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Under this clause you are authorized to fix the commutation of the Superintendent while on field duty at such rate, not exceeding $2.50 per day, as you may deem proper. Where the chiefs of parties maintain a personal mess and subsist the Superintendent when visiting their parties they may be given credit in their personal accounts with such sum as you may allow for the Superintendent's subsistence. Such an arrangement is practically a payment to the Superintendent of the amount of his commutation and a purchase by him of his subsistence from the chiefs of parties who furnish the actual subsistence at their own expense. This is carried out as con. templated by the proposed regulation simply as a matter of convenience in keeping accounts, to which there is no objection. Respectfully, yours,




Section 3480 of the Revised Statutes does not prohibit the payment of

claims accruing since April 13, 1861. When Congress has specifically appropriated money for the payment of such a claim in favor of persons living in the States in rebellion, payment thereof may be made, as the case of Chesapeake and Ohio Railroad Company v. United States (20 C. Cls. R., 49) does not apply.


August 23, 1895. The Auditor for the Navy Department having made an origi. nal construction of the act of March 2, 1895 (28 Stat., 842), providing for the payment of the unpaid balance on account of the purchase of the steamers De Soto and Bienville, transmitted his decision thereon to the Comptroller for his approval, disapproval, or modification. Said decision is as follows:

“By an act of Congress approved July 18, 1861 (12 Stat., 267), an appropriation was made .for the charter of vessels, their purchase, fitting for war service, reservations due on existing contracts, the fitting out of the ships of war, three inillion eight bundred and sixty-six thousand dollars.'



“Under this appropriation, on August 29, 1861, by approval of the then Secretary of the Navy, the steamships Bienville and De Soto were purchased from the New York and New Orleans Steamship Company for the sum of $322,500.

“On the 10th of September, 1861, by order of the Acting Secretary of the Navy, it was directed that in paying for the above vessels the Navy agent should withhold the amount owned by the following individuals, viz: Shares.

Shares. Lt. Bogart..

5 W. H. Hallett....... George A. Tuthill...

5 Robert W. Hallett.. J. Campbell, estate of...

5 Kenelon H. Lewis.. H. S. Hegley, for B. R. Mobile... 5 John Edwin... B. Sarvis.........

5 | Jas. D. Bullock.......

........ 10 "By the terms of this order, 51 shares, amounting in value to $45,687.33, were reserved from the total amount to be paid. Upon the 51 shares the Navy Department was willing to pay 5 per cent, to cover any outstanding bills, say $2,284.36, leay. ing the amount retained, $43,404,17; amount to be paid, $279,095.83.

“On the 11th of September, 1861, that sum ($279,095.83) was paid by the naval agent at New York to the president of the New York and New Orleans Steamship Company, as per receipt on file, leaving for future payment the said sum of $43,404.17.

“The appropriation was exhausted, and no portion of the above amount was ever paid, nor was any application for its payment ever made until the date hereinafter set forth.

"To enable a complainant to recover, under the above state of facts, any portion of the sum so as above set forth in an action at law, it would have been necessary to have proceeded in accordance with the provisions of sections 1072 and 1074 of the Revised Statutes.

"By an act of Congress, approved March 2, 1895 (28 Stat., 842), making appropriations for the naval service for the fiscal year ending June 30, 1896, and for other purposes, there was appropriated

"To pay to the parties who may be found entitled to receive the same any balance that may be due and unpaid on account of the purchase money of the steamers De Soto and Bienville, purchased by the United States from the New York and New Orleans Steamship Company, by authority of an act of Congress approved July eighteenth, eighteen hundred and sixtyone, forty-one thousand seven hundred and one dollars and ninety-five cents.

"Mr. Pasco, from the Committee on Claims of the Senate, in Report No. 1010, Fifty-third Congress, third session, reported as follows:

“In August, 1861, the Secretary of the Navy, by authority of an act of Congress approved July 18, 1861, entered into a contract with the New York and New Orleans Steamship Company for the purchase of two steamships, the De Soto and Bienrille. Some of the shareholders lived at the North and others in the Southern States, by whose legislatures ordinances of secession had been passed. The former received their shares of the purchase money, the latter did not. Their part of the money was withheld from them subject to the future action of the Government, and is still in the Treasury. So far as the committee have been able to ascertain, no further action has ever been taken, either by proceedings in condemnatien or by payment to the proper owners. And the simple question is presented whether the United States shall carry out the contract and pay the balance due for the ships, or whether the residue of the stockholders at the time in States that had seceded or attempted to do so is a sufficient reason why the money should be treated as forfeited. The original appropriation for purchases under the act referred to was exhausted many years ago, and a new appropriation must be made before the parties interested can be paid.

“The record before the committee shows that the United States agreed to pay $322,500 for the ships and that there were 360 shares of stock. Three hundred and nine of the shareholders were settled with in full. The remaining 51 shares belonged to Southern holders, and 5 per cent of the amount due them was paid with the amount due to Northern holders, so as to cover any outstanding bills due by the company. The bal. ance of 95 per cent due these shareholders, amounting, according to the statement from the Navy Department, to $43,404,17, was retained by the Government.

“It appears that 49 of these shares belonged to the following shareholders, and the shares and amounts to which each is entitled, according to the report from the Navy Department, are as follows:

Shares. Amount.

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666 The record is silent as to the ownership of the other 2 shares, and the proposed amendment does not suggest any action with reference thereto.

“The amendment before the committee provides for the payment of these several amounts to the original stockholders, but there is no evidence before the committee to show that

they are still living and that each one still retains his ownership in the shares belonging to him and has not disposed of them by sale, transfer, or otherwise. If an appropriation is made, it should be provided that whatever money is properly due should be paid to the persons that are actually entitled to it.

. The forms of the amendment should be changed so as to effect this purpose, and the following substitute is recom. mended in place of that referred to the committee. Here follows the proposed amendment. This amount is justly due to these parties, and, believing that it should be paid, the committee report it back to the Senate as amended with a favorable recommendation.'

“The appropriation amended in accordance with the report of the committee was passed. No restriction was placed on the payment of the amounts other than as is set forth in the said report.

“ Application under the act (March 2, 1895) has been made for the payment of the following shares:

Shares. Amount.

George A. Tuthill ........
Robert W. Hallett..

$4, 255.31 1, 702.08

“On the 2d of March, 1867, Congress passed a joint resolution prohibiting payment by any officer of the Government to any person not known to have been opposed to the rebellion and in favor of the suppression. (14 Stat., 571.) That resolution is now embodied in section 3480, Revised Statutes, page 689.

“The question is presented as to the operation of said section in prevention of the payment of the claims now presented under the appropriation act of March 2, 1895.

“The original resolution of March 2, 1867, contains the following language:

* * * 66That until otherwise ordered, it shall be unlawful for any officer of the United States Government to pay any account, claims, or demand against said Government which accrued or existed prior to the thirteenth day of April, A. D. eighteen hundred and sixty-one, in favor of any person who promoted, encouraged, or in any manner sustained the late rebellion; or in favor of any person who, during said rebellion, was not known to be opposed thereto, and distinctly in favor of its suppression.' * *

“It is to be observed, first, that Congress reserved the right in the future to make any further order in regard to payment of the class of claims described in the resolution that might seem advisable, and, secondly, that the unlawful account, claim, or demand against the Government must have accrued or existed prior to the 13th day of April, 1861.

6The Court of Claims, in the case of The Chesapeake and Ohio Railroad Company v. The United States (decided February 2, 1885), vol. 20, page 49, decided that,

666 The act 2d March, 1867 (Rev. Stat., sec. 3480), expressly prohibits the Executive officers from paying claims which existed prior to the war in favor of persons who promoted or encouraged the late rebellion, and by implication prohibits them from paying claims which originated after the war began.'

“The court, in deciding the case, uses the following language (p. 68):

"It can not be supposed that Congress would prohibit Government officers from paying claims existing prior to the beginning of the war in favor of citizens who were loyal when the claim accrued, although they subsequently became involved in the rebellion, and still leave such officers at liberty to pay claims which originated after the war began. This enactment must be considered an implied affirmation that the war began when Fort Sumter was fired upon, April 12, 1861, and that the payment of all claims originating after that date was prohibited by the rules of war.'

“Without questioning the conclusion reached by the court upon the case as presented, or as to the extension of section 3480 beyond the express terms of the act itself, it is my judg. ment that said section can have no application to the payment of the claims now under examination.

"Whatever may have been the law or the intention of Congress in withholding the payment of the shares, it is clear that Congress, having in view said section 3480, subsequently made other and positive direction for the payment of said share.

"This latter act (March 2, 1895) makes a different provision on the same subject. It is incompatible with the former act and is repugnant to it, and, under the settled rules of construction, is a repeal of the former provisions of the law in regard to the payment of the claims now presented.

* * * " . But a statute may have the effect to repeal a former statute, or some provision of it, though it be silent on the subject of repeal. In such cases, repeal is inferred from necessity, if there be such conflict that the old and the new statutes can not stand together. * * * (Sutherland on Stat. Con., secs. 137, 138.)

“This doctrine is recognized in 134 U.S., 206,

66 "An implied repeal results from some enactment the terms and necessary operation of which can not be harmonized with the terms and necessary effect of an earlier act. In such case the later law prevails as the last expression of the legislative will. Therefore, the former law is constructively repealed, since it can not be supposed that the law-making power intends to enact or continue in force laws which are contradictions. The repugnancy being ascertained the later act or provision in date or position has full force and displaces by repeal what

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