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SALARIES OF MEMBERS OF THE HOUSE OF
The certificate of the Speaker of the House of Representatives as to the
salary and mileage of Members being by sections 47 and 48 of the Revised Statutes made conclusive upon all Departments of the Government, the Comptroller has no jurisdiction to render a decision upon the amount due to a Member for salary or mileage.
January 10, 1896. SIR: I am in receipt of your letter of the 8th instant in which you state that a question has arisen in regard to the payment of the salaries of Delegate Cannon and Representative Allen, of Utah; that the President's proclamation admitting Utah as a State was issued on January 4, 1896, and that Representative Allen took the oath of office on the 7th, and claims compensation from the date of admission of the State, while Mr. Cannon thinks he is entitled to pay up to the date when Mr. Allen took the oath of office. You ask for my decision upon the question.
Sections 47 and 48 of the Revised Statutes provide that the Speaker of the House of Representatives shall certify to the salary and mileage of members, and that such certificate shall be conclusive upon all Departments of the Government. Under such a law there is no question as to the amount of a member's salary which can come before the accounting officers for decision, but such questions are finally determined by the Speaker and evidenced by his certificate. I am therefore without any jurisdiction to answer the question which you present. Respectfully, yours,
R. B. BOWLER,
Hon. B. F. RUSSELL,
Sergeant-at-Arms, House of Representatives,
EXPENSE OF PROSECUTING PERSONS CHARGED
WITH COUNTERFEITING UNITED STATES MONEY
IN INDIA. The Treasury Department appropriation for suppressing counterfeiting
and other crimes is not available for the payment of the fees of an
January 10, 1896. Sir: I am in receipt by your reference of sundry communi. cations from the Department of State and the late consul of the United States at Bombay, in regard to certain claims made by a Mr. Hemming, a solicitor in Bombay, and Mr. T. N. English, also of Bombay.
It appears from the papers transmitted that in the early part of the year 1895 it was discovered by the United States consul at Bombay that there were in circulation a large number of counterfeit United States gold dollars, and that the claims of Mr. Hemming and Mr. English arise out of a prosecution instituted by the consul against the alleged counterfeiters. The claim of Mr. Hemming is for legal services, and of Mr. English, who is connected with the Indian mint, for services rendered as an expert witness. It appears that the consul upon the discovery of the fact that counterfeit coins were in circulation telegraphed to the Department of State for instructions. Failing to receive prompt answer thereto, he telegraphed to the consul-general at Calcutta, who directed him to consult the Indian penal code and to let the police secure the parties. Thereupon the consul took the steps which he deemed necessary to have the counterfeiters arrested, employing Mr. Hemming and Mr. English.
It appears that the Department of State did not reply to the consul's original cable message, and that upon receipt of his letter giving information in regard to the matter that Department transmitted copies thereof to the Treasury Department for instructions. It does not appear that the Treasury Department ever authorized the prosecution, and it does appear that the prosecution was in fact instituted by the consul before the Treasury Department had opportunity to act. Under the circumstances, I can find no appropriation
under the control of the Secretary of the Treasury which would authorize the payment of the clains presented by Mr. Hemming and Mr. English.
In the sundry civil appropriation act of August 18, 1894 (28 Stat., 390), there is an appropriation for the fiscal year 1895, as follows:
“ SUPPRESSING COUNTERFEITING AND OTHER CRIMES: For expenses incurred under the authority or with the approval of the Secretary of the Treasury in detecting, arresting, and delivering into the custody of the United States inarshal hav. ing jurisdiction, dealers and pretended dealers in counterfeit money, and persons engaged in counterfeiting Treasury notes, bonds, national-bank notes, and other securities of the United States and of foreign Governments, as well as the coins of the United States and of foreign Governments, and other felonies committed against the laws of the United States relating to the pay and bounty laws, including four thousand dollars to make the necessary investigation of claims for reimbursement of expenses incident to the last sickness and burial of deceased pensioners under section forty-seven hundred and eighteen of the Revised Statutes, and for no other purpose whatever, sixty thousand dollars: Prorided, That no part of this amount be used in detraying the expenses of any person subpænaed by the United States courts to attend any trial before a United States court or preliminary examination before any United States commissioner, which expenses shall be paid from the appropriation for • fees of witnesses, United States courts.?”
It is clear that that appropriation applies only to counterfeiting within the United States, and would have no application to the case above stated.
No other appropriation has been pointed out as in any way indicating authority to pay these claims.
There was made, however, in the diplomatic and consular appropriation act of July 26, 1894 (28 Stat., 151), an appropriation for the fiscal year 1895, as follows:
“Expense of providing all such stationery, blanks, record, and other books, seals, presses, flags, signs, rent, postage, furniture, statistics, newspapers, freight (foreign and domestic), telegrams, advertising, messenger service, travel: ng expenses of cousular officers and consular clerks, compensation of Chi. nese writers, and such other miscellaneous expenses as the President may think necessary for the several consulates, consular agencies, and commercial agencies in the transaction of their business, one hundred and eighty thousand dollars."
If the action of the consul in the prosecution of these counterfeiters is adopted and ratified by the Department of State, the appropriation would seem to be broad enough to authorize payment of the bills of Messrs. Hemming and English, as coming within the language "such other miscellaneous expenses as the President may think necessary for the several consulates * * * in the transaction of their business."
Employment of counsel except by the Attorney-General is prohibited by the provisions of section 189 of the Revised Statutes, and this has been held to apply to the employment of counsel in foreign countries as well as in the United States (21 Opin. A. G., 195). It is possible, however, that this case would not come within the principle of that opinion. However that may be, it certainly would be within the power of the Attorney-General to ratify and adopt the employment (13 Opin. A. G., 583), and to fix the proper compensation to be allowed such counsel, giving the certificate required by section 365, Revised Statutes.
It is therefore recommended that the matter be referred to the Department of State for such action as that Department may see fit to take in the premises. Respectfully, yours,
R. B. BOWLER,
Comptroller. The SECRETARY OF THE TREASURY.
IN RE APPEAL OF J. C. FINNELL, CLERK OF
THE UNITED STATES CIRCUIT COURT FOR THE DISTRICT OF KENTUCKY, AT COVINGTON.
Where a restraining order directs that the marshal serve the defendants
with a certified copy thereof the clerk is entitled to fees for certificates
to the copies, but not for seals to such certificates. It is not required that the copy of a subpena in chancery served on a
defendant under rule 13 of the general equity rules shall be certified, and the clerk is not entitled to fees for certificates and seals to such copies, unless required by a rule of court or a practice directly sanc. tioned by the court.
January 10, 1896. In the settlement of the account of J. C. Finnell, clerk of the United States circuit court for the district of Kentucky, at Covington, for the quarter ending December 31, 1894, the Auditor made the following disallowance:
“Charge for certificate and seals to copies of restraining orders and copies of subpænas in chancery, disallowed. See
Martin v. United States, 26 C. Cls. R., 160; 18 copies of orders at 35 cents, $6.30; 17 copies of subpæna at 35 cents, $5.95— $12.25."
In the case of Martin v. United States, supra, upon which the Auditor relied for making the above disallowance, it was said by Judge Nott, in delivering the opinion of the court:
“19. This item is for copies of subpenas made by the clerk for service by the marshal, and for attaching to each a certificate under the seal of the court. For the former service, the copy, the fee is 20 cents; for the latter service, 35. The seryice of a subpæna in Virginia is by showing the witness the original and giving him a copy. The copy is but a memorandum for the convenience of the witness, telling him when and where he must appear. The authority is in the original, which, seeing, he can not question. Adding an official certificate, under seal, to the copy adds nothing to it of substance, and conveys no additional information to the witness. For 208 copies of subponas, the claimant is entitled to recover $41.60. The remainder of the item for certificates and seals, $72.80, is overruled.”
Mr. Finnell, in explanation upon the present appeal, says:
"It is and has been the uniform and unvaried practice of the courts in this State, both State and Federal, to certify and attach seal to restraining orders' which are only certified copies of an order of court. In regard to subpænas in chancery, the rules require a copy to be served upon each defendant, and the practice is and has been to certify the same.” (From further inquiry it does not appear that this practice is required by rule of court or has been adopted by the express order or sanction of the court.]
“Restraining orders are served by delivering to defendants certified copies of same. In preparing restraining orders it is the usual custom to recite and the marshal is directed to serve the defendant with a certified copy of the foregoing order.' The restraining order is served by delivering to defendant the certified copy, the original not being read to him at all. This is also true in regard to subpenas in chancery and summons in common-law actions."
Rule 4 of the general equity rules provides for the entering by the clerk of all rules, orders, and other proceedings, and further provides:
“And except in cases where personal or other notice is specially required or directed, such entry in the order book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices, and other proceedings entered in such order book, touching any and all matters in the suits to and in which they are parties and solicitors.”