4, 1909, 35 Stat., 901), provides, under the heading 'Bureau of Labor,' among other things, for three charwomen. Section 2 of the same act provides that the pay for charwomen provided for in the act, except those employed in mints and assay offices, unless otherwise specially stated, shall be at the rate of $240 per annum each.

"The Commissioner of Labor has reported to the department that it will be advisable to appoint a man in one of these positions of charwoman for the reason that proper cleaning of the floors requires that certain desks which are too heavy for a woman to handle be moved. The duties which it is proposed to assign to the person thus appointed are those which usually pertain to the position of charwoman, and the hours of service will also be the same.

"I am in doubt as to whether an appropriation for salary for a charwoman' would be available for the payment of services of a male person, and accordingly request your decision in the premises."

Primarily the term "charwoman" suggests employment of a female, and I have no doubt that if Congress had intended that "charmen" could be appointed in the Bureau of Labor it would have clearly indicated such intention by the use of language appropriate for that purpose. Thus, in the appropriation for the police court of the District of Columbia, act of March 3, 1909 (35 Stat., 715), provision is made for three charmen at an annual compensation of $360.

Where Congress has employed clear and unambiguous terms in expressing its intent, the language used is not open to construction. It is clear to my mind that Congress did not, in the act in question, contemplate the appointment of a male to the position of charwoman in the Bureau of Labor. I have the honor to advise you, therefore, that the appropriation for charwomen in said bureau is not available for payment for the services of a male person.

CONSOLIDATION OF FEES BY CLERKS OF UNITED STATES CIRCUIT AND DISTRICT COURTS; DETERMINATION OF NECESSARY OFFICE EXPENSES OF CLERKS OF UNITED STATES CIRCUIT OR DISTRICT COURT BY THE ATTORNEY-GENERAL.

Where the same person is appointed clerk of the United States circuit court and also clerk of the United States district court and qualifies under the two appointments, he is thereafter holding two separate and distinct offices, and the expenses incurred in one office are not legally chargeable against the fees earned in the other office.

The same person who holds the offices of clerk of the United States district court and United States circuit court can not consolidate the gross fees of both offices and therefrom deduct the total expenses of both offices, and from the remainder retain his maximum personal compensation in each office.

The Attorney-General is authorized by law to determine the amount of necessary office expenses of a clerk of court, and his approval of this amount is binding upon the accounting officers of the Treasury Department in settling the particular account wherein said expenses are so approved.

Decision by Comptroller Tracewell, July 12, 1909:

Noble C. Butler, clerk of the United States circuit court for the district of Indiana, appealed May 24, 1909, from the action of the Auditor for the State and other Departments in the settlement of his account under "Excess of fees and emoluments," calendar year 1908, wherein the auditor, per judicial certificate No. 8820, dated April 10, 1909, allowed the clerk credit in the sum of $3,304.73 for necessary clerk hire and necessary office expenses as approved by the Attorney-General, and disallowed in said settlement $440.37 claimed by the clerk for expenses in excess of the amount so approved. In this settlement it is noted that a balance was found due the United States of $312.74, which the clerk states he has paid into the Treasury since said settlement was made and prior to his taking this appeal.

Mr. Butler is also the clerk of the United States district court for the district of Indiana, and the said sum of $440.37 has been approved by the Attorney-General as covering expenses incurred in that court. No account for "Excess of fees and emoluments," calendar year 1908, has been settled by the auditor with Mr. Butler as clerk of the district court, for the reason that after deducting from the gross fees in that court the expenses approved by the Attorney-General no excess of fees exists.

The auditor's action in refusing credit in the above settlement for clerk hire and office expenses in excess of the amount approved by the Attorney-General as necessarily incurred in the circuit court is based upon sections 839, 844, and 845, Revised Statutes, and 2 Comp. Dec., 434, 5 id., 886, and 7 id., 585, as well as the uniform practice of the accounting officers

in such matters continuing uninterruptedly for a period of fifty years or longer.

The clerk contends that the action of the auditor in refusing him credit in the above settlement for $440.37 is illegal, and that taking into consideration both his circuit and district court accounts and returns he is entitled to a net balance of $128.46 from the United States, which the auditor refuses to certify for payment to him. He also contends that the method adopted by the Attorney-General in determining the amount of necessary expenses allowable to him as clerk of the circuit and district courts is improper, and that section 1382 of "Instructions to clerks of United States courts," promulgated by the Attorney-General April 1, 1904, providing that where the same person is clerk of both courts the office expenses should be apportioned in accordance with the earnings of the two courts, is illegal and void, etc.

The facts show that Mr. Butler, as clerk of the circuit and district courts, incurred and paid (as shown by vouchers) expenses for clerk hire, stationery, etc., during the calendar year 1908, as follows:

The clerk, in rendering his semiannual emolument returns, distributed the above items therein in the following manner, under the head of "Office expenses paid out of gross emoluments, as authorized by law and regulations:"

The gross fees earned during the calendar year 1908, as reported by the clerk, are as follows:

The total fees in both courts ($7,651.94 plus $6,050.21) amount to $13,702.15.

The above items and figures are set out for the purpose of making the questions involved in Mr. Butler's appeal more readily understood. From these figures it will be seen that, if the clerk is allowed to apportion his expenses in the manner attempted by him in his returns, he would, after deducting $3,745.10 expenses from the gross fees in the circuit court, $7,651.94, have left $3,906.84, out of which he would retain $3,500 as his personal compensation and pay the surplus of $406.84 into the Treasury; and in the district court, if he were allowed to deduct $2,245.85 expenses from the gross fees in the district court, $6,050.21, he would have left $3,804.36, out of which he would retain $3,500 as his personal compensation and pay the surplus of $304.36 into the Treasury. He would thus retain his maximum personal compensation of $3,500 in each court, or a total of $7,000 clear, and turn into the Treasury a total surplus ($406.84 plus $304.36) equal to $711.20.

But the Attorney-General declined to adopt Mr. Butler's method of distributing his office expenses, and approved expenses to the amount of $3,304.73 as necessary in the circuit court, and to the amount of $2,686.22 in the district court. When $3,304.73, approved and allowed by the AttorneyGeneral as necessary expenses incurred in the circuit court, is deducted from the gross fees in said court, $7,651.94, there is left $4,347.21, out of which the clerk would be entitled to retain $3,500 as his personal compensation, thus leaving a balance of $847.21 to be deposited into the Treasury; and in the district court, if expenses to the amount of $2,686.22, as approved by the Attorney-General, were deducted from the gross fees, $6,050.21, in that court, there would be left $3,363.99, or $136.01 less than the clerk's maximum personal compensation, and obviously there would be no excess of fees in that court.

From the above it will be observed that the clerk's appeal presents two questions for my consideration and decision:

First. Whether Mr. Butler, who is the clerk of the United States circuit court and also clerk of the United States district court, is entitled to consolidate the gross fees of his two offices ($7,651.94 plus $6,050.21 equals $13,702.15) and therefrom deduct the total expenses of both offices ($5,990.95) and from the remainder ($7,711.20) retain his maximum