« ForrigeFortsett »
The volumes of decisions of the First Comptroller contain suggestions as to powers of attorney executed by (1) corporations, (2) partners, (3) legal representatives, and (4) guardians; the effect of such powers to two or more agents, (5) the survivorship of powers, and some other cognate subjects. II. OF THE (1) STEPS TO BE TAKEN, AND (2) THE FORMS OF PRO
CEDURE TO BE PURSUED, IN COMMENCING AND CARRYING ON THE PROSECUTION OF A CLAIM.
1. When an attorney is employed to prosecute a claim against the United States the first inquiry which naturally presents itself is, to what officer is application to be made? This will depend on the char. acter of the claim, and the evidence of a right to payment thereof. If it be one in which an act of Congress names the claintant, and authorizes payment to him, it may generally be presented directly to the proper Auditor who will examine and adjust it, make report thereof to the proper Comptroller, who will certify a balance due to the claimant, on which, after registry in the office of the Register of the Treasury, a Treasury warrant will issue to the Treasurer of the United States as his authority for paying to the claimant or order the sum certified as due to him. The jurisdiction of the several Auditors and Comptrollers is prescribed by statute, and has been stated in detail in a form readily accessible 26 (Lake's case, 3 Lawrence, Compt. Dec., 310). If the claim States by the writer, it may be remarked that in all that time, neither any one, nor all combined, of the powers of attorney presented in that office, included any considerable portion of the provisions contained in the form above given. The merits, if any, and the demerits of such form, belong to the writer. It has been prepared without a model or a guide.
25 (1) As to corporations: Safford & Co's case, 1 Lawrence, Compt. Dec., 2d ed., 291; 1 Lawrence, Compt. Dec., 2d ed., App., Ch. XI, p. 505; Claims- Assignment case, 3 Lavrence, Compt. Dec., 14, 31; Attorney-Indorsement case, 5 Lawrence, Compt. Dec., 133.
(2) As to partners : Moyer's case, 1 Lawrence, Compt. Dec., 2d ed., 116; Pearce's case, Id., 136; 1 Lawrence, Compt. Doc., 21 ed., App., Ch. XI, p. 505.
(3) As to legal representatives : Moyer's case, 1 Lawrence, Compt. Dec., 21 ed., 116; 1 Lawrence, Compt. Dec., 2d ed., App., Ch. XI, p. 505; Bond-Continuance case, 2 Law. rence, Compt. Dec., 2d ed., 218; De Bildt's case, 3 Lawrence, Compt. Dec., 184; Tayloe's case, Id., 190; Halstead's case, Id., 231; Keyser's case, 4 Lawrence, Compt. Dec., 261 ; Deceased-Claimant's case, Id., 255; Fripp's case, 5 Lawrence, Compt. Dec., 489.
(4) As to guardians : 1 Lawrence, Compt. Dec., 2d ed., App. Ch. XI, p. 505; Id., Ch. XIII, p. 572; Moyer's case, Id., 116 ; Infant's case, Id., 27.
(5) As to survivorship: Moyer's case, 1 Lawrence, Compt. Dec., 211 ed., 116; Pearce's case, Id., 136,
(6) Power to collect interest on government bonds: 1 Lawrence, Compt. Dec., 21 ed., App. 571.
(7) Judgments against the United States not negotiable: Judgment-Assignment case, 5 Lawrence, Compt. Dec., 106.
2 This will be found in the first twelve chapters of the Appendix to 1 Lawrence, Compt. Dec., 2d ed. pp. 411-559. The jurisdiction of each Auditor and Comptroller is there given somewhat in minute detail. A reference to this will enable a claimant to know to what Auditor application shonld be made for payment of any specitied claim.
be one arising out of transactions connected with some branch of the public service, it is generally to be presented to the proper officer in that branch of the service for his approval, or for reference to the proper Auditor (Jordan's case, 3 Lawrence, Compt. Dec., 274; Examination-Fee case, 6 Id., 22; Secretary McCulloch's case, Id., 37). In such case, the claim, after proper authorization of payment by special act of Congress, or under a general law, may be paid directly by a disbursing officer, who, if necessary, may first ask the advice of the proper Comptroller if payment be authorized (Colbath's case, 3 Lawrence, Compt. Dec., 280; Otto's case, Id., 296; Rheem's case, Id., 306; Contestant's Widow's case, Id., 328). Salaries of many officers are paid by disbursing officers. Others are, and most of them may, if necessary, be paid by an account stated by the proper Auditor and on a balance certified by the proper Comptroller. 28 It is not expedient now to point out more fully, or in detail, the officers to whom application should be made in order to initiate or to conduct the proceedings to secure the payment of claims. The sources of information on this subject are abundant and readily accessible. 29
2. The forms of procedure are simple and easily understood. The sources of information on this subject are also ample, and readily accessible. An application to a disbursing officer for payment must be accompanied by a voucher showing in proper form, and on proper evidence, the sum due, and must contain the evidence of payment.31 An application to an Auditor for a statement of an account and report to a Comptroller should generally be in writing, stating the claim of which payment is asked, and accompanied by evidence of its validity.32
III. WHERE AND WHAT IS THE LAW TO BE STUDIED TO SECURE THE PAYMENT OF CLAIMS AGAINST GOVERNMENTS.
A valuable work has recently been published, purporting to give a list of English and American Reports, Digests, and Elementary books
27 As to disbursing officers see 1 Lawrence, Compt. Dec., 2d. ed., Ch. XV, pp. 592– 646.
28 Senate-Disbursement case, 2 Lawrence, Compt. Dec., 2d ed., 404; Otto's case, 3 Lawrence, Compt. Dec., 296.
This subject has been discussed in the Introduction to 3 Lawrence, Compt. Dec., XXVI-XXXIII.
30 This subject has been briefly noticed in the Introduction to 3 Lawrence, Compt. Dec., XXVIII-XXXVI.
31 Act February 22, 1875-18 Stat., 333; Bender's case, 1 Lawrence, Compt. Dec., 2d ed., 353, n.; Consular-Draft case, 5 Lawrence, Compt. Dec., 88; Consular-Accounts case, 3 Lawrence, Compt. Dec., 352; Elective-Franchise case, 6 Lawrence, Compt. Dec., 173, n.; Commissioners Oath-Fee case, 5 Lawrence, Compt. Dec., 354, n.; Receiver's case, 1 Lawrence, Compt. Dec., 2d ed., 365; Evans's case, 2 Lawrence, Compt. Dec., 2d ed., 2; Dana's case, Id., 203.
32 Meigs's Res-Adjudicata case, 6 Lawrence, Compt. Dec., 223; 1 Lawrence, Compt. Dec., 2d ed., App., Ch. I, p. 425, Ch. XIV,p. 587.
on English and American law.33 It makes no reference to any work on the Law of Claims, either in connection with International, Executive, or Judicial, adjustment or adjudication. In order to ascertain the sources of the law in relation to claims, it is to be remembered that they consist of many distinct ciasses. Thus there are:
I. Claims by one government on another. II. Claims by citizens of one government on another government. III. Claims by citizens of one government against citizens or subjects of another government.
IV. Claims by citizens against their own government. These may be again subdivided into various classes. Thus they may arise by reason of:
1. Conventions of their government with another government; or 2. The civil transactions between such governments; or 3. The military or naval operations between them; or
4. The military or naval operations of a government affecting its own citizens; or
5. The military or naval operations of insurgents within such government; or
6. The military or naval operations of other governments affecting citizens of their own government; or
7. A liability created by statute, contract, or otherwise.
It is not assumed that this classification embraces all claims. But it may throw some light on the wide scope of the law of claims, the high order of learning, profound study and research required to master it, the great importance of the subject, and the necessity for an elaborate treatise thereon, in its historical and legal aspects. Some of the sources of information on this subject may be found in;
i. The standard works on International and Inter-State Law:
ii. The Treaties and Conventions between nations, and especially their claims conventions;
iii. The proceedings of Mixed Commissions for the Adjudication of Claims under such Conventions; 34
3.3 The Lawyer's Reference Manual of Law Books and Citations.—By Charles C Soule, Boston, 1883. It may be that the first attempt to prepare a work distinctively on this subject is that entitled “The Law of Claims Against Governments, including the mode of adjusting them and the procedure adopted in their investigation.-Published by order of the Congress of the United States of America, Washington: Government Printing Office, 1875," being House Report No. 134—2d Session, 43d Congress, February 10, 1875, by William Lawrence, Chairman of the Committee on War Claims.
34 Examples of these may be found (1) in the proceedings of the Joint Commission under the Convention of July 4, 1868, between the United States and the Republic of Mexico (Lawrence, Law of Claims, Ch. X, p. 355); (2) in the proceedings of the Court Commissioners of Alabama Claims (See Senate Ex. Doc., No. 21–2d Sess., 44th Cong., being Report from the Secretary of State
relating to said Court); (3) and in the proceedings of the French and American Claims Commission under the FrancoAmerican Treaty of June 25, 1880, (See the Final Report of Hon. George S. Boutwell, Agent and Counsel of the United States to the Secretary of State, May 10, 1894.)
iv. The official correspondence between the Department of State of the United States and foreign nations;
v. The Reports of the Committees of Congress ; 35
vi. The acts of Congress, and of State legislatures in relation to claims, and the mode of providing for their payment; 36
vii. The Judicial Decisions of the National and State Courts;
x. The six volumes of the Decisions of the First Comptroller in the Department of the Treasury;
xi. The two volumes of Digests of the Decisions of the Second Comptroller in the Department of the Treasury;
xii. The similar sources of information in foreign governments.
These are only a portion of the sources to be consulted, but it is hoped the suggestions made may be found of some utility.
The same general principles of agency in its relation to the National Government, and the same general principles of National-Executive Common-Law, are applicable to like conditions in their relations to State governments, and county, city, and other municipal corporations. These considerations add immensely to the importance of the subjects discussed.
The brief outline above given is submitted for the consideration of those who may be interested therein.31 TREASURY DEPARTMENT,
First Comptroller's Office, March 24, 1885.
35 The Committee of War Claims was first organized at the First Session of the Forty-Third Congress, December, 1873, with William Lawrence, Chairman. The Reports of this Committee alone would make at least two large volumes. The American State Papers contain immense volumes of Reports of Committees of Claims full of valuable information.
36 These include the system for the adjustment of claims by Aulitors and Comptrollers in the Department of the Treasury of the United States. Their jurisdiction is pointed out in the Appendix to Chapter I to 1 Lawrence, Compt. Dec., 2d. ed., 410.
37 The following forms may be found of some utility:
FORM OF AGREEMENT AND POWER OF ATTORNEY FOR CLAIMS GENERALLY.
This agreement, between John Smith (the attorney) of Washington City, D. C., of the first part, and John Jones [the claimant] of Bellefontaine, Ohio, of the second part:
Witnesseth, That said Smith as agent and attorney agrees to take the exclusive charge and control of a certain claim which said Jones alleges he has, or is entitled to have, against the United States of America [describing it], and to prosecute the same before any of the Courts of the United States, or before any of the Departments of the Government or officers or agents thereof, or before the Congress of the United States, or any Committees thereof, and before any officer, agent, Commission, or Couvention, which is or may be authorized to take cognizance of said claim, or through any diplomatic negotiations, or before any one or more or all of these or otherwise as may be deemed proper.
And in consideration therefor, said Jones agrees to pay said Smith a sum equal
[forty] per cent. of the amount which may be allowed on said claim; the payment of which and of all expenses incurred, and moneys advanced in the prosecution of said claim is hereby made a lien upon the said claim and upon any draft, or order or authority to receive money, or evidence of indebtedness which may be issued thereon, and upon all money which may be secured or paid thereon or on such claim.
This agreement is not to be affected by any services performed by the claimant or by any other agents or attorneys employed by him. Aud said Jones agrees to advance and pay to said Attorney from time to time all such sums of money as may be necessary to pay all costs and expenses of prosecuting said claim, or incident thereto, and of carrying into effect the purposes hereof, to execute, from time to time, to the said Smith, such Powers of Attorney and other instruments of writing, and do all other acts and furnish all evidence which may be convenient or necessary for the successful prosecution and collection of the said claim.
Said Jones [the claimant] hereby appoints with full power of substitution and revocation, said John Smith, of Washington, D. C., his true and lawful attorney to present and prosecute said claim as aforesaid until final completion, and said Jonesagrees to furnish from time to time all evidence necessary or that may be demanded, giving and granting to said attorney full power and authority to do and perform all and every act and thing whatsoever requisite or necessary to be done in and about the premises, as fully to all intents and purposes as said Jones might or could do if personally present at the doing thereof, with full power in the discretion of said Smith from time to time of substitution and revocation, hereby ratifying and contirming all that said attorney or his substitute, may or sball lawfully do or cause to be done by virtue hereof, and the said attorney, or if he should die, his legal representative is authorized to receive any warrant, draft, check, order or authority for receiving money that may be issued in settlement of said claim; also in consideration of the obligations assumed on the part of said attorney, this Power of Attorney is irrevocable, and any person who inay have rights under said Jones shall recognize this contract and Power of Attorney, and all rights of said Smith, his substitutes and legal representatives, allowed, hereby annulling any and all former Powers of Attorney, or authorizations whatsoever in the premises.
In witness whereof, The parties hereunto set our hands and seals this 1st day of March, A. D., 1885.
[SEAL.] Execnted in presence of :[Two witnesses, who can write, sign here.)
ANOTHER FORM OF POWER OF ATTORNEY, TO PROSECUTE CLAIM.
Know all men by these presents, That I, John Smith, of Bellefontaine, Ohio, do hereby constitute and appoint John Jones, of Washington, D. C., my Agent and At. torney, to prosecute my claim against the United States for (describe claim)
And I authorize and empower my said Agent and Attorney to prosecute said claim to final issue, to compromise, adjust, settle, and collect, the same, and to receive and receipt for in my name or otherwise, any warrant, draft, check, order or authority for receiving money that may be issued or found due to me by reason of such claim; (and to endorse, assign, or transfer, by the signing of my name, or otherwise, any such warrant, draft, check, order, or authority for receiving money) and to do all other lawful acts necessary or proper in the premises.
Hereby annulling and revoking all former Powers of Attorney, and authorizing my