Page images

may or may not have thought the case of a person dismissed because of the indirect operation of a law of Congress equally meritorious. If he did, he may have nevertheless deemed it wise to avoid opening the door in too wide and uncertain a way. All we can say here is that, having used carefully selected words of restriction, which words have a natural meaning, he meant what he said.

I am of opinion, therefore, that Rule IX does not include the case of Miss Nolan. Respectfully,



It is neither advisable nor necessary for the Attorney-General to render

a decision upon any question involving a payment to be made by or under the head of any executive department. Under section 8 of the act of July 31, 1894 (28 Stat., 162, 208), the Comptroller of the Treasury is charged with this duty, and his decision is made final as to all executive officers.


July 20, 1901. Sir: I am in receipt of your letter of July 10, 1901, referring to the case of De Lima et al. against George R. Bidwell, in which a decision in favor of the plaintiffs was handed down by the Supreme Court of the United States May 27 last, and stating that A. S. Lascelles & Co. make claim for refund of moneys paid as duties on sugar imported from Porto Rico into the United States at the port of New York between the date of the taking effect of the treaty of Paris and the going into effect of the Foraker Act, which moneys were exacted by the collector at the port of New York and paid by the importer under protest. You also state that it has been shown to your satisfaction that these moneys were exacted under color of the tariff act by the collector and by him paid into the Treasury, and the amount thereof has been ascertained to your satisfaction. You ask my opinion as to whether the Secretary of the Treasury is authorized under section 24 of the Customs Administrative



act; section 3689, Revised Statutes; section 1 of the act of March 3, 1875, or, in fact, any other statute of the United States, to refund the moneys collected to the claimants, and, if so, to what appropriation is such refund chargeable. Section 8 of the act of July 31, 1894, provides: The head of any executive department

may apply for and the Comptroller of the Treasury shall render his decision upon any question involving a payment to be made by them or under them, which decision, when rendered, shall govern the Auditor and Comptroller of the Treasury in passing upon the account containing said disbursement."

It was stated by Attorney-General Olney, 21 Opinions, 182:

“This act makes it obligatory upon the Comptroller of the Treasury to make a decision upon any account involving a payment to be made by or under the head of any executive department, and it contemplates the construction by him of statutes."

Also in 21 Opinions, 188, Mr. Olney, in declining to express an opinion to the Secretary of the Treasury as to his right to refund certain duties claimed to have been collected through mistake of law, decided that this is one of those questions which can be asked of the Comptroller, and in respect to which the Attorney-General should refrain from advising.

My immediate predecessor, Mr. Attorney-General Griggs, in 22 Opinions, 583, likewise declined to advise the Secretary of the Treasury, and in a careful opinion, in which he discusses the statute and reviews the opinions of his predecessors, concludes in the following language:

“If a claim is presented, the question of the legality of payment is one exclusively for the Comptroller, whose decision thereon is, by statute, made final as to all executive officers. It has been repeatedly held by Attorneys-General that on questions of disbursement of money or payment of claims

the Attorney-General should not render opinions, especially in view of the fact that, if the matter is doubtful, it can be referred to the Court of Claims for authoritative decision. (21 Opin., 530; see also 21 Opin., 178; Id., 181; Id., 188.) Concurring in the views and reasons set forth by these authorities, it is unnecessary and inappropriate for me to express my views more at large or enter upon the merits of the question. I return the inclosures of your letter herewith.”

I am informed that the Comptroller of the Treasury has already passed upon the question submitted by you to me. This fact strengthens the reasons given by my predecessors as to why it is inadvisable for the Attorney-General to render opinions falling within the functions of the Comptroller of the Treasury. Believing there is neither necessity nor propriety in my expressing my own views upon the question submitted, I must therefore decline. Respectfully,




Section 8 of the act of March 2, 1901 (31 Stat., 879), which provides that

all reports, records, or other documents now on file or of record in the Department of State, or in any other department, or certified copies, thereof, relating to any claims prosecuted before the Spanish Treaty Claims Commission, shall be furnished to the Commission upon its order, vests in the head of that department a discretion to send either the original papers or certified copies thereof, upon a request of the

Commission for certified copies of such papers. That section does not confer upon the Commission an option to demand certified copies of such papers or records instead of the originals.


July 30, 1901. Sir: I have received your letter of the 26th instant, setting forth that the Spanish Treaty Claims Commission has passed orders calling upon the Secretary of State to furnish it certified copies of all reports now on file in the Department in regard to certain claims before that Commission specified in the orders.

It appears that the Commission desires to have certified copies instead of originals, and that the Department desires to furnish originals instead of certified copies; and my opin

ion is requested by you on the question whether, under section 8 of the Spanish Claims act, approved March 2, 1901, the certified copies must be furnished.

Section 8 reads as follows:

“That all reports, records, proceedings, and other documents now on file or of record in the Department of State, or in any other department, or certified copies thereof, relating to any claims prosecuted before the said Commission under this act shall be furnished to the Commission upon its order, made of its own motion or at the request of the claimant, or of the attorney representing the United States before said Commission."

That the design of section 8 is to recognize an option in the head of a department to send copies instead of originals is conceded. But it seems to be argued that, this option existing for the sole reason that it might be important to retain originals, the section does not intend to concede also an option to send originals and refuse copies; consequently the Commission is intended to have the option to insist upon copies.

But it does not follow that whatever right is not intended to be conceded to the Secretary is given to the Commission; nor does it follow that a broadly expressed option to furnish originals or copies must be narrowed to confine it to a right to retain originals because the reason for its being conceded concerned such retention. If, however, the latter proposition were sound, the same logic would show that, originals being always not only sufficient but preferable as evidence, the power of the Commission to call for papers was not intended to extend to insisting upon copies, since to do so would be beyond the reason of the Commission's right to call for documents for use as evidence.

Nor should the difficulty be overlooked that the same language which seems to be relied on to confer upon the Commission a right to insist upon copies speaks in precisely the same way of originals, which, it is admitted, the Commission can not insist upon.

Section 8 is addressed to the Secretary and says what he is to furnish, viz, records or copies certified. It is not addressed to the Commission and does not, nor was there any


reason why it should, specify what should be the particular form of its order concerning the papers. It purports to, and intends to, concede an option to the Secretary, and it concedes it broadly, to furnish originals or copies. It leares the Commission's order to the presumption that it will get originals if it can, and to the common practice in like cases. This practice is well illustrated by the following printed formula of the Court of Claims: “Comes now the plaintiff, by

* *

his attorney, and prays the court that a rule may issue requiring the honorable

to furnish to the court copies of the following papers, or the original papers themselves, as may be deemed most desirable by the honorable *

“You are hereby requested to furnish to the Court of Claims, that the same may be used as evidence on the trial of the above-entitled cause now pending in said court, any information or papers (or duly authenticated copies of same if preferred), supposed to be on file in your Department, set forth in the accompanying rule allowed by the court."

For these reasons, I am of opinion that obedience to a peremptory order of the Commission to send copies instead of originals is not required by section 8. Respectfully,


ATTORNEY-GENERAL-OPINION. The Attorney-General will not express an opinion upon a question unless

the request is accompanied by a definite statement of facts, and the question of law upon which an opinion is desired is specifically formulated.


July 30, 1901. Sir: In reply to your communication of June 17, transmitting certain correspondence with reference to the right claimed by Chinese persons residing in this country to go to the Territory of Hawaii, and requesting an expression of opinion upon the points involved therein, I beg to say that

« PreviousContinue »