
    JOHN A. BENTLEY v. THE UNITED STATES.
    [No. 15750.
    Decided March 23, 1891.]
    
      On the Proofs.
    
    The Department of Justice retains the claimant as a special district attorney in the prosecution of the Maxwell Land Grant Case. The claimant presents bills for professional services amounting to $28,000. The Attorney-General fixes the compensation at $15,000. 'At the same time he informs the claimant that his action will not be binding, and that no technical objection will be put in the way of his seeking judicial redress.
    I. Whether the Attorney-General is the final arbiter under the Revised Statutes, §§ 361, 363, of the value of an attorney’s services, where he has been employed by the Department of Justice; and whether his assurance that his action in fixing and paying what he deems just compensation shall not bind the attorney, will authorize the court to determine the value of the service, qucere.
    
    
      II. The amount of a lawyer’s service is a fact which can be established by evidence; the value of it is a matter of opinion, as to which the court will not be bound by the testimony of witnesses.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. Plaintiff was in 1883, had been before, and is now, an attorney and counsellor at law and a solicitor in chancery, residing at Denver, in the State of Colorado, and practicing in the Federal courts.
    II. Plaintiff, May 1,1883, was appointed by the Attorney-General, Mr. Brewster, a special assistant to the United States district attorneys of Colorado and New Mexico, to aid in the conduct and management, and especially in the taking of testimony, in the case of The United States v. The Maxwell Land Grant Company etal. For these services he was not to look to the United States for compensation, but to the settlers upon the land in controversy. The proper conduct of the .suit required professional services which could not be performed by the regular legal officers of the Government. This suit was brought to cancel the patent issued upon the Mexican grant known as the Beaubien and Miranda grant, and was of importance both as to the questions of law and fact involved, and also as to the amount in controversy; there was under review therein the title to about 1,500,000 acres of land. This appointment was accepted by Mr. Bentley, and after being qualified, as stated in finding in, he began the service contemplated by said appointment, and continued in the performance thereof until the case was finally adjudicated by the Supreme Court of the United States.
    III. July 7,1883, plaintiff wrote to the Attorney-General a letter, from which what follows are extracts.
    
      * *.* “(1) All parties unite in protesting against the demand of the Government that the settlers shall bear the expense of the suit.
    “ (2) All agree in asserting that there has been no such understanding on the part of the settlers, and that they have never authorized any person to pledge them to pay the expenses.
    “ (3) The settlers upon the lands in Colorado are few in number, very poor, and wholly unable to bear the expenses of the suit, whether for counsel or otherwise. If it has been repTce-sen ted to tbe Department of Justice that they would bear these expenses, the Department has relied upon a broken reed, for no such representations can be carried out, because the settlers have not and can not, even if so inclined, obtain the money necessary.
    “ (4) The settlers in New Mexico will not contribute the funds to prosecute the Colorado case.
    “ This situation of affairs, when connected with the present attitude of the Government, that it will incur no expense in the prosecution of the suit, renders a prosecution impossible.
    
    “Before receiving the appointment of special assistant to the U. S. dist. atty. of Colo, in the suit, Mr. McPherson, one of the special counsel, had written me that the settlers would pay expenses. When the appointment came, conditioned upon that supposition, I assumed the Government had made the necessary provision in this regard to secure a vigorous prosecution of the case, and I accepted the responsibility implied by the appointment, not doubting that the necessary provisions had been made for counsel and other expenses.
    “Ample provision must be made for the current expenses of the suit in order to enable the Government to present its case in such a way as to justify any hope of success. The defendants have money. The individuals composing the land grant company, or connected with it in a representative capacity, are both wealthy and influential, and the amount involved is several millions in value, and without provision for the expenses the prosecution of the suit will be a sham or a farce, and result in disgrace to everybody connected with it.
    “The examination I have made of the case convinces me that the Maxwell patent has been made to include more than two and a half millions of acres of land, valuable for coal, precious metals, and grazing, which ought never to have been patented under the original grant, and which, except a very small portion, ought tobe a part of the public domain, and not the private property of the Maxwell company.
    “This has been brought about by a series of gross frauds. Whether all of the frauds can be established by evidence I am not able to judge, but some of them can be clearly proven by record evidence, supplemented by parol testimony.
    “There is no time to lose iu taking the testimony. The court will not further enlarge the time of the Government unless we show progress, diligence, and necessity to prevent a failure of justice.
    “If the emergencies of the situation require that this letter be treated as my resignation of the appointment of special assist, to the U. S. dist. atty. for Colo., let it be so treated, as it is my purpose to withdraw from all responsibility for the case unless proper provision shall be made for the expenditures necessary to a vigorous and efficient prosecution.”
    
      August 27,1883, the following telegram was sent to the plaintiff and was received by him in due course:
    “Department oe Justice,
    
      Washington, August 27, 1883.
    “J. A. Bentley,
    
      “Attorney at Law, Denver, Colo.:
    
    “ Go on with the Maxwell land-grant case. I will include your reasonable account for services in next appropriation; no money now available. Notify Thatcher and Gast that I elect to proceed with the Maxwell case. Under agreement you must commence taking testimony September 1. Copy of Mr. Fay’s report and other papers will be sent by mail to-day. Reply by wire if you will go on with the above ease upon these terms.
    “Benjamin Harris Brewster,
    “ Attorney- General ”
    
    
      To which the following reply was made by telegraph:
    “Denver, Colo., Aug. 28,1883.
    “To Hon. Benj. Harris Brewster,
    
      “Affly Gen’l, WasWn, D. O.:
    
    “Will go on in Maxwell land-grant case upon terms of yours of the twenty-seventh. Will correspond with Thatcher & Gast.
    “J. A. Bentley.”
    Plaintiff qualified as a special assistant attorney May 7,1883,-by taking the oath of allegiance prescribed by section 1756, Revised Statutes.
    IV. In May, 1883, plaintiff entered upon the performance of the services described in finding ii, and performed them faithfully, diligently, and efficiently, and he so continued to act for the Government in the management and conduct of the case until its final determination, April 18,1887, by the Supreme Court of the United States/ For said services plaintiff has been paid, as will hereafter more fully appear, the sum of $15,000, the first payment of $5,000 on account having been made February 9, 1885.
    V. March, 1886, plaintiff wrote the Department of Justice in relation to his compensation, which he fixed at twenty thousand dollars ($20,000). May 7,1886, the Acting Attorney-General directed the plaintiff to state his account and swear to it. The account was received at the Department of Justice June 22,1886, and was thus indorsed by the Attorney-General:
    “Action: Department of Justice. I hereby certify 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.
    “ This account is approved for $5,000, and respectfully referred to the First Auditor of the Treasury, payment to be made from fees United States attorneys’ fund, 1885, $3,000, 1886, $2,000, to J. A. Bentley, Denver, Colo.
    “A. H. GARLAND,
    ‘ ‘Attorney- General.”
    This payment was intended and understood to be on account simply and not an allowance in full.
    VI. The case having been appealed to the Supreme Court, the Attorney-Gen eral (Mr. Garland), under date 6th October, 1886, wrote plaintiff a letter, from which what follows is an extract :
    “ Sir : * * * You will be expected to take part in the argument of the Maxwell case in the Supreme Court of the United States, and your compensation for the service will be fixed by me.”
    Apparently no answer was received to this letter, and November 4, 18S6, the Attorney-General wrote plaintiff that the case had been set in the Supreme Court for the first Monday in March, adding:
    “If you accept the terms of my letter above referred to [that of October 6th, 1886] as to compensation for your services, I wish you to come here not later than the 15th day of February next * * * ”
    To this plaintiff replied November 9,1886:
    “ I am in receipt of yours of the 4th inst. I accept the terms of your letter of October 6th, that my compensation for services in the Maxwell case in the Supreme Court shall be fixed by you.”
    VII. The decision of the Supreme Court affirmed the decision of the Circuit Court, which was adverse to the United States. April 21,1887, plaintiff requested that his account be settled, as his employment had ended. In reply the Attorney-General wrote him, saying:
    
      “ I wish you to make out, in the line of your last conversation here upon the subject, your account for your entire services as special assistant in this case and forward it to me for my consideration.”
    April 26, 1887,. plaintiff transmitted to the Attorney-General an account for his entire services in the said case, which contained a restatement of his former account in the Circuit Court with an addition for subsequent services in preparing maps and brief and argument of the case in the Supreme Court, $8,000, which, with the services in the Circuit Court, $20,000, aggregated $28,000. Upon the account in the Circuit Court he gave credit for payments amounting to $10,000, leaving a balance of $18,000, which he claimed as yet due.
    VIII. In May, 1887, another $5,000 was sent plaintiff; after-wards he requested the payment .of his bill in full as presented, and was answered by the Attorney-General, July 19,1887, in a letter which thus closed:
    “Understand that the Department makes no complaint of and has no fault to find with your work in this case, and no consideration of that kind entered into the fixing of the amount allowed. I considered $5,000 in addition to what you had already received ample compensation for all the services you rendered, and have been thus explicit in regard to the matter now, that you may know my determination is fixed and final, and that the correspondence in relation to it may not be prolonged.”
    Plaintiff immediately protested against this action as an injustice to him, which he said:
    “ I shall try in some way to have righted. I say this now, in order that it may not be said hereafter that I have acquiesced in it by not objecting. I reserve to myself the right to make more explicit protest into the grounds thereof if I shall, upon further consideration, deem it advantageous to my claims upon the Government on account of these services.”
    To this the Attorney-General thus replied:
    “Department op Justice,
    “ Washington, July 27,1887.
    “ J. A. Bentley. Esq.,
    “ Denver, Gol.:
    
    “ Sir : Yours of the 23d instant is received and carefully read. In reference to the 'manner in which you [I] express a desire to hear no more about the matter,’as interpreted by you in my letter of the 19th instant, I wish to say I simply wanted it understood that I had acted to the very best of my judgment, according to all the lights that I could get at, from the inception of the ease to its conclusion; and, after so long and so deliberate a consideration, that my action was final. I meant not to be offensive to you or to depreciate in the least your services in the case. Of course I understand that no action here compromises or binds you in any respect, and the protest contained in yours now before me will be filed away and due notice thereof taken by this Department, and the Department will afford you every facility it can, while I am at the head of it, to have yourself righted if you have been wronged by this action, and no merely technical estoppel or objection will be thrown in your way as far as I, as the head of this Department, am concerned.
    “ I have acted in the premises with the best advice that I could summon, and, with all the facts before me, to the very best of my conscientious judgment.
    “ Very respectfully,
    “A. H. Garland,
    
      ‘ lA ttorney- General.”
    
    IX. Plaintiff, the 4th of October, 1883, forwarded his account for expenses incurred, beginning June 4 and ending October 2, 1883, amounting in the aggregate to $168.05, which account was by the First Comptroller reduced in the items of parlor-car fare $2.75, and hotel fare $37.50, the former as being a luxury and the latter as extravagant and unnecessary. The balance of said bill was paid.
    X. The amount already received by plaintiff is a fair and reasonable compensation for the services performed by him in the case from the time he was retained until the cause was finally decided, including incidental expenses.
    
      Mr. A. G. Safford and Mr. Horace S. Cummings for the claimant.
    
      Mr. W. J. Bannells (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
   Dayis, J.,

delivered the opinion of the court:

The Dei)artment of Justice being unable with the force at its disposal adequately to prosecute the very important cause colloquially known as the “ Maxwell Land Grant Case,” retained plaintiff as a special district attorney, and in due course paid him a sum which he holds to be insufficient remuneration for his professional services; therefore he resorts to this court for relief.

At first it was understood that for compensation plaintiff should turn to the settlers whose holdings were threatened by the land grant company; soon it became evident that nothing would be paid by them ; the Department of Justice was without money; an embarrassment which apparently the then defendants did not share. Mr. Brewster, the Attorney-General, thereupon instructed Mr. Bently (who had already been some three months in the case) to proceed, and promised that he (the Attorney-General) would include plaintiff’s “reasonable account for services in the next appropriation; no money now available.” Plaintiff accepted this rather uncertain proposal, and efficiently performed his duty in the cause until it reached a determination in the Circuit Court, when he sent in an account to the Department of Justice in which his compensation was fixed at $20,000. Plaintiff, who had already been paid $5,000, was now allowed an equal sum on account. There the matter rested for some six months, when Mr. Garland (then Attorney-General) wrote plaintiff that he would be expected to take part in the argument upon appeal in the Supreme Court, the compensation therefor to be fixed by the Attorney-General. This proposal was accepted, and after the cause had been determined and plaintiff had faithfully performed his professional duty he restated his account, valuing his services in the Circuit Court, as before, at $20,000, and his services upon appeal at $8,000. The Attorney-General, however, fixed the total compensation at $15,000, and for the balance plaintiff now sues, plus a trifle by way of disbursement disallowed by the Treasury.

While the Attorney-General was clear in his opinion that the sum allowed by him was a sufficient compensation, he, with characteristic fairness, stated (in answer to a protest) that his action would not bind the plaintiff) but that the Department of Justice would afford every facility it could to have the plaintiff righted if he had been wronged, and that no-merely technical estoppel or objection would be thrown in the way of a remedy. Still the Attorney-General remained of the opinion that the compensation allowed was sufficient.

It has been urged upon the one side that Mr. Brewster’s arrangement was illegal, as anticipating an appropriation, and' that the Attorney-General is the final arbiter of the amount of compensation, from whom there is no appeal (Rev. Stat. §§ 361 and 363.) To this itis answered that the services were performed at the request of the Attorney-General, that they have been accepted and approved, and that the Attorney-General expressly waived any technical estoppel and consented to an investigation of the subject in this court.

These questions, however interesting they might be under other circumstances, are not important in the view we take of this cause, and we refrain from expressing any opinion upon them.

Nothing is more difficult than to fix the compensation of intellectual labor such as is performed by competent counsel in an important and difficult case. We have here in evidence the deposition of several lawyers, proving that the plaintiff labored diligently, faithfully, and ably in behalf of his client (it is clear that he did), and we have the statement of these lawyers under oath as to what in their opinion heshouldbe paid. The amount of service is a fact which we have very carefully investigated; the amount of compensation therefor is matter of opinion only; and in our opinion thé conclusion of the Attorney-General was substantially just.

Petition dismissed.  