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willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. R. S. 102; act of June 22, 1938 (52 Stat. 942); 2 U. 8. C. 192.

No witness is privileged to refuse to testify to any fact, or to produce any paper respecting which he shall be examined by either House of Congress, or by any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or by any committee of either House, upon the ground that his testimony to such fact or his production of such paper may tend to disgrace him or otherwise render him infamous. R. S. 103; act of June 22, 1938 (52 Stat. 942); 2 V.8. 0. 193.

Whenever a witness summoned as mentioned in section 102 of the Revised Statutes fails to appear to testify or fails to produce any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session, or when Congress is not in session, a statement of facts constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall 80 certify, the statement of facts aforesaid under the seal of the Senate or House as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action. R. S. 10); act of July 13, 1936 (49 Stat. 20.41); act of June 22, 1938 (52 Stat. 942); 2 U. 8. C. 19).

CHAPTER 10

CLAIMS AGAINST THE UNITED STATES

General prorisions :

Private property, loss or damage---Contd. Assignments and powers of attorney, 701. In the military service of the United Claims under exhausted appropriations,

States, 714. 702.

By field exercises, 714a. Equitable claims, 703.

By operation of camps of instruction, NaProcuring attendance of witnesses, 705.

tional Guard, 714b. Prosecution by former officers and em- Property of Army personnel, loss or damage ployees, 706.

in the military service : Prosecution by members of the National General provision, 715.

Guard, District of Columbia, 707. Horses and equipment, 716. Set-off, 708.

Property of civilian employees, loss or damForeign nationals:

age in river and harbor service, 717. Contract claims, 708a.

Property of foreign nationals; damage by Death or injury, 708b.

operation of the Army, 717a. Private property, loss or damage :

Pay claims : By operations of the Army, 709.

Attorneys' fees, 718. By dredging operations, 710.

Longevity, 719. By operation of aircraft, 711.

National Guard in Federal service, 720. By river and harbor operations, 712.

Volunteers, time limit for filing, 721. By negligence of Government agents within

scope of their employment, 713. 701. Assignments and powers of attorney.-All transfers and assignments made of any claim upon the United States or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. Such transfers, assignments, and powers of attorney must recite the warrant for payment, and must be acknowledged by the person making them, before an officer baving authority to take acknowledgments of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgment, read and fully explained the transfer, assignment, or warrant of attorney to the person acknowledging the same. R. S. 3177; 31 U. 8. C. 203.

Notes of Decisions In general.—The statute providing that, a “transfer" or "assignment" of a "claim” assignments of claims against the United against the United States within statute proStates are void does not apply to assign- viding that transfers and assignments of ments by operation of law (31 U. S. C. A. claims against the United States were void, me. 203). Morgenthau v. Fidelity & Deposit notwithstanding that treasurer knew when Co. of Maryland (App. D. C., 1937), 91 F. loan was made that an assignment of a claim

against the United States was invalid unless A postal employee's agreement that his certain formalities were complied with. 31 monthly checks were to be held by treasurer U. S. C. 203. Richmond Postal Credit Union of corporate payee of note executed by em. v. Booker (Va., 1938), 195 S. E. 663. ployee for monthly payments on note was not

(20) 632.

702. Claims under exhausted appropriations.

And it shall be the duty of the several accounting officers of the Treasury to continue to receive, examine, and consider the justice and validity of all claims under appropriations the balances of which have been exhausted or carried to the surplus fund under the provisions of said section that may be brought before them within a period of five years. And the Secretary of the Treasury shall report the amount due each claimant, at the commencement of each session, to the Speaker of the House of Representatives, who shall lay the same before Congress for consideration: Provided, That nothing in this Act shall be construed to authorize the re-examination and payment of any claim or account which has been once examined and rejected, unless reopened in accordance with existing law. Sec. 4, act of June 14, 1878 (20 Stat. 130); 31 U. 8. C. 714.

The duties of the accounting officers of the Treasury are now performed by the General Accounting Office. See 1646, post.

For second and third paragraphs of the 1929 text of this section, see 1656, 1659, post. 702a. Compromise.

As to any case referred to the Department of Justice for defense, the function of decision whether and in what manner to defend, or to compromise, or to appeal, or to abandon defense, formerly exercised by any agency or officer, is transferred to the Department of Justice by Executive Order No. 6166 of June 10, 1933, issued under authority of Title IV, Part II, act of June 30, 1932 (47 Stat. 413), as amended.

Notes of Decisions

Authority of Attorney General.-In cases of offers in compromise, and when he has wherein the Treasury Department is called 80 terminated such a suit his action is final upon to make tax refunds after settlements and binding on all other executive officers have been agreed upon by the Department of the Government as to the merits thereof of Justice, under section 5 of Executive Or- and not subject to review by the Treasury der No. 6166, the Attorney General has ample | Department. (1934) 38 Op. Atty. Gen. 124. power to terminate suits by the acceptance

703. Equitable claims.--That when there is filed in the General Accounting Office a claim or demand against the United States that may not lawfully be adjusted by the use of an appropriation theretofore made, but which claim or demand in the judgment of the Comptroller General of the United States contains such elements of legal liability or equity as to be deserving of the consideration of the Congress, he shall submit the same to the Congress by a special report containing the material facts and his recommendation thereon. Act of Apr. 10, 1928 (45 Stat. 413); 31 U. 8. C. 236.

The act of Mar. 2, 1919 (40 Stat. 1272), authorized the Secretary of War to adjust, pay, or discharge upon a fair and equitable basis any agreement, express or implied, that had been entered into during the late emergency and prior to Nov. 12, 1918. The effect of this act was said by the Comptroller of the Treasury to be to give the Secretary of War original jurisdiction in the settlement of claims arising thereunder and to suspend temporarily further action by the accounting officers. In the same opinion, the Comptroller outlined the procedure which should be followed by claimants. See (1919) 25 Comp. Dec. 774,

Notes of Decisions

In general.-United States may not be statute in which government consents to sued without its consent, and Congress has be sued. absolute discretion to specify cases and con- Congress may Impose new conditions upon tingencies in which liability of government which consent of United States to be sued may be determined by courts.

is granted. Butler et al. v. Carney (D. C., One seeking to sue United States must 1936), 17 F. Supp. 133. show that his case is clearly within terms of

704. For text of this section as published in the 1929 Edition, see 1671, post.

705. Procuring attendance of witnesses.-Any head of a department or bureau in which a claim against the United States is properly pending may apply to any judge or clerk of any court of the United States, in any State, District, or Territory, to issue a subpæna for any witness being within the jurisdiction of such court, to appear at a time and place in the subpæna stated, before any officer authorized to take depositions to be used in the courts of the United States, there to give full and true answers to such written interrogatories and cross-interrogatories as may be submitted with the application, or to be orally examined and cross-examined upon the subject of such claim. R. S. 184; 5 U. 8. C. 94.

Witnesses subpænaed pursuant to the preceding section shall be allowed the same compensation as is allowed witnesses in the courts of the United States. R. S. 185; 5 U. S. C. 95.

If any witness, after being duly served with such subpoena, neglects or refuses to appear, or, appearing, refuses to testify, the judge of the district in which the subpæna issued may proceed, upon proper process, to enforce obedience to the subpæna or to punish the disobedience, in like manner as any court the United States may do in case of process of subpæna ad testificandum issued by such court. R. 8. 186; 5 U. S. O. 96.

In addition to the authority conferred by this section, like provision was made for the issue of subpænas for witnesses, upon the application of the Commissioner of Pensions, ou in vestigation or examination into the merits of pension claims, by act July 25, 1882, sec. 3.

For fees allowed witnesses in United States courts, see 767, post. The act of July 3, 1926 (44 Stat. 835), entitled "An act relating to contempts,” provides for the manner of obtaining testimony of citizens of the United States or persons who are domiciled therein when they are beyond the jurisdiction thereof and for punishment for contempt of recusant witnesses.

706. Prosecution by former officers and employees.-It shall not be lawful for any person appointed after the first day of June, one thousand eight hundred and seventy-two, as an officer, clerk, or employee in any of the departments to act as counsel, attorney, or agent for prosecuting any claim against the United States which was pending in either of said departments while he was such officer, clerk, or employee, nor in any manner, nor by any means, to aid in the prosecution of any such claim, within two years next after he shall have ceased to be such officer, clerk, or employee. R. S. 190; 5 U. S. O. 99.

That it shall be unlawful for any person who, as a commissioned officer of the Army, or officer or employee of the United States, has at any time since April 6, 1917, been employed in any bureau of the Government and in such employment been engaged on behalf of the United States in procuring or assisting to procure supplies for the Military Establishment, or who has been engaged in the settlement or adjustment of contracts or agreements for the procurement of supplies for the Military Establishment, within two years next after his discharge or other separation from the service of the Government, to solicit employment in the presentation or to aid or assist for compensation in the prosecution of claims against the United States arising out of any contracts or agreements for the procurement of supplies for said bureau, which were pending or entered into while the said officer or employee was associated therewith. A violation of this provision of this chapter shall be punished by a fine of not more than $10,000 or imprisonment for not more than one year, or both: Provided, That all Acts or parts of Acts inconsistent with any of the provisions of this Act are hereby repealed. Chap. IV, act of July 11, 1919 (41 Stat. 131); 5 U.S. C. 100.

Officers and employees are forbidden to prosecute claims against the United States by sec. 109, Criminal Code, post, 840.

By act of April 14, 1934 (48 Stat. 590), the first paragraph of this section was made inapplicable to attorneys employed by the Attorney General for prosecution of cases under

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