2.

United States Attorney General Opinion, February 19, 1902

23 U.S. Op. Atty. Gen. 631 SECRETARY OF THE TREASURY--COMPROMISE OF CLAIM. [631] While the Secretary of the Treasury has no authority under section 3469, Revised Statutes, to compromise a claim in favor of the United States which has been reduced to judgment, affirmed by the highest court, and which is clearly collectible, that section confers upon him the authority to compromise all other claims in favor of the United States, except those arising under the postal laws. The SECRETARY OF THE TREASURY. SIR: It appears from your letter of the 28th ultimo that on November 13, 1901, you made a demand upon the North American Commercial Company for the sum of $42,515.55, with interest at the rate of 6 per cent from May 1, 1891, on account of the tax, bonus, and rental due under the contract of March 12, 1890 (whereby the North American Commercial Company on May 1, 1890, became the lessee for a period of twenty years thereafter of the exclusive right to take fur seals on the islands of St. George and St. Paul, in the Territory of Alaska), for 4,158 seal skins, taken during the fall of 1889 and spring of 1890 by the natives of the seal islands under the privilege granted them by law to kill seals [632] for food, and subsequently turned over to the North American Commercial Company. The North American Commercial Company concedes the validity of the Government's claim for the sum named, but resists the payment of interest thereon from May 1, 1891, upon the following ground: The seal skins in question having been taken prior to the transfer of the sealing privilege from the Alaska Commercial Company to the North American Commercial Company, the former company laid claim to the skins, which were accordingly shipped to the collector of customs at San Francisco to await the determination of the controversy by the courts. While this controversy was still pending, the seal skins were turned over to the North American Company, and that company, on April 14, 1891, was notified by your Department that in view of the fact that the Alaska Company had entered suit against it for the value of the skins, 'the question of the payment of the tax to the Government is held in abeyance awaiting the final decision of ownership.' Prior to this date, namely, on April 1, 1891, your Department, after acknowledging the payment of rent and tax for the year ending May 1, 1891, notified the North American Company that the amount to be paid for the seal skins in question was n ot included in the account paid but was left 'for future adjustment.' In view of these facts and the fact that the Government never demanded the payment of the tax, bonus, and rental for the seal skins until November 13, 1901, the North American Company contends that the Government can not justly and legally exact interest from May 1, 1891, but 'desiring to avoid conflict and litigation is willing, by way of settlement of said claim, to pay a part of the interest demanded, say 3 per cent, from the date when the litigation between the two companies was settled on March 8, 1894, until now.' The question you submit to me is whether your Department has authority to compromise the claim. I am of the opinion it has. Section 3469 of the Revised Statutes provides as follows: 'Upon a report by a district attorney, or any special attorney or agent having charge of any claim in favor of [633] the United States, showing in detail the condition of such claim, and the terms upon which the same may be compromised, and recommending that it be compromised upon the terms so offered, and upon the recommendation of the Solicitor of the Treasury, the Secretary of the Treasury is authorized to compromise such claim accordingly. But the provisions of this section shall not apply to any claim arising under the postal laws.' In an opinion given January 17, 1900, I held, following Solicitor-General Maxwell (21 Opin., 51), and Attorney-General Harmon (21 Opin., 264, 266), that this section does not authorize the Secretary of the Treasury to compromise a claim which has been reduced to judgment, affirmed by the highest court, and is clearly collectible, because a compromise is an adjustment or settlement by mutual concession. The claim must in some way be doubtful. There must be room for the 'play of give and take.' In the case of a collectible judgment, which has been affirmed by the highest court, there is no room for 'give and take,' no basis for a compromise; the concession is all on the one side, the side of the Government, which remits in palce of compromising. But in the case of this claim for interest, there are involved disputed questions of fact and of law, which if put in litigation might be decided the one way or the other. The claim, therefore, is clearly one subject to compromise under this section. I am sustained in this view by the position taken by Attorney-General Griggs in his letter of November 8, 1899, approving of the acceptance by the Government from the North American Company of interest at the rate of 4 per cent per annum on the amounts left unpaid from year to year, pending certain litigation with that company. Respectfully, JOHN K. RICHARDS, Solicitor-General. Approved: P. C. KNOX.