EDITORIAL 



635 



their rights by their labor, we have al- 

 together an interesting situation. 



Meanwhile, should the trust gradu- 

 ally accomplish its purpose and acquire 

 control of the water essential both to 

 the production of crops and the de- 

 velopment of light and power upon 

 which the great West depends, where, 

 we may inquire, will the people be? 



A Question of Ethics and Construction 



OLLIER'S, in its issue of Septem- 

 ber 1 8, for the second time 

 heads its leading editorial, "Ballinger 

 Should Go." This second demand is 

 based upon the following facts : 



When Mr. Ballinger resigned the 

 Commissionership of the Land Office, 

 in connection with the duties of which 

 he had become familiar with the Cun- 

 ningham coal claims in Alaska, he 

 promptly accepted employment as coun- 

 sel for one of the Cunningham claim- 

 ants. 



Because of its direct bearing upon 

 this act, the following law and rulings 

 have been adduced : 



Section 190 of the Revised Statutes 

 reads : 



It shall not be lawful for any person ap- 

 pointed after the ist day of June, 1872, as an 

 officer, clerk, or employee in any of the de- 

 partments, to act as counsel, attorney, or 

 agent for prosecuting any claim against the 

 United States which was pending in either 

 of said departments while he was such 

 officer, clerk, or employee, nor in any man- 

 ner, nor by any means, to aid in the prosecu- 

 tion of any such claim, within two years 

 next after he shall have ceased to be such 

 officer, clerk, or employee. 



During the administration of the In- 

 terior Department by L. Q. C. Lamar 

 (1885-88), a case arose in the Land 

 Office directly parallel to that of Mr. 

 Ballinger's. Luther Harrison, a former 

 Assistant Commissioner of the Land 

 Office, complained that the Commis- 

 sioner of the Land Office refused to al- 

 low him to appear in any land cases 

 which had arisen while he was in office. 

 Secretary Lamar held as follows : 



The objection is that this statute has 

 no reference to contests of title to lands, 

 but only to claims for money upon the 



5 



United States, and that the language of 

 the statute and the policy of the act are 

 each satisfied by this interpretation. 



I do not concur in this conclusion. The 

 statute applies to all of the departments; 

 to all of the offices of the designated classes 

 in each one; and to all prosecutions of claims 

 of every class in the departments pending 

 there while the officers, clerks, or employees 

 appointed since June, 1872, belong to them. 

 The act is not penal in its nature. It au- 

 thorizes no criminal prosecution nor does 

 it impute discredit or dishonor, nor affix 

 stigma on any. It creates a civil disability 

 for the public utility. 



Its design is to elevate the public service, 

 so that it may inspire public confidence. 

 The act plainly implies that it is not suit- 

 able or seemly for an officer, clerk, or em- 

 ployee, shortly after his departure from serv- 

 ice in a department, to appear before that 

 department as a prosecutor of the claims 

 pending therein against the United States 

 while he was a member of it. 



The principle of the act is, that all the 

 public servants in the department, whether 

 officers, clerks, or employees, shall observe a 

 condition which at least tends to hinder them 

 from appearance of being placed under a 

 suspicion of having had a conflict between 

 their duties as officers or public agents and 

 as men, and as giving preference to the 

 last. * * * 



Neither do I concur in the argument that 

 cases prosecuted in the Land Office relative 

 to claims for title to the public lands are not 

 included within the terms of the act. * * * 

 (Decisions of the Department of the Inte- 

 rior relating to Public Lands, October 6, 

 1885, Vol. IV, page 179.) 



On July io, 1890, First Assistant 

 Secretary Chandler rendered a decision 

 in harmony with that of Secretary 

 Lamar, saying, "The decision referred 

 to is broad enough to cover all clerks 

 or employees and was evidently in- 

 tended to do so." (Vol. XI, page 25.) 



On August 23, 1893, Secretary Hoke 

 Smith decided that the phrase, ''claim 

 against the United States" means a 

 money demand, only. (Vol. XVII, 

 page 216.) 



On July 25, 1904, Acting Secretary 

 Ryan made a similar decision, its sylla- 

 bus reading as follows : 



The phrase "claim against the United 

 States" as employed in section 190 of the 

 Revised Statutes means a money demand 

 against the United States, and does not 

 apply to the prosecution before the Land 

 Department of claims involving the right 

 and title to public lands. (Vol. XXXIII, 

 page 137.) 



