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had expended considerable sums of money in endeavoring to apprehend the said defendants, whose surrender was due largely to its efforts, and that by virtue of such surrender on the day following the entry of the scire facias judgments and of the trial and convictions which followed, the United States had lost none of its rights, the ends of justice were properly served, and the United States should not demand the full amount of the penalty for the default, but should accept the offered compromise, which would reimburse it for its expenses incurred in seeking the apprehension of these defendants.

Pursuant to the practice in such cases, the compromise offer was referred to the United States Attorney for his recommendation in the premises. Estimating that the Government had expended between $1,500 and $2,000 by reason of the failure of the said defendants to appear as required by their bonds, that officer recommended that if the surety company should submit an offer of $2,000 in settlement of these judgments, the offer should be accepted, if cognizable under section 3469 of the Revised Statutes.

The surety company thereupon submitted a new offer in the sum of $2,000, and the Solicitor of the Treasury recommended that it be accepted. In making such recommendation, the Solicitor referred to conflicting opinions of the Attorney General upon the question of the authority of the Secretary of the Treasury, under section 3469, to compromise final judgments recovered by the United States the full amounts of which could be collected, and based his conclusion that such authority existed upon an opinion by Attorney General Wickersham (29 Op. 217), wherein the previous opinions of the Attorney General upon the subject were reviewed and the opinion expressed that, in passing upon offers to compromise final judgments, the Secretary of the Treasury was not restricted to a determination of whether the judgments could be collected, but was authorized to determine, upon considerations of justice, equity, and sound public policy, whether their collection in full should be insisted upon by the Government.

In view of the matters stated and because of a doubt engendered by the divergent views expressed by my predecessors, you ask to be advised whether you have authority

under section 3469 to accept the offer of the Great American Indemnity Company in compromise of the aforesaid judgments, as to which you say no appeal has been taken and no showing or claim made that they cannot be collected in full.

Section 3469 of the Revised Statutes, which has been carried without change into the United States Code as section 194 of Title 31, reads as follows:

"Upon a report by a district attorney, or any special attorney or agent having charge of any claim in favor of the United States, showing in detail the condition of such claim, and the terms upon which the same may be compromised, and recommending that it be compromised upon the terms so offered, and upon the recommendation of the Solicitor of the Treasury, the Secretary of the Treasury is authorized to compromise such claim accordingly. But the provisions of this section shall not apply to any claim arising under the postal laws."

Except for the final provision regarding claims arising under the postal laws, section 3469 reenacted, word for word, the provisions of section 10 of the Act of March 3, 1863 (c. 76, 12 Stat. 737). Construing the latter statute in 12 Op. 543, Attorney General Evarts, in response to an inquiry by the Postmaster General whether it authorized a compromise by the Secretary of the Treasury of a claim against a surety upon a forfeited recognizance given for the appearance in court of a person charged with robbing the mail, said:

"The statute was not intended to vest in the Secretary of the Treasury any authority, or impose upon him any duty touching the administration of the criminal laws of the United States. Its purpose simply was to enable the Government to realize the largest amounts from money claims which might be of doubtful recovery or enforcement, and to accomplish this object the Secretary of the Treasury was empowered to compromise such claims upon the recommendation of the counsel having charge of them and of the Solicitor of the Treasury. This power is strictly, therefore, a fiscal one, and is to be exercised in each case upon fiscal considerations alone.

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But if it was made to appear to the Secretary of the Treasury that the United States could not realize by judgment and execution the full amount of the debt, by reason of the insolvency of the surety or other impediment, the Secretary was authorized, upon the concurring recommendations of the district attorney and the Solicitor of the Treasury to effect a compromise of the claim upon the best terms that could be obtained."

Similar views were expressed by Attorney General Devens in 16 Op. 259. The question there propounded by the Secretary of the Treasury was whether an offer of compromise could be accepted under section 3469 where the proponent is able to pay the full amount claimed by the United States, but the United States Attorney recommends acceptance of the compromise offer because he doubts his ability to obtain a judgment. In reply, Mr. Devens said (p. 260):

"Section 3469 is a general section, relating to all claims in favor of the United States not elsewhere specifically provided for. The former letter from this Department expressed the opinion that under that section, where the defendant was entirely solvent, it was not the duty of the Solicitor of the Treasury to recommend a compromise upon the ground that circumstances of hardship existed affecting the defendant. It assumed that the United States was able fully to prove its claim, and merely determined that compromise ought not to be recommended because it was hard to enforce the claim.

"The present inquiry, however, presents the additional fact that it is uncertain whether or not the Government can prove its case. There is therefore this distinct element in the case upon which a compromise can properly be made, resulting from the uncertainty in which the Government is placed as to its ability to obtain a verdict; and in such case it seems to me that a compromise may properly be recommended, not upon the ground that the case is a hard one as against the defendant, but upon the same ground upon which contested claims are often compromised by parties, in view of the uncertainty as to their obtaining a judgment." In 16 Op. 617, Solicitor General Phillips, in an opinion approved by Attorney General Devens, advised the Solicitor of the Treasury that section 3469 conferred no author

ity upon that officer to recommend for compromise by the Secretary of the Treasury cases in which the claim is entirely solvent, but where circumstances of hardship, etc., exist. The opinion was based, not only upon a construction of the language of section 3469, but upon an analysis of the provisions of the Act of 1863 from which that section was derived. It was therein said:

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"The purport of the section is that, as to certain claims in favor of the United States in the hands of district and other attorneys for collection, such attorneys may make reports showing the condition thereof, and the terms upon which the same may be compromised,' and recommending the acceptance of such terms, whereupon, if the same be also recommended by the Solicitor of the Treasury, the Secretary of the Treasury is authorized to compromise accordingly.

"It seems to me that the phrases condition of the claim and may be compromised both indicate the circumstances which alone authorize the recommendation. The first denotes doubtful claims, and the second directs the attorney to report the most that can be had by compromise.

"The title and structure of the act of 1863, from which this section was copied, is to the like effect. That title is, 'An act to prevent and punish frauds upon the revenue, to provide for the more certain and speedy collection of claims in favor of the United States, and for other purposes' (12 Stat., 737). The act consists of fourteen sections, the first eight of which plainly concern frauds upon the customs; the ninth directs the Solicitor of the Treasury to dispose of unproductive property acquired by the United States under judicial proceedings or otherwise; the tenth is that in question; the eleventh gives to district attorneys a commission of 2 per cent. upon all moneys collected under the revenue laws; the twelfth and thirteenth provide for the defense of collectors, &c., by district attorneys; and the fourteenth is a repealing section. The first eight, then, come under the first clause of the title, the next three under the second, and the last three under the third. The ninth is a means for turning the fruits of former judgments and executions into money; the tenth for the better ascertainment and realization of the value of claims in the course of

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collection; while the eleventh is intended to increase the diligence of the district attorneys, upon whom, mainly, devolves the duty of carrying out the policy of the section immediately before. The amount of their compensation is made to depend upon the amount of what they secure by the compromise which they recommend.

"The relation between the body of this act and its title is the more relied upon because it appears from the Globe that its main outlines and its title, as introduced, were preserved during its passage through Congress.

"These are some of the reasons which have led me to conclude that the section in question confers no authority in regard to cases merely hard.

"If the language and general purview of the act were more doubtful than they seem, it would have to be borne in mind that the grace of the Government, as regards its debtors, is vested in Congress; that hard cases are proverbially quicksands; and, therefore, it would require clear and specific words to show that the legislature had devolved upon another department so broad and indefinite a prerogative over the public purse."

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In 17 Op. 213, Attorney General MacVeagh expressed views which to some extent conflicted with the prior opinions of the Attorney General above noted. Replying to a request by the Secretary of the Treasury for an opinion as to the correctness of a memorandum prepared by Assistant Secretary French upon the extent of the Secretary's authority to compromise cases, Mr. MacVeagh said (p. 214):

"I beg now to state that I have very carefully considered the subject, and I regret to say that I do not find myself able to agree entirely with the former opinions of this Department referred to in the memorandum of Judge French. Those opinions appear to hold that the only consideration that the Secretary of the Treasury is at liberty to take into account in deciding upon the advisability of any proposed compromise, either of a claim not in suit, or of a suit pending, is whether the Government can realize more money by its prosecution than by accepting the settlement proposed."

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