Court of Claims-Continued. Cost of taking evidence paid by a claim ant. 463. Judgment Final, 464. Decree in case of loss by a disbursing No interest allowed before, 466. Court of Claims-Continued. Officers, etc., not to prosecute claims, 469. Former officers and employees, 470. Cost of printing record, 473. Right of appeal, 475. Within 90 days, 476. Settlement delayed over 3 years, 477. 383. Employment of legal services. No head of a Department shall employ attorneys or counsel at the expense of the United States; but when in need of counsel or advice, shall call upon the Department of Justice, the officers of which shall attend to the same. R. S. 189. Notes of Decisions. Purpose and effect of act creating Department of Justice.-The provisions of act June 22, 1870, establishing the Depart ment of Justice, which were incorporated into this and other sections of the Revised Statutes, indicate that Congress intended to gather into that department, under the supervision and control of the Attorney General, all the litigation and all the law business in which the United States are interested, and which previously had been scattered among different public officers, departments, and branches of the Government, and to break up the practice of frequently employing unofficial attorneys in the public service. Perry v. U. S. (1893), 28 Ct. Cl. 483, 489. Employment of counsel by particular departments. Under the provisions of act June 22, 1870, sec. 17, incorporated into this section, the head of the Navy Department is not at liberty to employ counsel t. conduct proceedings before a naval courtmartial, but should call upon the Depart ment of Justice to furnish an officer for the service. (1871) 13 Op. Atty. Gen. 514; (1872), 14 Op. Atty. Gen. 13. The Secretary of War has no authority to employ counsel to appear in court on be balf of the military authorities in habeas corpus cases. (1871), 13 Op. Atty. Gen. 580, 583. Special counsel, other than officers of the Department of Justice, may be employed by the Attorney General, at the request of the Secretary of the Navy, to assist the judge advocate in a trial by a naval courtmartial. (1885), 18 Op. Atty. Gen. 135, 137. The Secretary of the Navy is not authorized in view of this section to employ 'special counsel in foreign countries to institute suits in behalf of the United States for the recovery of damages caused to a war vessel of the United States, but should refer the matter to the Department of Justice for attention. (1895) 21 Op. Atty. Gen. 195. 384. Legal service for executive departments.-The officers of the Department of Justice, under the direction of the Attorney-General, shall give all opinions and render all services requiring the skill of persons learned in the law necessary to enable the President and heads of Departments, and the heads of Bureaus and other officers in the Departments, to discharge their respective duties; and shall, on behalf of the United States, procure the proper evidence for, and conduct, prosecute, or defend all suits and proceedings in the Supreme Court and in the Court of Claims, in which the United States, or any officer thereof, as such officer, is a party or may be interested; and no fees shall be allowed or paid to any other attorney or counselor at law for any service herein required of the officers of the Department of Justice, except in the cases provided by section three hundred and sixty-three. R. S. 361. R. S. 363 provided that, "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." Notes of Decisions. Questions to be submitted by Interior Department to Attorneys designated.--For the guidance of the heads of bureaus and other officers of the departments in the discharge of their duties, provision is made for assistance from the officers of the Department of Justice, under the direction of the Attorney General. An Assistant Attorney General and law clerks having accordingly been assigned to the Department of the Interior, the Commissioner of Patents should submit questions to them. (1893) 20 Op. Atty. Gen. 609. Advice to Solicitor of Treasury.-Where a question has been submitted by the Secretary to the Solicitor of the Treasury for advice thereon, the latter is not entitled to call upon the Attorney General for his views on such question. (1884) 18 Op. Atty. Gen. 59. The Solicitor shorld, in such case, return his advice directly to the Secretary, who may, if he choose, require an opinion from the Attorney General upon the same ques tion. Id. 385. Opinions of the Attorney-General.-The Attorney-General shall give his advice and opinion upon questions law, whenever required by the President. R. S. 354. Section three hundred and fifty-four is amended by inserting after the word "questions" in the second line, the word "of." Act of Feb. 27, 1877 (19 Stat. 241), amending R. S. 354. Notes of Decisions. 44 Power of President to call for opinion.-The President's right to call for an opinion from the Attorney General is not limited to questions of law. Art. 2, sec. 2, cl. 1, of the Constitution provides that he may require the opinion of the principal officer of each of the executive departments upon any subject relating to the duties of their respective offices." (1901) 2. Op. Atty. Gen. 360. Conclusiveness of opinion.-If a question is presented to the Attorney General in accordance with law by the President, and the Attorney General is of opinion that the nature of the question is general and important in other directions than disbursement, and therefore conceives that it is proper for him to deliver his opinion, the opinion is final and authoritative under the law, and should be so treated by the accounting officers, even if the question involves a payment to be made. (1904) 25 Op. Atty. Gen. 304. President acting through Attorney General. A telegram, signed with the surname of the Attorney General, purporting to state the decision of the President on an application by a convicted prisoner for a commutation of sentence, is sufficient notice of the President's action, which, as the court will take judicial notice, may properly be taken in such matters through the Department of Justice. L'erovich v. Perry (1909), 167 Fed. 789, 93 C. C. A. 209. 386. Opinions rendered to the head of a department.-The head of any Executive Department may require the opinion of the Attorney-General on any questions of law arising in the administration of his Department. R. S. 356. Notes of Decisions. In general. The Attorney General is not authorized to give an official opinion in any case except on the call of the President or some one of the heads of departments. (1818) 1 Op. Atty. Gen. 211. 253; (1884) 18 Op. Atty. Gen. 59; (1893) 20 Op. Atty. Gen. 608. The Attorney General can not properly attempt to frame a definition of statutory language to cover all future cases. (1893) 20 Op. Atty. Gen. 640; (1894) 21 Op. Atty. Gen. 106, 109. The Attorney General must give his opinion on questions referred to him by the heads of the departments, touching matters concerning the department, not on questions in which the United States have no interest. (1830) 2 Op. Atty. Gen. 311. He is not required to give opinions, except in cases that fall within the scope of his duties as marked out by law. (1832) 2 Op. Atty. Gen. 531. He has no authority to settle questions of fact, nor to give advice on questions 146345°-21-14 209 of law, except for the assistance of the officer calling for his opinion on points stated. He takes the facts as they are stated to him, and predicates his opinion thereon. (1838) 3 Op. Atty. Gen. 309. The Attorney General declines to authorize an investigation to be made in order that an official opinion may thereafter be rendered by him based on the result of such investigation. (1893) 20 Op. Atty. Gen. 640. An expression in an opinion of the Attorney General which is merely obiter does not have the force and effect of an official opinion. (1894) 21 Op. Atty. Gen. 25. Guidance of department.-The head of a department can not require the Attorney General's opinion as to his powers to do an act unless it is his intention to be guided thereby. (1836) 3 Op. Atty. Gen. 39: (1893) 20 Op. Atty. Gen. 699, 648; (1894) 20 Op. Atty. Gen. 724, 728; (1895) 21 Op. Atty. Gen. 174. Mode of submission, stating facts and propositions of law. Where a question of law arises upon facts submitted to the Attorney General, such facts must be agreed and stated as facts established. (1867) 12 Op. Atty. Gen. 206. Where different statements of facts appear in any case that has been submitted by the head of a department to the Attorney General, the latter will not undertake to reconcile the differences between them but in giving an opinion upon the questions presented will consider only such facts as are set forth or admitted by the head of the department. (1872) 14 Op. Atty. Gen. 45. Where the question presented was very indefinite and vague, and partook of a speculative character, it was deemed inadvisable by the Attorney General to give his official opinion thereon. (1873) 14 Op. Atty. Gen. 191. Where an official opinion from the Attorney General is desired on questions of law arising on any case, the request should be accompanied with a statement of the material facts of the case, and also the precise questions on which advice is wanted. (1874) 14 Op. Atty. Gen. 367. The Attorney General can not investigate the papers and records for the purpose of ascertaining the facts upon which the question arises. (1881) 17 Op. Atty. Gen. 172; (1888) 19 Op. Atty. Gen. 115; (1891) 20 Op. Atty. Gen. 270; (1893) 20 Op. Atty. Gen. 640; (1895) 21 Op. Atty. Gen. 220; (1894) 20 Op. Atty. Gen. 742; (1898) 22 Op. Atty. Gen. 156; (1899) 22 Op. Atty. Gen. 342; (1899) 22 Op. Atty. 'Gen. 498; (1910) 28 Op. Atty. Gen. 218. The Attorney General declines to express an opinion in a matter where no statement of facts and no question of law is submitted, but where numerous papers are referred with a request for view of all the facts presented. Op. Atty. Gen. 396. opinion in (1886) 19 The The Department of Justice has uniformly declined to find the facts involved in a request for an opinion. At least this has been the rule ever since e year 1820. facts must be stated by the Department asking for the opinion. (See 1 Op. Atty. Gen. 346; 3 Op. Atty. Gen. 309; 5 Op. Atty. Gen. 626; 10 Op. Arty. Gen. 267; 12 Op. Atty. Gen. 206.) (1889) 19 Op. Atty. Gen. 465, 466. The Attorney General can not give an official opinion, except upon a question of law which has already actually arisen and is submitted upon a definite statement of facts, not leaving it to him to draw inferences of fact from correspondence or documents. (1893) 20 Op. Atty. Gen. 614. The laws of a foreign country are not known to the Attorney General, but are facts to be proved by competent eridence. (1894) 21 Op. Atty. Gen. 80. The Attorney General can not be called upon for an opinion unless specific questions of law are formulated which relate to an existing question calling for the action of the department requesting it. (1895) 21 Op. Atty. Gen. 201. The Attorney General waives the settled practice of the department requiring a statement of the points upon which an opinien is asked for the reason that it is desired for guidance of the head of an executive department in the discharge of official duties, where both public and private interests are involved requiring prompt ac tion. (1897) 21 Op. Atty. Gen. 486. The Attorney General is not permitted by statute or precedent to respond to a request for an opinion which appears to present but a moot case and does not show what the facts are or that the case has presently arisen in the administration of the department. (1897) 21 Op. Atty. Gen. 506; (1898) 22 Op. Atty. Gen. 85. In the absence of facts presenting a case actually or presently arising and pending in the administration of a department, calling for action, which can not be determined by the Attorney General without usurping judicial functions, his official opinion can not be required. (1897) 21 Op. Atty. Gen. 583. In a certain case involving governmental transactions where there were no disputed facts, the Attorney General deemed it proper to gather the various circumstances from the papers presented and to waive the customary rule of the department requiring a definite statement of the facts upon which an opinion is requested. (1899) 22 Op. Atty. Gen. 477. Questions by others than heads of departments. Subordinate officers of the Government who desire an official opinion of the Attorney General must seek it through the head of the department to which they are accountable. (1818) 1 Op. Atty. Gen. 211. The Attorney General will only give an official opinion in a matter concerning a department at the request of the head of the department, and not at the request of a subordinate officer thereof. (1862) 10 Op. Atty. Gen. 458; (1891) 20 Op. Atty. Gen. 251, 279. Questions involving payment of money from Treasury.-A question affecting all the executive departments is answered by the Attorney General, as it falls within the exception to the rule that his opinion should not be rendered upon questions which, under sec. 8 of the act of July 31, 1894, can be referred to the comptroller for decision, except in matters of great importance, inasmuch as a conflict of precedents might arise. (1895) 21 Op. Atty. Gen. 181. The Attorney General may properly render an opinion upon a question involving the disbursement or expenditure of public moneys when the question is one of general and great importance, and especially when the comptroller, in advance of a decision by himself, requests that the matter be referred to the Attorney General for opinion and states that he will be guided thereby. (1895) 21 Op. Atty. Gen. 224; (1896) 21 Op. Atty. Gen. 402; (1904) 25 Op. Atty. Gen. 271; (1908) 26 Op. Atty. Gen. 609. Questions of law. The rule of the Attorney General in declining to give an opinlon in a case where it is doubtful whether a question of law is raised in the administration of the department requesting it was disregarded in an instance where it appeared that proper cases raising such a question were pending in several of the other executive departments. (1879) 21 Op. Atty. Gen. 579. Questions of fact. It is not the duty of the Attorney General to give opinions on questions of fact, nor to review the proceedings of a court-martial in search of questions of law. (1852) 5 Op. Atty. Gen. 626. The Attorney General is not permitted to render an official opinion upon questions of fact. (1987) 12 Op. Atty. Gen. 206. [C. S. p. 268]. Questions of mixed law and fact.-The Attorney General should not express an opinion upon the question as to whose fault or negligence, if any one's, it is that a wrongful payment has been made, as that is a question of mixed law and fact which only a court can determine. (1893) 20 Op. Atty. Gen. 324. The Attorney General can not be asked to exercise appellate jurisdiction upon mixed questions of fact and law. (1894) 20 Op. Atty. Gen. 711; (1892) 22 Op. Atty. Gen. 342. Questions of administrative policy or practice. No appeal lies from the decision of the Commissioner of Pensions or other officer of the Government to the Attorney General. (1854) 6 Op. Atty. Gen. 289. The opinions of the Attorney General are advisory only. He has no control over the action of the head of department at whose request and to whom an opinion is given, nor could he with propriety express any judgment concerning the disposition of the matter to which the opinion relates, that being something wholly within the administrative sphere of such head of department. (1855) 17 Op. Atty. Gen. 332. The Attorney General declined to give an opinion as to whether the so-called eighthour law is applicable to certain contracts for public works. (1892) 20 Op. Atty. Gen. 463, 465, 500; (1910) 28 Op. Atty. Gen. 534. The nature of the evidence required from applicants for leave and sufficiency of reasons for extending or limiting hours of labor are matters within the discretion of the Secretary as to which the Attorney General can not advise. (1894) 20 Op. Atty. Gen. 728. The Attorney General declines to express an opinion upon the question whether proceedings by court-martial would bar proceeding in the civil courts for an assault or other crime involved in the offense of hazing, for the reason that it would be of no assistance to those officers in the proper discharge of their duties, and should such action be taken the matter would peculiarly be one for the consideration of his department. (1905) 25 Op. Atty. Gen. 543. Questions actually arising.-The Attorney General deems it improper to give an official opinion upon a question which does not arise out of any case actually existing in the administration of the department seeking advice, notwithstanding such question may involve the construction of the immigration and contract labor laws. 9 Op. Atty. Gen. 82, 355, 421; 10 Op. Atty. Gen. 50; 13 Op. Atty. Gen. 531, 568; (1889) 19 Op. Atty. Gen. 331. Hypothetical questions. The Attorney General will not answer a purely hypothetical question. (1871) 13 Op. Atty. Gen. 531; (1872) 13 Op. Atty. Gen. 568; (1891) 20 Op. Atty. Gen. 288; (1910) 28 Op. Atty. Gen. 239. |