Page:Federal Reporter, 1st Series, Volume 2.djvu/502

 IN EE UNITED STATES r. CIGABS. 495 �July 13, 1866, (Eev. St. § 3216,) is not, I believe, open to doubt. The act of February 26, 1853, (Rev. St. §§ 823, 828, 839, 842,) prescribes what fees shall be allowed to the elerk, district attorney, and otherofficers; and sections 839, 842 and 844 show, -with great distinctness, that these fees are to be re- tained by the officers, when received, until the limit fixed as the maximum of their compensation is exceeded. Each one of these sections 839, 842 and 844 recognizes this right to retain in plain terma, the last declaring "that every district at- torney, clerk and marshal shall, at the time of making his half-yearly return to the ajitorney general, pay into the treasury * • * • any surplus of the fees and emolu- ments 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 856 provides that "tbe fees of district attorneys, clerks and marshals, * • * in cases where the United States are liable to pay the same, shall be paid on settling their accounts at the treasury." And on this language, and that of the act of July 13, 1866. (Rev. St. 3216,) the argument in support of the motion is based. The "cases where the United States are liable to pay," (referred to in section 856,) are not, however, suits in which the fees are coUected from its antag- onists ; but others, in which it is an unsuccessful party, and, also, where services are required (such as the act specifies) for which no fees are taxed to the defendant. Where the United States is successful, and the fees are recovered from the defendant, it is not liable to pay, and the case does not fall within this section. This construction is reasonable, and conforms to the language employed; while any other would bring the section into conflict, not only with the sev- eral sections before referred to, (which provide, as bas been seen, for the officers' retention of their fees,) but also with the section immediately foUowing it, (section 857,) which directs that "the fees and compensation of officers, and persons hereinbefore mentioned, except those which are direeted to be paid out of the treasury, shall be recovered in like manner ����