Page images

Penalty for il.

SEC. 1787. Every person who knowingly accepts or holds legally holding otlice.

any office under the United States, or any State, to which Idem, s. 15.

he is ineligible under the third section of the fourteenth See note 3.

article of amendment of the Constitution, or who attempts to hold or exercise the duties of any such office, shall be deemed guilty of a misdemeanor, and shall be imprisoned not more than one year, or fined not more than one thousand dollars, or both.

Note 3.--Functionaries of the Government in all of its Departments, civil or mili. tary, supreme or subordinate, general or provincial, political or municipal, are undoubtedly public officers. (Op., VIII, 107, Cushing, Sept. 30, 1856.)

No public oflicer has authority to enter into a submission on behalf of the United States which will be binding, unless the power be given by statute. (U.S. v. Ames, 1 Woodbury & Minot, p. 70, B. F. D.).

The acts of a public officer, on public matters within his jurisdiction and where he has a discretion, are presumed to be legal until the contrary be shown. (Miller v. Dinsman, 7 Howard, p. 89, B. F. D.)

Whero a particular authority is confided to a public officer, to be exercised in his discretion, upon an examination of facts, of which he is the appropriato judge, his decision thereon, in the absence of any controlling provision, is absolutely final. (Allen v. Blunt, 3 Story's Reports, 742, B. F. D.)

The executivo oslicers of the Government aro personally liablo at law for damages, in the ordinary form of action, for illegal official ministerial acts or omissions, to the injury of an individual. Brightley Federal Digest. p. 597. Citer authorities.)

A public officer, sued for an illegal act, can not justify under the instructions of the head of an Executive Department.

An officer is responsiblo in damages for an illegal act done under instructions of a superior, but the Government is bound to indemnify him.

Where a statuto imposes a particular duty mpon an executive officer and he has acted (performed his duty according to the understanding of the statute), there is no appeal from his action to the President or to any other executive officer, unless such appeal is provided for by law. (Op., XVI, 317, Devens, May 2, 1879.)

Usages havo been established in erery Department of the Government, which havo become a kind of common law, and regulato the rights and duties of those who act within their respective limits. And no such change of usage can have a retrospec. tive effect, but must be limited to the future. Usago can not alter the law, but it is evidence of the construction given to it, and must be considered binding on past transactions. (VII, Poters, 1-14, cited by Cushing; Op. VIII, 7.)

An Executive Department has no righi to omit or delay thodischarge of the duties imposed upon ii by law, at the request of a committee of a House of Congress; it can only pay attention to such a roquest when it affects a discretionary power. (Op., XIII, 113, Hoar, June 22, 1869.)

No process issued under the anthority of a State government can obstruct, directly, or indirectly, the operations of the Government of the United States. (Op., XV. 524.)

Where an officer of the United States is acting for the Government in any transaction, the benefits of which are to the Government, or where the end is to protect the interests of the Government, there seems to be good ground why the Government shoull interpose and assume his defense in case he is sued on account of such pro. ceedings. (Op., XIV, 189, Williams, 20 Feb., 1873.)

The orders of the head of an Executive Department, in reference to matters within its general supervision and control, are in contemplation of law those of the Presi. dent, and have the same binding effect. (Otto, 101, p. 755; Wolsey v. Chapman, see 13 Peters, 498; Wilcox v. Jackson; also Op., IX, 463, and XI. 400.)

It is a settled rulo of administrative practice that the official acts of a previous administration are to be considered by its successors as tinal so far as the Executive is concerned. (Op., XV, 208.) The Secretary of the Interior should not review the decision of his predecessor, no new facts having been presented. Princijal of res adjudicata applies. (Op., X1,315, Devens; see also Op. VIII, 214, and V, 29.). The well.considered decision of the head of a Department ought only to be reversed upon clear evidence of mistake or wrong. (Op., X, 63.)

Congress, in case of appointments, may provide that certain acts shall bo done by the appointee before he shall enter on the possession of his office under his appoint. ment. These acts then become conditions procedent to the complete investure of the office. (U. S. v. Le Baron, 19 lIoward, 78.)

In a matter which the law contides to the pure discretion of the Executive, the decision by the President or the proper head of the Department, of any question of fact involveul

, is conclusive and is not subject to revision by any authority in the United States. (Op., VI, 226, Cushing, Nov. 23, 1853.),

The lawful will of the President may be announced and an act in the authority of the President be performed, not only by a load of a Department, but in the second or other degree of delegation by some officer subordinato to such head. (Op VII, 453, Cushing, Aug. 31, 1855. See this opinion for a full discussion of the relation of the President to the Executive Departments.)

A public officer is not liable to an action for an honest mistake made in a matter where he was obliged to exerciso his judgment, though an individual may thereby suffer. (Kendall 0. Stokes, 3 Howarıl, 87. B. F. D.)

The power of pardon, conferred by the Constitution on tho President, is unlimited except in case of impeachment. It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendeney, or after conviction and judgment. The power is not subject to legislative control. A pardou reaches the punishment prescribed for the offense and the guilt of the offender. If granted before conviction it pre.


184. Subpanas to witnesses on claims

185. Fees of witnesses.
186. Compelling testimony.
187. Professional assistance, how ob.

taiped. 190. Former employés acting as counsel. 236. Public accounts to be settled in the

Treasury. 3109. Compromise of claims. 3177. Assignment of claims void, unless,


3478. Oath by persons prosecuting claims.
3479. Who may administer oath.
3490. Claims of disloyalists.
5454. Unlawful taking papers relating to

5498. Officers, etc., interested in claims.
Act Mar. 3, 1875. Deductious of debts due

United States,
Claims against exhausted appro-

Claims based on fraud.

Title 4.


Se note 1.

SEC. 181. Any head of a Department or Bureau in which a claim against the United States is properly pending may Subpenas apply to any judge or clerk of any court of the United witnesses.

Feb. 14, 1871, s. States, in any State, District, or Territory, to issue a sub-1.1. 16. p.412 pæna for a witness being within the jurisdiction of such court, to appear at a time and place in the subpæna stated, before any officer authorized to take depositions to be used in the courts of the United States, there to give full and true answers to such written interrogatories and crossinterrogatories as may be submitted with the application, or to be orally examined and cross-examined upon the subject of such claim.

SEC. 185. Witnesses subpænaed pursuant to the preced. Witnesses' fees. ing section shall be allowed the same compensation as is 1, v. 16, p. 412. allowed witnesses in the courts of the United States.

Feb. 14, 1871, 8.

See note 2.

vents any of the penalties and disabilities consequent upon conviction from attach: ing; if granted after conviction it removes the penalties and disabilities, and restores him to all his civil rights. It gives him a new credit and capacity. There is only this limitation to its operation-it docs not restore offices forfeited or property or interests vested in others in consequence of the conviction and judgment. (sic., Wallace, 4, p. 334, Dec., 1866.)

Fines and penalties, where they have not been actually covered into the Treasury, are restorable under a full pardon. (Op., XVI, p. 3, Apr. 29, 1878, Derens. See also Op., XIV, June 28, 1872, Williams; XII, 81, Stanbery; VIII, p. 281, Cushing; Holt's Digest, p. 261.)

The pardon of a decoased officer or soldier is impracticable for the reason that it is essential to the validity of a pardon that it should be accepted. A pardoo, like a deed, must be delivered to and accepted by the party to whom it is granted in order to be valid. (Holt's Digest, p. 262, cites U. S. v. Wilson, 7 Peters, 130.)

A remission of the penalty by a pardon by the President will restore an officer whose rank has been reduced by sentence of a court-martial to his former relative rank according to the date of his commission. (Case of an officer reduced in rauk by baving his name placed lower down on the list of officers of the same grade. The officer loses such opportunities for promotion ay may in the meantime have occurred.) (Op., XII, p. 517, Jan. 22, 1869, Evarts.)

The pardoning power of the President can not reach an executed sentence which has been regularly imposed by a competent court. When a sentence has been executed in part he can remit the remainder. (Holt's Digest, p. 260.)

For a statement of the principal grounds on which the Judge Advocate-General of the Army has favored parion or remission of the unexpired punishments of soldiers, see Winthrop's Digest, pages 359-360.

An application for a parion was addressed to the President and referred to the War Department. The latter asked the opinion of the Attorney-General on the subject, who declined to give it, as it would only be advising the Secretary of War what to advise the President. (Op., XIV, p. 20,"Mar. 23, 1872, Williams.)

The general power of pardoning by the President includes the power oi parloning couitionally, or of commuting to a milder punishment that which has been adjudged against the offender. The commutation of ihe President is but a conditional pardon, and that the President may grant such a conditional pardon has been always recog. nized and decided. (Op., V, 368, May 10, 1851, Crittenden, cites U. S. v: Wilson 7 Peters, 158.)

Note 1.-Where the law imposes ou officers the examination and settlement of claims, it gives them the authority to require that the claim shall be established, or supported at least, by oaths of witnesses. (Op., XIV, Williams, July 23, 1874.)

Note 2.-Under sec. 818, R. S., for each day's attendance in court or before any ofli. cer, pursuant to law, a witness is allowed one dollar and fifty cents, and tivo cents a mile for going from bis place of residence to the place of trial or hearing, and tive cents a mile for returning. When subponaed in more than one cause between the same parties, at the same court, only one travel tee and one per diem compensation for attendance shall be allowed. (See sec. 850, Traveling Expenses, Division 1.)

sistance, how ol).

in them.

Compelling tes SEC. 186. If any witness, after being duly served with timony. Idem. such subpæna, neglects or refuses to appear, or, appearing,

refuses to testify, the judge of the district in which the subpoena issued may proceed, upon proper process, to enforce obedience to the subpæna, or to punish the disobedience, in like manner as any court of the United States may do in case of process of subpæna ad testificandum

issued by such court. Professionalas.

SEC. 187. Whenever any head of a Department or Bureau tajned. having made application pursuant to section one hundred Idem, s. 3.

and eighty-four, for a subpona to procure the attendance of a witness to be examined, is of opinion that the interests of the United States require the attendance of counsel at the examination, or require legal investigation of any claim pending in his Department or Bureau, lie shall give notice thereof to the Attorney-General, and of all ficts necessary to enable the Attorney-General to furnish proper professional service in attending such examination, or making such investigation, and it shall be the duty of the Attorney

General to provide for such service. Persons for SEC. 190. It shall not be lawful for any person appointed merly in the Departments not to

after the first day of June, one thousand eight hundred and prosecute claims seventy-two, as an officer, clerk, or employé in any of the

"June 1, 1872,8. Departments, to act as counsel, attorney, or agent for pros5, v. 17, p. 202.

ecuting any claim against the United States which was See note 3.

pending in either of said Departments while he was such officer, clerk, or employé, nor in any manner, nor by any means, to aid in the prosecution of any such claim, within two years next after he shall have ceased to be such officer,

clerk, or employé. Title 7, chap. 1. SEC. 236. All clains and demands whatever by the

Mar. 3, 1817, s. United States, or against them, and all accounts whatever 2, v. 3, p. 366.

in which the United States are concerned, either as debtors
or as creditors, shall be settled and adjusted in the Depart.
ment of the Treasury.
Note 3.-By the act of Jnly 11, 1861, a member of Congress eleet is, previous to as

as after taking the oath of office, lebarred from acting as counsel for parties, and from prosecuting claiins against the Government before any Department, court. martial, bureau, office, or any civil, naval, or military commnission, it he has received, or has agreed to receive any compensatiou whatever, directly or indirectly, therefor. (Op., XIV, 133, Williams, Nor. 2, 1872.)

See note 4.

[ocr errors]

Note 4.-Services voluntarily rendered, however valuable, and however strongly they may appeal to the liberality and equity of the Government, can not be said to give the party who renders them a legal right to compensation. The person must have been duly appointed to some otlice, or duly employed in some duty recognized by law. (Op., 111, 357, Butler, Ang.13, 1838.)

Services voluntarily performed without contract for compensation create no legal liability. (C.C., XII.)

An agent who received payment on a claim in good faith and paid it over to his principal before informed of a mistake made, is not liable. The principal is liable either at the snit of the rightful claimant or of the United States. Trrasiry who wade the mistake is legally chargeable with the amount, to be passed to his credit on recorering the money. The rightful owner does not lose his right to be paid out of any money in the Treasury not otherwise appropriated, as the law authorized. (Op., XVI, 193, Devens, Oct. 23, 1878: sen also Op., IV, 298, 307; V', 183.)

Claims against the Goverument which are disputed by the officers authorized to adjust such accounts may be compromised. If the claimant voluntarily enters into such a compromise, accepting a smaller sum tan bis demand and giving a receipt in full for the whole, he is bound by the adjustment. (C. C., v. 8, p. 134, Sweeney's Case.)

Where Congress appropriated a certain aim to pay a claimant, and the head of a Department found a less sum due and paid the latter, the appropriation was exhausted when the amount awarded way paid. A succeeding Secretary has no jurisdiction to award claimant an additional sum. (Op., IX, 451, Black, July 20, 1860; seo also Op., X, 238, Bates, Apr. 29, 1862.) If funds to pay a claim are sent at request of claimant, by express, the claim is

The otticer of the 1853, s. 1, v. 10, p. .

Title 36.

10, v. 12, p. 740.

Title 36.

SEC. 3469. Upon a report by a district attorney, or any special attorney or agent having charge of any claim in Compromise favor of the United States, showing in detail the condition Mar: 3, 1863, s. of such claim, and the terms upon which the same may be See note 5. compromised, and recommending that it be compromised upon the terms so offered, and upon the recommendation of the Solicitor of the Treasury, the Secretary of the Treas. ury is authorized to compromise such claim accordingly. But the provisions of this section shall not apply to any claim arising under the postal laws.

SEC. 3477. All transfers and assignments made of any claim upon the United States, or of any part or share

Assignments of thereof, or interest therein, whether absolute or conditional, claims void, unand whatever may be the consideration therefor, and all July 29, 1846, v. powers of attorney, orders, or other authorities for receivp:11; Feb. 26, ing payment of any such claim, or of any part or share 170. thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. Such transfers, assignments, and powers of attorney, must recite the warrant for payment, and must be acknowledged by the person making them, before an officer having authority to take acknowl. eilgments of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgment, read and fully explained the transfer, assignment, or warrant of attorney to the person acknowledging the same.

See note 6.

thereby discharged, whether the funds were received or not. If sont by draft, at his request, claim subsists, unless draft has been paid (to proper party). A dis. bursing agent remitting funds due claimant, to his attorney, under instructions from the attorney, given without the knowledge or consent of the claimant, which were pot paid over, would be liable to the Government and the Government to the claimant. (Op., XIV, 485. Williams, Oct. 29, 1874.)

Where Congress directs the adjustment and settlement" of a claim according to the rules and regulations heretoforo adopted by the United States in tho settle. ment of like cases, and it appears that Congress has generally given interest in like cases, it will be allowed. (C.C., X, p. 231. Aflirmed by Supreme Court.)

It is a general rule, founded upon sound principles and uniformly adhered to in the administration of the Government, that the Executive Departments neither allow nor charge interest to parties in account with the l'nited States, excepting by virtue of express agreement or in pursuance of some special provision of law. (Holt's Digest, p. 204.)

Interest can not be allowed except " upon a contract expressly stipulating for the payment of interest. (C. C., I, p. 220.) As to interest, see Op., IV, 14, 79, 136; V, 105, 138,

Note 5.-Under section 3469, the Solicitor of the Treasury may properly recommend the acceptance of a compromise offered in discharge of a claim of the United States before payment, where the district attorney advises acceptance upon the ground that, from want of evidence to establish the facts on whichi a verdiet must depend, he doubts his ability to obtain a judgment, even though the defendant is able to pay the amount of the claim. (Op., XVI, 259, Devens, Jan. 30, 1879.)

This section was intended to provide for compromising claims in favor of the United States which are of a personal character; does not extend to claims to real property to which the United States asserts ownership and has a record title. (Op., XVI, 385, Devens, Oct. 1, 1879.)

It does not confer upon the Solicitor of the Treasury a discretion to recommend for compromise cases in wbich the claim is entirely solvent, but where circumstances of hardship, etc., exist. (Op., XVI, 617, Phillips, Jan. 8, 1879.)

Note 6.---Thongh the assignment of a claim against the Government be void under section 3477, Revised Statntes, yet if the Treasury recognizes the assignment and pays the amount found due on an accounting to the assignee, an action will not lie to recover it back. (C.C., XIII, 292.) (See in this opinion a statement as to the manner in which accounts and claims against the Government are settled by the accounting officers.)

This section, 3477, not only extends to claims which are to be paid by Treasury warrants, but extends to thoso which relate to claims otherwise payable. (Op., XVI, 261, Devens, Feb. 7, 1879.)

A power of attorney for the collection of a claim against the Government, not


See note 8.

Qarlı by per:

SEC. 3478. Any person prosecuting claims, either as sons prosecuting claims. attorney or on his own account, before any of the Depart.

July 17, 1862, s. ments or Bureaus of the United States, shall be required 1, v. 12, p. 610.

to take the oath of allegiance, and to support the Constitution of the United States, as required of persons in the

civil service. Who may ad SEC, 3479. The oath provided for in the preceding secministerthe oath Idem, s. 2.

tion be taken before any justice of the peace, notary

may See note 7 public, or other person who is legally authorized to admin

ister an oath in the State or district where the same may

be administered. Claims of dis- SEC. 3480. It shall be unlawful for any officer to pay any loyalists.

Mar. 2, 1867, account, claim, or demand against the United States which Res. 46, v. 14, p. accrued' or existed prior to the thirteenth day of April,

eighteen hundred and sixty-one, in favor of any person who promoted, encouraged, or in any manner sustained 3, 1877, 105, p. 362, v. 19, as to the late rebellion, or in favor of any person who during payment to mail contractors, such rebellion was not known to be opposed thereto, and

distinctly in favor of its suppression; and no pardon heretofore granted, or hereafter to be granted, shall authorize the payment of such account, claim, or demand, until this section is modified or repealed. But this section shall not be construed to prohibit the payment of claims founded upon contracts made by any of the Departments, where such claims were assigned or contracted to be assigned prior to the first day of April, eighteen hundred and sixtyone, to the creditors of such contractors, loyal citizens of loyal States, in payment of debts incurred prior to the first

day of March, eighteen hundred and sixty-one. Title 70, chap. 6. SEC. 5454. Every person who takes and carries away,

Unlawfully without authority from the United States, from the place taking or using where it had been filed, lodged, or deposited, or where it papers relating to claims.

may for the time being actually be kept by authority of executed in the presence of "two inttesting witnesses after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof," is void underthe act of February 26, 1853. (C.C., V, 362; see also Op., IX, 188.)

The revocation of a power of attorney can only be affected by notice to the agent. Notice to a third party, without notice to the agent, leaves the power in force. (C. C., VII, 535.)

A power of attorney not given on account of any valuable consideration paid to the principal may be revoked before the exercise of authority under it. (Op., IX, 128.)

Where a letter of attorney forms part of a contract, and is security for money, or for the performance of any act which is deemed valuable, it is generally made irrevo. cable in terms, or, if not so, it is deemed irrevocablo in law. If a power of attorney be coupled with an interestit survives the person giving it and may be executed after his death. (VIII Wheaton, 203; see Op., VII, 35.)

A naked power of attorney is revokablo at the will of him wlio gave it, although the writing should say it was irrevocable. (Op., VII, 38.)

See Op., XI, 7, where it was held that, although an agent, under a power to prose. cute, demand, recover, and receive a claim, did prosecute it to the award, and another was appointed to collect the installment could be paid to the latter--the power of the former not having been coupled with an interest.

Note 7.-It is competent to the head of a Department, as a measure for the protection of the public interests committed to his charge, to decline to recognize, or to suspend, the transaction of business with an agent or attorney for frauds and fraud. ulent practices attempted or committed by him in the prosecution of claims before the Department, and whose character is such that a reasonable degree of confidence can not be placed in his integrity and honesty in dealing with the Government. (Op., XIII, 150, Hoar, Oct. 4, 1889.)

Note 8.- This section applies only to claims that accrued or existed prior to April 13, 1861. It does not apply to claims in favor of corporations aggregate. (Op., XIII, 398, Mar. 29, 1871, Akerman.)

This section created a personal disability only, which could not operate against the heirs of parties thus disqualified. ,(Winthrop's Digest, p. 168.)

Applicable to claims for bounty land. (Op., XV, p. 450.)

« PreviousContinue »