“ IN BE DISTRIOT ATTORNEY. 29
is to be limited to such cases, then there is no ground for the action
of the judge, unless section 824 is to be construed to override the pro-
visions of section 838. lf the latter section is designed to cover all
"cases" instituted in court formally, and no others, then what be-
comes of the fixed rates under section 824? May the the judge dis-
regard statutory fees? What are tried, etc., before the judge as
contradistinguished from the court? If the views suggested limiting
compensation to “cases" formally instituted, are to prevail, then a
direct conflict between those sections is presented. The two sections
are reconcilable. They pertain to different matters. Section824
fixes rates of compensation when suits, etc., are formally instituted,
and section 88 provides for the compensation to be given when suits
are not instituted on revenue reports made, but disposed of by the
district attorney in his office. Section 838 must be limited to the
latter "cases," and is designed to provide therefor. Otherwise section
824 is in conflict. The purpose of the statute is to Hx fees in pre-
scribed cases under section 824, and to leave to the judge, under sec-
tion 838, the determination of the proper measure of compensation in
cases disposed of in the district attorney’s office, which, though not
formally before the court, may be brought there. Otherwise the judge
might allow, under section 838, compensation regardless of section
824. In one sense cases are not determined by the judge as such,
but by the court. Certainly narrow distinctions of that nature should
not defeat the clear intent of the statute.
It is not necessary to enter upon a discussion, heretofore presented
to this court, of the constitutional validity of acts of congress devolv-
ing on judges, cis ncminibus, the functions of auditors. It must suf-
nce that the measure of compensation should be largely measured by
rates named in section 824. Taking those rates as a guide, I have
examined the account in open court. Until the act of February 22,
1875, (Supplement, p. 145, c. 95,) the acts of congress seemingly
contemplated the immediate auditing by the judge, without formal
proceedings in open court. Since that act all accounts for fees, etc.,
whether under section 824 or 838, should be considered as within
the act of February 22, 1875. Hence I have caused this account to
be`presented in open court, and after consideration thereof the court
orders the same approved.