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that there should be in the marine corps thirteen captains, and forty lieu. tenants; and over and above these, four staff officers, who, at the date of their appointments as such, were captains or lieutenants ?
It is not contended that it is done in as express terms as those of the act of 1838, in regard to assistant quartermasters of the army. But it is argued, with considerable ingenuity, that these four are necessarily, from their enumeration as officers of the marine corps, units in the corn. putation.
In converting statutes, great consideration is due to contemporaneous and continued exposition of the terms; and it is a setiled rule of con. struction, that when terms are employed in a statute which had been used in former laws, and have received an interpretation, the same interpretation must be given to them in the new law.
In reviewing the laws on this subject, it appears that, in the original organization of the corps, it was not provided with a permanent staff; it was only when on shore duty that the staff officers were to be appointed; they were to be, and continue, in the line of the subalterns. Without any further legal provision, the act of 1814 recognised a staff, consisting of one adjutant, paymaster, and quartermaster; and, while it directs that they shall be taken from the captains or subalterns, clearly recognises that their grade as captains or subalterns is not affecied by the staff appointments. The act of 1817 enunierates the officers-lieutenant colonels, captains, lieutenants, adjutant and inspector, and quartermas. ter-to be taken from the line. This act is totally silent as to pay, and contains no expression which would justify a different construction from that to be given to the act of 1834; and, under this act, the construction uniformly given was, that the staff appointment did not affect the lineal commission. This act, like that of 1834, enumerates the staff as officers of the corps; and yet, while the President appointed and commissioned captains and lieutenants, by and with the consent of the Senate, it was not until the 9th of April, 1828, that the President determined that it was his duty to nominate the officers for staff appointments to the Senate. Since that time, he has so nominated and commissioned them. Previously to that decision, captains or lieutenants were detailed by the commandant for staff duty as for any other duty. In making these nominations, the President selected, for the staff, captains or subalterns; and, notwith. standing the staff appointment, with its commission, the officer has ever retained his lineal commission. With a knowledge of this usage and construction by the Executive, Congress passed the act of 1834. Like the act of 1817, it enumerates the staff as officers of the corps; but, like the said act, and the acts of 1798 and 1814, it declares that they shall be taken from the captains or subalterns It is a most important fact, that, according to the construction contended for by those who claim that the staff appointment separates the officer from the line, he must first be an officer of the line before he can be made a staff officer. The act is for the better organization of the corps. There are to be certain enumerated officers, to constitute the corps. When thirteen captains and forty lieutenants are appointed, the organization as to their grades is complete. They must first be appointed, because the staff officers are to be iaken from them. When four of them are appointed to staff duties, according to the claim set up, an organization, which was complete, is, without death, resignation, or dismissal, made incomplete; and it then becomes
necessary to appoint four more captains, or lieutenants, as the one or the other may have been taken for the staff appointment. I caunot acknowledge the propriety of reasoning which leads to such a result. I can see noihing in the act of 1834 which justifies it. The words, “ taken from the captains or subalterns," do not, because they have been used in all the laws, in terms or substantially, and have received a different interpretation-an interpretation clearly consistent with the intention of Congress, as evinced by their continued use after the construction had been fixed; nor does the fact of enumerating the staff as officers of the corps, because that had been so used in the previous acts, and a different effect had been given to them, and acquiesced in by Congress. The section fixing pay gives no strength to the argument, because it was a mere general assimilation of the pay and emoluments of the marine to the infantry officers, which had been done in the act of 1798. The main purpose of the act of 1834 was to increase the corps, and to prescribe regulations for its government, and not to alter any of the acknowledged principles gove erning the selection of its officers.
The decision of the President made in 1828, and acted on, was known to Congress; and it is not assuming too much to conclude that if it had been intended to separate from the line those officers on whoin staff appointments were conferred, the same explicit language would have been employed which was used on a kindred subject in the act of July, 1838.
The supplemental act of 7th July shows how promptly Congress corrected the provision of the act of 5th July, separating from the line the officer appointed assistant quartermaster. It cannot be doubted that the sensibilities of the marine officers to all questions affecting their rank would long since have been respected by a supplemental act to that of 1834, if the uninterrupted construction of that law had not conformed to its true meaning and intent.
The subject is one of great interest to the officers of the corps, and has been for many years a source of disquiet, on which a contrariety of opin. ion has existed.
I have therefore endeavored to give it a full and fair examination. In doing this, to make my views clearly intelligible, I fear I have been unnecessarily prolix; but I have deemed it best to collect all the laws on the subject, in the hope that the question may be regarded as settled, until Congress, if its intention has been misconceived, may correct the error by an explicit enactment. My opinion is that, under existing laws, a captain or lieutenant of the marine corps who is appointed to any one of the staff offices is, notwithstanding such staff appointment, still a captain or lieutenant, as the case may be and entitled to promotion in the line, as if he did not hold such staff appointment, and that his acceptance of the one does not produce a vacancy in the other. That the staff officers not being separated from the line, Lieutenant Carter is not on that ground entitled to promotion. I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON. Hon. GEORGE BANCROFT,
Secretary of the Navy.
TRANSFERS OF APPROPRIATIONS.
Congress having taken from the executive departments the power to transfer appropriations
from one head of expenditure to another, the Secretary of the Navy cannot apply any por. tion of the money appropriated by the act of 17th June, 1844, for books, maps, charts, and instruments, and for binding and repairing the same for the hydrographical office, to the building of a house for the superintendent.
ATTORNEY GENERAL'S OFFICE,
August 18, 1845. Sir: I have considered the question propounded for my opinion in your letter of the 19th June last. By the act of 17th June, 1944, an appropriation was made for books, maps, charts, and instruments, binding and repairing the same, and all the expenses of the hydrographical office. And you inquire whether a portion of the money thus appropriated may be legally and properly applied to the erection of a house for the superin. tendent of said office.
I think not. I presume the officer alluded to is the superintendent of the depot of charts, and the house to be erected on the grounds connected with that building. Congress have taken from the department the power to transfer appropriations from one head to another; and a cardinal rule controlling the application of appropriations is, that they must be expended on the objects specified. All appropriations for buildings at the depot of charts have been made specifically for that object; and although such a structure as that suggested would conduce very materially to the preservation and security of the valuable public property there stored, it cannot be fairly brought into the category of expenses of the hydrographical office. These embrace the current annual expenses. My opinion is, theretore, that the safer course is not to apply this appropriation to such an object. I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON. Hon. GEORGE BANCROFT,
Secretary of the Navy.
FULLER'S CLAIM FOR TRANSPORTATION OF THE MAIL.
Where A, who was the partner of B in one contract for carrying the mail, contracted indi
vidually with the department to carry another mail on another route, and gave B and C as sureties for the performance of the same, and a portion of the contract price had been along, from time to time during the existence of the contract, paid to B without objection on the part of A, whose accounts were finally adjusted before the passage of the act of March 3, 1845, by charging to him the money paid to B; but who, being dissatisfied with such adjustment, on the 5th of September, 1840, applied to the Sixth Auditor of the Treasury for payment to him of so much of his contract price as had been paid to B; and, on being refused, applied to a subsequent Postmaster General, and then to Congress, without success, and again to the Postmaster General, for allowance of h s claim--DECIDED, that the account having
been once settled, cannot be re-opened without authority of law. And it is further decided, that a claimant who appeals to Congress after an unsuccessful ap
plication at the department, must abide by his election, whether the result shall be favorable or otherwise.
ATTORNEY GENERAL'S OFFICE,
August 22, 1815. Sir: I have examined the statement of the Sixth Auditor of the Treas. ury, which accompanied your letter of the 31st July ultimo, by which it
appears that William Fuller, on the 2d December, 1833, entered into a contract with the Post Office Department to carry the mail on route No. 2358, three times a week between Augusta and Savannah, from January 1 till December 31, 1834, at the rate of $4,000 per annum; that the service was afterwards increased into a daily mail, with a corresponding increase of compensation, and that a bond was executed for the performance of the contract by Fuller, with Reeside & Fuller and John McLean as sureties.
It appears that at the same time Fuller was interested as a partner with Reeside & Bradly in carrying the mail from Milledgeville to Augusta. The sum contracted to be paid on route No. 2358 falling due quarterly, in 1834 was paid to Reeside, according to a memorandum on the pay-lists, and settled in his accounts, including three drafts which were sent to Fuller by Reeside's direction; and Fuller made no demand on the department for the contract price, or any part, during the year 1834. Mr. Fuller's first written application appears to have been made on the 5th September, 1840. There were, it is alleged, some verbal applications before this, but they do not appear to have been earnestly pressed, and were not acted on at the department so as to take the credit from Reeside and pay the money to Fuller, or to credit his account. The Auditor also states that he obtained from Reeside a statement of facts and three original accounts rendered to him by Fuller. Reeside also stated that he had drawn all the pay, by agreement, and had accounted with the other partners; and it appears from the accounts that Fuller had charged Reeside, in their mutual dealings, with his proportion of the pay on the route No. 2358 as well as on route No. 2352.
The claim was presented to Mr. Niles, as Postmaster General, in 1841, but it was not favorably acted on; and from Mr. Wickliffe's statement, it appears that the claim was presented to him in January, 1842, and he decided against it.
Fuller, therefore, presented a petition to Congress on the 12th April, 1842; and under a resolution of the House of Representatives, Mr. Wick: Jiffe made a report. (See document No. 233.) No legislative action having taken place on this petition, another was presented by Fuller at the succceding session; and on the 28th February, 1844, the House passed a resolution directing this claim to be referred to the Auditor for examina. tion and settlement, according to the rules of evidence established by law. The Senate committee reported against the adoption of this resolution, on the ground that Fuller had recognised the right of Reeside to receive the contract money, having debited him with his share in the account of their mutual dealings. Having thus failed before Congress, Mr. Fuller addressed an application to Mr. Clark, as Sixth Auditor, who, it appears, agreed to act, but left the office without any decision. The claim is now presented to the present Auditor, who has prepared the statement and interrogatories which you have submitted for my official opinion.
The questions presented for my consideration are: 1st. Is this account within the prohibition of the act of March 3, 1845? 2d. If not, did the act of 1836 take from the Postmaster General his authority over such settlements, so as to make it the duty of the Auditor of that department to audit and settle it?
It has been held, at this office, that a party who prefers a claim against the government which is not passed by the proper officers, and elects to resort to Congress for relief, must abide by his election, and fail or suc. ceed in his application for redress before that body. But if the circumstances of this case should be supposed to take it without this rule, it appears to me that the 4th section of the act of March 3, 1845, positively prohibits such examination by the Auditor without authority of an act of Congress. It declares that," from and after its passage, no accounts which have been adjusted by the accounting officers of the treasury shall be re-opened without authority of law.” The money now claimed, becoming due in 1834, was paid, as Colonel Gardner states, and as there is every reason to believe, according to the written directions of the claimant; but those directions were destroyed in the conflagration of the Post Office; were charged in the proportion of a partnership interest, by the claimants, to the partner receiving; the accounts were adjusted according to law; and there is now no authority again to take them up for examination. I consider the adjustment made within the meaning of this section. Although the Post Office Department, prior to the act of 1836, managed its receipts and expenditures without any connexion with the Treasury Department, I have seen no case which shows more emphatically the wisdom of this statute of repose.
I do not deem it necessary to examine the second question stated. It is one of very great interest. 'It involves an inquiry into the powers of the head of the Post Office Department as to transactions of a date prior to the act of 1836, and, what is still more important, of his authority to de. termine who is entitled to the benefit of the contracts made with himself; not what is the state of the accounts or audit, but who renders the service and shall receive the benefit of the contract-an inquiry which enters so largely into the great principles of the executive departments, that I should devote more time to its careful investigation than I can now give to the subject.
The claimant has appealed to Congress, after an unsuccessful application at the department, and by this election he must abide. The money due for the service rendered has been paid by the department, and the accounts adjusted according to the law then in force; and Congress has declared that such accounts shall not be re-opened without a special act for that purpose. It is, therefore, unimportant whether the Postmaster General's powers over the subject were superseded by the act of 1836 or not. I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON. Hon. Cave JOHNSON,
POWER OF THE EXECUTIVE TO MITIGATE SENTENCES OF COURTS
MARTIAL. As the sentence of a naval court-martial dismissing an officer from the service cannot be ex
ecuted except with the approbation of the President, and as he possesses the power to revise, to pardon, and to mitigate a sentence, he may substitute a milder punishment for that
decreed by the court. In mitigating a sentence, he may substitute a suspension for a term of years without pay, for
an absolute dism:ssal from the service, as suspension is but an inferior degree of the same punishment.
ATTORNEY GENERAL'S OFFICE,
September 18, 1845. Sir: I have had the honor to receive your direction to communicate to you my opinion in writing as to the extent of the President's power to