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OPINIONS

OF

JOHN J. CRITTENDEN, OF KENTUCKY:

APPOINTED MARCH 5, 1841.

FEES OF ATTORNEYS, CLERKS, MARSHALS, &c.

The provision for the regulation of the fees and compensation of certain clerks, attorneys, counsellors, and marshals, in the district courts of the United States, contained in the act making appropriations for the civil and diplomatic expenses of the government for the year 1841, was designed to reduce the fees of the federal officers whose compensation by existing laws exceeds $1,500 per year, to the scale of fees allowed by law for similar services in the highest State courts.

To give effect to this provision the several officers embraced within it should ascertain, as far as practicable, whether all the fees, emoluments, and receipts of their office, as allowed under anterior laws, will make their entire compensation exceed the sum of $1,500 per annum; and if it be reasonably certain that they will, the officer must be confined in his charges to the rates of fees prescribed by the proviso. If they will not, or if the question be fairly doubtful, the old rule may be adhered to.

Clerks are not responsible to the treasury for fees which, after using due diligence, they have failed to collect.

ATTORNEY GENERAL'S OFFICE,
April 13, 1841.

SIR: By your note of the 1st instant, you were pleased to submit to me the letter, under date of the 29th of the last month, of Mr. O. Hoffman, attorney of the United States for the southern district of New York, presenting some questions in relation to the construction of certain provisions in the act of Congress passed the 3d day of March last, and entitled “An act making appropriations for the civil and diplomatic expenses of the government for the year eighteen hundred and forty-one." These questions, on which you desire my opinion, have reference exclusively to that proviso in that act designed to regulate the fees, &c., and to limit the compensation of certain "United States clerks, attorneys, counsel, and marshals, in the district and circuit courts of the United States," &c.

In the enactment of this proviso, Congress evidently proceeded upon the assumption that the fees and emoluments heretofore allowed were higher, or greater in amount, than those now allowed by the laws of the several States to their respective officers performing the like services. And it is equally evident that it was the design of this proviso to reduce the fees of the federal officers to the latter and lower scale or rate in all the districts where the former scale or rate of fees would produce a compensation exceeding the sum of $1,500 per annum. So far, the language and purpose of the act are supposed to be clear and explicit. The diffi culties that have been suggested are in the practical application of the act to those instances where it may be doubtful whether the prior and higher rate or scale of fees will produce a sum or compensation exceeding $1,500 per annum; and, in respect to these doubtful instances, the proviso furnishes no express rule for the government of its officers, and they are

driven from necessity to adopt, by inference from the general tenor and purpose of the act, some rule appropriate to, and calculated to carry into effect, as nearly as may be, the intentions of Congress. Taking this view of the subject, it seems to me that it becomes the duty of each of the several officers embraced by the proviso in question at once to ascertain, as far as practicable, whether "all the fees, emoluments, and receipts" of his office, as "allowed" under laws anterior to that enactment, will make his entire compensation" exceed the sum of $1,500 per annum; and if, according to that old rule of fees and allowances, it may be anticipated as reasonably certain, or certain to a common intent, that his "entire compensation" will exceed that sum, he must then be confined to and governed in his charges by the new scale or rate of fees prescribed by said proviso. On the other hand, if it be equally certain that his "entire compensation" will not exceed that sum, according to the old scale or rate of fees, he may, in that case, adhere to that old rate or scale; and so he may also, in my opinion, where it may be fairly doubtful whether or not the old and higher rate of compensation will exceed the sum of $1,500. The officer must decide these questions under his official obligations, and should be held responsible only for a fair and honest exercise of his judg ment. In such a case, no more can be required of a public officer than due diligence in acquiring information of facts proper to guide his judg ment, and good faith in the exercise of that judgment. The law in question does not make the compensation received by the officer in the past, or any preceding year, the absolute criterion by which his future fees are to be regulated. Its provisions are applied to, and intended to operate on, a certain described and present state of case; and the executive officer is left to determine, under his proper responsibility, whether that state of case exists, and to act accordingly. This may be considered as an extraordinary duty and responsibility for such an officer; but the law, it seems to me, has, in this instance, imposed it. By the words "present entire compensation," in the connexion in which they are used in the proviso, I understand is meant the "entire compensation" allowed by the present laws; and where those laws would produce to the officer a com pensation, in future, exceeding $1,500 per annum, he is required to reduce his fees to the new standard fixed by this enactment; and whether those present or previous laws would produce a larger sum than $1,500 must be decided upon estimates made in anticipation of the results of the year, in order that the litigants, from whom the money is exacted, may have the advantage of the contemplated reduction of fees. In deciding that question, I ought, perhaps, to remark that, although other circumstances are not to be excluded, the officer ought to inquire what has been the product and amount of fees in former years, and ought to be very much guided in his judgment by the result of that inquiry.

Upon the second point of inquiry suggested in the letter of Mr. Hoffman, I have to say, that the proviso so often mentioned expressly directs, when the new rate of fees is introduced, that the officers embraced by it shall demand and receive the same fees that now are, or hereafter may be, allowed by the laws of the said States respectively, where said courts are held; to the clerks, &c., in the highest courts of the said States in which the like services are rendered. It seems to me, therefore, that if the new rate of fees is introduced in the State of New York, under the operation of this enactment; and if the "court of errors" is (and doubt

less it is so) the highest court in that State, the clerk of the federal court in that State is entitled and authorized to charge and receive the same fees that are allowed in the "court of errors" for like services. But as for those services the like of which are not rendered in that court, his fees must be the same that are allowed for them in the highest court of the State where they are rendered. I must add, however, that it is most apparent that it was not the intention of Congress to increase the rate of fees; and that, therefore, no construction ought to be given to its late enactment which would raise the fees in any instance higher than they were at, and prior to, the time of that enactment.

Upon the third question submitted by Mr. Hoffman, I am clearly of opinion that in no event ought a clerk to be made personally responsible to the treasury for any amount of his fees which he may have failed to collect, after using, with ordinary diligence, the means of collection that are usually adopted and employed by clerks for the collection of fees for their benefit. In other, and perhaps more correct terms, the clerk ought not, in such case, to be made personally accountable, except where the loss of fees is clearly imputable to his negligence. There is much difficulty in construing satisfactorily the proviso in question, and in extracting from it practical rules for its administration. I have been compelled to attempt this task amidst the pressure of other business; but the above. remarks embrace all the questions submitted, and afford whatever assistance my hasty opinions can contribute to their proper decision. I have the honor to be, very respectfully, yours, &c.,

Hon. THOMAS EWING,

Secretary of the Treasury.

J. J. CRITTENDEN.

P. S.-I return with this the letter of Mr. Hoffman.

COUNTERSIGNATURE TO LAND PATENTS.

The countersignature of the recorder of land patents, and seal of the office thereto attached, constitute a sufficient authentication of a patent for land.

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SIR: I have examined and considered the statements and questions propounded by the Commissioner of the General Land Office in his letter to you of the 8th instant, and which you have referred to me for my opinion.

The letter of the Commissioner contains a statement of the legislation of Congress, and the practice of his office in relation to the subject of his inquiries, and concludes with the following questions: "1st. Is it necessary for the recorder, after the annexation of his countersignature and the seal of the office to land patents, to again certify and affix the seal of said office to the same? 2d. If so, to what facts or statements ought he so to certify and affix the seal-that is to say, what shall be the form of the additional certificate?"

My opinion is, that, after the recorder's annexation of his counter

signature and the seal of the office to land patents, it is not necessary for him again to certify and affix the seal of said office to the same. So far as his official agency is concerned, the seal of the office which he is required to affix, and his countersigning, is all that is requisite, under the law, to the validity or authenticity of patents for land. His countersigning in effect attests and certifies their due execution and authenticity, and no additional certificate from him can be necessary. My answer to the first question being in the negative, it becomes unnecessary to take any further notice of the second.

I have the honor to be, with great respect, yours, &c.,

Hon. THOMAS EWING,

Secretary of the Treasury.

ENDEN.

J. J. CRITTENDEN.

COURTS-MARTIAL-SENTENCE OF LIEUTENANT WHITNEY.

The sentence pronounced by the court-martial in the case of Lieutenant Whitney is not illegal nor unconstitutional, but severe and harsh, under the circumstances.

ATTORNEY GENERAL'S OFFICE,

June 1, 1841.

SIR: By your letter of the 13th of March last, there was referred to me the letter of Louis F. Whitney, late a lieutenant in the marine corps, &c., applying for restoration to his rank in the said corps, together with the proceedings of the court martial by which he was tried, convicted, and sentenced to be cashiered, for my opinion whether the objection urged by him as to their illegality and unconstitutionality is well founded.

I have examined the proceedings of the court-martial, and considered the objections of Lieutenant Whitney. However objectionable or erroneous it may be in other respects, the sentence of the court does not ap. pear to me to conflict with that provision of the constitution which declares that excessive fines shall not be imposed, nor cruel and unusual punishment inflicted; and I am, therefore, of opinion that the objection made by Lieutenant Whitney, on the ground of the supposed unconstitu tionality of the sentence, is not well founded. As to all the other objections urged by him, it is my opinion that they present questions proper for decision in the Naval Department only. Having, however, upon your reference, found it necessary to examine the whole case, I hope to be excused for saying that the sentence against Lieutenant Whitney appears to me to be severe and harsh. It is by no means clear or certain that he meditated any fraud in the little pecuniary transactions which form the basis of the charges against him, or that they might not have been fairly regarded as the thoughtless improprieties of a necessitous young man. Upon the whole, it seems to me that the milder punishment of reprimand or suspension would have fully satisfied the most rigorous demands of justice. My absence from the city has occasioned the long delay of this reply to your letter of the 13th of March last.

I am, sir, very respectfully, yours, &c.,
J. J. CRITTENDEN.

Hon. GEORGE E. BADGER,

Secretary of the Navy.

NON-PERFORMANCE OF CONTRACT FOR RATIONS EXCUSED.

Neglect of the officers and agents of government to give a contractor for rations, to be furnished the Creek Indians, due notice of an unexpected large number of them to be removed, and supplied with rations at an unseasonable period of the year, is sufficient to excuse the nonperformance of the contract, and to protect the contractor from damages. Payment for rations furnished before the contract was abandoned by the contractor, ought not to be withheld by the government on account of such non-performance.

OFFICE OF THE ATTORNEY GENERAL,

June 8, 1841.

SIR: I have had the honor to receive your letter of the 29th day of the last month, referring to me, for my opinion, a question relative to a claim asserted by the representatives of Samuel Mackay, deceased, against the United States. Your letter does not contain any statement of the facts of the case, nor does it propound any specific question, but refers for both to a communication on the subject from R. S. Coxe, esq., which was sent to me with your letter. From that communication, I learn that Samnel Mackay was a contractor with government for furnishing, during a certain period, at a stipulated price, and at stipulated places, whatever amount or number of rations might be required for the Creek Indians in the course of their removal from the west to the country assigned them on the east side of the Mississippi river; that, under this contract, he did furnish 482,848 rations, and was paid for them; that he afterwards furnished the additional number of 175,985, and then abandoned his contract, being unable to complete its performance, by furnishing the further supply of rations that was required.

On this state of the case, the government withheld payment for the 175,985 rations in consequence of, or as an indemnity for, Mackay's breach of contract; whilst he insists on payment for the rations delivered by him, and contends that his failure to complete the performance of his contract stands excused, if not justified, by the circumstances of the case, and the neglect of the officers and agents of the government to give him due notice of an unexpectedly large number of those Indians that were removed at an unseasonable time of the year. And this is the controversy and question between the government and the representatives of Mackay, which I understand to be submitted to me. I do not think it necessary to inquire or decide whether Mackay could, according to strict rules of law, have defended successfully any suit that might have been brought against him for his failure in the performance of his contract. In such a suit he might possibly have been found guilty of a technical breach of contract, and subjected to nominal damages. But, in my opinion, the circumstances of the case, and especially the neglect to give him that notice so essential to the nature of his engagements, and to which he was entitled by the regulations of your department, are sufficient to excuse his non-performance of his contract, and to protect him, upon every just and equitable consideration, from damage for that cause. If this opinion be correct, it follows that the government ought now to pay for the rations that were actually delivered by Mackay, if that payment has been withheld on no other ground than the supposed right of the government to have damages from him for the breach of contract with which he has been charged. I desire the Secretary of War to observe, that I regard his letter as recognising the statement of facts contained in Mr. Coxe's communication; and that in all that I have here said, I have proceeded upon

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