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abstract of the expenses of the court. If Mr. McIlvaine has not had this allowance made him for his attendance on the term or terms of the court of the United States at which this cause was at issue, the allowance ought yet to be made him, although this might have been the only cause in which the United States were concerned. But if the allowance has been once made, it cannot be repeated, although there may have been a thousand causes of the United States depending or tried at the same term; because the law contemplates only one allowance for one attendance. But whether the allowance has been made or not, it forms no charge against the War Department; because it is not a charge which belongs either to this or any other particular cause, but is a general charge for mileage and attendance, which is to be paid by the marshal, and settled by him with the Treasury Department.
What does constitute a proper charge against the War Department, after the cause got into the court of the United States, is the highest fees which are allowed by the laws of the State of New Jersey, in the supreme court of that State, for similar services.
4th. The charges for attending to take depositions are proper charges. There is no act of Congress which devolves this duty on the district at torney. The act of 1789, which prescribes these duties, imposes no such duty either by general or specific terms; and, indeed, for the salary of this office, I believe that no man, worthy of such an appointment, would ac cept it, clogged with a liability of traversing a whole State, to and fro, on the business of taking depositions. The imposition of such a duty could never have been designed by Congress, because, among other reasons, it would be utterly impracticable; for simultaneous notices might and would be given for the same day, in fifty different parts of the State; and if by law it is the duty of the district attorney to attend, no authority is given him to delegate another. This single consideration renders it clear that Congress could never have intended to burden the district attorneys with this impracticable duty, uncompensated as it would be, even if it were practicable.
I believe that the heads under which I have considered Mr. McIlvaine's account embrace all the items; if not, you will please specify any remaining doubt. The papers are returned.
I have the honor, &c., &c., &c.,
To the SECRETARY OF WAR.
OFFICE OF THE ATTORNEY General,
SIR: The case of Colonel William Morrison, which you have done m the honor to refer for my opinion, is understood to be this: On the 3d o April, 1816, Colonel M. entered into a contract with the Department o War, by which he agreed to supply the troops of the United States within the Territories of Indiana, Illinois, and Missouri, with provisions, from the 1st of June of the same year, to the 31st of May, 1817. By the 3 stipulation of this contract it is, among other things, provided, that at al ports that may be established on the Mississippi, or its waters above Roc river, supplies shall be furnished for six months in advance, on the requi
sition of the commandant of the post or army. On the 29th of August, 1816, a requisition was made on the contractor, by General Smith, by which he was required, inter alia, to deposite at Fort Crawford 120,000 rations, and at Fort Armstrong 30,000. "These deposites," says the order, "will constitute a supply of six months for the troops stationed at those posts, and will be placed in store by the 1st of November next." The same order further states: "The deposites are to be kept at all times complete, and independent of a supply sufficient for the daily issue of the troops." Under this requisition, the contractor placed at each post the precise number of rations called for: he did not, however, place a further number there for daily issue, in conformity with the order, but made his daily issue out of those which he had been required to place in deposite. Notwithstanding this circumstance, however, the provisions were not onehalf of them consumed at the expiration of the six months-owing, probably, to the fact stated by Colonel Leavenworth and others, that, shortly after the deposite, the greater part of the troops for whose use those rations were designed had been detached to other posts. In this posture of things, while there yet remained on hand at Forts Crawford and Armstrong an aggregate of more than 80,000 rations of the former supply, General Smith issued an order to the contractor, on the 17th April, 1817, in which he says: "The deposites at the outposts not having been completed agreeably to repeated requisitions made on you for that purpose, it becomes my duty to require of you to have in deposite at the several posts on the 1st July:" proceeding, then, with a list of the rations required; and calling, among the rest, for an aggregate of 80,000 at the Forts Crawford and Armstrong.
The contractor hereupon offered the 80,000 rations at those forts; but these, in addition to the remainder of the former supply, were double the quantity which was necessary; and the questions arose which remain still to be settled, viz: whose property were the rations on hand of the supply of the 1st of November to be considered-the property of the United States, or the property of the contractor? and how is the requisition of the 17th April, 1817, to be construed? Is it to be construed as calling for 80,000 fresh rations in addition to those on hand; or, as requiring the contractor to place in deposite at those posts 80,000 rations, and no more? In the settlement of Colonel Morrison's accounts as contractor, you state that the Second Auditor has allowed him for all the abstracts exhibited by Colonel Morrison, under the first requisition; (that is, for so much of the first requisition as was actually consumed by the troops, of which consumption the abstracts are the evidence ;) and has also allowed him for the $0,000 rations supplied under the requisition of 17th April, 1817. With this allowance Colonel Morrison is dissatisfied, and claims the following credits:
1. For the whole number of rations called for and furnished under the requisition of the 29th of August, 1816, and of which the greater part remained on hand when he offered the 80,000 under the requisition of the 17th April, 1817.
2. For the 80,000 rations supplied under the requisition of the 17th April, 1817.
3. For certain abstracts of provisions for May, 1817, under an allegation that they were not made out of either of the above parcels; which fact I understand to be controverted by the accounting officer of the department.
With regard to this last claim, my opinion, I presume, is not expected, until the fact shall be settled the one way or the other; it being the office of the Attorney General to answer to questions of law, and not to ques tions of fact.
On this claim, therefore, I must, with deference, await your further instructions. With respect to the other two points, I understand that in the exposition of these contracts, the following principles are considered as being finally settled by the practice of the War Department, viz:
1. That under such a contract as this, General Smith was authorized to issue his order of the 29th August, 1816: that is to say, to call, by the same requisition, for six months' rations in advance; and, also, for a supply beyond this, for daily issues, for the same six months.
2. That between a requisition to place in deposite, and a requisition to place in store, for daily issues, there are these fundamental points of dif ference that the rations required to be placed in deposite become, so soon as they are deposited, the property of the Government, and are under the sole control of the commandant of the post; the contractor being entitled at once to full pay for the entire deposites, but having nothing further to do with the rations so deposited. Whereas, on a requisition to place in store for daily issues, the rations remain the property of the contractor, the Government being bound to pay for such part of them only as shall be actually issued-of which actual issues the abstracts are the evidence; but that whatsoever part remains unissued, continues to be the property of the contractor; and, as a consequence of this principle, if it spoil on his hands for want of consumption, either because the number of rations originally ordered was too great, or because it has become too great by the Government's subsequent withdrawal of a portion of the troops for whose use it was designed, the loss is the contractor's.
If these principles are to be considered as the law of the contract, ther remains nothing for me to decide; for the Second Auditor has adjuste his allowance of credits by those principles exactly, and the claims of th contractor must be disallowed.
As, however, I presume that my opinion is desired clear of any in fluence from the practice of the War Department, I shall proceed to giv it in the same spirit of equal and impartial justice with which I shoul give it from the bench. And, first, as to the practical construction these contracts by the Department of War: I do not think that a court law, called on to expound this contract, would regard that practice, unle it should appear to have been known to both parties at the time of makin the contract, or unless that practice is a matter of such open and gene notoriety as to constitute a species of common law; in which case, knowledge of it on the part of the contractor would be presumed. the absence of all proof of any such positive presumptive knowledge the practice of the War Department, a court taking up the case on contract alone would, I think, decide:
1st. That General Smith's requisition of the 29th August, 1816, v unauthorized by the contract, so far as it called for any number of rati beyond a supply for six months in advance. The third article of contract gives the rule on this head; it is in the following words: "T supplies shall be furnished by the said Mr. Morrison, &c., &c., &c., u the requisition of the commandant of the army, or a post, in such qua ties as shall not exceed what is suficient for the troops to be there statio
for THREE months in advance, &c., &c. It is, however, understood, that at Fort Clark, &c., &c., &c., supplies shall be furnished for six months in =advance, on the requisition of the commandant of the post or army.' Combining the two members of this stipulation, and reading them together, as a court of law would read them, the stipulation with regard to Forts Crawford and Armstrong is, "that the contractor will, on the requisition of the commandant of the army, or of those posts, furnish supplies in such quantities AS SHALL NOT EXCEED what is sufficient for the troops to be there stationed, for the space of six months in advance." In advance of what? In advance of a perpetually advancing point of time? in advance of every coming day, week, or month? I think not; but in advance of the point of time at which the supply is required to be placed at the post. To illustrate it by the particular case: the General was authorized to require the contractor to place at these posts, on the 1st day of the following November, a sufficient quantity of provision to subsist the troops to be there stationed for the next six months. Such a quantity there deposited on the 1st of November was certainly a supply for six months in advance; and was all that General Smith was authorized by the contract to require. Whereas, according to his own construction of his requisition, it called for an advance of twelve months, or nearly so: for, in his letter to the Secretary of War of the 13th of January, 1818, of which an extract has been furnished me, he says: "In obedience to this requisition of the 29th August, 1816, Mr. Morrison, on the 1st of November, should, in this climate, at posts situated as Armstrong and Crawford were, have had nearly double the amount demanded for the deposites."
The amount demanded for the deposites was a six months' supply; consequently, nearly double that amount was nearly a twelvemonth's Supply, which he says was necessary to satisfy his requisition of the 29th August, 1816.
2. That the contract does not authorize the distinction which is made between the deposites and the supply for daily issues. General Smith does, indeed, in his letter of requisition of the 29th August, 1816, set up the distinction; but the question is, whether the contract authorized him to do so? for this is not one of those military orders in which it is enough for a general to say "sic volo, sic jubeo; stat voluntas pro ratione." It is a Inatter of contract, in which the terms of the contract are equally obligatory on both parties; and before any inference can be drawn to the prejudice of either party from an alleged disobedience of the orders of the other, It must be shown that those orders are themselves authorized by the terms of the contract. I have examined the contract again and again, for the pose of ascertaining on which of its articles this distinction between ratous ordered on deposite, and rations ordered for daily issues, arises; and en find no such article. On the contrary, the third article, already
ted, clearly contemplates that the whole supply called for by any one sition for six months, shall be consumed within those six months; brin no other sense can I understand the words which limit the power
requisitions, to wit: "in such quantities as shall not exceed what is suffrent for the troops to be there stationed for the space of three (or six) months in advance." Hence it is, to my mind, very manifest that the contract contemplates only one kind of supply, (by whatever name called,) and that, a supply for daily issues; and that the principle that rations deosited become at once the property of the Government, with which the con
tractor has nothing more to do, while a supply for daily issues remains his property till exhausted, has no countenance in any one stipulation of the contract. This whole distinction, with all its consequences, is plainly an ideal affair so far as the contract speaks. The contract contemplates only one homogeneous mass of provisions, which it denominates by one namea supply of rations. Thus the first article provides that the contractor shall supply and issue all the rations, &c., that shall be required of him for the use of the United States, at the specified posts, &c. This article covers all the rations to be furnished under the contract. The contractor is to SUPPLY and ISSUE THEM ALL; and yet it is thought there is or may be a part of them consecrated by the name of a deposite, which, having once deposited, he is no more to touch; but which are to be under the sole control of the commanding officer of the post, who is there to have the issuing of them. This notion, I think, is in direct violation of the first article of the contract.
The second article merely specifies the component parts of the ration. The third article, which gives the law or the subject of requisition, authorizes, as I think manifestly, no other sort of rations but those for daily issues-rations to be consumed within the time for which they were ordered in advance.
The last clause of this article has a provision which, it seems to me, directly negatives the idea of a separate fund of rations designated as a deposite, with which the contractor has nothing more to do; it is in these words: "It is understood, that if the contractor shall be required to deposite provisions at one place or post, and shall afterwards be required to move them, to be delivered at another post or place, the expenses of transportation to such other post or place shall be borne by the United States." Now, if this word deposite has the limited technical sense which is attributed to it, with what propriety could an order be issued to a contractor requiring him to move provisions with which he had ceased to have any connexion? and, stronger still, where the necessity of stipulating that if he should be required to move provisions which were no longer his, but which were the exclusive property of the United States, the United States should bear the cost of the transportation? Again: it is understood to be admitted, that if the contractor should be required to move provisions or dered for daily issues from the original post of requisition to some other, the United States were expressly bound by this contract to bear the expenses of the transportation. But where is the article which thus binds the Government? If we are to affix to this word deposite the restricted sense under consideration, it is very certain that this article does not reach the case of daily issues required to be transported; and it is not less cer tain that no other article in the contract does reach it. If the article does provide for the case of transportation of daily issues, then the supposed limited sense of the word deposite is annihilated, and it becomes clear that the contract uses this term in reference to the rations mentioned in the previous part of this third article, which, as I have shown, are those in tended for daily issues through the period for which they were ordered in advance. Again: the eighth article stipulates "that at all stationary posts proper store-houses shall be provided, on behalf of the public, for the re ception and safekeeping of the provisions deposited from time to time a such posts, respectively; and the contractor shall suffer no loss for wan of such stores." Now, if deposites are to have the peculiar and limited