IN THE MATTER OF THE COMPENSATION OF UNITED STATES DISTRICT ATTORNEYS FOR SERVICES IN MAKING "INQUIRY AND EXAMINATION" INTO CASES REPORTED FOR PROSECUTION BY COLLECTORS OF INTERNAL REVENUE, AND FOR SERVICES IN RELATION TO SUCH CASES WHEN THE PARTIES ARE PROSECUTED.-CONNOLLY'S CASE.

1. An allowance may be made under section 838 of the Revised Statutes in favor of an United States district attorney, for "inquiry and examination,” to determine whether cases reported to him by collectors of internal revenue for violations of the internal-revenue laws shall be prosecuted in court, in those cases in which the attorney, after the requisite examination, reports the facts to the Commissioner of Internal Revenue, although no proceedings iu court are instituted. 2. So a similar allowance may be made for similar services, rendered prior to the commencement of prosecutions, in those cases prosecuted in court.

3. No allowance can be made in such cases under section 838 of the Revised Statutes in favor of a district attorney, except for the inquiry, examination, and report required by it.

4. Hence, no allowance can be made under said section 838 of the Revised Statutes for services in procuring the attendance of witnesses before a grand jury, nor for services before a grand jury, nor for services in preparing informations or indictments, or cases for trial, nor for services on the trial of informations or indictments.

* I have made no

July 29, 1882, James A. Connolly, United States attorney for the southern district of Illinois, presented an account against the United States for $1,550, for services rendered from July 1, 1851, to June 30, 1882 in one hundred and forty-nine cases reported to him by collectors of internal revenue, and prosecuted in the proper court for violations of the internal revenue laws, stating: "There were probably fifty more cases reported to me by the collectors during the year, which, upon examination, I determined not to prosecute, but in all the cases reported and examined, but not prosecuted, charge and received no compensation." The sum charged in each case tried is generally ten dollars, in a few fifteen, in one twenty, and in one thirty dollars. The claimant further states that "in nearly every one of the * cases in this account I have received no other compensation than the statutory docket fee which is taxed as part of the costs and paid by the defendant". In some of the cases the defendants pleaded guilty without impaneling a jury. The account is duly certified by the proper judge. September 6, 1882, the Acting Commissioner of Internal Revenue transmitted the account to the Secretary of the Treasury, and recommended "that the accounts be approved for the amounts charged, to be paid from the appropriation for 'Salary and Expenses of Agents and Subordinate Officers of Internal Revenue' for the year 1882."

September 12, 1882, this account was, by the Acting Secretary of the

Treasury, "approved to the amount" claimed and referred to the Fifth Auditor "for examination and settlement." September 20, 1882, the Fifth Auditor stated an account in favor of the claimant, and it was transmitted to the First Comptroller for his action thereon.

OPINION BY WILLIAM LAWRENCE, First Comptroller:

The claimant has received the docket fees authorized by section 824 of the Revised Statutes, and claims, under section 833, additional compensation for his services in each case. It sufficiently appears, that some portion of the compensation claimed is for services in prosecuting cases in court, but it does not appear whether, or not, any part of the compensation claimed is for the "inquiry and examination" to determine the propriety of prosecuting the cases. The question arising is, whether, under section 838 of the Revised Statutes, compensation, in addition to that provided by section 824, can be allowed for cansing proceedings to be commenced and prosecuted in court. There can be no doubt that, under section 838 of the Revised Statutes, an allowance may be made in favor of an United States district attorney, for "inquiry and examination" to determine whether cases reported to him by collectors of internal revenue for violations of the internal-revenue laws shall be prosecuted in court, in those cases in which the attorney, after the requisite examination, reports the facts to the Commissioner of Internal Revenue, although no proceedings in court are instituted. So an allowance may be made for similar services, rendered prior to the commencement of prosecutions, in those cases prosecuted in court. This has been sufficiently discussed in Keasbey's Case (1 Lawrence, Compt. Dec., 2d. ed., 172). But no allowance can be made, under section 838 of the Revised Statutes, for services in procuring the attendance of witnesses before a grand jury, nor for services before a graud jury, nor for services in preparing informations, or indictments, or cases for trial, nor for services on the trial of informations or indictments.

Under the construction given by former First Comptrollers to sections 824 and 838 of the Revised Statutes, no compensation can be allowed to district attorneys under the latter section for instituting or conducting proceedings in court in the class of cases now under consideration. That construction, having the sanction of usage, will be adhered to. As it does not appear whether any part of the allowance now under consideration was made for the inquiry, examination, and report required by section 838 of the Revised Statutes, the claim will be suspended in order that this may be ascertained.

TREASURY DEPARTMENT,

First Comptroller's Office, January 25, 1883.

IN THE MATTER OF THE RIGHT OF A DELEGATE ELECTED TO CONGRESS FROM A TERRITORY AFTER A TERM OF CONGRESS HAS COMMENCED, TO COMPENSATION, WHEN THERE HAS PREVIOUSLY BEEN NO LAWFUL ELECTION AT THE REGULAR PERIOD.-CAINE'S CASE.

1. By force of section 51 of the Revised Statutes, if a Delegate in Congress from a Territory has been admitted and has occupied a seat in the House of Representatives, and afterwards resigns, or dies, or his seat is vacated by resolution of the House, his successor is entitled to compensation "from the time that the compensation of his predecessor ceased.”

2. When a person claiming to be a Delegate in Congress from a Territory, under an election held at the regular period, is not admitted or sworn in as such by the House of Representatives, and the House by resolution declares that such claimant "is not entitled to a seat," the legal effect is that he is to be regarded as never having been legally elected.

3. After a session of Congress commences, a Representative or Delegate therein, whether elected at a regular or special election, is not entitled to the salary provided by law, without taking the requisite oath.

4. The literal reading of a statute always yields to the manifest purpose therein appearing of the law-making power. Hence, section 31 and section 38 (as amended of the Revised Statutes apply as well to Representatives and Delegates in Congress elected at a special election after a term of Congress has commenced, as to those elected at the regular period prior to such term.

5. When there is a failure to elect a Representative or Delegate in Congress at the regular election prior to a term of Congress, and during such term at a special election a Representative or Delegate is elected, he is not entitled to salary for the full term of the entire Congress, but only "from the beginning of

[his] term."

6. "The beginning of

[the] term" in such case is fixed by the date at which

such Representative or Delegate accepts the credentials of election.

7. If in such case the credentials of election are denied to the person so elected, and he is afterwards declared entitled to a seat by resolution of the House, his right to compensation dates back to the period when he was entitled to receive the credentials of election.

8. The Sergeant-at-Arms of the House of Representatives, in receiving money fron the Treasurer of the United States for the purpose of making payments of compensations to Representatives and Delegates, acts as their personal agent, and not as a statutory disbursing officer.

At the regular election held in the Territory of Utah in November, 1880, George Q. Cannon and Allen G. Campbell were opposing candidates for the place of Delegate in the House of Representatives of the Forty-seventh Congress.

January, 1881, Mr. Campbell filed a protest, under date of December 12, 1880, with the governor, Eli H. Murray, protesting against his counting any votes for the contestant, George Q. Cannon; and the governor, in rendering his decision upon this protest, states that "the returns showed that at the election George Q. Cannon received 18,568 Votes, and Allen G. Campbell received 1,357 votes.”

The governor gave the certificate, or credentials, of election to Mr. Campbell, stating as his reason therefor, that—

It having been shown that Mr. Cannon is not a citizen, and that he is incapable of becoming a citizen, I cannot under the law certify that he is duly elected, and that Mr. Campbell having received the greatest number of votes cast for any citizen was therefore duly elected and must receive the certificate accordingly.

January 20, 1881, Mr. Cannon served on Mr. Campbell a notice of contest of his right to be sworn in, or to be enrolled, or to hold a seat as Delegate, to which Mr. Campbell made answer February 26, 1881.

The clerk of the preceding House of Representatives certified the monthly salary as due to Mr. Cannon (Rev. Stat., 38), and he was paid by the Sergeant-at-Arms of the previous House as a Delegate up to December 4, 1881. Said clerk also placed Mr. Cannon's name on the "roll of the Representatives" and Delegates-elect. (Rev. Stat., 31.) *Payments were made on certificates in the usual form, one of which is as follows: No. 2051.] HOUSE OF REPRESENTATIVES OF THE UNITED STATES, Washington, November 4, 1881. I certify that there is due to the Hon. Geo. Q. Cannon four hundred and seventeen dollars, as a member of the House of Representatives for the Forty-seventh Congress. $417.

Received the above amount.

GEO. M. ADAMS, Clerk.
GEO. Q. CANNON.

(On the margin :) Salary for October, 1881. No statute authorizes the Sergeant-at-Arms of a previous Congress, or the Sergeantat-Arms during the Congress for which he is elected, to receive money from the Treas ury, or pay the salary of members of the House of Representatives. A usage has grown up, by which the Sergeant-at-Arms, acting as the mere personal agent of members, takes their receipts in the form above given for the period from which a term of Congress commences, on March 4, to the beginning of the first session in which a Speaker and Sergeant-at-Arms are elected, and, after that period, certificates 0 the Speaker, with such receipts, and presents them to the Treasurer, and receives the money, which he pays to members. These receipts constitute vouchers for the Treasurer in the settlement of his accounts. This usage seems to be recognized by statute. (Rev. Stat., 40.) The Treasurer could make requisition for an advance of money to him as disbursing officer to meet these payments, but in practice he makes requisition at the end of each month to cover disbursements made during the month. Representatives and Delegates could also be paid by presenting the proper certificate of the Clerk or Speaker to the First Auditor, on whose report to the First Comptroller a balance would be certified, and payment made on Treasury warrant. (Rev. Stat., 31, 32, 38, 39, 40, 41, 46, 47, 248, 269, 277). Section 46 of the Revised Statutes especially seems to sanction this mode. (1 Lawrence, Comp. Dec., 2d ed., App., Ch. XV, 630). See Senate Disbursement Case, 2 Lawrence, Compt. Dec., 2d ed., 404. The following letter, having the effect of a "regulation," is applicable in part to this subject:

TREASURY DEPARTMENT,
Washington, June 23, 1870.

SIR: I inclose you copies of a general order fixing the titles by which all the securities of the Government now outstanding will be known from and after July 1, 1870, and request that all the accounts of your office may hereafter be kept in conformity therewith.

In addition to the general rules therein given it will greatly facilitate the settlement of your accounts if you will have them made up and sent to the Auditor for examination and settlement monthly and in exact conformity to the advances made to you at the end of each month, specifying in the account that the amount found due is to go to your credit on account of the advances heretofore made by Public Debt

Congress met on the first Monday of December, 1881, and the Speaker elected at the opening of the session of the House did not certify the salary, or accounts for traveling expenses, of either claimant for a seat, nor has any payment been made to either, except as stated, and as authorized by act of August 7, 1882. (22 Stat., 339, 340.)*

Warrant No.- for your disbursements during the month of - 187. By this plan you will be able to keep the reimbursements on each month's advances by themselves, and in case of any differences between your books and the amounts found due to you, the discrepancy can be at once discovered and corrected. The more certainly to accomplish this desirable result, I have directed the Register to hereafter send you every settlement made in your favor, so that it may be at once compared with your books. As it is necessary to fix a period when this new system shall go into operation, I have selected the beginning of the fiscal year as the most appropriate time.

All transactions prior to that date may be conducted under the old system, and your accounts therefor will be settled in the old manner.

In this connection I desire to suggest the propriety of settling your account as agent for the pay and mileage of Congress in the same manner as here proposed for your Fiscal Agency accounts, that is to say, by making up this account monthly, and transmitting it and the vouchers to the Auditor for examination, settlement, and credit, at the same time calling for a warrant to the amount of your disbursements.. It would be an advantage, also, if all other of the special accounts of your office could be settled in the same manner, as it would greatly facilitate a prompt final settlement of your accounts at any time it might be desirable to make such a settlement.

By adopting the uniform plan of asking for an advance at the close of each month's business in the exact amount claimed to have been disbursed by you, and then sending your accounts and vouchers to the Auditor in exact conformity thereto, for your credit, you secure the double advantage of placing upon the official records your statement of your transactions side by side with the final adjustment of them by the accounting officers.

Inviting your thoughtful consideration of these plans and your hearty co-operation in improving them and in carrying them out,

I have the honor to be, very respectfully, &c.,

Hon. F. E. SPINNER,

GEO. S. BOUTWELL,

Secretary.

United States Treasurer.

The following form is used in making requisitions, viz:

[Treasurer's Office-Form 338. Cashier.]
Requisition for Reimbursement for Speaker's Certificates Paid.
TREASURY OF THE UNITED STATES,
Washington,

- 188-. SIR: Will you please cause a warrant to be issued for dollars ($ -), to be charged in the account of the Treasurer of the United States as fiscal agent for paying compensation and mileage to Members and Delegates of the House of Representatives of the Congress, on account of disbursements for the current month,

as follows:

Salaries and mileage of Members and Delegates, 188-.

Salaries and mileage of Members and Delegates, 188-.

Total....

Very respectfully,

To the honorable the SECRETARY.

Treasurer Ù. S.

*The sundry civil appropriation act of August 7, 1882 (22 Stat., 339), appropriated to Cannon and Campbell, each $2,000, “in full of expenses incurred by them, respectively, in" contesting the election.

By the same act (22 Stat., 340), an appropriation was made, as follows: "To pay George Q. Cannon salary, mileage, and allowance for newspapers and stationery for the Forty-seventh Congress, from March fourth, eighteen hundred and eighty-one, up to and including April nineteenth, eighteen hundred and eighty-two, the date of the decision of his contest for a seat in the House of Representatives, deducting any sums he may have already received on account from the Sergeant-atArms of the House or the Clerk of the House, a sufficient sum is hereby appropriated." This validated previous payments of salary.