Evening star., 1903-07-27
IMPORTANT DECISION
Former Chief Examiner Ser
ven Proves Winner.
RIGHT TO PROSECUTE
ACCORDED HIM BY THE DEPART
MENT OF JUSTICE.
New Precedent Established by Acting
Attorney General of the
United States.


has given the Secretary of the Treasury an
employees. especially those who disci-
pies Of Blackstone.
Owing to a serious breach of the depart
Of June 1, 1872. section of which prohib
tied employees OF the departments from
prosecuting claims against the United
States within two years after such en-
ployes We're separated from the service.
At about the time this act was passed the
Post Office Department was enveloped in
an atmosphere of scandals very similar to
those now under investigation.
1t is said that at that time an employe
of the Post Office Department had ar
ranged matters connected with certain
large claims then pending in the depart
ment that. after resigning. he participated
in their prosecution. and, 1t is alleged. re-
ceived an amount approXimating nearly
half million of dollars from them.
This Occasioned such widespread discus
sion and apprehension that Congress enact
ed the law above mentioned. which was
later made section 1870 Of the United States
Revised Statutes.
Question Asked Attorney General.
On the application of Mr.. Serven to take
a part in the prosecution Of certain claims
now pending before the Treasury Depart
ment the Secretary of the Treasury re-
quested the opinion of the Attorney General
to the following questions:
Il. Is the United States civil service com
mission comprehended by the term depart
ment' as used in section 1870, Revised Stat
utes, and are it's officers, clerks and en-
ployes within the inhibitions contained in
said section respecting the prosecution of
claims against the United States?
''2. Is Mr. a. R. Serven. formerly chief
examiner. United States civil service COM
mission, entitled to enrolment as an at
torney practicing before the Treasury De-
partment. unaffected by the provisions Of
section 1870, Revised Statutes or is he en-
titled to such enrolment subject to the in
hbitions contained in said section?'
This is the first time that decision IA
vOrable to the applicant has been made
under this section
The Opinion in Full.
The opinion in full is as follows:
Section 1870 OF the Revised Statutes was
originally section of the act of June l,
1872, making appropriations for the serv-
ice of the Post Office Department, which
section reads as follows:
Sec. ). That 1t shall not be lawful for
any person who shall hereafter be ap
pointed an officer clerk or employe in any
of the executive departments to act as
counsel. attorney or agent for prosecuting
any claim against the United States, which
was pending in said departments while he
said officer, clerk or employe, nor in
any manner. nor by any means, to aid In
the prosecution Of any such claim, within
two years next after he shall have ceased
to be such officer, clerk or employe. 11
Stats 1872 ...
1T will be observed that the law as orig
inally enacted made 1t unlawful for any
person thereafter appointed an officer, clerk
or employe in any of the executive depart
ments to act as counsel, attorney or agent
etc; and had the law remained in the
form in which 1t was originally passed
there would exist considerable ground for
the contention that all the executive estab-
lshments Of the government, whether hav
ing cabinet officer at their head not
should be considered as included within the
inhibitions of such law.
Incorporated in Revision.
When the statutes of the United States
were revised in 1874. section ) of the act
of June l. 1872, above quoted, was incor-
pora ted in said revision under Title w, sec
tion 1870. And. in addition to certain modi-
ficatiOns then made by Congress in the law
itself. this provision was so associated
with other sections of the Revised Statutes
of 1874 under said Title " to material
ly limit the scope OF its operation, or at all
events to make its application more definite
and certain.
Section 100 of the Revised Statutes Of
1874 which Is the law now under consider
alton Is as follows:
Section 100. 1t shall not be lawful for
any person appointed after the 1st day OF
June. 1872. as an officer. clerk or employe
in any of the departments to act as coun-
sci. attorney or agent for prosecuting any
claim against he United States, which
was pending in either of said departments
while he was such an officer. clerk or en-
plOye, nor in any manner, nor by any
means. to aid in the prosecution of any
such claim within two years next after he
shall have ceased to be such officer. clerk
or employee
Title " Of the Revised Statutes Of 1874
under which this section was placed In the
revision, bears the following caption: Pro-
visions applicable to all the executive de-
partments;' and the first section under this
title Is section 159 Of the Revised Statutes,
which Is as follows:
Section 15S. The provisions of this title
shall apply to the following executive de-
partments: First, the Department of State;
second, the Department of War; third. the
department of the Treasury; fourth. the
Department of Justice: fifth. the Post Office
Department; sixth. the Department of the
Navy; seventh, the Department of the In
terror
A Specific Situation.
'"This section, 1t will be observed, contain
ed clear and specific limitation on section
100, as follows: The provisions of this title
shall apply to the following executive de-
partments; and section 100 provides that
the word department when used along in
this title. and titles five, six, seven, eight
nine. ten and eleven means one Of the ex-
ecutive departments enumerated in the pre-
ceding section. These two sections 15S and
159. in my judgment. show very clearly an
intention on the part of Congress to limit
the application Of the word department
as used In section 100. to the several ex-
lawful, and expressly enumerates and de-
fined in sections 15S and 159, resp ectiVely.
"In constituting the law here under discus
sion the well-known maxim, Expression
unius est exclus alterius. should be pecu-
liarly applicable. For 1t must be remem-
bered that the statute here under consider
alton makes that unlawful which before the
enactment Of the statutes was perfectly
lawful. and expressly enumerates and re-
fines the several executive departments of
the government included within it's inhibi-
tons: and inasmuch as the law expressly
mentions the several executive departments
which were intended to be included, there
arises at once the implication that all other