two plans referred to when conducted in accordance with the terms prescribed in your letter of instructions to the postmaster with reference to that case. Respectfully, The POSTMASTER-GENERAL. P. C. KNOX. PAN-AMERICAN CONFERENCE-UNITED STATES DELEGATES-COUNSEL. The acceptance of an appointment as counsel for the delegates of the United States to the Pan-American Conference by a person who is engaged as an attorney in prosecuting claims before the Spanish Treaty Claims Commission, would not subject such person to the penalties prescribed by section 5498, Revised Statutes. The penalties therein prescribed are for the prosecution of claims against the United States by one who holds an office or place such as is described in that section. While the appointee would be subject to no penalty for accepting such appointment, yet, if, while holding the place of such counsel, he' should engage in the prosecution of claims against the United States before that Commission, or other tribunal, he would be subject to the penalties therein prescribed. While such person would not be an officer, as that term is there used, DEPARTMENT OF JUSTICE, SIR: I am in receipt of the note of the Acting Secretary of State, dated September 24, 1901, requesting my official opinion in case your Department should “appoint a gentleman who is engaged as an attorney in prosecuting claims before the Spanish Claims Commission as counsel for the delegates of the United States to the Pan-American Conference, would such appointee, accepting the position as such counsel, be subject to the penalties prescribed by section 5498, Revised Statutes of the United States." And I am referred also to two other acts as bearing upon the further question of the mode and right of paying such counsel. In reply, I have the honor to say that the acceptance of such position would not subject the appointee to any penalty under the section referred to. That section imposes no penalty for the acceptance of an office or place by one who is engaged in the prosecution of claims against the United States. The penalties there prescribed are for the prosecution of such claims by one who holds an office or place such as is described in that section. But while the appointee would be subject to no penalty for accepting the appointment, yet I am of opinion that if, while holding the place of such counsel, he should at all engage in the prosecution of claims against the United States before the Spanish Claims Commission or other tribunal, or do any of the acts mentioned in that section, he would be subject to the penalties there prescribed. That is, that while he may not be an "officer" as that term is there used, yet I am of opinion that as to both the intent and letter of the section, he comes within the description of a "person holding any place of trust or profit or discharging any official function under or in connection with any executive department of the Government of the United States," and as such is forbidden to prosecute or aid or assist in prosecuting claims against the United States. The wisdom and policy of such a statute are obvious, and the reasons which operate to forbid one holding an important position in the Government to engage in the prosecution of claims against it, with the opportunity, real or suspected, to bring the influence of his position to bear in support of the claim he is advocating are operative also in the case of one holding such a place as that to which you refer. With reference to the right and mode of paying such counsel, I am referred to the appropriation acts of June 6, 1900 (31 Stat., 437), sub-title "Department of State," and March 3, 1901 (31 Stat., 1179), sub-title "Under the Department of State." These acts appropriate "For actual and necessary expenses of delegates to the proposed international conference of American States, and for necessary clerical assistance, twenty-five thousand dollars." Under the constitutional provision that "No money shall be drawn from the Treasury but in consequence of appropriations made by law," it seems clear that no money can be drawn for any particular purpose without either an appropriation expressly for that purpose, or one that is certainly broad enough to cover that purpose. The appropriation here is expressly and specifically for two purposes only, "the actual and necessary expenses of delegates * * * and for necessary clerical assistance." Inasmuch as, independent of counsel, there would naturally be required what is here properly described as "clerical assistance," and, as the duties of such counsel are not clerical, nor ordinarily spoken of as such, it can not be fairly presumed that Congress intended to here provide for the payment of counsel also, as well as of clerks. The duties of the two are so essentially different that it can not be presumed that Congress, in speaking of one, meant both. If both had been in the mind of Congress, with the intention to provide for the payment of both, doubtless it would have been so expressed. I am therefore of opinion that the acts referred to make no provision for the payment of counsel for the delegates of the United States to the Pan-American Conference. Respectfully, The SECRETARY OF STATE. P. C. KNOX. EXTRADITION-PERSONAL EFFECTS TAKEN FROM PRISONER. Under the usages which govern extraditions, property found upon the person of a criminal at the time of his arrest, if obtained by the commission of the criminal act of which he is charged, or if material as evidence to prove such act, is generally surrendered with the person at the time of the extradition. The money taken from the person of C. W. F. Neely at the time of his arrest in this country for offenses committed in Cuba, not having been turned over to the authorities of that island at the time of his extradition, may be delivered to the Secretary of War and by him to the Military Governor of Cuba, with the understanding that it is to be retained by the latter pending a judicial determination of its true ownership. If the request of the court of instruction of Havana for this money is to be understood as an assertion of title to it, it can not safely be surrendered in the absence of a formal adjudication in a civil proceeding, to which Neely was a party, and as to which he had his day in court. DEPARTMENT OF JUSTICE, October 5, 1901. SIR: I have the honor to acknowledge the receipt of your letter of the 28th ultimo, in which you request my opinion as to whether the chief post-office inspector can surrender, on the request of the Secretary of War, certain money which was taken from C. F. W. Neely at the time of his arrest. You state that Neely, formerly chief of the bureau of finance, department of posts of Cuba, was arrested at Rochester, N. Y., on May 5, 1900, by J. C. Hayden, assistant chief of police of the city, who was acting on the request of your Department. Upon search, there was found upon his person the sum of $6.234.13 in United States money, checks amounting to $228, and two old Spanish gold coins, supposed to be worth at least $20 each. These effects were delivered to the chief post-office inspector by Hayden, and have since been retained. The Secretary of War, by letter dated September 20, 1901, requests you to deliver the money to that Department in order that the military governor of the Island of Cuba may transmit it to the court having proper jurisdiction. This request is made at the instance of the judge of the court of instruction of the eastern district of Havana, who, in a formal communication to the Military Governor of the Island of Cuba, states: "As the taking possession of said funds has been decided by this court, I have the honor to address the present to you requesting that you kindly request the Department of War of the United States to remit same to be delivered to this court." The communication of the judge of the court of instruction discloses on its face that it is not a decree of court, but simply a formal request for the surrender of the money. It recites however, that "the taking possession of said funds has been decided by this court." You have not forwarded me and I have no knowledge of any decree of a court which has judicially determined the right of possession. I can not be unmindful of the fact that Neely has not yet been tried on the criminal charges, and I know of no judgment that has yet been pronounced in any civil action against him. If there has been such a decision, I request to be favored with a certified copy, for it might modify the conclusions herein expressed. I would prefer to defer any opinion pending the receipt of such information, but as the public interests may require that early action be taken, I will advise you as to your general duties and obligations in the premises. This money was taken from Neely's person. Presumptively, therefore, it belongs to him. He was arrested on criminal charges, and by long-established custom his personal effects were taken from him for any use they might be as criminal evidence. They were taken from him by the assistant chief of police of Rochester, who is presumptively responsible to Neely for their return if and when the reasons for their retention no longer exist. As a matter of courtesy to the United States Government, the said assistant chief of police turned over these articles to the chief post-office inspector, and he can, therefore, look to this Government to protect him in such surrender. If hereafter these personal effects should no longer be needed for the purpose of criminal evidence, and if the Government should fail to establish a title to them, an obligation may arise on the part of the chief of police to return them to Neely. Reciprocal courtesy to the State authorities requires that this Government should do nothing to make such return impossible. I assume, moreover, that the assistant chief of police holds the receipt of your chief post-office inspector for the personal effects in question, and your Department should, therefore, have in view its own protection in considering the question of the surrender of this money. Neely was extradited to Cuba, and under the general |