regulating the subject of the delivery of drafts. The usage is to incorporate in the statement of an account, as made by each Auditor, a direction, in the form above, as to the delivery of the draft, and the direction is carried into the warrant. This usage may be controlled by a proper regulation of the Department. The First Comptroller is required to "countersign" all warrants "which shall be warranted by law." (Rev. Stats., 269; McKee vs. U. S., 12 Ct. Cls., 553; McKnight vs. U. S., 13 Ct. Cls., 307; s. c., 98 U. S., 179.) He cannot be required, by countersigning, to sanction, as to the delivery of a draft, a direction which is not warranted by law. No officer can be required, in the performance of a duty which, as the countersigning of a warrant, calls for the exercise of judgment and discretion to sanction a direction, or other proceeding collateral thereto, which, in his opinion, is unathorized or illegal. This principle is especially applicable to all matters affecting the duty of the Treasurer of the United States as to the delivery of drafts and payment of warrants, because the First Comptroller is the only officer who is required to settle the accounts of the Treasurer and authorized to judge of the validity of the vouchers presented for payments made. This subject has been already discussed in McAllister's case, ante, 167. The circular of July 19, 1880, says the "accounting officers will de cide what persons as attorneys or claimants are entitled to receive drafts." The final accounting officer charged with a duty as to a warrant, in the form of that now under consideration, is the First Comptroller. It is of the utmost importance that there be uniformity in the rulings as to the delivery of drafts. Unless there be some one final authority to settle questions of law, uniformity cannot be secured. If the regulation of December 18, 1872, in force while Meguire was rendering service in the Department, should control his rights, he can make no objection to a revocation of the power of attorney under which he acted. Other questions of law have been discussed by counsel which it is unnecessary to advert to. It is very clear, from the law and principles applicable to the matter considered, that J. F. Kinney is entitled to receive the draft to be issued on the warrant in favor of Clift; and the Treasurer will be advised accordingly.* TREASURY DEPARTMENT, First Comptroller's Office, April 16, 1881. *For information on the general subject considered in this case, the following regulations and circulars are appended: TREASURY DEPARTMENT, Second Comptroller's Office, April 25., 1867. Upon consultation with the Auditors, whose work is subject to the revision of this office, the following has been adopted as the scale of fees to be allowed claim agents or attorneys for the collection of back pay, bounty, prize-money, or other moneys due from the United States to persons who are or have been officers or enlisted men of the army, navy, or marine corps of the United States, or their heirs, except in cases of colored claimants, for the collection of whose claims the amount of fees is prescribed in section 2, act July 26, 1866, (14 Stats., 368,) and joint resolution No. 25, approved March 29, 1867, (15 Stats., 26,) viz: For the preparation and prosecution of claims for, and the collection and remittance of, all sums not exceeding two hundred dollars, ten per centum; for all sums exceeding two hundred dollars, and less than eight hundred dollars, ten per centum on the first two hundred dollars, and five per centum on the remainder thereof, and for all sums of eight hundred dollars and upward, fifty dollars; and said fees shall include all expenses incident to the collection of said claims, except the expense of the necessary notarial or other acknowledgments, which shall be defrayed by the claimant; and any agent or attorney who shall charge, directly or indirectly, in any case, a greater sum for his services in preparing and prosecuting said claims, and collecting and remitting the amount due, shall be deemed guilty of malpractice, and upon satisfactory evidence of the fact of such overcharge being presented to the Second, Third, or Fourth Auditor, or to the Second Comptroller, said agent or attorney shall be suspended from the further prosecution of claims of any kind in or through any of the above-named offices. J. M. BRODHEAD, Comptroller. 1872. Department No. 53. Warrant Division No. 1. S Circular in relation to Powers of Attorney. TREASURY DEPARTMENT, May 23, 1872. The following abstract of the decision of the Comptrollers of the Treasury, in relation to powers of attorney, is published for the information of those concerned. The rules here laid down are adopted for the government of the officers of this Department: The question as to whether or not a principal has the right to revoke the appointment of an attorney having been raised by the Third Auditor of the Treasury, the following is substantially the decision of the Comptrollers thereon, viz: The Auditors of the Department have no right to recognize the revocation of a power of attorney except upon charges of improper conduct; that their authority extends only to stating accounts and certifying them with the vouchers to the Comptrollers for decision. A power of attorney may be revoked at the pleasure of the principal under certain qualifications and limitations which affect the relation of principal and attorney. Ordinarily, powers of attorney, without conditions, may be revoked at any time, yet the attorney may retain all deeds, papers, money, &c., belonging to the principal until his fees are paid. Where an attorney has an interest in a claim-i. e., his fee is contingent upon his success-the attorneyship cannot be revoked. The dissolution of a firm of attorneys does not relieve any member of the firm from his obligation to prosecute a claim, nor does the death of a member of a firm exonerate the survivors from their obligation to prosecute. Powers of attorney executed before the issue of a warrant are not null and void, but are ineffectual for the purpose of collecting money; their validity in other respects is recognized by the Department and by the courts. GEO. S. BOUTWELL, Secretary. 1872. Department No. 138. Warrant Division No. 3. TREASURY DEPARTMENT, Attorneys and agents doing business for others at the Treasury Department will understand that hereafter the Department will recognize the authority of the principal to revoke or annul any power of attorney that may have been given to such agent or attorney; and that the draft for the proceeds of any claim that may be allowed will be remitted or delivered to the principal unless he shall have given authority, in writing, for its delivery to an agent or attorney, which authority shall not have been annulled or impaired by any adverse act of the principal at the time when the draft may be ready for delivery. This order does not interfere with the circular letter of the Second Comptroller, under date of April 25, 1867, and printed as "Form No. 4." GEO. S. BOUTWELL, Secretary. 1874. Department No. 16. Warrant Division No. 1. S Circular in relation to Powers of Attorney. TREASURY DEPARTMENT, Washington, March 19, 1874. The order of this Department relating to powers of attorney, dated December 18, 1872, is hereby revoked, and the following order, issued May 23, 1872, is renewed, and will be in force from and after this date: "The following abstract of the decision of the Comptrollers of the Treasury, in relation to powers of attorney, is published for the information of those concerned. The rules here laid down are adopted for the government of the officers of this Department: "The question as to whether or not a principal has the right to revoke the appointment of an attorney having been raised by the Third Auditor of the Treasury, the following is substantially the decision of the Comptrollers thereon, viz: The Auditors of the Department have no right to recognize the revocation of a power of attorney except upon charges of improper conduct; that their authority extends only to stating accounts and certifying them with the vouchers to the Comptrollers for decision. A power of attorney may be revoked at the pleasure of the principal under certain qualifications and limitations which affect the relation of principal and attorney. "Ordinarily, powers of attorney, without conditions, may be revoked at any time, yet the attorney may retain all deeds, papers, money, &c., belonging to the principal until his fees are paid. "Where an attorney has an interest in a claim-i. e., his fee is contingent upon his success the attorneyship cannot be revoked. "The dissolution of a firm of attorneys does not relieve any member of the firm from his obligation to prosecute a claim, nor does the death of a member of a firm exonerate the survivors from their obligation to prosecute. "Powers of attorney executed before the issue of a warrant are not null and void, but are ineffectual for the purpose of collecting money; their validity in other respects is recognized by the Department and by the courts." WM. A. RICHARDSON, Secretary. Circular in relation to Powers of Attorney. 1875. Department No. 45. Warrant Division No. 1. S TREASURY DEPARTMENT, April 16, 1875. The attention of officers of this Department, and of persons prosecuting claims before it, is called to section 3477 of the Revised Statutes, as follows: "All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share 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 acknowledgments 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." The order of the Department of March 19, 1874, relating to powers of attorney, is hereby revoked, and the following adopted in lieu thereof: The Treasury Department will hereafter recognize and act upon the rule of law, that to constitute a power coupled with an interest, there must be an interest in the thing itself, and not merely in that which is produced by the exercise of the power. An interest in a claim to the extent of a fee contingent upon success, is not, therefore, such an interest as will prevent a principal from revoking a power. In all cases, drafts for the proceeds of claims will be made to the order of the claimant, and will be delivered to the claimant or to an attorney having the latest valid power authorizing him to receive it. B. H. BRISTOW, Secretary. The last-quoted circular was revoked by the circular of October 10, 1876, referred to in the decision. IN THE MATTER OF COMPENSATION FOR HOLIDAYS TO PER DIEM GOVERNMENT EMPLOYÉS.-HOLIDAY CASE, (SECOND.) 1. Under the joint resolution of Congress of March 3, 1881, employés of the Government in Washington are entitled to be paid the usual per diem compensation for the 4th of March and 30th of May, 1881, without being required to render service on either of those days. 2. If an employé on a per diem compensation actually perform service on either of those days by the order of the officer under whose direction he is, he is entitled to pay therefor, and to one day's pay additional, as for the holiday. 3. Statutes designed to secure to laborers and employés who are paid a per diem compensation equality of benefits with salaried officers and with employés compensated for fixed periods, are to be liberally construed. TREASURY DEPARTMENT, Office of the First Comptroller, April 18, 1881. EDWARD CLARK, Architect of the Capitol: SIR: Your letter of the 12th instant is received, asking me to give construction to the joint resolution of Congress approved March 3, 1881, which provides: "That all employés of the Government in the city of Washington shall be paid for the 4th day of March and the 30th day of May, 1881, as for the other days on which they perform labor." You state that, owing to the low condition of the appropriation available for the balance of the fiscal year, the per diem men employed under your direction have been divided into two classes, one working the first half of the month and the other the latter half; that nearly all the men on duty on the first half of the month worked on the 4th of March, 1881, and were paid for that day's service; and you ask whether, under the joint resolution, the men who worked on the 4th of March, and were paid for their services on that day, are entitled to an extra day's pay. It is clear that the object of this joint resolution was to give all employés of the Government in the city of Washington compensation for the 4th day of March, the day on which the President was inaugurated, without requiring any labor for that day, and to pay them precisely as for other days on which they performed labor; in other words, they were to have a holiday without labor, for which they were to be paid as if they had labored. Having actually labored, they are entitled to compensation for their labor, and they are also entitled to be paid one day's compensation for the same day as a holiday. You further inquire whether those who were detailed for service for the latter portion of the month of March, whose names appear on the general pay-roll for that month, are entitled to payment for the 4th of said month as if they were actually employed on that day. It is clear that it was not the purpose of this joint resolution to distinguish between or favor one class of laborers over and above another. It declares that "all" employés of the Government shall be paid for the 4th of March as on other days for which they performed labor, without requiring labor of them on that day. The persons who were on the pay-rolls for the entire month were on the 4th of March "employés" of the Government, within the meaning of this joint resolution, and are entitled to pay for the 4th of March as for a holiday. This joint resolution is entitled to a liberal construction in favor of the employés named in it. All legislation looking to the interests of labor is to be liberally construed in favor of the laborer. (Sedgwick, Stat. and Const. L., 311; U. S. vs. Morse, 3 Story, C. C., 87.) Most of the "employés" under your direction are engaged in manual labor. The joint resolution includes, however, not only those who perform manual labor, but all who "perform labor." This phraseology embraces all who render service for which they are entitled to per diem compensation. It does not embrace employés paid a fixed salary or compensation in gross for a year, month, or other prescribed period. Officers and employés entitled to a fixed salary, or compensation for a period of time including the 4th of March, are paid for such period, although they may not have been required to perform service on that day. Those whose compensation is a per diem, to be paid only by reason of actual service, would, in the absence of the joint resolution, be less favored than the officers and other employés above mentioned. The joint resolution was designed to place all on the same footing as to receiving compensation for the 4th of March and Decoration day, May 30. Vouchers of payments made according to the construction here given to the joint resolution of Congress, will be approved and allowed in the settlement, in this Department, of the accounts of the disbursing officer whose duty it is to make payments to said employés.* Respectfully, TREASURY DEPARTMENT, WILLIAM LAWRENCE, First Comptroller's Office, April 18, 1881. *See Holiday Case, 1 Lawrence, Compt. Dec., 31. |