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furnished under the contract and at the contract price, or to claim the real value."
Congress, by an act approved July 2, 1836, recognised and confirmed the principle of this decision, so far as applicable to the present case, by requiring it to be carried into execution. The act referred to is entitled “ An act for the relief of James Thomas," and is in the following words:
" Be it enacted, 8c., That the proper accounting officers of the Treasury Department be, and they are hereby, authorized and directed to adjust and settle the accounts between the United States and James Thomas upon principles of equity and justice; and that, in the settlement of his accounts as contractor, the said accounting officers be required to recognise the judicial decision of the district court of the United States for the southern district of New York, as settling the true construction of the contract, and the relative rights of the parties under the same; and if upon such settlement there shall appear to be a balance due to said James Thomas, that the same be paid out of any money in the treasury not otherwise appropriated.”
This act of Congress is plain and positive, and requires that Colonel Thomas should be allowed the real value or market price of all articles furnished by him, pursuant to the requisitions of the War Department, and which were not specifically required to be furnished at a price fixed by the terms of the contract. I am, therefore, of opinion that the fair market value of the additional quantity of whiskey furnished for soldiers on fatigue duty should be allowed to the contractor. I am, sir, &c., &c.,
FELIX GRUNDY. To the SECRETARY OF WAR.
SUPERIORITY OF JURISDICTION OF CIVIL OVER MILITARY AUTHORITIES.
It is wholly inadmissible under our government to place the military above the civil authority;
and, therefore, whilst the latter shall have the custody of an officer of the navy for the purpose of trying and punishing him for a homicide, he cannot legally be made amenable to a court-martial.
ATTORNEY GENERAL'S OFFICE,
May 15, 1839. Sir: I have received your communication of this day, in which you submit for my opinion thereon the following question:
“ Whether an officer of the navy can legally and properly be made amenable to a court martial for an offence, while a prosecution is pending against him before a court of criminal jurisdiction for the same offence ?"
I presume this inquiry is made in reference to the case of homicide named by you to me a few days since, in which an indictment has been found, and the party has been arrested, and the case has not yet been tried. I can feel no hesitation in saying that, until he shall be discharged from the prosecution now pending before the civil tribunal, no court-martial can be held upon him. He is now in confinement or the custody of the sureties for his appearance before that court in which the indictment was found, and no step should be taken by your department calculated in the slightest degree to prevent the execution of the laws of the State, which are charged to have been infracted by the homicide, for which he has been indicted. Any such interference would be to place the military above the civil authority, which is wholly inadmissible in our government. You will readily perceive the collision which would necessarily grow up be. tween the federal and State authorities, were such a proceeding allowed, as holding a court-martial upon an officer when he was at the same time under a prosecution, not terminated, before a court of criminal jurisdiction in one of the States. I am, sir, &c., &c.,
FELIX GRUNDY. To the SECRETARY OF WAR.
CERTAIN MISNOMERS IN CHOCTAW TREATY NOT IMPORTANT.
An assignment by P. P. Pitchlynn of a reservation in the treaty in favor of Peter Pitchlynn,
where there is no doubt of the identity of the person, is good; as the law knows of but one
christian name. A patent for land may issue to John McGilvry as the head of a family registered by the name of John McGilvery, where there is no doubt of the identity of the person; as the orthog. raphy and sound do not vary so materially as to affect the grant.
ATTORNEY GENERAL'S OFFICE,
May 17, 1839. Sır: I have the honor to acknowledge the receipt of yours of this morn. ing, in which you say some difficulties exist as to the course you should pursue in the following cases. In the treaty made with the Choctaws, there is a reservation made in favor of Peter Pitchlynn; and a title bond is produced by a purchaser, which is signed by P. P. Pitchlynn. You further say you have no reason to doubt the identity of the person. The law knows but one christian name, and the omission of one or more initials between the christian and surname will have no effect in rendering any proceeding defective in point of law. (Vide 2 Cowen’s Reports, 463; 3 Peters, 7.)
In all cases like the present, the true question is, what individual was intended to be benefited by the reservation? When that is ascertained beyond doubt, no further inquiry need be made. The name of an individual is given to him, and he is called by it, for the purpose of distin. guishing him from others; the second christian name is generally not known, except to his immediate acquaintances; because he is commonly called by his first or one christian name. And I can see no reason why a reference should be made to Congress on this subject, provided it be clearly proved that P. P. Pitchlynn is the person or individual designated in the treaty by the name of Peter Pitchlynn.
The other case put by you for my opinion in this:
It appears that a Choctaw head of a family was registered by the agent by the name of John McGilvery; a patent is now applied for by the name of John McGilvry-no doubt existing as to the identity of the person. I entertain no doubt as to the propriety of issuing the patent as asked for. The general rule of law upon this subject is, if the real name and the surname adopted be idem sonans, although differing in orthography, it will not be a misnomer; in this case, the sound and spelling do not vary materially-not more than would frequently occur when a citizen of the United States undertakes to spell the name of an Indian. The inquiry in this case should be the same as in the preceding one: is the person applying for the grant the same individual who applied to the agent to be registered? If that fact is established, nothing remains but to issue the grant.
I can see nothing in the opinion of Mr. Taney, when Attorney General, conflicting with the one now given. In that case, and in the case to which he refers, the names were not only dissimilar in orthography and sound, but were in fact generally known as distinct and different names. I am, sir, &c., &c.,
FELIX GRUNDY. To the SECRETARY OF WAR.
PENSIONS TO WIDOWS OF SURGEONS IN THE NAVY. The widow of a surgeon in the navy who was commissioned in 1811, resigned in 1824, reappointed in 1827, and who died in the service in 1832, is entitled, in respect to the time which is to determine its amount, to a pension only under the last appointment.
ATTORNEY GENERAL'S OFFICE,
June 1, 1839. Sir: I have had the honor to receive your communication of yesterday, relative to the pension which should be allowed to the widow of Doctor James Page, late a surgeon in the navy of the United States.
It appears that he was commissioned as a surgeon in the navy in 1811; that he resigned in 1824; was reappointed in 1827; and died in the naval service in 1832.
His widow now claims a pension as having been the wife of a surgeon of more than twenty years' standing in the navy. My opinion is, that she is not entitled to a pension upon the principle set up by her. The two commissions, and the service under them, cannot be united for the purpose of justifying a claim for the amount claimed by the petitioner. When he resigned his first commission, he became a private citizen; and had he died before his second appointment, his widow would have been entitled to no pension whatever; and it is only by virtue of his second commission that she is entitled to a pension at all; and, in my judgment, the law will not warrant the taking into view his services under the first commission in computing the time which is to determine the amount of the pension of his widow. Therefore, it seems to me she is entitled to a pension as the widow of a surgeon who was commissioned in 1827 and died in 1832. I am, sir, &c., &c.,
FELIX GRUNDY. To the SECRETARY OF The Navy,
PRINTING FOR THE TREASURY DEPARTMENT. The person entitled to the printing of the Treasury Department, generally, under the late biddings, should execute all the printing required by it, whether on paper or parchment, notwithstanding the error of the clerk in erroneously stating to the bidder for parchment that his bid for the printing of it was accepted.
NASHVILLE, July 17, 1839. Sır: I have the honor to acknowledge the receipt of yours of the 8th instant, enclosing a statement of facts, upon which my opinion is asked in relation to certain questions which have arisen under the act of the 3d of March last, requiring the printing, stationery, and binding necessary for each of the executive departments to be furnished by contract, and that proposals for the same be advertised for.
The main design of Congress, it seems to me, cannot be misunderstood. The language employed is clear and explicit; and the advertisement inviting proposals to be made separately for printing, stationery, and binding, was well calculated to carry the law into effect. I cannot discover, from any language in the act, an intention on the part of Congress to employ more than one printer for any one executive department of the govern. ment. We are not at liberty to presume that Congress intended, in the execution of the law, that the lowest possible sum for which any portion of the printing could be obtained should be given in every instance; on the contrary, a fair price for the whole of the printing of a department was evidently in the contemplation of Congress; and the true mode of ascertaining what bid should be accepted would be to take the aggregate of each proposal, and compare it with the other bids, and in that way ascertain which bid (taking all the printing together) was lowest. It might happen that a printer would not undertake to execute a particular job of printing at a certain price; but, if united with another job at a given price, he might be willing to execute it. It is but just to every bidder to take his bid and every part of it together, and either accept or reject the whole. I cannot perceive any authority, even in the head of a depart. ment, after the biddings are closed, to withdraw any particular item from the influence of a bid including it, when that bid is lowest, and made in conformity to the law and the advertisement, and accepted by the department. Entertaining the views I have expressed, I am necessarily brought to the conclusion that the person entitled to the printing of the Treasury Department, generally, under the late biddings, should execute all the printing required by the department, whether on paper or parchment, unless something can be found in the case to take it out of the operation of the principle laid down.
The reception of separate bids for parchment alone, although that article might be well embraced in the term stationery, could not be considered as including the printing to be done upon the parchment, any more than a bid to furnish paper would entitle the bidder to the printing to be executed on it. I therefore do not attach any importance to the circumstance just named.
It appears from your communication that, from misapprehension of the clerk attending to the “ business, in supposing that the verbal permission for bids alone for the parchment was intended to include the printing of it, the lowest bidder for the parchment was informed that his bid for the printing of it was accepted.'
This error of the clerk (for such it certainly was) can have no legal effect upon the question now before me. The law and advertisements had both directed bids to be made separately for stationery, printing, and binding; nor was there any authority to detach a particular job from the great mass of printing to be executed for the department. Upon the whole, I am unable to perceive any reason which, in law, would justify the department in causing the printing upon the parchment to be executed by any others than the general printers for the Treasury Department. I am, sir, &c., &c.,
FELIX GRUNDY. To the SECRETARY OF THE TREASURY.
THE PRESIDENT AND THE JUDICIARY_PAYMENT TO WINNEBAGOES.
The treaty with the Winnebagoes provided that certain payments therein stipulated to be
made should be made by the President of the United States, and with which the judiciary cannot rightfully interfere ; and the agents appointed by the President may proceed to make
the payments, in disregard of any writs of injunction which the judiciary may allow, The judiciary cannot arrest the execution of a treaty by stopping the money designed to be
paid under'it, in the hands of the agents of the Executive.
ATTORNEY GENERAL's Office,
September 7, 1839. SIR: I have the honor to acknowledge the receipt of yours of yesterday, asking my opinion upon two points suggested by the Commissioner of Indian Affairs in his letter of the 5th instant. The first point relates to the duty of the government in making payments to the Indians of mixed blood, under the following provision in the treaty of the 1st of November, 1837, with the Winnebago nation of Indians, to wit: “ 2d. To pay, under the direction of the President, to the relations and friends of said Indians, having not less than one quarter of Winnebago blood, one hundred thousand dollars."
This is a treaty stipulation-at least it is so to be considered and acted upon according to the practice of the government; and the payment is to be made under the direction of the President of the United States. The parties to the treaty have agreed that the President, and no other individual, (unless acting under his authority,) nor any other branch of the government, shall make the payment, or interfere in the making of it. The payment is to be the act of the President, performed necessarily by agents of his own selection. Should the judiciary attempt, by injunction or otherwise, to prevent the agents of the Executive from making the payment according to the directions of the President, it would, in my opinion, be a gross usurpation on the part of the judiciary, and such an act as ought not to be supposed likely to occur. It appears that the proceedings under the first commission created under this part of the treaty have been set aside, and another commission or agency raised for the purpose of carrying this provision of the treaty into effect. This the President had the power to do, if, in his judgment, the justice of the case required it; nor can the decision of the President in that particular be revised or reversed by the judiciary. Besides, to admit that the judiciary can arrest the execution of a treaty, by stopping the money designed for such purpose in the hands of the agents of the Executive, who are employed merely to hand it over to the persons entitled, would be, in effect, to sub. ject the government of the United States to the suit or action of any claimant who might believe himself entitled to any portion of the money. A principle which would lead to consequences so illegal, and so destructive to the regular and harmonious operations of the government, cannot be admitted.
As to the second point whether, if such a writ [injunction should be issued, the agents of the government should withhold payment under it, until the final decree of the court was made; or proceed with the payment, according to the awards of the commission?")
I am clearly of opinion that, should such writ of injunction be granted, the agents should proceed to make the payments, notwithstanding such writ. The treaty makes it the duty of the President to make the pay.