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8.

United States Attorney General Opinion, January 17, 1900

23 U.S. Op. Atty. Gen. 18

SECRETARY OF TREASURY--COMPROMISE OF JUDGMENT.

[18] The Secretary of the Treasury has no power, under section 3469, Revised Statutes, to compromise a final judgment in favor of the United States, which is clearly collectible. That section only authorizes a compromise of a claim which is in some way doubtful.

The SECRETARY OF THE TREASURY.

SIR:

I have given careful consideration to the question raised by your letter of September 29, transmitting the papers relating to 'a compromise offer' of the sureties on the bond of Fred W. Smith, as receiver of public moneys at Tucson, Ariz., and requesting my opinion as to your power to compromise a collectible judgment under section 3469, Revised Statutes.

[19] Smith was receiver of public moneys in Arizons from 1887 to 1889, when he was removed, and suit brought against him and the sureties on his bond for moneys received received for land from settlers for which he failed to account to the Government. In the Arizona court judgment was recovered against Smith and the sureties on his bond for nearly $6,000. This judgment was affirmed by the supreme court of the Territory, and ultimately by the Supreme Court of the United States in the case of Smith v. United States (170 U. S., 372).

It is conceded that this final judgment can be collected from the sureties, but a so-called compromise offer is submitted and urged on the ground that it would work a hardship to enforce the collection of the entire amount of the judgment. The grounds of hardship were presented to the courts as a defense to the suit, and are set forth in the statement and opinion of the Supreme Court (170 U. S., 372). The only question presented to me is whether a final judgment in favor of the United States, which is collectible, can be 'compromised' under section 3469 of the Revised Statutes, which reads as follows:

'Upon a report by a district attorney, or any special attorney or agent having charge of any claim in favor of 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 rendered by Solicitor-General Maxwell and approved by Attorney- General Olney, the authority conferred by this section was thus limited and defined (21 Opin., 51):

'The section does not authorize the Secretary of the Treasury to remit or release moneys due to the United States and clearly recoverable, but to 'compromise,' which implies a claim of doubtful recovery or enforcement.

'In the case which you submit there is nothing to 'compromise,' [20] for the right of recovery and the amount have been finally adjudged by the court of last resort, and the property is said to be sufficient to satisfy the debt.'

An attempt was subsequently made to secure a modification of this holding, but without success, Attorney-General Harmon saying (21 Opin., 264, 266):

'I am, however, clearly of the opinion that the opinion already given is correct. The construction given to the statute accorded with that of Mr. Evarts (12 Opin., 543) and with that of Mr. Devens and Mr. Phillips (16 Opin., 617). If the opinion of Mr. McVeagh (17 Opin., 213) is to be construed as holding that a claim may be compromised when there is no doubt of its entire and ready collectibility, I am unable to concur with it. It appears to ignore the clear distinction between the compromise of a doubtful case and the remission of a penalty, forfeiture, or disability. (Rev. Stats., secs. 3461, 5292.) The former power, as said by Mr. Evarts in the opinion above cited, is strictly a fiscal one. The latter is in the nature of a pardoning power. (The Laura, 114 U. S., 411, 413-414.)'

No reasons have been advanced or suggest themselves justifying a change of the construction placed upon this section by my predecessors. A compromise is an adjustment or settlement by mutual concessions. The claim must in some way be doubtful. There must be room for the 'play of give and take.' For this reason the statement from the attorney in charge 'showing in detail the condition of such claim, and the terms upon which the same may be compromised,' is required. In the case of a collectible judgment 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 place of compromising.

Respectfully,

JOHN K. RICHARDS,

Solicitor-General.

Approved:

JOHN W. GRIGGS.