was given judgment, were for fees legally earned by him in the years 1890, 1891, and 1893, respectively, and duly allowed by the accounting officers, but: withheld by the treasury department upon the ground that they were all in excess of $6,000 per annum, the maximum compensation allowed by law to district attorneys. To make up that maximum, however, the officers of the treasury included mileage fees allowed to the plaintiff, exceeding in amount the aggregate of the three items above stated. In U. S. v. Smith, 158 U. S. 346, 15 Sup. Ct. 846, it was held that mileage fees constitute no part of the compensation allowed district attorneys for service's, from which it necessarily results that the plaintiff was properly awarded, by the court below, judgment for the sums, respectively, of $566.38, $750, and $641.20.
Rut the amounts awarded the plaintiff in the court below in the cases entitled The Pilot against United Btat.es, Dunsnmir against .Bradshaw, United States against Q-ee Lee, and Ross against Eells, have no such basis to rest upon. In the first three of these cases, the sendees for which the plaintiff was allowed compensation were rendered outside of his district, and in this court of appeals at the city of Ban Francisco. The services were rendered by the direction of the attorney general, which officer fixed the compensation to be allowed the plaintiff for his services in the case of The Pilot against United States at the sum of $400, in the case of Dunsmuir against Bradshaw at $310, and in the case; of United States against Gee -Lee at §250. In Ross y. Eells the plaintiff’s services were rendered within the district of Washington, of which district the plaintiff was. United States attorney from the 19th day of February, 1890, to May 30, 1893. In March, 1893, two suits were brought in the state court of Washington by one Frank Ross and certain Indians against Edwin Eells and other officers of the United States, in which suits the plaintiff, at the request of the United *156States, appeared, and caused them to be removed into the United States court for the district of Washington. Part of the plaintiff’s services in those suits were rendered while he held the position of attorney for the government, and a part after his term of office had expired. For the services rendered by him while in office, the attorney general made an allowance to the plaintiff of §400, which has not been paid, and for services rendered by him after his term of office expired, the attorney general made an allowance of §600, for which congress subsequently made an appropriation, and which the plaintiff has received.
The questions, therefore, remaining for decision, 'are whether the plaintiff is entitled to the judgment he recovered in the court below for the respective sums allowed him by the attorney general for his services rendered while in office in his own district in the cases of Ross against Eells and in this court of appeals, in ¡San Francisco, in the cases entitled, respectively, The Pilot against United States, Dunsmuir against Bradshaw, and United States against Gee Lee. And they depend for. solution upon the provisions of the statute; for it is clear that, unless there is statutory authority for the claims of the plaintiff, the court is without power to give judgment against the United States therefor. “Fees allowed to public officers,” said the court, in U. S. v. Shields, 153 U. S. 88, 91, 14 Sup. Ct. 735, “are matters of strict law, depending upon the very provisions of the statute. They are not open to equitable construction by tlie courts, nor to any discretionary action on the part of the officials.'’
Turning, now, to the provisions of the statute in respect, to the compensation allowed district attorneys, we find it provided, by sections 823 and 824 of the Revised Statutes, as follows:
“Sec. 823, Tlie following and no other compensation shall lie taxed and allowed to attorneys, solicitors and proctors in tlie courts of the United States, to district attorneys, * * * except in cases otherwise expressly provided by law. '* * *
“Sec. 824. * * * For examination by a district attorney before a judge or commissioner of persons charged with crime, 85.00 a day for tbe 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, and for his attendance when the court is held elsewhere, $5.00 for each day of the 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, ihe district attorney may be allowed, in addition to attorney's foes heroin provided, a counsel fee in proportion to the importance and difficulty of the cause, not exceeding $30.00.”
Sections 825, 826, and 827 of the Revised Statutes, relating, as they do, to fees allowed the district attorney in revenue cases and in suits on official bonds, have no application to tlie present case, and need not, therefore, be referred to. By section 771 of the Revised Statutes it is provided that:
“It shall be tbe duty of every district attorney to prosecute in his district all delinquents for crimes and offenses cognizable under the authority of the United States, and all civil actions in which the United States are concerned, and, unless otherwise instructed by the secretary of the treasury, to appear *157in behalf of tlie defendants in all suits or proceedings pending in his district against collectors or other officers of the revenue, for any act done by them, or for the recovery of any money exacted by or paid to such officers, and by them paid into the treasury.”
By the section last mentioned it is made the duty of a district attorney, among other things, to prosecute, in his district, “all civil actions in which the United Stab's are concerned.” This requirement is confined to his district, and his compensation, provided for by sections 823 and 824. supra, is for services rendered wiihin his own district. None of these provisions of law relate to service's rendered by district attorneys outside of their districts. By section 3 of the act .passed by congress June 20, 1874 (18 Stat. 109)), it. is provided that:
“No civil officer of the government shall hereafter receive any compensation or perquisites directly or indirectly from the treasury or properly of the United States beyond his salary or compensation allowed by law: Provided, that this shall not be construed to prevent the employment and payment by the department of justice of district attorneys, as now allowed by law, for tile performance of services not covered by their salaries or fees.”
This proviso, Hit' supremo court held, in U. S. v. Smith, supra, “author mes the department of justice to employ and pay district attorneys ‘its now allowed by law’ for the performance of services not covert'd by their salaries or fees,” but that it cannot he ’presumed “that congress intended thereby to throw the door open to district attorneys to charge what they deemed to be, or what proved to be, a reasonable sum for the performance of such services, as the proviso especially limits them to the cases in which they had heretofore been allowed to be employed and paid by the department, for services not covered by their salaries or fees.” The proviso, the court proceeded to say, “was probably designed to be read in conned ion with Rev. St. § 299, providing that ‘all accounts of (he United Urates district attorneys for services rendered in cases instituted in the courts of the United States, * * * where the United States is interested, but is not a party of record, * * * shall be audited and allowed as in other cases, assimilating the fees, as near as may be to those provided by law for similar services in cases in which the United States is a ty.’ ”
It perfectly deal', from the findings of the court below, that the amounts allowed by the attorney general to the plain till, upon which the court below proceeded in giving him judgment for services rendered in his capacity of district attorney in his district in the cases entitled Boss against: Bells, and in this court in the cases entitled, respectively, The Pilot against United States, Ihnmmuir against Bradshaw, and United States against Gee Lee, were not assimilated to the fees and compensation provided for by section 824 of the Revised Bí a hiles; referred to in the proviso to section 3 of the act: of June 20, 3873, as held by the supreme court in U. S. v. Smith, supra. The fact that such assimilated fees often may, and in this case will, be very inadequate compensation, cannot justify this court in sustaining a judgment against the United Btates not justified by the law as it exists.
Whether a district attorney can be compelled to render services for the government outside of his district by the direction of the attorney *158general is a question we are not called upon to decide. That the attorney general is at liberty to call upon the district attorney in each district to defend, as a part of his official duty, the interest of the government in any suit there' pending in which it is interested, seems to be held in the case of U. S. v. Smith. It is also there held that the provision, found in section 363 of the Revised Statutes, authorizing the attorney general, whenever the public interest requires it, to employ and retain, in the name of the United States, such attorneys and counselors at law as he may think necessary to assist the district attorneys in the discharge of their duties, and to stipulate with such assistant attorneys and counselors the amount of compensation, does not contemplate that the district attorney himself shall be so employed.
It results from what has been said that the allowances made by the court below to the plaintiff for services rendered in the cases entitled, respectively, Ross against Eells, The Pilot against United States, Dunsmuir against Bradshaw, and United States against dee Lee, were without authority of law, and that the judgment to that extent is erroneous. I therefore think the cause should be remanded to the court below, with directions to modify the judgment in accordance with the views above expressed.