Attorneys and counselors specially employed to render legal
services for the United States cannot, under existing legislation,
be compensated for such services in the absence of the certificate
of the Attorney General required by Rev.Stat. § 365, and if he
fails or refuses to give such certificate, Congress alone can
provide for compensation.
One who receives a commission as special assistant to a District
Attorney for particular cases, or for a single term of court, or
for a limited time, is not an Assistant District Attorney within
the meaning of Rev.Stat. § 365, and therefore the certificate of
the Attorney General prescribed therein is a prerequisite to the
allowance of compensation.
The case is stated in the opinion of the Court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This is an appeal from a judgment against the government in the
Court of Claims for the sum of $300, which was found to be the
value of certain services rendered by the appellee as a special
assistant to the Attorney of the United States for the District of
Idaho at a called term of the circuit court.
The facts found by the Court of Claims, and upon which the
appellee's claim for compensation depends, may be thus
summarized:
On the 22d of June, 1892, the appellee, an examiner in the
Department of Justice, received from the Attorney General an order
directing him to discontinue the investigations then being made by
him in Utah and proceed at once to Idaho for
Page 168 U. S. 376
the purpose of conferring with the author of a certain
confidential communication which had been received by the
Department of Justice. The order also directed him to examine the
offices and accounts of the United States attorney, the United
States marshal, the clerk of the United States court, and the
United States commissioners, investigate the manner in which
business was conducted by those officers, inform himself as to the
character and qualifications of the various officials, and report
to the department the results of his examination.
While thus engaged in Idaho, the plaintiff received by
telegraph, August 9, 1892, an order from the acting Attorney
General of the United States, directing him to "report to and
assist the United States attorney at a special term to be called by
Judge Beatty at Coeur d'Alene City, Idaho."
On the 13th of August, 1892, he was appointed by the acting
Attorney General "a Special Assistant to the Attorney of the United
States for the District of Idaho, to aid him in the preparation and
prosecution of all criminal business properly coming before the
court during its special term, ordered at Coeur d'Alene for August
3, 1892." The order of appointment stated:
"Your compensation will be determined by the Attorney General
upon completion of your service. Execute the customary oath of
office, and forward the same to this department without delay."
It should be stated that on the 14th day of August, 1892, while
at Boise City and after his above appointment had been made, but
before receiving notice thereof, the appellee mailed to the
Attorney General an official communication in relation to the
criminal proceedings then being instituted in Idaho against rioters
and conspirators, in which he said:
"I will proceed to Wallace tomorrow for the purpose of preparing
the cases for trial, and to select the necessary witnesses, in
order that none may be subpoenaed unnecessarily. The marshal has
been instructed to provide a sufficient guard for the term to be
held, and everything appears to be moving along smoothly. In order
that no question may be raised by the defense as to may status, and
that I may be able to appear before the grand jury, I beg to
suggest the advisability of my appointment as
Page 168 U. S. 377
a special assistant to the United States attorney, without
compensation, for these cases."
The plaintiff took the required oath of office and performed the
duties assigned to him. He appeared on behalf of the United States
before the United States Commissioner at Wallace, Idaho, for the
purpose of having him "discharge" a large number of rioters who had
been held to appear before that officer, examined witnesses before
the grand jury, rendered daily service at the trial of the cases,
"and generally rendered the professional assistance of an assistant
district attorney, from the 23d of August, 1892, to the 28th of
September, 1892." He performed also his duties as examiner of the
Department of Justice.
At the time of rendering service as special assistant to the
district attorney, he was receiving in his capacity as an examiner
in the Department of Justice a salary of $2,500 per annum. He was
also reimbursed for his traveling expenses during the time he acted
as special assistant to the district attorney.
Upon the conclusion of his services as above stated, the
appellee, although he had suggested that his appointment should be
without compensation, sent to the Attorney General a statement of
his services as special assistant to the district attorney,
saying:
"I send this statement to you, considering that it is necessary
if it shall be determined that I shall be compensated for the
services performed as Asst. U.S. Atty. I have left the amount to be
inserted at the department in accordance with your action
thereon."
But the Attorney General expressed his surprise that the
appellee should claim special compensation, and refused to fix any
compensation for his services, saying, in a communication to the
plaintiff:
"As an examiner of this department. you receive $2,500 a year
and expenses, and what you have been doing is clearly within the
line of your duty in the premises."
The question as to the employment of special counsel on behalf
of the United States has frequently been the subject of legislation
by Congress.
By the second section of the Act of August 2, 1861, entitled
Page 168 U. S. 378
"An act concerning the Attorney General and the attorneys and
marshals of the several districts," 12 Stat. 258, c. 37, it was
provided
"that the Attorney General be, and he is hereby, empowered,
whenever in his opinion the public interest may require it, to
employ and retain (in the name of the United States) such attorneys
and counselors at law as he may think necessary to assist the
district attorneys in the discharge of their duties, and shall
stipulate with such assistant counsel the amount of
compensation."
This section was repealed by the Act of March 3, 1869, making
appropriations for the legislative, executive, and judicial
expenses of the government for the fiscal year ending June 30,
1870, 15 Stat. 282, 294, c. 121. But by the Act of April 10, 1869,
entitled "An act concerning the Attorney General," the above Act of
March 3, 1869, was itself repealed so far as it repealed the second
section of the Act of August 2, 1861, and that section was declared
to be in full force, and it was made the duty of the Attorney
General to report
"at the commencement of the next session of Congress, and to
each succeeding session, the names of all persons employed for the
purposes aforesaid, and where and upon what business employed, with
the compensation paid to each."
16 Stat. 46, c. 25.
Next came to Act of June 22, 1870, establishing the Department
of Justice, 16 Stat. 162, 164, c. 150, the sixteenth and
seventeenth sections of which were preserved and reproduced in the
following sections of the Revised Statutes:
"SEC. 363. The Attorney General shall, whenever in his opinion
the public interest requires it, employ and retain, in the name of
the United States, such attorneys and counselors at law as he may
think necessary to assist the district attorneys in the discharge
of their duties, and shall stipulate with such assistant attorneys
and counsel the amount of compensation, and shall have supervision
of their conduct and proceedings."
"SEC. 364. Whenever the head of a department or bureau gives the
Attorney General due notice that the interests of the United States
require the service of counsel upon the
Page 168 U. S. 379
examination of witnesses touching any claim, or upon the legal
investigation of any claim, pending in such department or bureau,
the Attorney General shall provide for such service."
"SEC. 365. No compensation shall hereafter be allowed to any
person, beside the respective district attorneys and assistant
district attorneys, for services as an attorney or counselor to the
United States, or to any branch or department of the government
thereof except in cases specially authorized by law, and then only
on the certificate of the Attorney General that such services were
actually rendered, and that the same could not be performed by the
Attorney General, or Solicitor General, or the officers of the
Department of Justice, or by the district attorneys."
"SEC. 366. Every attorney or counselor who is specially retained
under the authority of the Department of Justice to assist in the
trial of any case in which the government is interested shall
receive a commission from the head of such department as a special
assistant to the Attorney General, or to some one of the district
attorneys, as the nature of the appointment may require, and shall
take the oath required by law to be taken by the district
attorneys, and shall be subject to all the liabilities imposed upon
them by law."
The object of these statutory provisions is manifest. While
giving the Attorney General full power to employ counsel for the
United States to assist those upon whom regularly devolved the duty
of representing the government in the courts without special
compensation, Congress intended to restrict the exercise of that
power to the extent indicated in section 365. It was left to that
officer to determine whether the public interests required the
employment of special counsel. But that the discretion given to him
might not be abused, and that unnecessary expense might be avoided,
it was declared (§ 365) that except in the cases of the respective
district attorneys and assistant district attorneys, no
compensation should be allowed to any person, as an attorney or
counselor for the United States unless specially authorized by law,
and then only on the certificate of the Attorney General that such
services were actually rendered, and that the same could
Page 168 U. S. 380
not have been performed by the Attorney General or by the
Solicitor General or by the officers of the Department of Justice
or by the district attorneys. The giving of such a certificate was
thus made a condition of the right of the court to give judgment,
as upon contract, against the government for any amount whatever as
compensation for legal services rendered in its behalf by counsel
specially employed or retained by the Attorney General to assist
those whose duty it is to represent the United States in its legal
business. Attorneys and counselors specially employed to render
legal services for the United States cannot, therefore, under
existing legislation, be compensated for such services in the
absence of the certificate of the Attorney General required by
section 365 of the Revised Statutes. In accepting such employment,
they take the risk of the officer giving such a certificate as
ought to be given. If he fails or refuses to give the required
certificate, Congress alone can provide for compensation. The
courts cannot disregard the express command of the statute
forbidding compensation to be allowed for legal services rendered
by special counsel when the claim therefor is not accompanied by
the prescribed certificate of the Attorney General.
This construction of the statute necessarily requires a
reversal, with direction to render judgment for the United States
unless it be held that the plaintiff, while acting under his
commission as "a special assistant to the attorney of the United
States" during a single term of the Circuit Court of the United
States for the District of Idaho, and mainly for a particular class
of cases, was an assistant district attorney within the meaning of
the words in section 365, "beside the respective district attorneys
and assistant district attorneys," for, in the cases of the
officers last named, no formal certificate is required from the
Attorney General. But we cannot so interpret the statute. The
assistant district attorneys referred to in that section are those
who are regular assistant district attorneys, serving the
government at fixed salaries, and employed not for special cases or
particular legal business, nor for a specified term of court, but
generally and regularly for all the business of the government that
may arise in the courts
Page 168 U. S. 381
of the district in which they serve. This interpretation finds
support in many appropriation acts. In the Sundry Civil
Appropriation Act of October 2, 1888, 25 Stat. 505, 545, c. 1067,
the distinction is made between "regular assistants to United
States district attorneys, who are appointed by the Attorney
General at a fixed annual compensation," and "assistants to United
States district attorneys in special cases." This distinction has
been made in subsequent appropriation and deficiency acts. 25
Stat.; October 18, 1888, c. 1210, pp. 565, 585; March 2, 1889, c.
411, pp. 939, 977; 26 Stat.; August 30, 1890, c. 837, pp. 371, 409;
September 30, 1890, c. 1126, pp. 504, 528, 548; March 3, 1891, c.
540, pp. 862, 892; March 3, 1891, c. 542, pp. 948, 986; 27 Stat.;
July 28, 1892, c. 311, pp. 282, 311; August 5, 1892, c 380, pp.
349, 386; March 3, 1893, c. 208, pp. 572, 609; March 3, 1893, c.
210, pp. 646, 661, 668; 28 Stat.; April 21, 1894, c. 61, pp. 58,
61; August 18, 1894, c. 301, pp. 372, 416; March 2, 1895, c. 189,
pp. 910, 957; 29 Stat.; c. 33, pp. 17, 26; June 8, 1896, c. 373,
pp. 267, 297, 310, 313; June 11, 1896, c. 420, pp. 413, 450.
We are of opinion that the better construction of section 365 is
that one who receives a commission as special assistant to the
district attorney for particular cases or for a single term of the
court or for a limited time is not an assistant district attorney
within the meaning of that section, and therefore the certificate
of the Attorney General prescribed therein, which even that officer
cannot dispense with, is a prerequisite to the allowance of
compensation. Any other construction of the statute would defeat
the object of its passage, which was to protect the Treasury from
the expense incident to the employment of special counsel where the
government did not have the assurance of the head of the Department
of Justice, in the form of a certificate, that the services to be
rendered were actually rendered, and could not be performed either
by himself or by the Solicitor General or by some officer of that
department or by the proper district attorney. In this view, it was
error to have rendered judgment against the government.
Reversed, with directions to dismiss the action.