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court. So, here, I can not doubt that the stipulation, when presented and entered into as the engagement of the United States, will operate forthwith to discharge the property and free it from the State jurisdiction, that the chancery court of Virginia, upon the entry of this instrument and consideration of the law now invoked, will take whatever action may be necessary or desirable to conform its records to the supreme law and to prevent any clash of authority.
One further point remains to be considered. The letter of the Secretary of the Navy requests to be authorized to employ, if necessary, the military forces of the Government at his disposal for the execution of his orders in the premises. I am loath to believe that occasion for such exertion of the Federal power will arise, being confident that any claim to interfere with the national rights under the judicial authority of the State of Virginia will be promptly disposed of and denied by the chancery court. For this reason I shall defer answering that question.
P. C. KNOX.
UNITED STATES COMMISSIONERS-ISSUE OF SEARCH
Although no compensation is provided therefor, it is the duty of United States commissioners to issue search warrants in internal revenue cases when properly applied for.
Section 3462, Revised Statutes, providing for the issue of these warrants, does not state all that must be included in the application therefor. The Fifth Amendment to the Constitution provides that "no warrant shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized."
If a United States commissioner refuses, on proper application, to issue a search warrant, the facts may be brought by petition or otherwise to the attention of the court appointing such recusant officer, for such action as it deems proper.
DEPARTMENT OF JUSTICE,
June 19, 1903.
SIR: From your letter of January 24, 1903, and the papers transmitted therewith, it appears that a United States commissioner at Atlanta, Ga., refuses to issue search warrants on the application of officers and agents of the Internal
Revenue Service in the performance of their duties because, as held by your Department, the law does not provide a fee for that specific service, and you submit the questions: (1) Whether the law does allow United States commissioners any fee for issuing search warrants? (2) If not, are such commissioners required to issue such warrants when properly applied for? And (3) What course should be pursued in case a commissioner refuses to do so?
Section 19 of the act of May 28, 1896 (29 Stat., 184), which abolished the office of commissioner of the circuit courts, created the office of United States commissioner and imposed upon the district court the duty of appointing such officers. It was therein provided that such commissioners "shall have the same powers and perform the same duties as are now imposed upon commissioners of the circuit courts;" and that "all acts and parts of acts applicable to commissioners of the circuit courts, except as to appointment and fees, shall be applicable to United States commissioners appointed under this act."
Section 21 of that act, which fixes the fees of United States commissioners, provides "that each United States commissioner shall be entitled to the following-named fees and none other."
The section then specifically names each particular service and fixes the fee therefor; but nowhere provides for issuing the warrants here in question nor any fee therefor. Hence, if the only duties required of such commissioners are those prescribed by this section, they are not required to issue such warrants.
Section 3462, Revised Statutes, provides that—
"The several judges of the circuit and district courts of the United States, and commissioners of the circuit courts, may, within their respective jurisdictions, issue a search warrant, authorizing any internal-revenue officer to search any premises within the same, if such officer makes oath in writing that he has reason to believe, and does believe, that a fraud upon the revenue has been or is being committed upon or by the use of said premises."
While this provision is, in terms, permissive only, yet by a familiar rule of construction, such a statute, relating
to the performance of a public duty by a public officer, is mandatory in its requirement. This section imposes upon the commissioners of the circuit courts the duty of issuing such warrants when proper application therefor is made; and this duty, thus imposed, is, by section 19 of the act of May 28, 1896, imposed upon the present United States commissioners. And, because the law imposes upon the commissioners the duty of issuing search warrants, when properly applied for, I should have no doubt that they were entitled to compensation therefor, but for the positive prohibition of section 21 of the act referred to (United States v. Mc Dermott, 140 U. S., 151).
But, the implication that this prohibition was intended to exclude all compensation not provided for in that section, even though for other services expressly required by lawand specifically for issuing these search warrants-is still stronger from the fact that this section was enacted after the provisions requiring commissioners to issue search warrants, of the existence of which Congress must be presumed to have been aware.
Ordinarily, where an officer's compensation is by specific fees for specified services or duties, Congress does not impose upon or require of such officer other responsible duties or services without additional compensation therefor. But Congress may, and has, at times, done so. While compensation is ordinarily provided for official service, yet the obligation of an officer to perform any duty imposed upon him by law is not at all dependent upon whether he receives any compensation especially for that service or not. No one is compelled to accept the office of United States commissioner, and if one does accept it, he is presumed to undertake the performance of all the duties of such office for the compensation provided by law. As is said by the Supreme Court in United States v. Shields (153 U. S., 88, 91):
"Fees allowed to public officers are matters of strict law, depending upon the very provisions of the statute. They are not open to equitable construction by the courts nor to any discretionary action on the part of the officials.”
Since the passage of the act here considered, your Department, through the Comptroller of the Treasury, has uni
formly held that section 21 of the act not only has not provided for, but has expressly prohibited any compensation to commissioners for issuing search warrants on application of internal-revenue officers or agents. In this I am not prepared to say the Comptroller was wrong. On the contrary, I think he was bound to take the law as thus plainly enacted. However inadvertent may have been the omission of a provision for compensating commissioners for this responsible service, it can not be corrected or supplied by executive officers called upon to administer the law.
The section providing for the issue of these search warrants does not state all of that which must be stated in the application therefor. The Fourth Amendment to the Constitution provides that "no warrant shall issue, but upon probable cause, supported on oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." The determination of the question whether this requirement and those of the section referred to have been met, and whether the warrant should issue in a particular case, is a highly responsible and important duty; but however responsible and important, no provision is made in the section referred to, nor elsewhere, for its compensation.
I am therefore of the opinion that, although no compensation is provided therefor, it is the duty of United States commissioners to issue search warrants in internal-revenue cases when properly applied for.
The answer to the question of what course should be pursued in case a commissioner refuses, on proper application, to issue a search warrant, may be answered by stating that the power to remove such commissioners, by section 19 of the act creating the office, is vested in the court which appoints them. In case of such refusal, the officers of your Department may, by petition or otherwise, bring the facts to the attention of the court appointing such recusant officer, in order that the court may take such action upon the complaint as it deems proper.
The SECRETARY OF THE TREASURY.
P. C. KNOX.
IDENTIFICATION OF PART BLOOD MISSISSIPPI CHOCTAW INDIANS.
Paragraph 41 of the agreement of March 21, 1902, between the United States and the Choctaw and Chickasaw tribes of Indians, ratified by act of Congress approved July 1, 1902 (32 Stat., 641), does not authorize the identification of part-blood children of Mississippi Choctaws who are themselves identified solely by reason of full blood. Such children must, in some other way, if possible, establish their claims to participate in the benefits arising from the treaty of September 27, 1830 (7 Stat., 333), between the United States and the Choctaw Nation.
DEPARTMENT OF JUSTICE,
June 19, 1903.
SIR: I have the honor to acknowledge the receipt of your communication dated June 8, 1903, wherein you say:
"The agreement between the United States and the Choctaw and Chickasaw tribes of Indians, ratified by the act of Congress approved July 1, 1902 (32 Stat., 641), contains a paragraph (41) which reads as follows:
All persons duly identified by the Commission to the Five Civilized Tribes under the provisions of section 21 of the act of Congress approved June 28, 1898 (30 Stat., 495), as Mississippi Choctaws entitled to benefits under article 14 of the treaty between the United States and the Choctaw Nation concluded September 27, 1830, may, at any time within six months after the date of their identification as Mississippi Choctaws by the said Commission, make bona fide settlement within the Choctaw-Chickasaw country, and upon proof of such settlement to such Commission within one year after the date of their said identification as Mississippi Choctaws shall be enrolled by such Commission as Mississippi Choctaws entitled to allotment as herein provided for citizens of the tribes, subject to the special provisions herein provided as to Mississippi Choctaws, and said enrollment shall be final when approved by the Secretary of the Interior. The application of no person for identification as a Mississippi Choctaw shall be received by said Commission after six months subsequent to the date of the final ratification of this agreement and in the disposition of such applications all full-blood Mississippi Choctaw Indians and the descendants of any Mississippi Choctaw Indians whether of full or mixed blood who received a patent to land under the said fourteenth article of the said treaty of eighteen. hundred and thirty who had not moved to and made bona 19219-03- -44