National Republican., 1885-11-21
ALABAMA COURT EMPLOYEES.
DIR. wHARTON'S ADVERSE OPINION IN.
DORSED BY MIR. GARLAND.
The Law ms Interpreted by tho Diplo-
matte Law Oficer--A BIshel of Rea-
sons Found for DepriYing the Court
OF Necessary Aids.


the question Of the legality Of the expenses
OF the court of Alabama claims, having
slgnifed his concurrence in the opinion of
the solicitor Of the State Department, Mr..
Francis Wharton, the publication Of Mr..
Wharton's opinion is authorized by the
State Department.
In some preliminary general observations
as to the structure Of the court, Mr.. Whar-
ton says IL is as is shown by its title, by the
shortness Of its duration, and by the strict
guard placed on II In the numerous specili-
cations and restrictions To which IL Is sub
jected, n court OF special, narrow, and
purely temporary and limited jurisdiction.
Its title, that Of court OF commissioners,
assimiatcs It rather to commissioners ap.
pointed to conduct limited references than
TO courts whose powers emanate from
general constitutional or statutory grant.
The powers of the commissioners are defined
and limited with q minute and laborious
particularly, in marked contrast with the
terms used in establishing courts of gen
eral jurisdiction.
An act Of court Of general Jurisdiction
is always presumed to bc IN the exercise OF
its Inherent powers while an act Of court
Of special Jurisdiction Is only held to be
lawful when IL is in the strict performance
Of a statutory authorization.
Passing from this general observation,
Mr.. Wharton proceeds to inquire how far
the several charges under consideration can
be sustained under the statutes by which
the tribunal is constituted.
Mr. Wharton quotes the sections of the
statutes fixing the rate OF compensation of
the judges OF the court, authorizing the en-.
ployment Of a clerk to bc appointed by the
President, q shorthand reporter to be
selected by the court, allowing the court
the necessary actual expenses OF Office rent,
furniture, fuel, stationery, aud printing,
sand necessary incidental expenses to be
certified 10y the presiding Judge and audited
and paid on vouchers under the direction
of the Secretary Of State, and authorizing
the President to designate "a counselor-at-
law to represent the interests Of the gov
eminent, to receive reasonable allow
ance" in each claim, not to exceed 5000
per annum.
The question arises, says Mr.. Wharton,
whether under these provisions the appoint
meut Of additional counsel of the United
States, seventeen In number at large ag-
grcgate expenditure can be sustained
sit is lie writes, "a settled rule that O
statute which cnumerates certain objects
on which 1t Is to operate cannot be eX-
tended to cover Independent objects Of CO.
ordinate rank. The argument that the
specification Of an object excludes other
objects Of equal or greater dignity is
strengthened In the present case by the ad-
ditiOn to the enumerated objects of the
words 'other necessary incidental eX-
penses.' In the present section also the
word other makes the authorized incl
dental expenses bear the same subordinate
relation to the operations of the court as do
'ofllce rent, furniture, fuel, stationery, and
printing Hence 'other necessary Incl
dental expenses Immediately following
these words cannot be so strained as to au-
thorize the court to appoint any officer ex-
cept those employed in claiming aud keep
ing order in the office Of the court And
this view is strengthened when we observe
that the court has not the power under
preceding clause of appointing its
own clerk, and that the only official
that the court is authorized to appoint is
shorthand reporter at $500 year salary
Mr.. Wharton also notices that the clause
with regard to counsel comes after that au-
thorizing "other necessary incidental ex-
penses," for which reason alone he says the
'incidental clause cannot be regarded as
authorizing the court to appoint counsel
additional to the one specified in the act.n
But he finds another objection which he
declares is still more serious than any based
on the construction of the statutes. sit Is
impossible" he writes "to suppose that
Congress, in constituting this transient and
biDgularly special and limited court, In
tended, by making 1t the depository OF the
prerogative of appointing without check
counsel to represent the United States, to
transfer TO such q court function which
belongs exclusively to the executive depart
ment of the government, and which by an
other statute is vested in the Attorney Gen
eral, as representing the executive. 1t is
equally impossible to suppose that Congress,
when refusing to this court the appoint
ment OF its own clerk and when vestng
the appointment of the single counsel
for the United States in the President,
limiting such counsel's salary TO 5000 an
hntt11 nd Nha 10 al
dental expenses have inlended to confer
on the court the appointment OF additional
counsel whose salaries In the period be-
tween the organization Of the court In 1889
to the second quarter In 1885 were TO
amount to Sl66,7o9, when tho aggregate
salary for the same period allowed by the
act to the counsel authorized by 1t would
amount only to $4,000. Nor when we ex-
anime the statutes constituting this court
of commissioners can we find the slightest
indication that Congress intended TO endow
the court with this abnormal and unconsti-
tutional power.
''Not only is the appointment Of the only
counsel recognized by the act vested by It
In the President of the United States but
the function OF appointing counsel to the
United States, thus assumed by the court,
is inconsistent with the absolute separation
Of judicial and executive functions which
our system eXacts, and is in conflict with
the clause in the Revised Statutes which
gives the Attorney General the authority to
employ and retain in the name of the
United States such attorneys and counselors
as he may think necessary. The preroga-
tive OF appointing additional counsel to
represent the United States before the
Alabama commissioners is one, therefore,
which belongs In principle and under statute
to the executive department. For the court
to seize this prerogative is not only to run
rDuntpr tn the Rtntntn constituting n hitt
to usurp function belonging distinctively
to the executive and to I'LL offices the filling
Of which is given by statute to the Attorney
General"
AS to government experts and extra
clerks, Mr.. Wharton says the argument
drawn from the rule expressio verius est
eXcluslo alterius, precludes also the allow
ance Of their salaries. The Importance OF
this question, he says, is shown by the fact
that among the expenses of the commits
sion are included the salary Of an expert in
insurance, $4,000; three assistant experts,
one at $1,000 and two at Sl,s00; one clerk
to insurance experts, 81, l,400; a deputy
clerk Of the court, $4,000; four assistants
to the clerk at from $1,000 to $1,000, to-
gether with judges clerk and several
clerks TO counsel, For no one of these ap-
pointments Is there any authority of law,
and the fact that Congress refused to give
the court the power TO appoint the single
clerk the statutes authorizes excludes the
possibility OF an intention to intrust
the court with the appointment of
series Of clerks. Nor can
government experts be regarded
as necessary expense Of the commission
ers. BY statute they are to conform as far
as practicable to the mode Of procedure and
practice Of the circuit courts Of the United
States. SIN what circuit courts OF the United
States,n writes the solicitor, ''are conflict
ing questions of expert testimony deter
mined by goyenment-salaried experts. Is
II not notorious that all other attempts in
this country to take from parties the sole
failed for the reason that for the govern
ment, to dominate litigated issues by the
appointment of official experts as assessors,