Gambar halaman
PDF
ePub

informer in connection with certain merchandise imported by one Henry Schmidt. The facts in the case appear to be as follows:

[ocr errors]

Information given to officers of this Department by an informer, resulted in the change in classification of imported goods from cattle hair,' entitled to free entry, to'goat hair,' dutiable as wool. The change in classification resulted in the payment to the Government of about $4,000 regular duties, and $1,006.04 penal duties for undervaluation.

"Proceedings were brought to forfeit the goods, but under the evidence presented, forfeiture was not decreed, the Government failing to prove fraudulent intent on the part of the importer. It appears that the defendant consulted the appraising officers before importing the goods, and was advised by them that said goods would be admitted free."

You ask whether the Secretary of the Treasury can grant an allowance under the act of June 22, 1874, to Mr. Thoma for this information, or, as stated by you, "In other words, does the word fraud' in paragraph 4 of the act mentioned presuppose moral fraud, or is it satisfied by an undervaluation entailing a penalty."

So much of the act of June 22, 1874 (18 Stat., 186), as relates to this question is as follows:

"And whenever any person not an officer of the United States shall furnish to a district attorney, or to any chief officer of the customs, original information concerning any fraud upon the customs-revenue, perpetrated or contemplated, which shall lead to the recovery of any duties withheld, or of any fine, penalty, or forfeiture incurred, whether by importers or their agents, or by any officer or person employed in the customsservice, such compensation may, on such recovery, be paid to such person so furnishing information as shall be just and reasonable, not exceeding in any case the sum of five thousand dollars; which compensation shall be paid, under the direction of the Secretary of the Treasury, out of any money appropriated for that purpose."

It has been suggested that the words "fraud upon the customs-revenue" mean any act by which a loss of revenue is effected, and therefore that the informer is entitled to compensation notwithstanding Mr. Schmidt may not have been in fact guilty of actual fraud, and may only have made an honest mistake in the classification of the goods entered and the values thereof, although such mistake resulted in the recovery of additional legal duties and penal duties.

In my opinion this contention is not sound, and the words, "fraud upon the customs-revenue" imply not only an actual

loss of revenue, but also a wrongful intent of the party guilty of the fraud leading to that result.

In answer to your question, therefore, the word "fraud" in such section is not satisfied by a mere undervaluation entailing a penalty, without moral fraud. I express no opinion upon the facts in Mr. Thoma's case, because the question of actual fraud seems, under the statute, to be one for the determination of the Secretary of the Treasury, and if such fraud is found by him, that fact is not reviewable by the accounting officers. Respectfully, yours, R. B. BOWLER, Comptroller.

The SECRETARY OF THE TREASURY.

IN RE CONSTRUCTION OF SECTIONS 2362 AND 2363 OF THE REVISED STATUTES.

A claim for refundment of the purchase money paid for land erroneously sold first arises when the entry is canceled by the Commissioner of the General Land Office.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

March 23, 1896.

The Auditor for the Interior Department, in the claim of Henry Swearinger Anderson for repayment of purchase money under sections 2362 and 2363, Revised Statutes, construed the act of January 12, 1825 (4 Stat., 80), as amended by the act of February 28, 1859 (11 Stat., 387), incorporated into said sections, as creating claims for refundment as of the date when the original payment is made, and not as of the date when the entry is canceled by the General Land Office; that the account, claim, or demand to refund the money arises as soon as payment is made; that a claimant's right could not remain in abeyance until it suited the General Land Office to cancel his entry; and therefore that Mr. Anderson, who is of the class of persons designated in section 3480, Revised Statutes, is prohibited from being paid the amount of the purchase money paid by him which has been authorized to be refunded. Mr. Anderson's case was a somewhat peculiar one, he having entered the same land twice. Upon the first entry being

confirmed, the second entry was canceled June 14, 1895, although it appears that the facts had been known to the General Land Office on May 10, 1859, when Mr. Anderson was informed that the amount of money would be refunded when his application for repayment should receive attention in its regular order.

It has been the established practice of the General Land Office never to make a repayment of purchase money for an entry which could not be confirmed until said entry was actually canceled, for until that time no official decision could be reached that the entry could not be confirmed. This seems now to be specifically required by the act of June 16, 1880 (21 Stat., 287), which provides for such repayment "whenever such entry shall have been canceled by the Commissioner of the General Land Office." This law simply confirmed the previously established practice as that required by sections 2362 and 2363, Revised Statutes, and the laws from which said sections were taken.

For these reasons, I am clearly of the opinion that a claim for the refundment of purchase money for lands erroneously sold, and which can not be confirmed, first accrues or exists when the entry has been officially canceled by the Commissioner of the General Land Office. As this was not done until June 14, 1895, in Mr. Anderson's case, it follows that his claim does not come within the prohibition of section 3480, Revised Statutes, which relates only to claims which accrued or existed prior to April 13, 1861.

The construction placed by the Auditor on said sections is therefore disapproved, and will be superseded by the construction above given.

R. B. BOWLER,

Comptroller.

IN RE APPEAL OF HENRY W.

SWIFT, UNITED

STATES MARSHAL FOR THE DISTRICT OF MASSACHUSETTS.

A marshal is not entitled to receive two per diems upon the same day for his attendance upon the circuit and district courts, unless the courts are held under such circumstances as require the services of two different officers at the same time within the principle of the decision in United States v. King (147 U. S., 676).

A marshal is entitled to a per diem for each day he actually attends, in person or by deputy, upon the circuit court of appeals, regardless of the per diems earned upon the same days for attendance upon the circuit and district courts.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,
March 23, 1896.

Mr. Henry W. Swift, United States marshal for the district of Massachusetts, appeals from the settlements by the Auditor for the State and other Departments of his accounts under the appropriation "Fees and expenses, United States marshals," for the half year ending June 30, 1895. Among the items disallowed by the Auditor were numerous per diems for attendance upon either the circuit or district court or the circuit court of appeals when one per diem had already been allowed for such attendance in either one of the other courts upon the same day.

In regard to these disallowances the marshal makes the following statement:

"I have attended as marshal during the quarter covered by my said account on every day for which attendance is charged, both in the circuit and district courts and the circuit court of appeals. These courts are held by different judges in different court rooms upon different hours of the same days. It has been my practice to go in with the judges in all of these courts, sometimes with the circuit and district courts at 10 o'clock in the morning, and in the circuit court of appeals at 12 o'clock. Sometimes, when the circuit court of appeals sits at 10 o'clock in the morning, the circuit and district courts are opened at a quarter of 10, and sometimes they are opened at 12 o'clock, and sometimes they are opened separately at different hours. I have been informed that a distinction is made by some of the officers whose duty it is to examine marshals' accounts between an attendance by the marshal in person, both in the court of appeals and the circuit and district courts on the same day, and his attendance in the one case in person and the other case by a deputy. I respectfully submit that there is no reason for this distinction. I respectfully submit that what a marshal can do by a deputy he can do in person, and that, if he can attend in person upon the same day the circuit court of appeals and also the circuit and district courts, I submit that he is entitled to an additional per diem. The decision of the Comptroller of February 17, 1894, reported in Decisions of Comptroller, 1893-94, page 187, establishes the principle that a marshal is entitled to receive a per diem for the services of his deputy in one district court while he himself is in attendance on the same day upon another branch of the same district court,

sitting in the same place, but not in the same room, and held by another judge. A fortiori this must be true in the case of attendance upon the district and circuit courts and also upon the court of appeals, the last-named court being a distinct and separate court. I respectfully submit that the decision of the Comptroller would have been the same had the marshal himself attended in both courts in person. This can easily be done where the courts sit at different hours on the same day, and even where they are sitting at the same time the marshal can first open one court and, when the business is fairly under way, move into another room and open another court with another judge, thus attending personally in both courts. It is not necessary that in order to earn his fee he should stay in either of these courts personally the whole time that the court is sitting. If he finds that his presence is not required he can leave an officer in his place."

He also relies upon United States v. Erwin (147 U. S., 685) and United States v. King (147 U. S., 676).

Paragraph 22 of section 829, Revised Statutes, provides: "For attending the circuit and district courts when both are in session, or either of them when only one is in session, and for bringing in and committing prisoners and witnesses during the term, five dollars a day."

Section 831, Revised Statutes, provides:

"No per diem or other allowance shall be made to any marshal or deputy marshal for attendance at ruledays of a circuit or district court, and when the circuit and district courts sit at the same time no greater per diem or other allowance shall be made to any such officer than for an attendance on one court."

The $5 per diem fee provided for a marshal for his attendance upon the circuit or district court may be earned either by himself personally or by one of his deputies as his representative. The length of time which he is obliged to attend on any particular day is immaterial, as he is entitled to the $5 fee whether the court sits for five minutes only or for ten or more hours on any one day. If the statute had provided a fee for attendance upon the circuit court and a distinct fee for attendance upon the district court, or if the statute had provided the same fee for attendance upon either the circuit or the district court, and had not contained the words "when both are in session, or either of them when only one is in session," or the provision in section 831 above quoted relating to the receipt of only one per diem for an attendance upon both courts, the marshal would probably have been entitled

« SebelumnyaLanjutkan »