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its way into the treasury, however, like all other money, it should he withdrawn in strict fulfilment of the requirements of the law, which the administrative power of an executive department of the government can not control. I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NEL SON. Hon. John C. SPENCER,
Secretary of the Treasury.
CLERKS OF COLLECTORS OF CUSTOMS—HOW PAID.
The act of 1799, giving authority to collectors to employ occasional inspectors and others in
aid of the revenue, did not authorize them to employ persons to perform clerical duties is custom-houses, and to pay them out of the revenue. The expense of clerk-hire in the custom-houses camot be charged upon the treasury, except
in the cases provided for by the act of 1838. The act of 7th July, 18:38, does not change the aspect of the case of clerks as provided by acs
of 7th May, 1822, its object only being to allow them, to a certain extent, the fees and emoluments which, but for the operation of the acts of 1832 and 1833, they would have received, and limiting allowances according to the importations of the year.
ATTORNEY GENERAL'S OFFICE,
August 15, 1843. Sir: The question propounded in your communication of the 8th instant depends upon the interpretation of the acts of the 2d of March, 1799, the 30th April, 1802, the 7th of May, 1822, and the 3d section of the act of the 7th of July, 1838, as revived and continued in force by the 7th section of the act of the 21st July, 1840. The first of these acts estab. tished the compensation of collectors, naval officers, surveyors, &c., and authorized them to receive the fees thereby allowed, requiring only that they should keep accounts of such fees and emoluments, as well as of their expenditures, to be transmitted annually to the Comptroller of the Treasury, to be by him communicated, for its information, to Congress. The appointment of clerks was not provided for by the act, they being only mentioned in connexion with the collector's expenditures for rent, fuel, and stationery. They were, therefore, properly regarded under this law, not as the officers of the government, but as the agents of the collect. ors, naval officers, and surveyors, by whom they were employed and compensated.
The provision in the 2d section of the act, as to the persons occasionally employed in aid of the revenue, I do not consider at all applicable to clerks employed in the business of that or any other office; it had reference to a class of officers recognised by the law as such, and whose com. pensation was not derived from the fees and emoluments of the collectors: to inspectors, for instance, and the other officers of the like description, whose compensation was fixed by law. And this view is strengthened by reference to the act of the 26th of April, 1816, which added fifty per cent. to the compensation allowed to inspectors, or persons acting as occasional inspectors, in aid of the customs, by the acı under consideration.
The act of the 30th of April, 1802, operated a most important change in regard to the compensation of collectors, naval cfficers, and surveyors, declaring that, after ihe 30th day of June thereafter, whenever the annual
emolaments of any collector of the customs, after deducting therefrom the expenditures incident to his office, should amount to more than five thousand dollars; or those of a naval officer, after like deduction, to more than three thousand five hundred dollars; or those of a surveyor, after a like deduction, to more than three thousand dollars—the surplus should be accounted for, and be paid by them, respectively, to the treasury of the United States.
Under the provisions of this law, it is apparent that the United States, who, under the act of 1799, had no interest in the fees and emoluments of the officers referred to, became, in a pecuniary point of view, concerned in their expenditure, whether for fuel, stationery, or clerk hire. The 9th sectiou of the act of the 7th of May, 1822, pursuing the same object, further reduced the limitation of the emoluments of the collectors of the ports of Boston, New York, Philadelphia, Baltimore, Charleston, Savannah, and New Orleans, to four thousand dollars; of the naval offi. cers of said ports to three thousand dollars; and of the surveyors to two thousand five hundred dollars; requiring the surplus, “after' deducting the necessary expenses incident to their offices in the same year,” to be paid into the treasury of the United States. And the 10th section, in like manner, reduced perpetually the compensation of the collectors of all other ports. The 12th and 13th sections imposed upon these officers the duty of accounting for all their emoluments, and also for all the expenses incident to their offices, and of rendering lists of the clerks employed by them, stating the rate of compensation allowed to each, and the duties which they severally performed. And then, to guard against collusion, and to protect the public revenue involved in the surplus of the fees and emoluments of said officers, over and above their allowances and expenditures, the Secretary of the Treasury, by the 15th section, is authorized, not to appoint, but to limit and fix the number and compensation of the clerks to be employed by any collector, naval officer, or surveyor, &c. As the law stood in 1822, then, it is clear that the compensation of the clerks employed in the offices of the collectors, naval officers, and survey. ors, was chargeable upon the fees and emoluments of the officers, and that no allowance for such service could be made from the treasury of the United States.
The 3d section of the act of the 7th of July, 1838, does not, in my view, at all change the aspect of the question applicable to these officers, its object only being to allow them, to a certain extent, the fees and emoluments which, but for the operation of the acts of 1832 and 1833, they would have received, and limiting that allowance according to the import. ations of the year. Upon the whole, I am of opinion that the act of 1799, in the authority therein given to collectors to employ occasional inspectors and others in aid of the revenue, never did apply to clerks, and that a colleetor cannot, under its provisions, einploy persons to perform clerical duties in the custom-house, and pay them out of the revenue at the rate of two dollars per day, or at any other rate; and that under no circumstances can the expense of clerk hire in the custom-house be charged upon the treasury, except in the cases provided for by the act of 1838. I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NELSON. Hon. John C. SPENCER,
Secretary of the Treasury.
VESSELS IN THE COASTING TRADE LIABLE FOR HOSPITAL-MONEY.
The owners of registered vessels engaged in the coasting trade are subject to the payment of hospital-money by the act of March 1, 1843, and collectors are required to collect it from the seamen, masters, and owners.
ATTORNEY GENERAL'S OFFICE,
August 15, 1843. Sir: I have no doubt that owners of registered vessels in the coasting trade are made subject to the payment of hospital-money by the provisions of the act of Congress approved March 1, 1843. The terms of the act are explicit, that the provisions and penalties of the act of July 16, 1798, shall be extended to the masters, owners, and seamen of such vessels; and that the Secretary of the Treasury shall issue such instructions to the collectors of the various ports as shall secure the collection of hospi. tal-money from such seamen, masters and owners. Whatever may have
een the intention of Congress in passing the act of 1813, it is quite elear that any other interpretation than that now placed on it would substantially repeal it. I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NELSON. Hon. JOHN C. SPENCER,
Secretary of the Treasury.
COMPENSATION OF COMMISSIONERS OF CIRCUIT COURTS.
In the absence of any statute regulation concerning the compensation of commissioners of
circuit courts, the courts themselves may fix the rate. Where rates have not been fixed, the amount may be ascertained by a reference to the local law of the State providing for
similar services by local magistrates. Proceedings under the several acts of Congress before these commissioners in behalf of the
United States are properly chargeable to the United States, and, being so, ought to be allowed and paid.
ATTORNEY GENERAL'S OFFICE,
August 16, 1843. SIR: The office of commissioner of the circuit court of the United States was created by the act of February 20, 1812, which limited their power to the taking of acknowledgments of bail and atfidavits in civil causes. The act of March 1, 1817, extended their authority to cases pending in the district courts, and to those covered by the 30th section of the act to establish the judicial courts of the United States. The act of August 23, 1842, is that under which Mr. Landers has rendered the ser. vice for which he now asks compensation. This invests commissioners with authority to exercise all the powers that any justice of the peace or other magistrate of any of the United States may exercise in respect to offenders for any crime or offence against the United States by arresting, imprisoning, and bailing the same, by virtue of the 33d section of the act of September 24, 1789.
The terms of that section are, “ that for any crime or offence against the United States, the offender may, by any justice or judge of the United States, or by any justice of the peace or other magistrate, of any of the United States where he may be found, agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as may have cognizance of the offence, &c.
It is quite clear, therefore, that the proceeding before Mr. Landers, as it was prosecuted at the instance, was at the expense of the United States; and that for the service rendered, the commissioner is entitled to compensation. The amount of that compensation is not precisely fixed by the acts of Congress before referred to. For taking bail and affidavits in civil causes the second section of the act of 1812 provides that the like fees shall be allowed as are allowed for the like services by the laws of the State in which any such affidavit or bail shall be taken; and the same rule would, I suppose, apply when other services under the supplementary acts were performed by this class of officers. In the absence of any specific regulation, I think, therefore, that the amount of the compensation properly demandable by Mr. Landers may be ascertained by a reference to the local law of Kentucky regnlating allowances in like cases. To these I have no means of reference.
I have said in the absence of any specific regulation, because the cir. cuit courts making the appointments of commissioners would have the power to prescribe the fees for the services performed in the absence of regulations by law; and I believe in most of the circuits in which the power of appointment has been exerted, the rate of allowance has been thus established; but whether in the circuit court, under whose authority the claimant has been acting, I do not know. The claim, if it rested upon a quantum meruit, would seem to be reasonable, and such as ought to be allowed. The record in the case of Mrs. Cochrane contains nothing to show the amount claimed in the New York circuit—the provisious of the treaty of Washington throwing the burden of the costs of that proceeding upon the British government. I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NELSON. Hon. C. A. WICKLIFFE,
COMPENSATION OF COMMANDER OF EXPLORING EXPEDITION.
Lieutenant Wilkes, who commanded the exploring expedition, does not come within the pro
visions of the appropriation act of the 3d of March, 1043, and is not entitled to such a rate of extra pay as will make his annual compensation equal to that of the Superintendent of
the Coast Survey: That act only authorized the accounting officers to allow and credit with extra pay those
officers who were employed in scientific duties in the late surveying and exploring expedition to the Pacific ocean and South seas. The only extra compensation justly claimable by him is such as was allowed to officers of the navy, of equal grade with those employed in the coast survey.
ATTORNEY GENERAL'S OFFICE,
August 21, 1843. Sir: The case of Lieutenant Wilkes, to which your communication of the 10th of August relates, and which had been previously referred to this o-fice by your predecessor for Mr. Legale's opinion, has been care.
fully examined and considered. The question propounded by the Second Comptroller and Fourth Auditor of the Treasury is:
“ Does the provision contained in the appropriation act of the 3d of March, 1843, authorize the accounting officers to allow to Lieutenant Wilkes such a rate of extra pay as will make his whole annual compensation equal to that of the Superintendent of the Coast Survey ?”! The provision referred to is in the words following: “And the accouuting officers of the treasury are hereby authorized and directed, in the settlement of the accounts of the officers attached to the late surveying and ex. ploring expedition to the Pacific ocean and the South seas, who were employed in the scientific duties, to allow and credit them with extra pay, equal to that allowed to the officers engaged in the service of the coast survey.'
This provision is applicable to officers who, in the late expedition, were employed in the scientific duties. What officers ? Manifestly officers of the navy. They, in consideration of their extraordinary services, are designed to be allowed a compensation over and above that allowed then as such officers by the pre-existing law, and the extent of that additional compensation is to be measured by the standard of allowance established upon the coast survey, in reference to the same class of officers engaged in the performance of the same kind of service.
The authority of the accounting officers of the treasury is to allow and credit them with extra pay equal to that allowed to the officers engaged in the service of the coast survey. It is not to allow and credit these highly meritorious gentlemen with pay equal to that allowed to any other class of persons en ployed on the coast survey, but it is limited to the “extra pay" allowed to the officers so employed. These terms, I think, clearly point to the extra allowance made to officers of the navy, and can. not be made to comprehend the claim preferred by Lieutenant Wilkes.
Without adverting to other and various considerations clearly fortifying this construction of the act of Congress, I am of opinion that the ac. counting officers cannot properly allow the compensation to which Lieu. tenant Wilkes thinks hiniself entitled; and that the only extra compensa. tion justly claimable by him, is such as was allowed to officers of the navy, of equal grade, employed on the coast survey. Any other interpretation would render the execution of the act impracticable. I have the honor to be, very respectfully, sir, your obedient servant,
JNO. NELSON. Hon. David HENSHAW,
Secretary of the Navy.
THE PARDON OF JENKINS ADVISED. Jenkins, a slave imprisoned under a sentence of the circuit court for the county of Washington,
in the District of Columbia, for a second offence against the act of March 2, 1831, is a proper subject for the exercise of the pardoning power. The act includes “ every person," and therefore makes no distinction between slaves and free
persons, who may offend against its provisions. The character of the offence, the interests of his master, and the public policy, all indicate the propriety of a pardon in this case.
ATTORNEY GENERAL'S OFFICE,
August 25, 1843. Sir: The prosecution and conviction of negro David Jenkins, alias Daniel Jenkins, in the circuit court for the county of Washington, in the