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By the act of June 21, 1902 (32 Stat., 475), it is provided"That from and after June 30, 1903, all the fees and costs in extradition cases shall be paid out of the appropriations to defray the expenses of the judiciary, and the Attorney-General shall certify to the Secretary of State the amounts to be paid to the United States on account of said fees and costs in extradition cases by the foreign government requesting the extradition, and the Secretary of State shall cause said amounts to be collected and transmitted to the Attorney-General for deposit in the Treasury of the United States."
The warrant for the surrender of the persons ordered to be extradited and the request or direction for their transporta tion and delivery to the representative of the foreign government are in due form and in compliance with the law. As was said by me in a letter to you of May 5, 1905, in the matter of these same extradited persons—
"Statutes of extradition are statutes providing for a gor ernmental duty in pursuance of treaty obligations. Their enforcement is strictly governmental proceedings the same as other statutes enforcing the penalties of the criminal laws."
Accordingly you are authorized to pay three-fourths fees of the voucher of Deputy Hettig, if otherwise correct.
WITHHOLDING PAYMENT OF COMPENSATION OF EMPLOYEE WHO IS INDEBTED TO THE GOVERNMENT.
The provision in section 1766, Revised Statutes, that no money shall be paid to any person for his compensation who is in arrears to the United States until he has accounted for and paid into the Treasury all sums for which he may be liable, applies only to a principal who is in arrears and not to his surety. An employee against whom the United States has recovered judgment as surety on the bond of a defaulting postmaster is indebted to the United States within the meaning of the act of March 3, 1875, which provides that when any claim shall be presented to the Secretary of the Treasury for payment, and the claimant shall be indebted to the United States in any manner, whether as principal or surety, it shall be the duty of the Secretary to withhold payment of an amount of such claim equal to the debt due from claimant to the United States. It is the duty of a disbursing officer to withhold payment of the compensation of an employee who is indebted to the Government upon a judgment rendered against him as surety until such judgment has been satisfied.
(Comptroller Tracewell to Charles G. Bennett, Secretary U. S. Senate, June 22, 1905.)
In your communication of June 17, 1905, you request my decision of a question which you therein present as follows:
"I have the honor to submit herewith copies of the following correspondence in the matter of withholding the salary of Wallace McLaurin, one of the sureties on the official bond of William H. Gibbs, postmaster at Jackson, Miss., namely, a letter of the Solicitor of the Treasury to the honorable Secretary of the Treasury, letter of the acting Secretary of the Treasury to this office, letter of the financial clerk of this office to Wallace McLaurin, and the letter of the Hon. A. L. McLaurin, Senator from the State of Mississippi, and respectfully ask your decision on the construction of the statute in view of the contention of Senator McLaurin."
It appears from the communications transmitted by you that a judgment in favor of the United States for $4,419.15, with interest and costs, having been rendered against Mr. Wallace McLaurin and others, sureties on the official bond of William H. Gibbs, as postmaster at Jackson, Miss., and the writ of execution thereon having been returned unsatisfied, your attention was called to these facts by the Secretary of the Treasury for your action under the provisions of section 1766 of the Revised Statutes. The provisions of this section are as follows:
"No money shall be paid to any person for his compensation who is in arrears to the United States, until he has accounted for and paid into the Treasury all sums for which he may be liable. In all cases where the pay or salary of any person is withheld in pursuance of this section, the accounting officers of the Treasury, if required to do so by the party, his agent or attorney, shall report forthwith to the Solicitor of the Treasury the balance due; and the Solicitor shall, within sixty days thereafter, order suit to be commenced against such delinquent and his sureties."
Senator A. J. McLaurin, in a communication to you, a copy of which you transmit, expresses the opinion that the provisions of the above section apply only to a principal who is a defaulter and not to his sureties.
In 1 Op. Att. Gen., 618, the Attorney-General expressed a like opinion upon a similar provision. Section 2 of the act
of March 3, 1823 (3 Stats., 764), contained the following provision:
"That no money appropriated by this act shall be paid to any person, for his compensation, who is in arrears to the United States, until such person shall have accounted for and paid into the Treasury all sums for which he may be liable: Provided, further, That nothing in this section contained shall extend to balances arising solely from the depreciation of Treasury notes received by such person to be expended in the public service; but in all cases where the pay or salary of any person is withheld in pursuance of this act it shall be the duty of the accounting officer, if demanded by the party, his agent or attorney, to report forthwith to the agent of the Treasury Department the balance due; and it shall be the duty of the said agent, within sixty days thereafter, to order suit to be commenced against such delinquent and his sureties.”
Referring to the language of these provisions, AttorneyGeneral Wirt said:
"I am, respectfully, of the opinion that that proviso contemplates only the principal-the party who is in arrears,' who had received the public money to be expended by him in the public service,' and if there could be a doubt on this subject in the body of the proviso, it seems to me to be effectually removed by the closing sentence of the proviso, where, with the same person (the defaulter himself) still in view on whom the penal provision had been exhausted, it is provided that, in the event specified, suit shall be commenced against such delinquent and his sureties-sureties being here, for the first time, brought into view."
The same reasons apply substantially to the provision in section 1766 of the Revised Statutes, and I am of opinion that these provisions do not apply to a surety who is not also "in arrears" as principal.
The act of March 3, 1875 (18 Stat., 481), contains the following provision:
"That when any final judgment recovered against the United States or other claim duly allowed by legal authority shall be presented to the Secretary of the Treasury for payment, and the plaintiff or claimant therein shall be indebted to the United States in any manner, whether as principal or surety, it shall be the duty of the Secretary to withhold payment of an amount of such judgment or claim equal to the debt thus due to the United States." * *
Mr. Wallace McLaurin is indebted to the United States as surety, within the terms of the above provision, and if his
claim "duly allowed by legal authority" were presented to the Secretary of the Treasury, by the terms of the provision it would be the duty of the Secretary to withhold payment of an amount equal to the debt so due.
I am of opinion that it is the duty of disbursing officers of the United States in making payments from moneys of the United States placed in their custody to take appropriate measures for the protection of the interests of the United States, whose agents they are, and that when any claim or voucher is presented to them for payment which they have reason to think would not be paid on presentation to the Treasury Department, it is their duty to refuse payment thereof, leaving the claimant to pursue his legal rights before that Department as provided by law.
I have, therefore, to advise you that you are not authorized to make any payment to Mr. McLaurin until the judgment. rendered against him and others has been satisfied.
FEES OF DEPUTY MARSHAL FOR EXECUTING WARRANT OF ARREST.
The fees of a deputy marshal for executing a warrant of arrest are not earned until the warrant is executed, and therefore his fees for executing a warrant received by him on the last day of the fiscal year 1904, but not executed until the second day of the fiscal year 1905, must be considered as earned during the latter fiscal year.
(Decision by Comptroller Tracewell, June 22, 1905.) W. H. Mackey, jr., United States marshal for the district of Kansas, appealed from the settlement of the Auditor for the State and other Departments, dated April 4, 1905, of his account for salaries, fees, and expenses for the quarter ended September 30, 1904, in the disallowance of mileage to a field deputy for travel in going to serve a warrant of arrest on June 30, 1904, because in excess of the deputy's maximum compensation for the fiscal year 1904.
The warrant was issued June 28, received by deputy June 30, on which day he started to travel 257 miles to serve it, which he did on July 2, 1904.
The Auditor says:
"Although the writ was not served until July 2, the mileage for travel on June 30 was, in accordance with the practice, considered as chargeable to the deputy in the fiscal year 1904."
If such a practice is erroneous, there is no reason for its continuance. It should be changed.
The question raised by the Auditor's disallowance is whether mileage is earned by and chargeable to the deputy on June 30, when the travel was made, or on July, 2 when the writ was executed.
That mileage is earned only when the writ is executed there can be no doubt.
This view, as it seems to me, is sustained by the fact that under the act of August 18, 1894 (28 Stat., 416), and the inference deducible therefrom, "no mileage shall be allowed upon any writ not executed."
In this case the writ was not executed until July 2, 1904, and therefore the fees were not earned until the fiscal year 1905.
The action of the Auditor is therefore reversed, and the item in question should be allowed on revision thereof.
NOTICE OF INTENTION TO VACATE LEASED PREMISES IN THE DISTRICT OF COLUMBIA.
Where the United States rents premises in the District of Columbia under a tenancy from month to month, it must, in order to terminate the tenancy and escape liability for the payment of rent, give the owner of the leased premises thirty days' notice in writing, as required by section 1219 of the act of March 3, 1901; but where such notice is not given, and the United States vacates the leased premises and surrenders the keys to the landlord, and he accepts same and relets the premises, such facts will amount to an acceptance by him of the surrender of the premises, and will release the United States from liability for the payment of rent therefor after the date of the delivery of the keys to the landlord.
(Comptroller Tracewell to the Chairman of the Isthmian Canal Commission, June 22, 1905.)
By your direction I have received from C. W. Edwards, chief of office, a letter as follows:
"On May 1, 1904, the Isthmian Canal Commission rented from the Evening Star Newspaper Company certain rooms in the Evening Star Building, by a tenancy from month to month. Subsequently, on various dates, as shown in schedule herewith, other rooms were rented and the rent of each new room so