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(United States v. Nashville Railroad Co., 118 U. S., 125; United States
The limitation laws of the State in. which the suit is brought do
When the United States voluntarily appear in a court of justice, they at the same time submit to the law and place themselves upon an equality with other litigants; but this does not apply to such defenses as laches and the statute of limitations. (United States v. Ingate, 1891, 48 Fed., 251; The Purcell Envelope Co. v. United States, 47 Ct. Cls., 1.)
No officer of the Government authorized to waive statute, page 148, note.
Certificate of probable cause. SEC. 970. When, in any prosecution commenced on account of the seizure of any vessel, goods, wares, or merchandise, made by any collector or other officer, under any act of Congress authorizing such seizure, judgment is rendered for the claimant, but it appears to the court that there was reasonable cause of seizure, the court shall cause a proper certificate thereof to be entered, and the claimant shall not, in such case, be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or prosecution: Provided, That the vessel, goods, wares, or merchandise be, after judgment, forth with returned to such claimant or his agent.
The decision of the court below refusing certificate of probable cause not reviewable by circuit or Supreme Court. (United States v. Abattoir Place, 106 U. S., 160.)
Execution not to issue against officers of revenue in cases of probable cause, etc. SEC. 989. When a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him and by him paid into the Treasury in the performance of his official duty, and the court certifies that there was probable cause for the act done by the collector or other officer, or that he acted under the directions of the Secretary of the Treasury, or other proper officer of the Government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the Treasury.
Section 3220, page 137. Payment of judgments against collectors. (l'nited States v. Frerichs, 124 U. S., 315; 34 Int. Rev. Rec., 39.)
Protection afforded to officers by certificate of probable cause. (Averill v. Smith, 17 Wall., 82; 17 Int. Rev. Rec., 171. Stacy v. Emery, 97 U. S. (7 Otto), 642; 24 Int. Rev. Rec., 378. Dunnagan v. United States, 17 Ct. Cls., 217; 28 Int. Rev. Rec. 144.)
Certificate of probable cause relieves the collector from the execution which would follow according to ordinary legal procedure. (Conant v. Kinney, 162 Fed., 581.)
Where such certificate is given the claim of the plaintiff is practically converted into a claim against the Government and no interest can be allowed in the judgment. (United States v. John Sherman, 25 Int. Rev. Rec., 198; 98 U. S., 547,
Certificate of probable cause converts the claim against collector into
Remission of fines, penalties, and forfeitures.
forfeiture, or disability, or may be interested in any vessel or merchandise which has become subject to any seizure, forfeiture, or disability by authority of any provisions of law for imposing or collecting any duties or taxes
and for regulating the same shåll prefer his petition to the judge of the district in which such fine, penalty, or forfeiture, or disability has accrued, truly and particularly setting forth the circumstances of his case, and shall pray that the same may be mitigated or remitted, the judge shall inquire, in a summary manner, into the circumstances of the case; first causing reasonable notice to be given to the person claiming such fine, penalty, or forfeiture, and to the attorney of the United States for such district, that each may have an opportunity of showing cause against the mitigation or remission thereof; and shall cause the facts appearing upon such inquiry to be stated and annexed to the petition, and direct their transmission to the Secretary of the Treasury. The Secretary shall thereupon have power to mitigate or remit such fine, forfeiture, or penalty, or remove such disability, or any part thereof, if, in his opinion, the same was incurred without willful negligence, or any intention of fraud in the person incurring the same; and to direct the prosecution, if any has been instituted for the recovery thereof, to cease and be discontinued, upon such terms or conditions as he may deem reasonable and just.
SEC. 5293. [Amended by Act of February 27, 1877 (19 Stat., 253).] The Secretary of the Treasury is authorized to prescribe such rules and modes of proceeding to ascertain the facts upon which an application for remission of a fine, penalty, or forfeiture is founded, as he deems proper, and, upon ascertaining them, to remit the fine, penalty, or forfeiture, if in his opinion it was incurred without willful negligence or fraud, in either of the following cases:
First. If the fine, penalty, or forfeiture was imposed under authority of any revenue law, and the amount does not exceed one thousand dollars.
Second. Where the case occurred within either of the collection districts in the States of California or Oregon.
Third. If the fine, penalty, or forfeiture was imposed under authority of any provisions of law relating to the importation of merchandise from foreign contiguous territory
Fifth. If the fine, penalty, or forfeiture was imposed by authority of any provisions of law for levying or collecting any duties or taxes,
and the case arose within the collection district of Alaska,
Sec. 5295. Any officer or other person entitled to or interested in a part or share of any fine, penalty, or forfeiture incurred under any law of the United States, may be examined as a witness in any of the proceedings for the recovery of such fine, penalty, or forfeiture by either of the parties thereto, and such examination shall not deprive such witness of his share or interest in such fine, penalty, or forfeiture.
The Secretary of the Treasury has authority to remit or mitigate fines, penalties, or forfeitures and to remove disabilities before or after judge ment or decree, and until the money is actually paid into the Treasury, (United States v. Morris, 10 Wheat., 246.)
The Government is not liable for the torts of its officers. (Hart v. United States, 95 U. S., 318; Langford v. United States, 101 U. S., 346; United States v. Cummings et al., 35 Int. Rev. Rec., 142, 130 U. S., 453.)
State of Maine 1. United States (36 Ct. Cls., 532). See notes under section 3220, page 137. (Thierman & Frost i. l'nited States, 51 Ct. Cls., 35.)
The order of the Commissioner to the collector of the district directing him to make a seizure is in law a reasonable cause and a protection to him against damages for such action. Sections 970 and 989, Revised Statutes, are both existing laws and not inconsistent or repugnant. (Agnew v. Haymes, 141 Fed., 631; T. D. 955.)
Property taken under revenue laws irrepleviable. Sec. 934. All property taken or detained by any officer or other person, under authority of any revenue law of the United States, shall be irrepleviable, and shall be deemed to be in the custody of the law, and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof.
Brice et al. 1. Elliott. (22 Int. Rev. Rec., 206 ; Fed. Cas. No. 1854.)
Conflict of State and United States officers. (14 Op. Atty. Gen., 370; 19 Int. Rev. Rec., 73; Buck 1. Colbath, 3 Wall., 334.)
Goods in the hands of the United States held for taxes can not be attached by State oflicers. (Harris v. Dennie, 3 Pet., 292; McCullough v. Large, 30 Int. Rev. Rec., 166.)
Where release or destruction of property is directed, action taken should be reported and complete description given of property released or destroyed. (T. D. 1696.)
Seizure of automobile as having been used in unlawful introduction of liquor vests Federal court with exclusive jurisdiction over machine for forfeiture proceedings, which is not affected by subsequent seizure under writ of replevin of State court. (Ford v. United States, 260 Fed., 657.)
Compromises of claims and of cases after Judgment. Sec. 3469. Upon a report by a district attorney, or any special attorney or agent having charge of any claim in favor of the United States, showing in detail the condition of such claim, and the terms upon which the same may be 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 Treasury is authorized to compromise such claim accordingly. But the provisions of this section shall not apply to any claim arising under the postal laws.
Compromise of internal-revenue cases before judgment. (Sec. 3229 p. 149.)
Uncertainty whether the Government can obtain a verdict proper ground for compromise. (16 Op. Atty. Gen., 259.)
Forfeited recognizances. (18 Op. Atty. Gen., 277.)
Section 3169 does not extend to fines in criminal cases. (United States 1'. George et al., 6 Blatch., 406; 12 Op. Atty. Gen., 543 ; 13 Id., 479.)
Compromise of solvent claims. (16 Op. Atty. Gen., 617; 25 Int. Rev. Rec., 29.)
Contra. (MacVeagh, 27 Int. Rev. Rec., 334; 17.Op. Atty. Gen., 213.)
A claim can not be compromised of whose collectibility in full there is no doubt (Harmon). (21 Op. Atty. Gen., 264.)
See also 23 Op. Atty. Gen., 18, 633; 29 Id., 217.
Government's claim to real property can not be compromised. (16 Op. Atty. Gen., 385.)
No power to compromise taxes. (Dorsheimer v. United States, 74 L'. S. 17 Wall.), 166; 10 Int. Rev. Rec., 131; 2 Ct. Cis., 103.)
No authority to compromise cases under section 32, act of July 24, 1897.
The Attorney General may, however, compromise or settle such cases. (T. D., 21270.)
Offers of compromise. Department Circular No. 39, 1914.
Where action is brought for penalty, jury's verdict must fix amount of penalty not less than the minimum, after which only remedly, other than appeal, is application for compromise. (United States 1. Acorn Roofing ('0., 204 Fed., 157.)
Remission. The Secretary of the Treasury has authority to remit or mitigate fines, penalties, or forfeitures and to remove disabilities before or after judg. ment or decree, and until the money is actually paid into the Treasury. (United States v. Morris, 10 Wheat., 246; secs. J292, 5293, R. S.)
The power to remit penalties is intrusted to the Secretary of the Treasury alone, and there is no appeal from his decision.
Effect of pardon. (Weimer 1. Reynolds, 24 Int. Rev. Rec., 372; Knote v. United States, 95 U. S., 119; 24 Int. Rev. Rec., 4; United States v. McKee, 23 Id., 338; Fed. Cas. No. 15688.)
Pardon of officer bar to an action on oflicial bond assigning same act as a breach. (United States 1. Cullerton, 24 Int. Rev. Rec., 68; Fed. Cas. No. 14899.)
Pardon releases property seized for same offense. (Osborn 1. l'uited States, 91 U. S. (1 Otto), 474.)
Does not relieve from tax. (United States 1. Roelle et al., 21 Int. Rev. Rec., 332; Fed. Cas. No. 16186.)
A pardon is not complete until delivery. (In re Moses De l'uy, 10 Int. Rev. Rec., 34; Fed. Cas. No. 3814.)
Act providing for parole of United States prisoners. Act of June 25, 1910 (36 Stat., 819). Act of January 23, 1913 (37 Stat., 650). A court has no authority to permanently suspend sentence in a criminal
(Ex parte United States, petitioner, 242 L. S., 27.) After conviction or plea of guilty court has no power to indefinitely suspend imposition of sentence or indefinitely suspend execution thereof, (Department of Justice Cir. No. 517; instructions to United States' attorneys June 1, 1916.)
Employment of attorneys or counsel. Sec. 189. No head of a department shall employ attorneys or counsel at the expense of the United States, but when in need of counsel or advice shall call upon the Department of Justice, the officers of which shall attend to the same.
Opinions of the Attorney General: the effect of his advice. (5 Op. Atty. Gen., 97; 6 Id., 334: 7 Id., 699; 9 Id., 37.)
Questions of pure law actually arising in the administration of the Treasury Department, and requiring the personal consideration of the Secretary, may be referred to the Solicitor of the Treasury or to the Attorney General. If referred to the latter, however, his answer should be regarded by the department as law until withdrawn by him or overruled by the courts. (20 Op. Atty. Gen., 655.)
A request for an opinion must not relate to a mere moot question. (21 Op. Atty. Gen., 509.)
There should be a case actually arising. (24 Op. Atty. Gen., 59; 27 Id., 49.)
The Attorney General does not possess the power to revise the decisions of an executive department, (3 Op. Atty. Gen., 39.)
Will not interfere in a matter of administrative policy. (28 Op. Atty. Gen., 127.)
Attorney General to provide counsel on investigation of claims. Sec. 364. Whenever the head of a Department or Bureau gives the Attorney-General due notice that the interests of the United States
require the service of counsel upon the examination of witnesses touching any claim, or upon the legal investigation of any claim, pending in such Department or Bureau, the Attorney-General shali provide for such service.
AN ACT To authorize the commencement and conduct of legal proceedings
under the direction of the Attorney General. (Approved, June 30, 1906 ; 34 Stat., 816.)
That the Attorney-General or any officer of the Department of Justice, or any attorney or counselor specially appointed by the Attorney-General under any provision of law, may, when thereunto specifically directed by the Attorney-General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which district attorneys now are or hereafter may be by law authorized to conduct, whether or not he or they be residents of the district in which such proceeding is brought.
Duties of district attorneys to prosecute and to appear for collectors, ete.
Sec. 771. It shall be the duty of every district attorney to prosecute, in his district, all delinquents for crimes and offenses cognizable under the authority of the United States, and all civil actions in which the United States are concerned, and, unless otherwise instructed by the Secretary of the Treasury, to appear in behalf of the defendants in all suits or proceedings pending in his district against collectors, or other officers of the revenue, for any act done by them or for the recovery of any money exacted by or paid to such Officers, and by them paid into the Treasury.
“ Infamous " crimes can not be prosecuted by information. “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces," etc. (Constitution, fifth amendment.)
Imprisonment at hard labor for a term of years is an infamous punishment. (Wilson ex parte, 114 U. S., 417; 31 Int. Rev. Rec., 224.)
A crime punishable by imprisonment in a state's prison or penitentiary with or without hard labor is an “infamous " crime. (Mackin v. United States, 117 U. S., 348.)
It is the duty of a district attorney to prosecute suits to enforce against certain property the statutory lien for internal-revenue taxes. (Bliss v. United States, 37 Fed., 191.)
Duty of Government to defend its officers when sued for doing what the law requires. (9 Op. Atty. Gen., 52.)
The act of March 3, 1887 (24 Stat., 505), Sec. 6, providing for the bring. ing of suits against the Government in the United States district and circuit courts, makes it the duty of the district attorney to appear and defend the interests of the Government in such suits and within sixty days after the service of petition upon him to file a plea, answer, or demurrer on the part of the Government, and notice of any set-off or counter claim.
Suits by or against officers not to abate on their death, resignation, or expiration of their term of office. (Act of February 8, 1899, 30 Stat., 822.)
By the acts of June 27, 1898, and July 1, 1898, the right of Government officers to bring suits in the circuit and district courts for their fees or salaries was repealed, thus removing what had been found to be a serious difficulty in the workings of the act of March 3, 1887.
Attorneys defending employees of the Government. (22 Compt. Dec.,