United States v. Bashaw
152 U.S. 436 (1894)

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U.S. Supreme Court

United States v. Bashaw, 152 U.S. 436 (1894)

United States v. Bashaw

No. 779

Submitted January 8, 1894

Decided March 19, 1894

152 U.S. 436

Syllabus

An action cannot be maintained against the United States by a district attorney to recover for services rendered and expenses incurred in prosecuting for fines, penalties, and forfeitures, under Rev. Stat. sections 838

Page 152 U. S. 437

and 3085 for violations of the customs laws or the Internal Revenue laws unless the Secretary of the Treasury first determines what sum he deems just and reasonable therefor.

Thomas P. Bashaw brought an action against the United States in the Circuit Court for the Eastern District of Missouri to recover compensation for certain services rendered by him during the years 1887 and 1888 in the capacity of district attorney for the United States in that district. The petition contained five counts, of which the second and third were based upon services for investigating certain alleged violations of the internal revenue laws of the United States which had been referred to him for examination by the collector for the district under section 838 of the Revised Statutes. The claim under the second count was for $825, being for the examination of 165 cases at $5 for each case, in which the district attorney had decided that proceedings could not probably be sustained or that the ends of justice did not require them to be instituted. The claim under the third count was for $235 for similar services in respect of 47 cases. In each count it was alleged that plaintiff had made out and submitted his claim to the district judge of the Eastern District of Missouri and that the same had been duly allowed and certified by him, and that afterwards plaintiff presented the claim for payment

"to defendant in its Department of the Treasury, to the accounting officers of the Treasury, whereupon said defendant, by its said department, wrongfully neglected and refused to pay the same."

The circuit court found in favor of the United States as to the first and fourth counts, and in favor of plaintiff on the second, third, and fifth counts, and gave judgment for $1,070, which included the sum of $10 under the fifth count, as to which no question is raised. The court made certain findings of fact and conclusions of law.

The second finding of fact was as follows:

"2. The court further finds the facts to be as stated in the second and third counts of the petition -- that is to say, the court finds that between the 28th day of January, 1887, and first day of July, 1888, the collector of internal revenue for

Page 152 U. S. 438

the first collection district of Missouri reported to the plaintiff herein (who was then United States district attorney for the Eastern District of Missouri) divers and sundry cases of alleged violations of the internal revenue laws of the United States, to the number of 165; that the plaintiff inquired into and examined each of said cases, and that upon such inquiry and examination decided that proceedings therein could not probably be sustained, and that the ends of justice did not require that such proceedings should be prosecuted, and that he thereupon made a report of the facts in such cases to the Commissioner of Internal Revenue for his direction. The court finds that the plaintiff's services were reasonably worth the sum of five dollars in each of said cases, to-wit, total sum of eight hundred and twenty-five ($825.00) dollars."

"That between the first day of July, 1888, and the 31st day of December, 1888, he made like examination and report in forty-seven other cases of alleged violations of the internal revenue laws which were reported to him by said collector of internal revenue; that the plaintiff's services in each of the said forty-seven cases were likewise reasonably worth the sum of $5.00 per case, or the total sum of two hundred and thirty-five ($235.00) dollars."

The record did not show that the accounts were allowed and certified by any judge, but it appeared from letters of the assistant Secretary of the Treasury in evidence that the claim for $825 was rejected in these terms:

"In accordance with the rulings of this department and the opinion of the Attorney General, this account cannot be allowed because the cases were not tried or disposed of before a judge,"

and that for $235 in the same language, with these words added: "And consequently no judge can give the certificate which the law requires, and which is necessary as the basis of the Secretary's allowance."

Judgment having been rendered, the case was carried by appeal to the United States Circuit Court of Appeals for the Eighth Circuit, and the judgment was by that court affirmed. The opinion is reported in 50 F. 749. An appeal was then taken to this Court.

Page 152 U. S. 439

By the seventh section of the Act of Congress of July 18, 1866, entitled "An act further to prevent smuggling and for other purposes," 14 Stat. 178, 179, c. 201, it was made the duty of the district attorney, upon the report of the collector of customs thereby required, to

"cause suit and prosecution to be commenced and prosecuted without delay for the fines and personal penalties by law in such cases provided, unless upon inquiry and examination he shall decide that a conviction cannot probably be obtained, or that the ends of public justice do not require that a suit or prosecution should be instituted, in which case he shall report the facts to the Secretary of the Treasury for his direction, and for expenses incurred and services rendered in prosecutions for such fines and personal penalties, the district attorney shall receive such allowance as the Secretary of the Treasury shall deem just and reasonable upon the certificate of the judge before whom such prosecution was had,"

etc.

By Act of Congress of March 3, 1873, 17 Stat. 580, c. 244, the seventh section of the former act was amended and the same provisions in substance extended to internal revenue cases, and it was made the duty of the district attorney on report of the collector of customs or the collector of internal revenue, as the case might be,

"to cause the proper proceedings to be commenced and prosecuted without delay for the fines, penalties, and forfeitures by law in such case provided, unless, upon inquiry and examination he shall decide that such proceedings cannot probably be sustained, or that the ends of public justice do not require that proceedings should be instituted, in which case he shall report the facts in customs cases to the Secretary of the Treasury, and in internal revenue cases to the Commissioner of Internal Revenue, for their direction, and for the expenses incurred and services rendered in all such cases the district attorney shall receive and be paid from the Treasury such sum as the Secretary of the Treasury shall deem just and reasonable upon the certificate of the judge before whom such cases are tried or disposed of, provided that the annual compensation of such district attorney shall not exceed the maximum amount now prescribed by law,"

etc.

Page 152 U. S. 440

These provisions were carried forward into the Revised Statutes as section 838, under title 13, "The Judiciary," and section 3085, under title 34, "Collection of Duties." These sections are as follows:

"SEC. 838. It shall be the duty of every district attorney to whom any collector of customs or of internal revenue shall report according to law any case in which any fine, penalty, or forfeiture has been incurred in the district of such attorney for the violation of any law of the United States relating to the revenue, to cause the proper proceedings to be commenced and prosecuted without delay for the fines, penalties, and forfeitures in such case provided unless upon inquiry and examination he shall decide that such proceedings cannot probably be sustained or that the ends of public justice do not require that such proceedings should be instituted, in which case he shall report the facts in customs cases to the Secretary of the Treasury, and in internal revenue cases to the Commissioner of Internal Revenue for their direction. And for the expenses incurred and services rendered in all such cases, the district attorney shall receive and be paid from the Treasury such sum as the Secretary of the Treasury shall deem just and reasonable, upon the certificate of the judge before whom such cases are tried or disposed of, provided that the annual compensation of such district attorney shall not exceed the maximum amount prescribed by law by reason of such allowance and payment."

"SEC. 3085. District attorneys, upon receiving the report of a collector, shall cause suit and prosecution to be commenced and prosecuted without delay for the fines and personal penalties by law in such case provided unless upon inquiry and examination they shall decide that a conviction cannot probably be obtained, or that the ends of public justice do not require that a suit or prosecution shall be instituted, in which case they shall report the facts to the Secretary of the Treasury for his direction. For expenses incurred and services rendered in prosecutions for such and personal penalties, they shall receive such allowance as the Secretary of the Treasury shall deem just and reasonable, upon

Page 152 U. S. 441

the certificate of the judge before whom such prosecution was had."

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