118

JUDGMENTS PAID BY CLASSES.

IN WHAT MANNER JUDGMENTS ARE TO BE PAID.

SECTION 8. That judgments entered in the first class shall be paid before judgments of the second class are paid. If the sum of money so unappropriated shall be insufficient to pay the judgments of the first class, they shall be paid according to the proportions which they severally bear to the whole amount of such unappropriated sum. If such sum shall be sufficient to pay the judgments of the first class and not sufficient to pay the judgments of the second class, the latter judgments shall be paid according to the proportions which they severally bear to the residue of such unappropriated sum after the judgments entered in the first class are paid.

Are the judgments entered in the first class to be paid, with interest at four per cent, before the principal sum is paid for which judgments are entered in the second class? In fact, is interest payable at all under the provisions of this act?

Section 14 of the act of 1874, as we have seen, expressly directs the Secretary of the Treasury to "pay the said judgments together with interest at the rate of four per centum per annum." But this express direction or its equivalent appears to have been omitted from the present act. In other words, there is nothing in the act of 1882 expressly requiring the Secretary of the Treasury to pay the judgments together with interest. That this may be made clear, let us examine the language of Section 9 of the act of 1882. It is as follows:

SECTION 9. That the said court, after all its judgments and decisions have been rendered, shall transmit to the Secretary of State a list of such judgments and decisions, stating the class and amount, with interest at four per centum from the time the loss accrued to the thirty-first of March, eighteen hundred and seventy-seven, a certi

fied copy of which shall be by him transmitted to the Secretary of the Treasury, who shall thereafter, as soon as may be, and upon such notice and in such manner as he shall prescribe, pay the said judgments out of any money in the Treasury not otherwise appropriated: Provided, however, That such payments shall be made in accordance with the provisions of the preceding sections: And provided further, That the whole amount paid out shall not exceed the amount remaining of the Geneva award and interest, as it was when actually covered into the Treasury. And so much money as may be necessary to carry out the provisions of this section is hereby appropriated out of any moneys not otherwise appropriated.

The court, it will be noticed, is to transmit a list of its judgments and decisions to the Secretary of State, as it was required to do under the act of 1874. In this list the court is to state the class and amount of the judgments, "with interest at four per centum from the time the loss accrued to the thirty-first of March, eighteen hundred and seventy-seven," this being the date, as we have seen, when the bond was cancelled and $9,553,800 covered into the treasury. If this language is to be construed as an order to the court to include interest in or add it to the judgment, such a construction would require us to believe that Congress intends to depart from the mode established in section 13 of the act of 1874, expressly providing that interest should not be thus included or added. If, on the other hand, the language means that the court shall state the class and amount of the judgments, and also state what the interest would be at four per centum up to the date designated, then the duty of the court ends with sending to the Secretary of State a list of judgments, arranged in two classes, and a statement of interest calculated on the amount of each loss from its date to March 31, 1877.

The directions to the Secretary of the Treasury are laid down partly in this section and partly in the two sections preceding.

120

WHETHER INTEREST IS PAYABLE.

He is not to pay any judgment until he knows how much money is needed to pay judgments entered in the first class. Subject to the provisions of sections 7 and 8, it is made his duty “as soon as may be, and upon such notice and in such manner as he shall prescribe" (words borrowed from section fourteen of the act of 1874) to "pay the said judgments.”

Without presuming to advance any opinion whatever upon the subject, it may be said that the degree of doubt investing the question of the payment of interest under the act of 1882 is by no means so slight as to escape attention. Whether this be a casus omissus, or whether Congress designs to withhold interest for the present until the full amount of the judgments shall be ascertained, is an inquiry which offers a fair field for a divergence of views. On the contrary, it may be urged that, taking the two acts together, there appears to be no intention on the part of Congress to deny to either class of claims, under the new act, the four per cent interest allowed by the former act; that such discrimination ought not to rest upon mere inference; that the ninth section requires the court to transmit the judgments with interest stated, and the direction to the secretary to "pay the said judgments" means by fair implication that he is to pay them with the stated amount of interest. Nor can it be said that the requirement to transmit a statement of the interest is designed to afford Congress the means of knowing to what sum interest would amount; for this is purely a matter of calculation, and a judicial finding of the date of the loss would answer the purpose just as well. Though not so aptly worded as it might be (not an uncommon feature in statutes), a just and reasonable interpretation of the act leads to no other conclusion than that the general purpose of indemnifying losers is best answered by allowing all claimants interest at the rate of four per cent. This important subject will undoubtedly receive, at an early day, the fullest consideration from the court.1

Allusion has been made to claims for two per cent additional

1 The language of our counsel at Geneva, in a supplementary argument upon the subject of interest, ought not to be overlooked: "It is a matter of the greatest interest to both nations that the actual injuries to private sufferers from the depredations of the cruisers, for which Great Britain shall be held responsible, shall be fairly covered and satisfied by that portion of the award which shall be applicable to and based upon them. That this cannot be expected without an allowance of interest is obvious." Papers relating to the Treaty of Washington, vol. iii. p. 573.

interest made by those who recovered judgment in the former court, and who believed Congress would originally have given them six per cent, had it been known that the fund was ample for the purpose. These claimants argue with much apparent force that they are a superior class, as regards the Geneva Award fund; and as "actual sufferers" they deem themselves entitled to the first consideration. They contend that those who suffered directly from capture (whether by inculpated or exculpated cruisers) are most meritorious, and that every claim of this character represents a loss directly suffered. To say nothing of such as were made prisoners under circumstances of an aggravated character injurious to health, for which they receive no damages, or those whose business was broken up and utterly ruined, the fact cannot be disputed that when formerly the "Alabama sufferers" were alluded to, it is this class alone that came into mind. Simple justice demands that they, first of all, should be indemnified. Other classes of claims, they urged before the committees of Congress, whether for war premiums or the claims of insurance companies, if allowed at all, should be paid only because the fund is large enough to admit them; the "direct losers" because the fund may be treated as having been created for their special benefit.

MONEYS APPROPRIATED.

SECTION 10. That all moneys necessary for the payment of the salaries of the judges and officers authorized by section two of this act, and for the lawful expenses of the said court hereby re-established, are hereby appropriated out of any moneys in the Treasury not otherwise appropriated; all of which shall be reimbursed out of the said unappropriated moneys before any of the judgments rendered under this act shall be paid. And after the reimbursement of all the expenses authorized by this act, and the payment of all the judgments rendered thereunder, if there shall remain any part of the said money, the same shall be and remain a fund from

122

COUNSEL AND ATTORNEY FEES.

which Congress may hereafter authorize payment of other claims thereon.

Section eighteen of the act of 1874 - the concluding section of the act is as follows:

That in case any judgment is rendered by said court for indemnity for any loss or claim hereinbefore mentioned against the United States at the time of the giving of the judgment, the court shall, upon motion of the attorney or counsel for the claimant, allow, out of the amount thereby awarded, such reasonable counsel and attorney fees to the counsel and attorney employed by the claimant or claimants respectively as the court shall determine is just and reasonable, as compensation for the services rendered the claimant in prosecuting such claims, which allowance shall be entered as part of the judgment in such case, and shall be made specifically payable as a part of said judgment for indemnification to the attorney or counsel or both, to whom the same shall be adjudged; and a warrant shall issue from the Treasury in favor of the person to whom such an allowance shall be made respectively, which shall be in full compensation to the counsel or attorney for prosecuting such claim; and all other liens upon, or assignments, sales, transfers, either absolute or conditional for services rendered or to be rendered about any claim or part or parcel thereof provided for in this bill heretofore or hereafter made or done before such judgment is awarded and the warrant issued therefor, shall be absolutely null and void and of none effect.

Counsel and attorney fees. The cases were exceptional where counsel sought to avail themselves of the privileges of this section; nor does it follow that the applications were begotten of distrust on the part of either the attorney or his client. In one instance, a motion was made after entry of judgment, but before the judgment had been reported to the Secretary of State. The prayer of the motion was granted, upon the ground that the court had control of the judgment until the certificate had been sent to the Secretary of State.1

In another case counsel and complainants had agreed upon a sum to be paid as fees. The former moved the court to enter judgment in his favor for that stipulated amount, producing the written authority of the complainant therefor. The court denied the

1 Rep. 25.