United States v. Bashaw/Opinion of the Court
The circuit court of appeals held that the words, in respect of payment for expenses and services, 'in all such cases,' in section 838, referred to the cases previously mentioned in the section, namely, the cases reported by the collector to the district attorney for examination; that, therefore, the attorney would be entitled to be paid for expenses and services in all cases reported to him and examined, regardless of the results of such examination; that it ought not to be supposed that congress, while intending to protect the individual citizen, as well as the United States, against the institution of proceedings not called for in the furtherance of justice, at the same time placed the government in the attitude of making the question of compensation depend upon a conclusion reached in its favor; that as the phraseology of the seventh section of the act of July 18, 1866, was changed by the act of March 3, 1873, by striking out the words 'in prosecutions for such fines and personal penalties,' and inserting 'in all such cases,' the presumption was that a change of meaning was intended, and that section 838, embodying the act of 1873, should not be narrowed to conform to the act of 1866; but no reference was made to the carrying forward of the latter into section 3085. It was conceded that the basis for the action of the secretary of the treasury was the certificate of the proper judge, but considered that the giving of such certificate was not necessarily limited to the judge before whom the cases were 'tried and disposed of,' and that where, on examination, no prosecution was had, the judge who was competent to try 'such cases' was competent to grant the certificate. The court held that the question of payment or no payment was not left to the discretion of the secretary, and that 'the right to compensation is acquired by the rendition of services in the examination of cases reported to the attorney for examination by the collectors of customs and of revenue. The amount to be paid is to be ascertained by proving the facts before the proper judge, obtaining his certificate and the approval of the secretary of the treasury.'

Certain considerations, however, confront us at the threshold, which are fatal to the judgment, and render any determination of the principal question discussed uncalled for.

The findings of the circuit court do not show, nor is it anywhere disclosed by the record, that, prior to the presentation of the claims to the secretary, the facts were proven before any judge, and the amounts claimed certified by him; and it affirmatively appeared that the secretary had not determined what sum he deemed just and reasonable to be paid.

The rejection of the claims was placed, it is true, upon the ground that they could not be allowed for want of certificate, in accordance with the rulings of the department and the opinion of the attorney general; but the facts remain that the secretary had made no allowance, and that this record fails to show that the exercise of his discretion in that regard, even from plaintiff's standpoint, had been properly invoked.

And in this connection it is proper to observe that our attention is called, by the brife of counsel for the government, to rulings of Secretary Bristow, August 29 and December 9, 1874; of Secretary Folger, February 26 and 28, 1884; and of Secretary Fairchild, of December 18, 1886,-that the secretary of the treasury can make no allowance for services where legal proceedings were not commenced, because he could not do so unless there was a judge's certificate, and such certificate could not be given except in cases that were tried or disposed of before the judge so certifying; and the practice under the act of 1873 and the Revised Statutes seems to have been uniformly in accordance with these rulings. The department held, in short, that the statute did not apply to cases not tried and disposed of. The opinion of Attorney General Brewster, of March 2, 1885 (18 Op. Attys. Gen. 126), and of Attorney General Garland, in a letter to the secretary of the treasury, of November 17, 1885 (31 Int. Rev. Rec. 382), art to the same effect. The latter was of opinion that sections 838 and 3085 should be read together, and that, so construed, the established practice of the department was maintained. This was the view taken by Judge Shipman in Stanton v. U.S., 37 Fed. 252, who held that it was not the intention of congress to authorize payment for such services, 'unless prosecutions had been commenced.' It was otherwise ruled by Judge Treat, in Re District Attorney, 23 Fed. 26, followed by his successor, Judge Thayer, in this case, 47 Fed. 40, and a like opinion was expressed by the solicitor of the treasury on April 30, 1885.

But, without further remark on this branch of the case, it must be admitted that, even if the rulings of the department were erroneous and its practice not controlling, upon which we express no opinion, whatever sum was to be paid was left to be determined by the secretary of the treasury as he should deem reasonable and just, and this involved the exercise of judgment and discretion on his part. The courts cannot control, though in proper cases they may direct, the exercise of judgment or discretion in an executive officer. In this case, as we have said, the exercise of discretion was not properly invoked, and the party had no right to ask the court to substitute its judgment for the judgment of the secretary.

The judgment of the circuit court of appeals for the eighth circuit is reversed; the judgment of the circuit court of the United States for the eastern district of Missouri is also reversed, and the cause remanded to that court for further proceedings in conformity with this opinion.

Mr. Justice WHITE was not a member of the court when this case was considered, and took no part in its decision. 

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