Opinion of the Court.

upon them, shall be deemed always open, for the purposes of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules and other proceedings, preparatory to the hearing upon their merits of all causes pending therein. And any District Judge may, upon reasonable notice to the parties, make, and direct and award, at chambers, or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the

court."

"§ 638. The Circuit Courts, as courts of equity, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules, and other proceedings, preparatory to the hearing upon their merits of all causes pending therein. And any judge of a Circuit Court may, upon reasonable notice to the parties, make, and direct and award, at chambers or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court."

As will be seen from those sections, the District and Circuit Courts of the United States are always open for the transaction of certain kinds of business which, we think, may be transacted under the orders of the judge, who may at the time be absent from the place, room or building in which the court is held. The business transacted by the appellee was such as could be transacted by the clerk under the orders of the judge. It is too narrow an interpretation of the statute to hold that such business was not actually transacted in court. This whole subject was carefully considered and the statutes relating to it fully analyzed by Judge Baker in Butler v. United States, 87 Fed. Rep. 655.

These views are justified by long practice in the Department, and upon that we may properly rest our affirmance of the judg ment of the Court of Claims. It is found as a fact that the present appellee, in every account rendered by him since 1882,

JUSTICES BROWN, WHITE and PECKHAM, dissenting.

has charged for services similar to those set out in the account here in suit, and such accounts were uniformly allowed and paid up to June 30, 1893. And on his account for the period from January 1, 1892 to June 30, 1894, he obtained judgment in the Court of Claims, which judgment was paid-no appeal having been prosecuted by the United States. Finnell v. United States, 32 C. Cl. 634. It thus appears that the Government has for many years construed the statute of 1887 as meaning what we have said it may fairly be interpreted to mean, and has settled and closed the accounts of clerks upon the basis of such construction. If the construction thus acted upon by accounting officers for so many years should be overthrown, we apprehend that much confusion might arise. Of course, if the departmental construction of the statute in question were obviously or clearly wrong, it would be the duty of the court to so adjudge. United States v. Graham, 110 U. S. 219; Wiscon sin C. R'd Co. v. United States, 164 U. S. 190. But if there simply be doubt as to the soundness of that construction—and that is the utmost that can be asserted by the Governmentthe action during many years of the department charged with the execution of the statute should be respected, and not overruled except for cogent reasons. Edwards v. Darby, 12 Wheat. 206, 210; United States v. Philbrick, 120 U. S. 52, 59; United States v. Johnston, 124 U. S. 236, 253; United States v. Alabama G. S. R'd Co., 142 U. S. 615, 621. Congress can enact such legislation as may be necessary to change the existing

practice, if it deems that course conducive to the public in

terests.

The judgment of the Court of Claims is

MR. JUSTICE GRAY took no part in this decision.

Affirmed.

MR. JUSTICE BROWN, with whom concurred MR. JUSTICE WHITE and MR. JUSTICE PECKHAM, dissenting.

From the passage of the act of 1791, fixing the compensation of officers of the courts of the United States, the subject of

JUSTICES BROWN, WHITE and PECKHAM, dissenting.

fees for attendance upon the Circuit and District Courts appears to have been one of constant dispute between the officers on one hand, who naturally seek a construction of the fee bill favorable to them, and the Treasury officials upon the other, whose duty it is to supervise and pass upon the accounts of these officers. A statement of some, although by no means all, the acts of Congress upon this subject may aid in the solution of these difficulties. The earliest is that of March 3, 1791, 1 Stat. 216, wherein there was allowed "to the clerk of the District Court, for attending in the District or Circuit Court, five dollars per day." The act, however, was made temporary, and at the next session, May 8, 1792, 1 Stat. 277, certain changes were made, though none in the matter of attendance.

The law upon the subject of attendance was apparently not changed until April 18, 1814, 3 Stat. 133, when it was provided, under “an act to lessen the compensation" of such officers, that there should not be allowed or paid to the clerk of the Circuit or District Courts of the United States in Massachusetts, Rhode Island, Connecticut, the Southern District of New York, or Pennsylvania, "any daily compensation for attending on the said courts." Why this discrimination was made we have no means of knowing, but the act was repealed March 8, 1824. 4 Stat. 8. No important change was made in the law until 1842, when in the Civil and Diplomatic bill of May 18, 5 Stat. 475, 484, it was provided that no per diem compensation should be paid to clerks for attendance upon the Circuit or District Courts "while sitting for the transaction of business under the bankrupt law merely, or for any portion of the time during which either of said courts may be held open, or in session, by the authority conferred in that law.

And no per diem or other allowance shall be made to any such officer for attendance at rule days of the Circuit or District Courts," or for more than one per diem while both courts are in session.

But even before this act of 1842 was passed, it had been held by Mr. Justice Story in United States v. Cogswell, 3 Sumn. 204, which involved the validity of marshal's charges for attendance upon rule days, that as the marshal did not either

JUSTICES BROWN, WHITE and PECKHAM, dissenting.

travel to or attend these rule days at the clerk's office, his claim was for a constructive travel and attendance; "but we are of opinion that this charge, whatever might be its validity, if the marshal had actually traveled and attended at these rules, is, under the circumstances, wholly inadmissible. To justify the charge an actual travel and attendance are, in our judgment, indispensable."

By act of February 26, 1853, 10 Stat. 161, R. S. sec. 828, the whole subject of fees was revised, and an attendance fee allowed to the clerk of $5 per day for his attendance on the court while actually in session." By that act the words "while actually in session" were first introduced into the law. It is evident that some change was contemplated by the use of these words. For some purposes, notably in admiralty and equity cases, (R. S. §§ 574, 638,) the court may be deemed to be sitting when a judge is present upon a rule day, or makes an order which can only be made by the court; but, as we shall show hereafter, no attendance was contemplated on these days, at least in the absence of the judge.

The words "actually in session," found in the act of 1853, are emphasized by the sundry civil appropriation act of March 3, 1887, 24 Stat. 509, 541, wherein it is enacted as follows: That hereafter no part "of any money appropriated (shall) be used in payment of a per diem compensation to any attorney, clerk or marshal for attendance in court, except for days when the court is open (opened) by the judge for business, or business is actually transacted in court, and when they attend under sections 583, 584, 671, 672 and 2013 of the Revised Statutes, which fact shall be certified in the approval of their accounts." The special sections here mentioned and reproduced in full in the opinion of the court may be dismissed from consideration, as, with the exception of section 2013, since repealed, they relate to cases where there is no judge present at the opening of the term, when special authority is given to the clerk or marshal to adjourn the court from day to day until a judge is present. As no claim is made in the case under consideration for attendance under these sections, they are only important here as indicating the will of Congress that neither the clerk nor the

JUSTICES BROWN, WHITE and PECKHAM, dissenting.

marshal, should have an unlimited discretion in opening the court in the absence of the judge, and requiring a special authority for that purpose. These sections undoubtedly contemplate a special exigency, to prevent a lapse of the term, which might follow from the absence of the judge, and to allow the court to be adjourned for a limited number of days. In two of these sections (584 and 671) there is a provision that, if the judge does not attend before the close of the fourth day, the court shall be adjourned until the next regular term. We have already held in the case of United States v. Pitman, 147 U. S. 669, that the officers are entitled to per diem fees for attendance under these sections, the same as if the judge were present and business were transacted.

By Rev. Stat. sec. 828, under which this claim is made by the petitioner, the court must have been "actually in session," and by the act of 1887 the court must have been opened by the judge for business, or business must have been actually transacted in court. There is no conflict between these acts, since, in order that the court be opened by the judge for business, it must be "actually in session," and if business be actually transacted in court, the court must be opened for the transaction of such busiIn either case the court must have been actually opened by the judge or actually in session, which amounts to the same thing. As the petitioner bases his claim upon section 828, we shall inquire, first, when the court is actually in session. It is certainly not in session upon rule days, since, by Rev. Stat. section 831, "no per diem or other allowance shall be made

ness.

for attendance at rule days of a District or Circuit Court." We are then remitted to the real question in this case: When is a court actually in session, for we agree entirely in the opinion of the court that if the court be opened by the judge in person, and no business is transacted, the per diem compensation. is still payable.

We had supposed the law to be that no court could be in session without the presence of a judge, and that the sections above cited from the opinion of the court in this case (583, 584, 671, 672,) allow an attendance to be charged, not because the court is actually in session, but to prevent a lapse of the term, when