A-22148, APRIL 3, 1928, 7 COMP. GEN. 627

A-22148: Apr 3, 1928

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1928: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE QUESTION WHETHER. THAT THIS IS NOT A CLAIM AGAINST THE UNITED STATES WITHIN THE MEANING OF SAID SECTION. GREAT BRITAIN AGREED TO SUBMIT THE CLAIMS OF CERTAIN CITIZENS OF THE UNITED STATES WHO WERE ENGAGED IN THE NEW ENGLAND FISHING INDUSTRY AGAINST HER TO AN INTERNATIONAL TRIBUNAL. APPEARS TO HAVE BEEN RETAINED IN 1910 TO PREPARE THEIR CLAIMS AGAINST THE GOVERNMENT OF GREAT BRITAIN FOR PRESENTATION BEFORE A TRIBUNAL CALLED THE AMERICAN- BRITISH CLAIMS ARBITRATION TRIBUNAL. TARR WAS APPOINTED SPECIAL COUNSEL FOR THE UNITED STATES IN THE PROSECUTION OF THESE AND OTHER CLAIMS BEFORE THE INTERNATIONAL TRIBUNAL. THAT FOR THESE SERVICES HE WAS PAID BY THE UNITED STATES.

A-22148, APRIL 3, 1928, 7 COMP. GEN. 627

INTERNATIONAL AWARDS - PROSECUTION OF CLAIMS UNDER UNDER SECTION 109 OF THE CRIMINAL CODE OF MARCH 4, 1909, 35 STAT. 1107, A UNITED STATES ATTORNEY MAY NOT BE RECOGNIZED BY THE GENERAL ACCOUNTING OFFICE AS AN ATTORNEY FOR A CLAIMANT FOR PAYMENT OF AN AWARD ALLOWED UNDER AN INTERNATIONAL AGREEMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 3, 1928:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE QUESTION WHETHER, UNDER THE TERMS OF SECTION 109 OF THE CRIMINAL CODE OF MARCH 4, 1909, 35 STAT. 1107, A UNITED STATES ATTORNEY MAY BE RECOGNIZED AS AN ATTORNEY FOR A CLAIMANT WHO HAS REQUESTED THAT THE AMOUNT OF AN INTERNATIONAL AWARD BE FORWARDED IN HIS CARE. IN THE PARTICULAR CASE PRESENTED, THE UNITED STATES ATTORNEY HAS CONTENDED, IN LETTER DATED FEBRUARY 17, 1928, THAT THIS IS NOT A CLAIM AGAINST THE UNITED STATES WITHIN THE MEANING OF SAID SECTION.

IT APPEARS THAT BY AN AGREEMENT DATED AUGUST 18, 1910, TREATY SERIES 573, GREAT BRITAIN AGREED TO SUBMIT THE CLAIMS OF CERTAIN CITIZENS OF THE UNITED STATES WHO WERE ENGAGED IN THE NEW ENGLAND FISHING INDUSTRY AGAINST HER TO AN INTERNATIONAL TRIBUNAL. FREDERICK H. TARR, ESQ., APPEARS TO HAVE BEEN RETAINED IN 1910 TO PREPARE THEIR CLAIMS AGAINST THE GOVERNMENT OF GREAT BRITAIN FOR PRESENTATION BEFORE A TRIBUNAL CALLED THE AMERICAN- BRITISH CLAIMS ARBITRATION TRIBUNAL, THE CLAIMS BEING BASED ON AN ALLEGATION THAT TREATY RIGHTS HAD BEEN VIOLATED BY GREAT BRITAIN AND PENALTIES IMPOSED ON THE FISHING VESSELS IN VIOLATION THEREOF. ADDITION TO HAVING BEEN RETAINED BY THE OWNERS OF THE VESSELS, IT APPEARS THAT MR. TARR WAS APPOINTED SPECIAL COUNSEL FOR THE UNITED STATES IN THE PROSECUTION OF THESE AND OTHER CLAIMS BEFORE THE INTERNATIONAL TRIBUNAL, AND THAT FOR THESE SERVICES HE WAS PAID BY THE UNITED STATES. THE AWARDS WERE MADE IN 1925, AND BY MISCELLANEOUS RECEIPT COVERING WARRANT NO. 46, DATED NOVEMBER 18, 1927, THE SUM OF $84,164.85 WAS DEPOSITED INTO THE TREASURY OF THE UNITED STATES FOR THE PAYMENT OF THE AWARDS. SUBSEQUENT TO THE TERMINATION OF HIS SERVICES AS ATTORNEY IN THE PROSECUTION OF THESE CLAIMS BEFORE THE ARBITRATION TRIBUNAL, MR. TARR HAS BEEN APPOINTED UNITED STATES ATTORNEY FOR THE DISTRICT OF MASSACHUSETTS, AND THE QUESTION IS PRESENTED AS TO WHETHER THE FURTHER PROSECUTION OF THE CLAIMS FOR PAYMENT IS A PROSECUTION OF A CLAIM AGAINST THE UNITED STATES. A SIMILAR QUESTION WAS INVOLVED IN UNITED STATES EX REL ANGARICA V. BAYARD, 127 U.S. 260, AND THE COURT, IN HOLDING THAT THE CLAIM THEREIN CONSIDERED WAS A CLAIM AGAINST THE UNITED STATES, SAID:

* * * UNDER THE AGREEMENT FOR ARBITRATION, THE CLAIM OF ANGARICA WAS TO BE LAID BEFORE THE ARBITRATORS AND UMPIRE "ON THE PART OF THE GOVERNMENT OF THE UNITED STATES.'

THE CLAIM AND THE TESTIMONY IN ITS FAVOR WERE TO BE PRESENTED "ONLY THROUGH THE GOVERNMENT OF THE UNITED STATES.' IN ANOTHER PLACE THE CLAIM IS SPOKEN OF AS ONE PRESENTED TO THE ARBITRATORS ,BY THE GOVERNMENT OF THE UNITED STATES.'

IN THE SIXTH CLAUSE, THE TWO ADVOCATES ARE SPOKEN OF AS "REPRESENTING RESPECTIVELY THE TWO GOVERNMENTS," AND IN THE SEVENTH CLAUSE IT IS SAID THAT "THE TWO GOVERNMENTS WILL ACCEPT THE AWARDS.' THUS, BY THE PLAIN TERMS OF THE AGREEMENT, THE AMOUNT OF THE AWARD IN THE CASE OF ANGARICA WAS TO BE PAID BY THE SPANISH GOVERNMENT TO THE GOVERNMENT OF THE UNITED STATES. IT WAS PAID BY THE SPANISH GOVERNMENT TO THE SECRETARY OF STATE OF THE UNITED STATES, REPRESENTING THE GOVERNMENT OF THE UNITED STATES.

IF THERE WAS ANY UNLAWFUL WITHHOLDING FROM THE PETITIONER OF THE $42,129.74, THE MONEY WAS WITHHELD BY THE GOVERNMENT OF THE UNITED STATES, ACTING THROUGH THE SECRETARY OF STATE, AND ANY CLAIM OF THE PETITIONER, BASED UPON AN UNLAWFUL WITHHOLDING, WAS A CLAIM AGAINST THE GOVERNMENT OF THE UNITED STATES. THAT CLAIM, IN THE PRESENT CONTROVERSY, ASSUMES THE SHAPE OF A CLAIM FOR THE INCREMENT OR INCOME ALLEGED TO HAVE BEEN ACTUALLY RECEIVED BY THE UNITED STATES FROM THE INVESTMENT OF THE MONEY FOR THE TIME IT WAS WITHHELD; BUT THE CLAIM IN THAT RESPECT IS NOT DIFFERENT IN CHARACTER FROM WHAT IT WOULD HAVE BEEN IF, INSTEAD OF BEING A CLAIM FOR INCREMENT OR INCOME ACTUALLY RECEIVED BY THE UNITED STATES, IT WERE A CLAIM FOR INTEREST GENERALLY, OR FOR INCREMENT OR INCOME WHICH THE UNITED STATES WOULD OR MIGHT HAVE RECEIVED BY THE EXERCISE OF PROPER CARE IN THE INVESTMENT OF THE MONEY.

THE CASE, THEREFORE, FALLS WITHIN THE WELL-SETTLED PRINCIPLE, THAT THE UNITED STATES ARE NOT LIABLE TO PAY INTEREST ON CLAIMS AGAINST THEM, IN THE ABSENCE OF EXPRESS STATUTORY PROVISION TO THAT EFFECT. * * *

THE CLAIMS OF THE FISHERMAN CEASED TO BE CLAIMS AGAINST GREAT BRITAIN AND BECAME CLAIMS AGAINST THE UNITED STATES WITH THE PAYMENT BY GREAT BRITAIN OF THE AMOUNT OF THE AWARDS INTO THE UNITED STATES TREASURY. THEREFORE, THE FURTHER PRESENTATION OF THE CLAIMS IS AGAINST THE UNITED STATES, AND SECTION 109 OF THE CRIMINAL CODE OF MARCH 4, 1909, 35 STAT. 1107, PROVIDES THAT:

WHOEVER, BEING AN OFFICER OF THE UNITED STATES, OR A PERSON HOLDING ANY PLACE OF TRUST OR PROFIT, OR DISCHARGING ANY OFFICIAL FUNCTION UNDER, OR IN CONNECTION WITH, ANY EXECUTIVE DEPARTMENT OF THE GOVERNMENT OF THE UNITED STATES, OR UNDER THE SENATE OR HOUSE OF REPRESENTATIVES OF THE UNITED STATES, SHALL ACT AS AN AGENT OR ATTORNEY FOR PROSECUTING ANY CLAIM AGAINST THE UNITED STATES, OR IN ANY MANNER, OR BY ANY MEANS, OTHERWISE THAN IN DISCHARGE OF HIS PROPER OFFICIAL DUTIES, SHALL AID OR ASSIST IN THE PROSECUTION OR SUPPORT OF ANY SUCH CLAIM, OR RECEIVE ANY GRATUITY, OR ANY SHARE OF OR INTEREST IN ANY CLAIM FROM ANY CLAIMANT AGAINST THE UNITED STATES, WITH INTENT TO AID OR ASSIST, OR IN CONSIDERATION OF HAVING AIDED OR ASSISTED, IN THE PROSECUTION OF SUCH CLAIM, SHALL BE FINED NOT MORE THAN FIVE THOUSAND DOLLARS, OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH.

IN VIEW OF THE TERMS OF THIS STATUTE, THE REQUEST OF MR. TARR THAT THE CHECKS IN PAYMENT OF THE AWARDS BE SENT TO THE CLAIMANTS IN HIS CARE CAN NOT BE RECOGNIZED. SEE 7 COMP. GEN. 240. SETTLEMENTS WILL BE STATED IN FAVOR OF THE VARIOUS CLAIMANTS WITH DIRECTIONS THEREIN THAT THE CHECKS IN PAYMENT THEREOF BE SENT DIRECT TO THE RESPECTIVE CLAIMANTS.