PART X.

RULINGS OF DEPARTMENT OF THE INTERIOR RELATING TO RIGHT OF FORMER EMPLOYEES TO PRACTICE BEFORE DEPARTMENT WITHIN TWO YEARS AND RELATED MATTERS.

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ATTORNEY-SECTION 190, REVISED STATUTES.

W. D. HARLAN.

The phrase "claim against the United States," as employed in section 190 of the Revised Statutes, must be construed as meaning a money demand against the United States; and it therefore follows that the inhibition contained in said section does not extend to a former employé of the General Land Office, who appears before the Land Department on behalf of an applicant for a tract of public land.

[Secretary Smith to the Commissioner of the General Land Office, August 23, 1893.]

W. D. Harlan, attorney, appeared at your office for the purpose of representing Dorus M. Fox, who was seeking to amend his homestead entry, No. 1184, Des Moines, Iowa.

In your letter of June 30, 1893, you refuse to recognize him as attorney in said case, and he has appealed to this Department.

Your refusal was based upon the ground that W. D. Harlan was disqualified, under departmental construction of section 190 of the Revised Statutes in the case of Luther Harrison (4 L. D., 179).

Harlan was inspector of surveyors-general and United States land offices, from July, 1889, until June, 1893, during which time the case of Fox, in which he desired to appear as attorney, was pending before the land office.

The section (190 Revised Statutes) upon which your action was based provides that:

"It shall be unlawful for any person appointed after the first day of June, one thousand eight hundred and seventy-two, as an officer, clerk, or employe 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 employe, 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 employe."

The proper solution of the question presented in the appeal of Harlan depends upon the meaning of the words " prosecuting any claim against the United States."

The litigation between citizens seeking to acquire title to public lands, under the homestead and other laws, is in no sense a claim against the United States, nor is an ex-parte proceeding, such as that begun by Fox, for whom Harlan proposed to appear as attorney, a "claim against the United States." The citizen in his relation to the government, while availing himself of the benefit of the land laws, is simply exercising a right conferred upon him by the voluntary act of the government. In so far as the great mass of land cases are concerned, it is an indifferent matter to the government who prevails, except in that broad and comprehensive sense in which it is interested in the maintenance of law and order.

(1487)

Mr. Fox is not "prosecuting a claim against the United States," he is simply endeavoring to avail himself of the benevolence of the government. This view appears to be conclusive of Harlan's right to appear as his counsel. If, therefore, the case of Fox is not a proceeding against the United States, Harlan is not disqualified to appear as his attorney, no matter what meaning may be given to the word claim as used in the statute.

It is important, however, to ascertain the meaning to be given to the word "claim" as used in the section under consideration.

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The statute includes all Departments in which are pending claims against the United States. It is limited in its application by its own terms to claims. It does not affirm that all cases are claims; we are left therefore to employ the ordinary rules of interpretation to ascertain the legislaive intent.

Section 3477 of the Revised Statutes contains the following:

"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."

This statute was enacted in 1853, under the title of "An Act to prevent frauds upon the Treasury of the United States." The 2d section of that act contains a provision disqualifying any officer of the United States, or 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, etc., from becoming an agent or attorney for prosecuting any claim against the the United States. This statute, treating the word claim as something which can not be assigned until "after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof," contains its own legislative interpretation, clearly limiting its application to a money demand against the government.

Where the meaning of a word is clearly defined in one statute, it is regarded as a legislative interpretation, and will be given the same meaning when used in another statute upon the same subject. The statute of 1853 disqualifies certain officers of the Government from prosecuting any claim against the United States. Section 190, Revised Statutes, disqualifies certain persons who have been employés from prosecuting any claim against the United States. The former furnishes a rule for the interpretation of the latter statute.

In the case of the United States v. Gillis (95 U. S., 407), the statute of 1853 has received a judicial interpretation.

Counsel for Gillis, having in mind section 236 of the Revised Statutes, which provides that "All claims and demands whatever by the United States or against them, and all accounts whatever in which the United States are concerned, either as debtors or creditors, shall be settled and adjusted in the Department of the Treasury," contended that the act of 1853 is applicable only to claims asserted before the Treasury Department.

The court, however, did not so limit the application of the statute, but construed the act to include such claims as were presented to Congress, and such as were set up by defalcation in suits brought by the Government. The court, in said case, said also that the act of 1853 embraces every claim against the Government, however arising, of whatever nature, and wherever and whenever presented."

Now, the court pointed out the claims which Congress had in view, all of them being money demands, and in perfect harmony with the caption and body of the act under consideration.

The plain and manifest meaning of the word claim against the United States, as used in the decision, is that the act embraces all claims, and that all claims are money demands.

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Again, it is decided in the "Abbotsford" case, in the 98th United States, page 400, that when words used in a previous act have acquired by judicial interpretation a definite meaning, they will, when used in subsequent acts, be presumed to be used in the same sense.

Claim against the United States, therefore, as used in Section 190, Revised Statutes, must be construed as meaning a money demand against the United States.

In seeking the legislative intent, and keeping in mind the mischief sought to be remedied by the statute, it is not improper to inquire somewhat into the history of its enactment.

Section 190 of the Revised Statutes is included in the Post-Office appropriation bill, approved June 1, 1872. It seems that the act grew out of a scandal emanating from the acts of a clerk, who, taking advantage of his position, familiarized himself with a large number of claims against the government, left its service, and sought and obtained employment of the claimants, prosecuted the claims, and received a large percentage of the recovery as compensation. It will be borne in mind that the acts of the clerk, a repetition of which is sought to be prevented by the statute, relate to money demands.

In 14th Peters, page 178, the court say:

"It is undoubtedly the duty of the court to ascertain the meaning of the legislature from the words used in the statute, and the subject-matter to which it relates; and to restrain its operation within narrower limits than its words import, if the court are satisfied that the literal meaning of its language would extend to cases which the legislature never designed to include in it."

In the case of Luther Harrison (4 L. D., 179), the reason given for extending the inhibition of section 190 to all cases in this Department is in the following language:

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Certain government employés are the trusted custodians of its books and papers, while others have free and unrestricted access to the same. It might be an easy thing for a faithless employé to use his time, not in the speedy and just settlement of claims against the government during the term of his office, but in preventing such settlement, and putting them in such a shape as to enable him to reap handsome profits by their unjust settlement after the term of his service has expired."

In view of the fact that in cases pending before your office or in this Department, in which persons are seeking to acquire title to the public lands, all parties in interest have access to the papers, that the evidence is prepared elsewhere and before they reach your office, that it is not in the power of a clerk to hinder or retard the consideration of a case, that all his work is reviewed by the Commissioner and the Secretary, it is not easy to conceive by what means an employé can put a case in such shape as to reap a handsome profit, after his term of service expires.

The case of Dorus M. Fox, not being a money demand against the government, W. D. Harlan was not disqualified to act as his attorney. Therefore your said decision is reversed.

ATTORNEYS BEFORE THE DEPARTMENT.

LUTHER HARRISON.

Section 190 of the Revised Statutes comprehends in its terms all the Departments and the prohibition therein extends to the prosecution of pending claims of every class, whether as counsel, clerk, or agent, during the two years designated.

[Secretary Lamar to Commissioner Sparks, October 6, 1885.]

I have received a letter from Luther Harrison, Esq., late Acting Commissioner of the General Land Office, purporting to be an appeal from your action as Commissioner of the General Land Office, in refusing to recognize him as an attorney in certain matters pending before that office. The facts in this case are shown in the following correspondence:

Hon. Wм. A. J. SPARKS,

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Comm'r General Land Office:

"WASHINGTON, D. C., Sept. 22, 1885.

SIR: I was informed yesterday that you had instructed your chiefs of divisions that I was not permitted to appear in any case pending while I was in the employ of the General Land Office, and that in such cases I should be denied access to the papers and not advised of the action of the office respecting them.

This action, I presume, was had under some supposed authority contained in the letter of the Hon. Secretary of the Interior to you, of 17th instant, directing, in response to your inquiry, an enforcement by you of section 190 of the Revised

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Statutes, prescribing the terms and conditions upon which certain persons, previously employed by the Government, may prosecute claims against it.

This action on your part is not justified either by the law or the Secretary's letter referred to, and I respectfully request that you reconsider it.

The rights, privileges, and liberties of an American citizen, as guaranteed by the Constitution of our common country, are a priceless heritage left him by his forefathers, and should not be trampled upon to satisfy the whim and selfish greed of persons who have been agitating this matter, and who, but for the limitation of two years, during which time they enjoyed a lucrative practice, would now come within the provisions of the law. It is a serious thing to deprive a man of his only means of earning a liveihood for himself and family, and should not be done except for some crime committed, or unprofessional conduct, and this branch of the case appeals to you upon other grounds which I need only mention to be understood.

I claim also that section 190 of the Revised Statutes has no application to my case, because it provides that "It shall not be lawful for any person appointed after the first day of June, one thousand eight hundred and seventytwo, as an officer, clerk, or employé 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 employé, nor in any manner, nor by any means, to aid in the prosecution of such claims, within two years next after he shall have ceased to be such officer, clerk, or employé.”

This law clearly contemplates that any person who was not in the employ of the Government on the 1st day of June, 1872, but was thereafter appointed to office, should not be permitted to prosecute any claim against the Government which was pending while he was in office, within two years next after he shall have severed his official relations with the Government.

This is apparent for the reason that the Constitution, under the head of 'Limitations of the power of Congress." in express terms provides:

"No bill of attainder, or ex post facto law shall be passed." Art. 1. section ix, paragraph 3.

At the date fixed by the law, June 1, 1872, I was a third-class clerk in the General Land Office, and from that time and before, to the 31st of August, 1885, I was continuously employed in that office. It is true, however, that I did not continue in that grade. The record shows that January 31, 1880, I was commissioned by the President to be principal clerk on private land claims; September 20, 1882, was appointed by Secretary to be chief clerk, and July 9, 1884, was commissioned by the President to be assistant commissioner. My employment, however, has been continuous from the date of my original appointment, December 9, 1865, to the 31st of August, 1885, when my resignation of the office of assistant commissioner took effect, and the record will also show that I have been paid for every day during that period. The various positions which I have filled since the 9th day of December, 1865, were a continuation of the original appointment which was then made, and which was the foundation of, and key to, my entrance into the public service as a first-class clerk, and they have always been considered promotions from that grade.

I hope you will give this subject that serious consideration which it merits at your hands, and advise me promptly of your decision.

Respectfully,

L. HARRISON.

Hen. L. HARRISON.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., Sept. 23, 1885.

DEAR SIR: Yours of the 22d instant before me. In reply I beg to say, that I transmitted to the chiefs of the various divisions of the General Land Office a copy of the Secretary's Instructions" in relation to persons who had been officials of the office practicing as attorneys therein, with directions that they should cause the sme to be strictly complied with.

In this I certainly have neither deprived, nor attempted to deprive, you of any of your constitutional and legal rights, nor have I thereby indicated any unkindly treatment toward you personally, but simply, as I conceive it, have dis293 charged my official duty under the law, to the head of the department under which I serve.

It is not unknown to you that it has been, and is, my earnest desire and determination, so far as in me lies, to do away with the loose practices that have heretofore existed in the General Land Office.

In this I shall continue, prompted by the sole desire to discharge a duty, and certainly regretting if in doing this, anybody shall feel that they have cause of grievance, or that it is aimed at them in any spirit of unkindness or malevolence. Very truly,

WM. A. J. SPARKS,

Commissioner,

In a communication addressed to me, as Secretary of the Interior, dated September 30th, and entitled as stated at the beginning of this paper, Mr. Harrison says:

"It will be observed that the Commissioner does not directly decide whether my case as presented to him, falls within the provisions of the law, yet in view of what I had stated as his action in the matter, he, by inference, decides that it does, and there can be no doubt about this, for in his letter he says, without qualification, that the directions given were with reference to persons practicing who had been previously officials of the office and that he had simply as he conceived it, discharged his official duty under the law, to the head of the Department, thus denying a reconsideration of his action.

I now respectfully appeal to you, and as grounds therefor state:

(1) That Section 190 R. S. should be held to apply only to the prosecution of claims for money.

(2) That it has no application in the practice before the General Land Office except in cases involving the payment of money.

(3) That in my case the law has no application whatever."

In the course of his argument Mr. Harrison contends that he should be excepted from the operations of the statute for the following reasons:

"I was then, and for some years previous, employed in the General Land Office. From date of my original appointment to the 1st instant, I was not for a day, an hour, or an instant, out of such employment. It is true that my salary was increased by promotion to higher grades, and that I performed different duties at different times. It is also true that these promotions were made by new appointments. I contend, however, that it was the clear intent of the statute to except from its operations any person who on June 1st, 1872, was an officer, clerk, or employee in any department, and who continuously thereafter remained in such Department up to his severance of official relations, following which, he might seek to practice as an attorney."

OPINION.

The question presented is, whether a person who holds his appointment as an officer, clerk, or employe in the Department of the Interior may act as counsel, attorney, or agent for prosecuting any claim against the United States in that Department while he was such officer, clerk, or employe, or can in any manner, or by any means, aid in the prosecution there of such claim, until two years have expired since the dissolution of his official connection with that Department. The act of Congress of 1872, section 190 of the U. S. Revised Statutes, reads as follows:

"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 employe 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 employe, 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.”

The prohibition of this statute is unconditional, and comprehends in its terms all of the Departments of the Government, every case of the prosecution of a claim pending against the United States in any one of them, and debars every officer, clerk, or employé from participating in any manner, with any means, whether as counsel, clerk, or agent, in the prosecution of that claim within the time designated. I shall consider this case as an appeal from the decision of the Commissioner of the General Land Office in cases of contests relative to titles to the 294 public lands between claimants, and which were pending while the appellant was a clerk in that office, and within two years since his resignation. The objection is that this statute has no reference to contests of title to lands, but only to claims for money upon the United States, and that the lan