#### JOHN J. ALLEN v. THE UNITED STATES.

[40 C. Cls. R., 170; 204 U. S. R., 581.]

*On the claimant's Appeal.*

Tlie Supreme Court holds in the *Sowtlworth case*that where no arrest was made and no examination took place no case existed entitling a commissioner to the $10 fee prescribed by Revised Statutes, section 1980. In this case the claimant seeks to recover fees in detail for drawing complaints, warrants, etc., where no arrest was made. The principal question in the case is whether the fee of $10 is the only fee which a commissioner is entitled to receive for services rendered relating to elections. The defendants have allowed and paid the commissioner fees in detail prior to the Southworth claim.

The court below decides:

1.Where a commissioner’s account is suspended at the Treasury for explanation and none is given, the court will not exercise jurisdiction.

2. A commissioner acting under the title “Elective franchise” (sec. 2020, Revised Statutes) was not entitled to compensation for certifying complaints with the records to the chief of the supervisors of elections.

3. A commissioner acting under that title was not entitled to any compensation where no arrest was made. He was entitled either to the prescribed fee of $10 or to nothing, and to the $10 only when a case was made b ythe arrest of the party. (Revised Statutes, sec. 1980.)

4. The law of the State in which the service is rendered can be looked to in ordinary cases to determine what services were necessary ; but will not justify compensation for preliminary proceedings in cases under Revised Statutes, section 1986.

5. The law of a State will not justify the allowance of a per diem in proceedings under Revised Statutes, section 1986, where the fee of $10 is “ *exclusive of all services incident to the arrest and examination.’’*

6. Repeals by implication are not favored; but that principle does ’ not extend to a statute defining for the first time a new class of offenses.

7. The drawing of a complaint, administering an oath, and issuing a warrant are incidents of a case, but do not make a case under the statute if there was no arrest.

8. The *act 3d, March, 1893*(27 Stat. L., 609), conferring jurisdiction in cases of election arrests upon the nearest judicial officer, must be interpreted without reference to its effect upon commissioners’ claims for fees.

*5299.Warrants issued but withheld must be regarded as unnecessary, and can not be made the basis of a claim for fees.

10. Warrants issued but not served do not take a ease out of the decision of the Supreme Court in the *Soutlnoorth case*(151 TJ. S. R., 179) and are sufficient to make cases from which fees can arise.

11. Where the Treasury under a misconstruction of the law allowed detail fees in civil-rights cases as in others where there were no arrests, the allowances were not authorized by law.

12. The accounting officers should not rescind an allowance that has been made to an officer and pursue him to recover back the money where the transaction remains closed, but if he comes into court and seeks to open it it is their duty to see that improper allowances theretofore made be deducted. Where an officer seeks to recover the lawful fees in an account which includes unlawful charges, he opens the entire account.

The decision of the court below is affirmed on the same grounds.

Feburary 25, 1907.

Mr. Justice Holmes

delivered the opinion of the Supreme Court