SEC. 365. No compensation shall hereafter be allowed to any person, besides the respective district attorneys and assistant district attorneys, for services as an attorney or counselor to the United States, or to any branch or department of the Government thereof, except in cases specially authorized by law, and then only on the certificate of the Attorney General that such services were actually rendered, and that the same could not be performed by the Attorney General, or Solicitor General, or the officers of the Department of Justice, or by the district attorneys.

SEC. 366. Every attorney or counselor who is specially retained, under the authority of the Department of Justice, to assist in the trial of any case in which the Government is interested, shall receive a commission from the head of such department as a special assistant to the Attorney General, or to some one of the district attorneys, as the nature of the appointment may require, and shall take the oath required by law to be taken by the district attorneys, and shall be subject to all the liabilities imposed upon them by law.

The CHAIRMAN. I will read from a paragraph in the decision of the comptroller:

The authority of the Attorney General, and the only authority he possesses, so far as I am advised, to employ and retain attorneys and counselors at law on behalf of the United States, at least in the United States, is found in sections 363, 365, and 366 of the Revised Statutes.

That is in the decision of Comptroller Tracewell, December 9, 1904, volume 11, part 2.

The next check is dated December 8, 1909, for $25,000, in fuli payment to December 3, 1909, for services as special assistant to the Attorney General, to begin and conduct suits and prosecutions arising under interstate and antitrust laws, against the Standard Oil Co. and others. This is a memorandum of it: "This account examined and found correct. J. H. Mackey, disbursing clerk, Department of Justice." It is not sworn to by Mr. Kellogg,

Mr. GILMER. It is not necessary to swear to compensation vouchers. The CHAIRMAN. And not approved by the Attorney General. It is certified to by Wade H. Ellis, in charge of appropriation, assistant to the Attorney General.

Mr. GILMER. That is sufficient for us.

The CHAIRMAN. The next check is April 2, 1910, $2,149.42. It is on account of allowance in lieu of expenses incurred as special assistant to the Attorney General, to begin and conduct suits arising under interstate and antitrust law against the Standard Oil Co. and others. Was he made any allowance in lieu of expenses? I understood you to say he was not.

Mr. GILMER. Yes; that is what he can do. The Attorney General has the right, under the decision

The CHAIRMAN. Did he ever make such an allowance to Kellogg? Mr. GILMER. That one there is an allowance in lieu of expenses. The CHAIRMAN. You had approved expense accounts before, treating them as a part of salary?

Mr. GILMER. Yes; part of his compensation. The word "expenses need not be in there at all; it is part of his compensation. Mr. SPELLING. Provided by contract?

Mr. GILMER. Agreement; yes, sir.

Mr. SPELLING. I would like the chairman to ask the witness to produce an agreement with Mr. Kellogg.

Mr. GILMER. Those agreements are not filed with us.

The CHAIRMAN. I presume the only contract with Kellogg was the certificate of appointment that was given to him?

Mr. GILMER. I told you what we do get. The auditor gets once a week, or sometimes oftener, a statement from the appointment clerk of the Department of Justice reading something like this, "The following appointments and changes have been made in this department," and then he might say, "So-and-so appointed special assistant to the Attorney General, compensation to be fixed by the Attorney General." We do not get the papers appointing them, nor do we get any agreement or contract. We simply rely on the notices we get and the voucher itself. We would not pass any of those vouchers without looking over our card index to see that the Attorney General had, through the appointment clerk, recorded the fact that Soand-so was appointed as his special assistant. If our card record was silent, we would call up the appointment clerk to see if any mistake had been made.

The CHAIRMAN. This voucher is certified to by Mr. Wickersham, Attorney General, and also approved by Mr. Wickersham, Attorney General?

Mr. GILMER. Yes, sir.

The CHAIRMAN. Do you think that that approval was necessary? Mr. GILMER. It must be approved either by Mr. Wickersham or one of his assistants.

The CHAIRMAN. Why does it require a certification first? Why is a blank constructed so as to require the certification first by somebody connected with the Department of Justice and then a lower blank, evidently contemplating its approval by the Attorney General?

Mr. GILMER (examining). Of course, these blanks, you know, are made to fit quite a variety of cases, and there may be a regulation that certain vouchers must bear the signature of the Attorney General himself in addition to that of the officer in charge of the appropriation.

The CHAIRMAN. Are you not supposed to regard regulations of the Attorney General's office of that kind? If the Attorney General's office has prescribed regulations that a voucher must be prepared in a certain way and indorsed and approved by a certain individual, does not your office pay some regard to that?

Mr. GILMER. I do not know that there is any such regulation. But we have always regarded it as sufficient if the voucher is approved by the Assistant Attorney General in charge of the appropriation. You see, it would require the Attorney General to do so much routine signing. I do not think it would be wise to insist on the Attorney General taking up his time that way. He can manage his office to suit himself.

The CHAIRMAN. The next check is dated February 11, 1911, for $727.94, allowance in lieu of expenses incurred as Special Assistant Attorney General, etc., certified to by Mr. Kellogg, but not sworn to; certified to again by Mr. Wickersham and approved by Mr. Wick

ersham.

The next check is dated February 21, 1911, for $10.000, in the case of the Standard Oil Co. of New Jersey and others, appellants,

against the United States for services in making a brief and assisting in the argument; for briefing and assisting in the argument in December, 1910, and January, 1911, in full for all services in the above-entitled matter to date, $10,000. It is certified to be correct by Mr. Kellogg, but not sworn to. It is then certified by Mr. Fowler, assistant to the Attorney General, and by Mr. Wickersham, and approved by Mr. Wickersham.

These represent all the vouchers you were able to find in your office representing payments to Mr. Kellogg?

Mr. GILMER. Yes, sir; all that I know of.

(Thereupon, at 12.15 o'clock p. m., the committee took a recess until 2 o'clock p. m.)

HEARINGS

BEFORE THE

COMMITTEE ON EXPENDITURES IN THE

DEPARTMENT OF JUSTICE

HOUSE OF REPRESENTATIVES

ON

HOUSE RESOLUTION NO. 103

TO INVESTIGATE THE EXPENDITURES IN THE
DEPARTMENT OF JUSTICE

JULY 15, 1911

WASHINGTON

GOVERNMENT PRINTING OFFICE

COMMITTEE ON EXPENDITURES IN THE DEPARTMENT OF JUSTICE.

[Committee room 286, House Office Building. Telephone 583. Meets on call of chairman.]

JACK BEALL, Texas, Chairman.

JNO. E. HOLLINGSWORTH, Clerk.