A-29545, NOVEMBER 25, 1929, 9 COMP. GEN. 224

A-29545: Nov 25, 1929

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COURT COSTS - PROCEEDINGS AGAINST OFFICIALS OF THE UNITED STATES EXTRAORDINARY PROCEEDINGS AGAINST OFFICIALS OF THE UNITED STATES IN THEIR OFFICIAL CAPACITY ARE IN EFFECT PROCEEDINGS AGAINST THE UNITED STATES IN SO FAR AS COSTS OF THE PROCEEDINGS ARE CONCERNED. AS FOLLOWS: INCLOSED HEREWITH YOU WILL FIND A COPY OF A LETTER FROM THE SECRETARY OF WAR. YOU WILL NOTE THAT IN THE CASE MENTIONED A FINAL DECREE WAS ENTERED JUNE 15. IT IS STATED THAT "THE GOVERNMENT OR ITS AGENCIES ONLY PAY COSTS WHEN AN ADVERSE DECISION IS RENDERED AND COSTS FINALLY TAXED THEREON.'. YOUR DECISION IS REQUESTED AS TO WHETHER THE BILL OF COSTS AMOUNTING TO $70.10 IS PAYABLE BY THE GOVERNMENT. THE PLAINTIFFS WERE.

A-29545, NOVEMBER 25, 1929, 9 COMP. GEN. 224

COURT COSTS - PROCEEDINGS AGAINST OFFICIALS OF THE UNITED STATES EXTRAORDINARY PROCEEDINGS AGAINST OFFICIALS OF THE UNITED STATES IN THEIR OFFICIAL CAPACITY ARE IN EFFECT PROCEEDINGS AGAINST THE UNITED STATES IN SO FAR AS COSTS OF THE PROCEEDINGS ARE CONCERNED, AND SUCH COSTS, WHEN PROPERLY TAXED, MAY BE PAID UNDER THE APPROPRIATION "MISCELLANEOUS EXPENSES, UNITED STATES COURTS.'

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, NOVEMBER 25, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER DATED NOVEMBER 16, 1929, YOUR FILE JWG, 62-154, AS FOLLOWS:

INCLOSED HEREWITH YOU WILL FIND A COPY OF A LETTER FROM THE SECRETARY OF WAR, DATED NOVEMBER 12TH, TOGETHER WITH A STATEMENT OF COSTS TAXED AGAINST THE DEFENDANTS IN THE CASE OF THE DELAWARE RAILROAD COMPANY AND THE PENNSYLVANIA RAILROAD COMPANY, PLAINTIFFS, VS. JAMES W. GOOD, SECRETARY OF WAR, ROBERT P. HOWELL, AND LEONARD E. WALES, DEFENDANTS, NO. 509 IN EQUITY, IN THE UNITED STATES DISTRICT COURT AT WILMINGTON, DELAWARE.

YOU WILL NOTE THAT IN THE CASE MENTIONED A FINAL DECREE WAS ENTERED JUNE 15, 1929, RECITING CERTAIN RIGHTS OF THE PARTIES, AND DENYING THE INJUNCTION AND ORDERING THAT THE PLAINTIFFS RECOVER THEIR TAXABLE COSTS.

IN A DECISION RENDERED BY COMPTROLLER TRACEWELL ON SEPTEMBER 27, 1909, 16 COMP. DEC. 166, IT IS STATED THAT "THE GOVERNMENT OR ITS AGENCIES ONLY PAY COSTS WHEN AN ADVERSE DECISION IS RENDERED AND COSTS FINALLY TAXED THEREON.' IN VIEW OF THE FOREGOING, YOUR DECISION IS REQUESTED AS TO WHETHER THE BILL OF COSTS AMOUNTING TO $70.10 IS PAYABLE BY THE GOVERNMENT, AND IF SO, WHETHER THE PAYMENT SHOULD BE MADE BY THE WAR DEPARTMENT OR THE DEPARTMENT OF JUSTICE. IF PAYABLE BY THIS DEPARTMENT, PLEASE INDICATE THE APPROPRIATION WHICH SHOULD BE CHARGED THEREWITH.

IT APPEARS THAT THE UNITED STATES ACQUIRED THE CHESAPEAKE AND DELAWARE CANAL; THAT A NUMBER OF YEARS PRIOR THERETO THE DELAWARE RAILROAD CO. HAD CONSTRUCTED A BRIDGE ACROSS THE CANAL; AND THAT THE SECRETARY OF WAR, BY VIRTUE OF THE OWNERSHIP OF THE UNITED STATES OF THE CANAL, AND THE ACT OF MARCH 3, 1899, 30 STAT. 1150, 1155, SERVED NOTICE ON THE RAILROAD COMPANY TO REMOVE THE BRIDGE AS AN OBSTRUCTION TO NAVIGATION IN THE CANAL. THEREUPON THE RAILROAD COMPANY INSTITUTED PROCEEDINGS AGAINST THE SECRETARY OF WAR, THE ENGINEER IN CHARGE OF IMPROVEMENTS BEING MADE ON THE CANAL, AND THE UNITED STATES ATTORNEY FOR THE DISTRICT OF DELAWARE TO ENJOIN THE REMOVAL OF THE BRIDGE BY THE DEFENDANTS OR THEIR COMPELLING, BY A RESORT TO CRIMINAL PROCEEDINGS, ITS REMOVAL OR ALTERATION BY THE PLAINTIFFS, UNLESS AND UNTIL COMPENSATION AND DAMAGES FOR SUCH REMOVAL OR ALTERATION HAD BEEN PAID OR PROVIDED FOR.

THE CASE CAME ON FOR HEARING BEFORE THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE AND IN AN OPINION DATED AUGUST 15, 1923, REPORTED AS DELAWARE RAILROAD COMPANY ET AL. V. WEEKS, SECRETARY OF WAR, ET AL., 293 FED.REP. 114, 122, THE PLAINTIFFS WERE, IN PART, SUCCESSFUL IN OBTAINING THE RELIEF DEMANDED IN THEIR BILL OF COMPLAINT. IT IS REPORTED IN THE INCLOSURE OF NOVEMBER 12, 1929, BY THE SECRETARY OF WAR, THAT SUBSEQUENT TO THE OPINION OF THE COURT "THE DIFFERENCES BETWEEN THE PARTIES WERE COMPOSED BY AN AGREEMENT INVOLVING RECONSTRUCTION OF THE BRIDGE AT THE JOINT COST OF THE GOVERNMENT AND THE RAILROAD COMPANY," AND THAT THEREAFTER, ON JUNE 15, 1929, A FINAL DECREE WAS ENTERED RECITING CERTAIN RIGHTS OF THE PARTIES "DENYING THE INJUNCTION AND ORDERING THAT THE COMPLAINANTS RECOVER THEIR TAXABLE COSTS," WHICH HAVE BEEN TAXED AND SUBMITTED IN THE SUM OF $70.10.

AS PERTINENTLY STATED BY THE ATTORNEY GENERAL IN THE LETTER DATED NOVEMBER 14, 1929, TO THIS OFFICE CONCERNING CERTAIN MANDAMUS PROCEEDINGS AGAINST THE DIRECTOR OF THE VETERANS' BUREAU AND THE SECRETARY OF WAR NOW PENDING IN THE COURTS OF THE DISTRICT OF COLUMBIA CONCERNING THEIR OFFICIAL ACTS, THE CASES ARE IN SUBSTANCE AND EFFECT SUITS AGAINST THE UNITED STATES AND THAT THEY HAD BEEN TREATED AS SUCH FOR THE PURPOSES OF THE PAYMENT OF THE COST OF PRINTING THE RECORD AND BRIEFS, ETC. SEE ALSO LETTER DATED AUGUST 9, 1927 (A-131198), OF THIS OFFICE TO THE ATTORNEY GENERAL RELATIVE TO THE PAYMENT OF COSTS IN CERTAIN INJUNCTION PROCEEDINGS AGAINST OFFICIALS OF THE UNITED STATES CONCERNING THEIR OFFICIAL ACCOUNTS. IT WAS THERE STATED THAT THE TAXED COSTS OF PROCEEDINGS SHOULD BE PAID FROM THE APPROPRIATION "MISCELLANEOUS EXPENSES, UNITED STATES COURTS.' THE TAXED COURT COSTS IN THIS CASE, LIKEWISE, SHOULD BE PAID UNDER SAID APPROPRIATION.