Gambar halaman
PDF
ePub

RECEIVERS' BONDS NOT AFFECTED BY DISCHARGE IN BANKRUPTCY.

The validity of the bond of a receiver is not affected by his discharge as a bankrupt; nor are

his sureties discharged or released thereby.

ATTORNEY GENERAL'S OFFICE,

September 23, 1843. Sır: I have examined the provisions of the “ Act to establish a uniform system of bankruptcy throughout the United States," with reference to the question presented in your communication of yesterday, and am of opinion that the validity of the bond of the receiver is not impaired, as affecting either principal or sureties, by his application and discharge as a bankrupt. I have the honor to be, very respectfully, sir, your obedient servant,

JNO. NELSON. Hon. JOHN C. SPENCER,

Secretary of the Treasury.

REPAYMENT OF PURCHASE-MONEY FOR LANDS.

The case of Wilson Shannon does not come within the provisions of the act of the 12th Jan

uary, 1825, and therefore the department has no authority to refund to him. Even though the fuods of Shannon were not received into the public treasury, and it be con

ceded that the United States have no equitable claim upon them, there is no act authorizing repayment of money wrongfully or erroneously paid, except the act of 12th January, 1825,

which applies to certain specified cases. It will not do for the department to refund money which has erroneously found its way there, simply on the ground that it is just that it should be repaid, for the reason that it would require the department to disregard a most wholesome and salutary restraint, upon the due and strict observarce of which the most important interests depend.

ATTORNEY GENERAL'S OFFICE,

September 29, 1813. Sir: I had the honor, on the 14th of August, to communicate to you my construction of the act of the 12th of January, 1825, the provisions of which, it is quite clear, do not embrace the case of Wilson Shannon stated in your letter of the 26th instant.

That act substantially declares that purchasers of the public lands shall be entitled to repayment of any sum or sums of money paid for or on account of such lands in cases in which the purchase is void because of a want of title there'o in the United States, whether proceeding from a prior sale or the establishment of interfering British, French, or Spanish grants, or for any other cause whatever, and authorizes and requires the Secretary of the Treasury, upon his being satisfied that such sales were “croneously made, in manner aforesaid, by the United States,” (that is, without having the title to said lands,) “to repay such sum or sums of money as aforesaid."

It does not embrace all cases of sales erroneously made, but only such as are erroneous by reason of the defect of title in the United States, as in the cases referred to in my opinion of the 14th August. Now, the case of Mr Shannon is not one in which the title to the lands entered by him is not in the United States, or in which, if the proceedings in the Land Office had been conformable to instructions, a valid conveyance might not have been made, but it is one of mere irregularity, in which attempts to dispose of a portion of the public domain have been made by persons having no authority to sell. It is not a case in which a sale made by the United States cannot be effectuated for the reason contemplated by the act of 1825, but one in which the United States deny the fact of a sale made, and refuse to carry into effect the attempted contract, because those who in their name proposed had no anthority to make it. That the sale has been erroneously made is true; but that such error was the result of a want of title in the United States, “ from any cause whatsoever,” is not true; and this latter is the only class of cases covered by the act of Congress.

I am, therefore, ot opinion that the purchase money in this case cannot be refunded by warrant under the act of January 12, 1825; nor am I aware of any principle upon which, under any supposed general authority of the department to refund, the money once being in the treasury, the repayment can be made.

It is quite certain, assuming the contract of sale to have been one which the United States should not have consummated, (and that is a question upon which the decision already acted on by the proper department precludes present inquiry,) that the purchase money now asked to be refunded should never have been received into the public treasury. It is there wholly without consideration, and is the money of Mr. Shannon, to which the United States have no claim, and to which he is unquestionably entitled. But who is to restore it to him? It can be withdrawn from the treasury only by virtue of some law. I know of no enactment authorizing repayments, except that of 1825, which I have endeavored to show does not apply to this case.

It will not do to say that the department may refund simply because it is just that the money should be repaid, or that it is in the hands of the government by mistake, or without consideration. The same thing might have been predicated of the cases provided for by the act of 1825; and if in those cases the intervention of the legislative power was necessary, it seems to me to be equally so in this. The case of Mr. Shannon is unquestionably a hard one, and may evince the propriety of some general legislative provision, by which the Secretary of the Treasury may be clothed with authority to grant relief in like cases; but it can afford no warrant for the disregard by the department of a most wholesome and salutary restraint, upon the due and strict observance of which the most important interests depend. I have the honor to be, very respectfully, sir, your obedient servant,

JOHN NELSON. Hon. John C. SPENCER,

Secretary of the Treasury.

THE MISSIONARY LOT IN MICHIGAN.

The sale of the missionary lot to the Baptist Mission being irregular and unsatisfactory to

the Catholic Mission, it should be rescinded, and the property placed in the situation in which it existed before any proceedings were had in regard to it, and be resold, upon such notice and terms as shall be satisfactory to all the parties concerned.

ATTORNEY GENERAL'S OFFICE,

October 2, 1843. SIR: I have examined the papers connected with the questions re. specting the distribution of the proceeds of the sale of the tract of land called the Missionary Lot, in Michigan, under the Sth article of the treaty of 1836 with the Chippwa and Ottowa Indians, accompanying your communication of the 15th September, and am of opinion that, in the present state of the information in possession of the government, it is impossible for the board created by the President's order of the 24th of August to perform the duty assigned to it; the report of the Commissioner of Indian Affairs showing satisfactorily that no appraisement of the improvements upon the lot in question has been made, whereby the relative claims of the Baptist and Catholic Missionary Societies can be ascertained. It is indispensable, therefore, that some mode of making a valuation should be adopted, and no means more likely to prove efficient suggest themselves to my mind, than those recommended by the Commissioner in his letter to you of the 6th of September.

With regard to the sale made to the Baptist Missionary Society, I am of

opinion that, if unsatisfactory to the Catholic Mission, it should not be confirmed, since it is quite manifest that it was made under a misapprehension superinduced by the mistaken representations of the agents of the Baptist Mission themselves, and a misapprehension which tended, by placing those representing that interest in a position of advantage, to preclude competition in the biddings, to the obvious prejudice of the Catholic Missionary Society. Apart from all other considerations affecting its validity, I think, therefore, that this sale, on many accounts irregular, should be rescinded, and the property placed in the situation in which it existed before any proceedings were had in regard to it; and that it should be resold at such time and place, and upou such notice and terms, as may be satisfactory to all the parties concerned; and, with this view, it may be expedient to address to the agents of the respective societies, a communication explanatory of the opinions entertained by the government, and inviting, in the measures to be hereafter pursued, mutual cooperation. This course may tend to allay unpleasant excitement, and in the end will promote the interests of all parties. I have the honor to be, very respectfully, sir, your obedient servant,

JOHN NELSON. Hon. John C. SPENCER,

Secretary of the Treasury.

AUCTIONEERS IN THE TERRITORY OF FLORIDA.

Where an oficer of the general government employs an auctioneer of a Territory to make sales

therein which such otheer was required himself to make, such auctioneer has the right to retain the per-centage which the laws of the Territory require him to retain, and to pay over the same to the treasurer thereof.

ATTORNEY GENERAL'S OFFICE,

October 3, 1813. Str: The letter accompanying your communication of the 30th of Sep. tember is so vague in its statement of facts, as necessarily to render the opinion I am asked to give, in some degree hypothetical. The only law of Florida affecting the question, that I have been able to find, is that of the 21st of November, 1929. This statute provides for the appointment by the Territorial authorities of auctioneers, and prescribes the mode of their

qualification and their duties. Amongst the last of these is that of paying to the treasurer two per cent. upon the gross anount of all sales at auction made by them; and to secure the fulfilment of this obligation, it is embraced in the condition of their official bonds. The 3d section of the act declares that it shall not be lawful for any auctioneer to charge or receive a greater per cent. than four per cent., over and above the tax accruing to the Territory, upon any goods or other articles sold by him, to the extent of one thousand dollars; and for all sums above that, two per cent. on the amount of such excess.

Assuming, as a matter to be in ferred from the statement of Mr. Hill, that the sales to which his letter refers were made at auction, by an auctioneer appointed and commissioned pursuant to the terms of the act of 1829, I ain of opinion that the two per cent. on the amount of such sales may be rightfully demanded and retained by such auctioneer. If an officer of the government of the United States, submitting himself to the laws of the Territory, employs one of its public functionaries to discharge a duty devolved on him by statute, he is bound to conform him. self to the requirements of such statute. It would be most unjust that an auctioneer thus employed, who is bound to account to the Territorial trea. sury for what the law terms “ the tax," should not be entitled to receive it from his employer, who is presumed, at the time of employing him, to know the extent of his obligations. I bave the honor to be, very respectfully, sir, your obedient servant,

JNO. NELSON. Hon. James M. PORTER,

Secretary of War.

JURISDICTION OF UNITED STATES COURTS OVER THE CASE OF ROGERS.

Where a person having Cherokee-Indian blood in his veins, nnd living as a trader, by permis

sion, within the limits of the Cherokee nation west of the Mississippi river, who is at the same time recognised by law as a citizen of the State of Georgia, commits a crime, he is amenable to the laws of the United States, and entitled to a trial under them, instead of the

laws enacted by the councils of the Cherokees. Lovely Rogers, charged with participating in the murder of David Vance, treasurer of the

Cherokee Indians, being a citizen of Georgia, is entitled to a trial in the United States courts, and may be surrendered to the proper officers of Arkansas by the Indian agents; or he may apply for a habeas corpus, which will be efficient for his relief, if he is entitled thereto, as represented.

ATTORNEY GENERAL'S OFFICE,

October 9, 1843. SIR: The case of Lovely Rogers, to which the papers accompanying your communication of the 10th instant relate, presents for my consideration the single question of jurisdiction, upon which, assuming as true the facts stated in the letter of J. K. Rogers, and the report of ihe Com. missioner of Indian Affairs, I have no doubt.

Those facts are: That, on the Sth of August last, David Vance, the treasurer of the Cherokee nation, was violenily assaulted by several persons, of whom Lovely Rogers is alleged to have been one; that Vance is supposed to have died of the injuries then inflicted; that the assault was made upon Vance within the limits of the Cherokee nation, west of the Mississippi river; that Rogers, who is charged with having participated in

it, although having "Cherokee blood in his veins," is a citizen of the State of Georgia, under a law of that State recognising him as such; and that he went from the said State of Georgia to the Cherokee nation west for the purpose of trading, and resides there by permission granted according to law.

The question arising under the circumstances is, whether Rogers, charged with a participation in the above stated offence, is subject to the jurisdiction of the tribunals of the Cherokee nation, or is entitled to a trial in the courts of the United States.

The 25th section of the act of the 30th of June, 1834, declares: “That so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive juris. diction of the United States, shall be in force in the Indian country; provided the same shall not extend to crimes committed by one Indian against the person or property of another Indian." This enactment embraced the territory which now constitutes that of the Cherokee nation, in which the alleged offence is charged to have been committed, and, apart from the modifications introduced by the treaty of New Echota, concluded on the 29th of December, 1835, would have furnished the rule applicable to the case of Mr. Rogers. But the treaty referred to essentially changed this rule—the 5th article providing that the United States should secure to the Cherokee nation the right, by their national councils, to make and carry into effect all such laws as they might) deem necessary for the gov. ernment and protection of the persons and property within their own country, belonging to their people, or such persons as have connected themselves with them, with the limitation that they should not be incon. sistent with the constitution of the United States, and such as had been, or might thereafter be passed, regulating trade and intercourse with the Indians, and that they should not be considered as extending to such citizens of the United States as may travel or reside in the Indian country by permission, according to the laws and regulations established by the government of the same.

It is very clear, under this treaty, that citizens of the United States residing in the Indian country by permission, cannot be made subject to the laws enacted by the Cherokee councils--the jurisdiction over them belonging to the courts of the United States, under the act of 1834.

The only inquiry, then, is, was Mr. Rogers, at the time of committing the alleged offence, in the predicament contemplated by the treaty? This is a question of fact which I am incompetent to decide. If the statement of J. R. Rogers be correct, his brother's case is precisely that designed to be covered by the proviso above quoted. An opinion of Mr. Butler upon a question of an analogous character may be found in the volume of Opinions of Attorneys General, p. 984. Assuming Mr. Rogers to be entitled to be tried in the courts of the United States, (and whether he is so entitled depends, as I have already said, upon the tact of his citizenship,) it remains to inquire what should be done to assure to him the enjoyment of the privilege. • This may be effected in two modes--the one through the instrumentality of the powers of the War Department, the other by an appeal to judicial authority. In the first, by the surrender, through the Indian agents, to the proper officers of Arkansas, of the party charged, to be dealt with according to law. In the second, by a petition to be preferred by the

« SebelumnyaLanjutkan »