« SebelumnyaLanjutkan »
sense affixed to them by General Smith, and recognised by your department; and if, according to the principles practically adopted by the department, the deposite, from the moment of its delivery, becomes the exclusive property of the United States, the contractor having nothing more to do with it, this article is wholly useless; since, without it, it would be impossible that he should suffer loss because of the neglect of the United States to take care of its own goods. The introduction of the article proves that this was not the sense in which the word deposite was understood by the contracting parties. Again: suppose that the contractor places at a post a supply of provisions confessedly intended for daily issues, and these should be injured for the want of store-houses: whose would be the loss? If the answer is (as it must be) the loss of the United States, I ask where is the article which thus subjects them? Not the eighth article, for this relates solely to deposites; and yet this is the only article which contains any provision on the subject. Upon the whole, I am of the opinion that the contract nowhere contemplates a deposite as distinct from daily issues; that it contemplates only an advance for six months, which advance is to be used during those months in daily issues; and that the term deposite, as used in this contract, has no other than its common meaning, of lodging or placing at the posts the rations authorized to be required by the third article.
3. I think it would be decided by a court of law, under this contract, that if the contractor shall be required to place at a given post a given number of rations as a supply for three or six months, (as the case may be,) and he shall so place the required number of good rations, the Government must either consume them or pay for them. This, I think, is clearly to be inferred from the restriction on the commandant in the third article, to order no more than shall be sufficient for the troops at the post during the time for which the rations are required. The contractor is not supposed to know what troops are already at the post, or are intended to be there. The requisition of the commandant is his only guide as to the number of rations; and this he is bound to obey, provided the requisition be such a one as is authorized by the contract. Suppose, then, the commandant, under the name of a six months' supply, (which he is authorized to make,) should call for twice as many rations as could be consumed in that time; or suppose that, although not too many at the time of the call, they become too many by half, by the Government's withdrawing one-half of the troops for whose use they were designed-and, in either event, the supplies, from being kept on hand longer than was expected, should spoil: is there any principle, either of equity or of law, which could throw this loss on the contractor? I think not. The requisition is an assurance on the part of the Government that the rations are necessary, and an engagement in law that, if furnished, they will be consumed or paid for. It is only on this principle that, when more rations have been ordered from a contractor than can be issued by him during the continuance of his contract, the Government feel themselves bound to take the surplus off his hands, and take care to indemnify themselves by a stipulation of transfer with the succeeding contractor. It seems to me that any other conclusion would be most oppressive and ruinous. A contrac tor is bound under heavy penalties to fulfil the requisitions of the commandant of the army or post. He is required to place at a frontier post,
hundreds of miles beyond the reach of any other market, $50,000 or $60,000 worth of provisions; this he does at a great additional expense for transportation; and when he has done so, he is told he can be paid for only one-half of them, because half the troops for whose use they were intended have been ordered away by the Government to another post.
I am of opinion that the contractor is entitled to credit, not only for his abstracts founded on this supply of the 1st November, 1816, but also for the residue of that supply which remained on hand at the expiration of
4. The requisition of the 17th April, 1817, must be considered as having been issued by the general with a full knowledge of the rations already on hand at the posts for which he is ordering supplies. That he did know the state of those provisions, is justly to be inferred from the sentence with which he introduces the requisition: "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, &c., &c." It seems to me that the only fair construction of this sentence is, that something had been done by the contractor towards completing the deposites; but that they were not yet completed, and that this order had become necessary for completing them. How could General Smith affirm that the deposites were not complete, without knowing their existing state? The sentence manifestly implies a knowledge of the existing state of the provisions on the part of General Smith; it implies, too, most clearly, that a part of the rations which would be wanted was already on hand, and that the number now ordered was an additional number for the purpose of making the deposite complete.
But whether the general did in fact know the existing state of the provisions, or not, when he made this new requisition, the law will presume that he knew it, because it was his duty to know it; and to suppose the general ignorant of the state of supplies at posts situated like those of Crawford and Armstrong, when the reports of his officers ought to have kept him constantly informed on so interesting a subject, would be to impute to them a degree of negligence, and to him a degree of ignorance, which it would not be easy to exculpate in a military point of view.
With this knowledge of the rations that were on hand, the general, stating that the rations were not yet complete, calls upon the contractor to make a deposite of eighty thousand rations. Who could have supposed that he meant otherwise than he said? and that when he called for ra tions to be deposited, he meant them to be in part composed of those which had been already deposited under a former order?
Should it still be said that the provisions on hand were the property of the contractor, that he carried the key of the storehouse, and that he alone knew the amount which was actually on hand; that the general had no concern with this subject; and that when he made a requisition for eighty thousand rations, it was immaterial to the general whether the contractor made up the eighty thousand rations out of those on hand, or whether he should choose to buy fresh rations ;-the answer is, that the premises on which this argument is founded are not true; the rations deposited on the 1st November, 1816, under the orders of General Smith, were not the property of the contractor-at least, not his sole property.
To try the truth of this principle. Suppose that a party of Indians, or of white men, on a private expedition up the river in the month of December,
after the deposite, had offered to buy these provisions from the contractor at an advanced price: if they were his property, he would have had the legal right to accept the offer, and to sell them; but this the general or commandant of the post would rightly have resisted, and, if necessary, by force too and any court, administering justice according to law, would have justified the resistance. Why? Because the provisions were no longer the sole property of the contractor after their delivery on the 1st of November; they had been delivered into a public storehouse of the United States, under a contract; and the United States, by the fact of the delivery, were bound to pay for them, whether they used them or not: after that point of time, the contractor had no right or title to the provisions themselves. A court of chancery would unquestionably have granted an injunction against him, had he attempted any disposition of them inconsistent with the purpose for which they had been required and deposited under the contract; but this such a court could never have done, except on the ground that the provisions belonged to the United States. It is true that the contractor was, by the contract, constituted the agent to parcel out these provisions in rations, (for the trouble of which he is paid,) and, with this view, he necessarily had the custody of them; and for this reason, also, (because the right of custody gives the power of abuse,) the rations actually delivered, evidenced by his abstracts, and the rations actually on hand at the expiration of the contract, give the standard of his compensation. But, as to the provisions themselves, he was no more the owner of them than the bar-keeper of a tavern, the clerk of a countinghouse, the agent of a foreign merchant, or the overseer of a farmer, are the owners of the goods intrusted to their care, because they have the measuring and distribution of them, and are paid for what they measure and deliver only.
As to the one hundred and fifty thousand rations, then they had been deposited, and belonged to the United States, and were not to be deposited over again. When General Smith was drawing his requisition of the 17th April, 1817, he knew that he had, by a former and separate order, called for those one hundred and fifty thousand rations, and that they had been stored for the use of the troops; when, therefore, by his last order, he calls de novo for eighty thousand rations, it is inconceivable, by a plain man, that he meant to be understood as including in this last order part of the rations which he had before called for, and which had been deposited under that former call. This is certainly not the natural construction of such a call; and its natural construction is all that can be required of the contractor.
It is said that the eighty thousand rations last called for were for a sixmonths' supply; that they were a full supply for the troops then at those posts for six months; and that the contractor, knowing these facts, ought to have understood that eighty thousand rations, in all, were what were required, and not eighty thousand rations in addition to those on hand.
This ground is not tenable, in my opinion: for,
1st. The eighty thousand rations are not, in the requisition, called a sixmonths' supply for the troops.
2d. Although the contractor might have known that the troops then at the posts would not require more than eighty thousand rations for the next six months, he would not know, nor could he presume to inquire, what troops were intended for the posts during the six months following
the expiration of his contract, and for which the eighty thousand rations were required.
3d. It was his duty to obey the requisition, without asking the reasons on which it was founded. This he did obey in its obvious sense; and I am of opinion that he is further entitled to a credit for the eighty thousand rations delivered under the requisition of the 17th April, 1817.
I would not have troubled you with this copious exposition of the grounds of my opinion on these several points, but that I understand I am deciding in opposition to the practice of the department; and I thought it due to the just respect which I feel for the department to show that I am not differing from it lightly and inconsiderately, but for reasons that have at least been deliberately weighed, and have given to my own mind the fullest conviction.
I have the honor, &c., &c.,
To the SECRETARY OF WAR.
OFFICE OF THE ATTORNEY General,
SIR: In answer to the question propounded by you for my opinion yesterday, in the absence of the Secretary of the Treasury, I have the honor to state, that by the 27th section of the act of Congress of 9th January, 1815, laying a direct tax, it is expressly provided
1. That where the land liable for the direct tax is not divisible, the whole shall be sold.
SAMUEL PLEASONTON, Esq.,
2. That the former owners shall have liberty to redeem within two years, upon payment "of the amount paid by such purchaser, with interest for the same at the rate of twenty per centum per annum.'
This language is too clear to admit of two interpretations. The twenty per cent. must be calculated on the whole amount paid by the purchaser for the indivisible tract, without regard to the amount of tax for which the land was sold.
I have the honor, &c., &c., &c.,
Fifth Auditor's Office, Treasury Department.
OFFICE OF THE ATTORNEY GENERAL,
SIR: The principle of my opinion as to the 150,000 rations is, that Colonel Morrison is entitled to all the advantages which he would have derived from that deposite, if the whole had been absorbed by daily issues within the six months for which they were ordered. I understand that they would not count on the abstracts as much as at the time of the deposite. This loss he ought to bear in the same manner as if the whole had been actually issued; taking credit only for so much as the rations would have counted on the abstracts. The best mode of ascertaining this, which occurred to me, was, to give him the amount of his ab
stracts, so far as they went, and to add to them the fations that remained actually on hand at the expiration of the time for which they were ordered-that is, at the expiration of the six months. I have said, in the original opinion, at the expiration of the contract-not adverting to the circumstance that the six months expired one month before the contract; but if Colonel Morrison retained those provisions after the expiration of the six months, and to the end of his contract, making his issues from them, then the language of my first opinion is still right; and the residue actually on hand at the expiration of the contract, becomes the amount proper to be added to the abstracts; saving, however, to the contractor any deterioration which the provisions may have undergone from being kept longer on hand than the six months for which they were ordered. This explanation, I presume, will meet your inquiry of this morning. I have the honor, &c., &c.,
To the SECRETARY OF WAR.
Office of the ATTORNEY GENERAL,
SIR: I apprehend that the case of Colonel Gale, submitted for my opinion by your letter of the 28th instant, comes within the 3d section of the act of the 15th May last, entitled "An act providing for the better organization of the Treasury Department;" and, consequently, that the remedy therein provided is the proper and the best remedy.
I have the honor, &c., &c.,
To the SECRETARY OF THE NAVY.
REDEMPTION OF THE LOUISIANA STOCK.
Case of the Treasury Department for the opinion of the Attorney General of the United States.
The Government will be unable, from a deficit in the supplies of the year, to pay the portion of the Louisiana stock which is due on the 21st October next; and as it has given notice that it will then be paid off, and as, indeed, the obligation is by treaty imperative, the gentleman acting for the Secretary of the Treasury (who is absent) has applied to the Bank of the United States to aid the Government in this difficulty. The bank has the pecuniary ability, and is desirous of affording the aid requested; but the charter prohibits a loan to the Government to a greater amount than half a million of dollars. The bank, however, proposes to accomplish the object of saving the public credit from dishonor, in the following manner: The cashier of the bank, not as the agent of the bank, but as the agent of Baring, Brothers, & Co., holds a power to receive the sum under their control, which amounts to three-fourths of the whole sum to be paid off. A gentleman in Philadelphia, known to the bank, it is morally certain will be authorized to receive this money from the cashier or the bank-in which, if he received it, it would be deposited with instructions to remit the same to Europe. It is proposed that the