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13.

United States Attorney General Opinion, November 27, 1895

21 U.S. Op. Atty. Gen. 264

COMPROMISE--ATTORNEY-GENERAL.

[264] The Secretary of the Treasury has no power to compromise or release a judgment in favor of the United States from which there is no appeal and of whose collectibility in full there is no doubt.

A claim once fully considered and held unlawful by one Attorney-General can not, with propriety, be reconsidered by his successor, at least except in some extraordinary case.

There is a clear distinction between the compromise of a doubtful case and the remission of a penalty, forfeiture, or disability.

The SECRETARY OF THE TREASURY.

SIR:

Your communication of November 25, asking my official opinion in the matter of the petition of the International Cotton Press Company of New Orleans, has received my careful attention.

The facts of this case are, in main, well known to this Department. One Snyder, a tobacco manufacturer, was indebted to the United States in the amount of several thousand dollars under the internal-revenue laws, and the claim of the United States, on or about November 20, 1879, became a lien upon his property by virtue of sections 3186 and 3371 of the Revised Statutes. On February 5, 1881, he sold certain real property to the petitioner, failing to disclose the fact that there was a lien thereon; and it was purchased without knowledge of such lien. The United States has obtained a decree against the petitioner, under which it is entitled to sell this real estate in satisfaction of its claim. This decree has received the sanction of the highest court (United States v. Snyder, 149 U. S., 210), and is not appealable. It is not claimed that there is any doubt of the ability [265] of the United States to realize the amount due by a sale of the property. It is claimed that the de cree established a new rule of law; but, in fact, it was merely a new application of very familiar and elementary principles.

The petitioner seeks to be relieved from this adjudged lien on its property on the ground of hardship, because, being protected by no recording act, it bought in ignorance of the Government's claim. This is a hardship shared with all persons who, without sufficient inquiry, buy property subject to claims which the law does not require to be recorded, such as dower rights in estates. The petitioner also claims that the full amount could have been collected from Snyder if the Government had proceeded promptly against him individually instead of relying (as it had a right to do) upon its lien on his property; and that Snyder has since become insolvent, so that, if petitioner's land were sold, it could have no recourse against him.

Upon taking up this claim from consideration you were confronted with the question, whether it is within your power to release, in whole or in part, a judgment recovered by the United States, from which there is no appeal and of whose collectibility in full there is no doubt. The petitioner claims that you have jurisdiction under section 3469 of the Revised Statutes, which is 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. Butthe provisions of this section shall not apply to any claim arising under the postal laws.'

This question was referred by you to my predecessor in office in 1894; and it was referred in connection with this very claim of the International Cotton Press Company and upon the same statement of facts. It was carefully considered by this Department, and an opinion rendered by Solicitor General Maxwell, which opinion was approved by [266] Attorney-General Olney. Their conclusions are stated as follows (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,' 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.'

Whatever may be the power of an executive officer to review the decisions of his predecessors, I think that a claim once fully considered and held unlawful by one Attorney-General can not with propriety be reconsidered by his successor, at least except in some extraordinary case. (2 Opin., 8.) I should not feel justified in reversing the former action of this Department unless I were convinced that it was clearly erroneous.

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. MacVeagh (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. Stat., 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.)

For the above reasons I have the honor to advise you that in my opinion the application of the International Cotton Press Company should not be granted.

Very respectfully,

JUDSON HARMON.