Page images
PDF
EPUB
[ocr errors]

Declaring that he was unable to discover a sufficient basis for such construction in section 3469 of the Revised Statutes, Mr. MacVeagh referred to the requirement of that section, that the district attorney, or other officer having charge of the claim, shall report in detail "the condition of such claim and "the terms upon which the same may be compromised," and remarked that he did not see that any special import was to be attached to the expressions quoted, and that he thought they left the question of the Secretary's authority open to general considerations. Following further statements to the effect that the grant of authority was general and comprehensive in its language; that the requirement of the concurrence of the several officers mentioned in the statute placed ample safeguards around the exercise of the authority conferred, and that if Congress had desired to impose any limit upon the considerations which the Secretary might entertain in reaching his conclusion, it could easily have done so, Mr. MacVeagh observed (p. 215-216):

"I am also unable to imply from the provisions of the law under review any intention on the part of Congress that the Secretary of the Treasury should be compelled to pursue litigations out of which the United States might undoubtedly realize smaller or greater sums of money, but which in his judgment ought not to be further prosecuted. As an illustration, if a person has been guilty of a technical violation of the internal revenue laws, and upon being informed of it, offers to compromise the case by the payment of the costs and of any other sum justly due the Government, I see no evidence in these sections of the Revised Statutes, or in the laws from which they were draughted, that Congress intended to require that a suit shall be commenced and prosecuted to extort the penalty intended only for willful violators of the law, and the same considerations would apply to a great variety of cases, some of which must be of frequent occurrence in the administration of the Treasury Department, where the rigid enforcement of the technical legal rights of the Government would work manifest and plain injustice by taking from citizens money which, in the forum of conscience and good morals, they did not owe to

[ocr errors]

it. It is not necessary to hold that the Secretary of the Treasury is in the matter of compromise a fountain of the compassion of the Government or an almoner of its charity. Those are considerations which do not belong to the administration of a business department. But, on the other hand, it is to my mind as clearly unnecessary to hold that the Secretary is bound to be an instrument of manifest injustice, and to ask himself only in every case this question, Will the prosecution of the claim in question probably bring to the Treasury more money than its compromise upon the terms proposed?

"I have, therefore, to advise you that while, in considering any compromise submitted to your judgment, you are not at liberty to act from motives merely of compassion or charity, you are at liberty, until Congress sees fit to limit your authority, to consider not only the pecuniary interests of the Treasury, but also general considerations of justice and equity and of public policy."

It will be noted that the foregoing opinion differed from the opinions of the Attorney General theretofore rendered in that it held that the Secretary of the Treasury was not confined, in the matter of compromising claims in favor of the United States, to the purely fiscal consideration of whether such claims could be collected, but was authorized to take into account considerations of justice, equity and public policy. The only compromises therein referred to, however, were those arising for consideration prior to, or pending, suit. As reasons might readily be conceived which would render doubtful the collectibility of a claim prior to suit, or the obtaining of a judgment thereon pending suit, Attorney General MacVeagh's opinion is manifestly not a precedent upon the question here under discussion, viz, whether the statute confers authority to compromise a final judgment where there is no doubt of its collectibility.

In 21 Op. 50, the question was whether, upon the recommendation of the United States Attorney and the Solicitor of the Treasury, the Secretary of the Treasury was authorized by section 3469 to accept an offer by the International Cotton Press Company of $50 in consideration of the release of a lien held by the United States upon real estate owned by that company. It appeared that the real estate

in question was purchased by the company from one Snyder after certain internal revenue taxes adjudged by the Supreme Court to be owing by Snyder had accrued. In an opinion approved by Attorney General Olney, Solicitor General Maxwell concluded that section 3469 conferred no such authority, saying (p. 51):

"The petition for settlement and the recommendations in support thereof are not based upon doubts as to the possibility of realizing the amount of the tax out of the property, but upon the ground of the hardship to the company supposed to be involved in enforcing against it the laws of the United States as interpreted by the Supreme Court in a proceeding to which the company was a party.

"I am of the opinion that section 3469 has no application to such a case.

"The section does not authorize the Secretary of the Treasury to remit or release moneys due to the United States and clearly recoverable, but to 'compromise,' which implies a claim of doubtful recovery or enforcement.

"In the case which you submit there is nothing to 'compromise,' for the right of recovery and the amount have been finally adjudged by the court of last resort, and the property is said to be sufficient to satisfy the debt."

In 21 Op. 264, the foregoing opinion was reconsidered and the same conclusion reached by Attorney General Harmon, who said (p. 265):

"The petitioner seeks to be relieved from this adjudged lien on its property on the ground of hardship, because, being protected by no recording act, it bought in ignorance of the Government's claim. This is a hardship shared with all persons who, without sufficient inquiry, buy property subject to claims which the law does not require to be recorded, such as dower rights in estates. The petitioner also claims that the full amount could have been collected from Snyder if the Government had proceeded promptly against him individually instead of relying (as it had a right to do) upon its lien on his property; and that Snyder has since become insolvent, so that, if petitioner's land were sold, it could have no recourse against him.

"Upon taking up this claim for consideration you were confronted with the question, whether it is within your

141183°-32-VOL 36 4

power to release, in whole or in part, a judgment recovered by the United States, from which there is no appeal and of whose collectibility in full there is no doubt."

After quoting from the previous opinion of Solicitor General Maxwell, Mr. Harmon continued (p. 266):

“I am, however, clearly of the opinion that the opinion already given is correct. The construction given to the statute accorded with that of Mr. Evarts (12 Opin., 543), and with that of Mr. Devens and Mr. Phillips (16 Opin., 617). If the opinion of Mr. MacVeagh (17 Opin., 213) is to be construed as holding that a claim holding that a claim may be compromised when there is no doubt of its entire and ready collectibility, I am unable to concur with it. It appears to ignore the clear distinction between the compromise of a doubtful case and the remission of a penalty, forfeiture, or disability. (Rev. Stat., secs. 3461, 5292.) The former power, as said by Mr. Evarts in the opinion above cited, is strictly a fiscal The latter is in the nature of a pardoning power. (The Laura, 114 U. S., 411, 413-414.)" (Emphasis supplied.)

one.

In 23 Op. 18, the Secretary of the Treasury was advised that he had no authority to accept an offer in compromise of a judgment recovered by the United States upon the official bond of a receiver of public moneys in Arizona and affirmed by the Supreme Court. In the opinion, which was prepared by Solicitor General Richards and approved by Attorney General Griggs, it was said (p. 19):

"It is conceded that this final judgment can be collected from the sureties, but a so-called compromise offer is submitted and urged on the ground that it would work a hardship to enforce the collection of the entire amount of the judgment. The grounds of hardship were presented to the courts as a defense to the suit, and are set forth in the statement and opinion of the Supreme Court (170 U. S. 372). The only question presented to me is whether a final judgment in favor of the United States, which is collectible, can be compromised' under sectoin 3469 of the Revised Statutes, **

[ocr errors]

Following a reference to the opinion of Solicitor General Maxwell, approved by Attorney General Olney (21 Op. 50),

and to the opinion of Attorney General Harmon, reaffirming it (21 Op. 264), the opinion stated (p. 20):

"No reasons have been advanced or suggest themselves justifying change of the construction placed upon this section by my predecessors. A compromise is an adjustment or settlement by mutual concessions. The claim must in some way be doubtful. There must be room for the 'play of give and take.' For this reason the statement from the attorney in charge 'showing in detail the condition of such claim, and the terms upon which the same may be compromised,' is required. In the case of a collectible judgment there is no room for 'give and take,' no basis for a compromise; the concession is all on the one side, the side of the Government, which remits in place of compromising."

In 23 Op. 631, Attorney General Knox approved an opinion prepared by Solicitor General Richards containing like views regarding the effect of section 3469. The question there was whether the Secretary of the Treasury had power under that section to accept an offer to compromise a claim of the United States for interest upon unpaid tax, bonus and rental due under a contract for taking fur seals in Alaska. Advising that section 3469 conferred such authority, Solicitor General Richards said (p. 633):

"In an opinion given January 17, 1900, I held, following Solicitor General Maxwell (21 Opin., 51), and Attorney General Harmon (21 Opin., 264, 266), that this section does not authorize the Secretary of the Treasury to compromise a claim which has been reduced to judgment, affirmed by the highest court, and is clearly collectible, because a compromise is an adjustment or settlement by mutual concession. The claim must in some way be doubtful. There must be room for the 'play of give and take.' In the case of a collectible judgment, which has been affirmed by the highest court, there is no room for 'give and take,' no basis for a compromise; the concession is all on the one side, the side of the Government, which remits in place of compromising.

"But in the case of this claim for interest, there are involved disputed questions of fact and of law, which if put in litigation might be decided the one way or the other.

« PreviousContinue »