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duties of secretary to the commissioners who were authorized to treat with a delegation of Indians. Mr. Porter was a permanent clerk in the Pension Office, and entitled to annual salary. By law, you were authorized to make an allowance, such as is charged by Mr. Porter, for the performance of the duties of secretary of such commission, for which there is a subsisting appropriation. The question submitted is, whether Mr. Porter is entitled, waiving his salary for the time, to receive the compensation allowed for his services as secretary of the commissioners.
The legislation of Congress on the subject of extra allowances, which means allowances in addition to annual salaries, was reviewed by my predecessor, Mr. Nelson, in an opinion of the 18th day of October, 1844. The proviso in the act of March 3, 1835, the act of 3d March, 1839, the act of 18th May, 1842, the act of August 23, 1842, and the act of the 26th August, 1842, constitute the series. The Executive, under the recent opinions from this office and the judiciary, in the case of the United States vs. Eliason's administrator, (16 Peters,) is required to see that these laws are construed and executed according to the plain intention of Congress. This was to put an end to a practice which had long prevailed of salaried officers receiving compensation, over and above their salaries, for services which were not regarded as within the range of their official duties. By the 12th section of the act of 26th August, 1812, it is declared that no allowance or compensation shall be made to any clerk or other officer by reason of the discharge of duties which belong to any other clerk or officer in the same or any other department; and no allowance or compensation shall be made for any extra services whatever which any clerk or other officer may be required to perform.” If there were any doubt as to the applicability of the provisions of the act of 230 August, 1842, it appears to me there can be none as to the influence of that of 26th Aug ist on the question under consideration.
The salary given to a clerk by law for his official services is in full sat. isfaction of extra services which he may render. To this rule there are exceptions—where Congress shall make appropriation for such extra compensation, or “where such extra allowance or compensation shall be authorized by law.” So where, in case of vacancy, death, absence from the seat of government, or sickness, the President may authorize another to perform the duties of the Secretary of State, Secretary of the Treasury, or of the Secretary of War, or of any officer of either of said departments whose appointment is not in the head thereof. Until a successor be ap. pointed, or such vacancy be filled, it has been the constant practice to appoint an officer receiving a salary; and it seems to be settled that such officer may receive the salary of the office which he is thus temporarily filling, but cannot receive his own at the saine time. Neither of these sections, it appears to me, embraces Mr. Porter's case. For the extra service rendered as secretary to the commissioners he is entitled to no compensation; but he must take his salary as a clerk in the Pension Office. There are portions of his account which do not come within the prohibi. tions of these laws, and which, being approved, ought to be paid. My opinion relates exclusively to the compensation which he claims for himself. I have the honor to be, sir, your obedient servant,
J. Y. MASON. Hon. SECRETARY OF WAR.
PAYMENT OF THE BALANCE DUE ON THE FLORIDA BONDS. Bona fide holders of bonds for loans made to Florida for the suppression of Indian hostilities,
which have not been paid to them by the authorities of Florida, or at the treasury, may be allowed and paid, if the appropriations made by the acts of Congress of August 23, 1842,
Ere sufficient. The payment made by the United States to the agent of the governor of Florida, which went
to the bondholders, may be taken into the account in adjusting the balances due. The United States are not liable to any losses on the public stock in which that payment was
voluntarily invested by the agent who received it.
ATTORNEY GENERAL'S OFFICE,
January 29, 1846. Sir: I have examined the papers submitted to me in your letter of the 41h November last. I regret that my engagements of a more urgent character have delayed my giving the subject an earlier attention. In my opinion of the 8th of May, 1845, I construed the joint resolution of the Ist of March, 1845, to authorize the payment at the treasury of the United States of certain bonds given for the loan of money to the Territorial gov. ernment of Florida, by virtue of the act of the Territorial legislature of 2d March, 1839, to the holders of those bonds, without the intervention of the authorities of Florida, and free from the restrictions imposed by previous acts of Congress as to the amount and character of supplies procured with the money so loaned. It appears that there is outstanding, in the hands of bona fide holders, a balance due on the bonds given under the act of the legislature of Florida, although payments have been made to the agents of the governor of Florida, and to the bondholders, to the amount of $100,000.
In settlements previous to the 1st of March, 1845, except in the limitel class of cases embraced in the joint resolution of April 30, 1644, the adjustment was of accounts of expenditures by Florida with the treasury of the United States.
The joint resolution of March 3, 1845, authorized payments directly to the holders of bonds for loans made to the Territorial government for de. fence against Indian hostilities. The proviso to that resolution does not limit the amount so to be paid by the state of the accounts between the Territory and the United States, as adjusted at the treasury, but provides that the amount so allowed and paid shall not exceed the suns appropriated by law. 'The reference is to the appropriations made by the acts of Congress of August 23, 1842. Bona fide holders of bonds for loans made to Florida for the suppression of Indian hostilities, which have not been paid to them by the authorities of Florida, or at the treasury, may be allowed and paid, if the appropriations referred to are sufficient. Ref. erence may be made to accounts with Florida, to avoid payments of bonds which have or ought to have been satisfied by payments made by the treasury of the United States, and which went to the bondholders. Heuce the payment of $37,280, made to C. F. Mercer, under a power of attorney froin the governor of Florida, ought to be considered as a pay. ment towards the fifty bonds of $1,000 each which were paid to the Union Bank, of which bank General Mercer was at the time cashier, and which bonds were then held by the bank. I cannot perceive any ground for holding the United States to any loss on the public stock in which that payment was voluntarily invested by the agent who received it. Such an undertaking was inconsistent with the provisions of the law authorizing the loan, of which the stock thus taken formed a part, and is not justified by any law. In adjusting the claim of the Union Bank for loans made by that bank under the act of 1839, the bonds must be credited for the full amount of the payment of $37,280. I have the honor to be, with great respect, sir, your obedient servant,
J. Y. MASON. To the SECRETARY OF WAR.
COMPENSATION OF RECEIVER OF PUBLIC MONEYS AT KALAMAZOO.
The compensation of receivers of public moneys for lands, including the provision for clerkhire in their offices, is limited by the act of 20th April, 18 8, to five hundred dollars, and a commission of one per cent. on the moneys received by them, provided that the whole amount shall not exceed three thousand dollars. The clerk-hire is a charge upon the commissions, and cannot be allowed as an extra charge by the department.
ATTORNEY GENERAL'S OFFICE,
March 13, 1846. Sır: I have carefully examined the question of the legality of the claim of Thomas C. Sheldon, for extra compensation for clerk-hire-an expense incurred and paid by him as receiver of public moneys at the land office at Kalamazoo, in the years 1835, 1836, and 1837. In this examination, the first question presented is, whether the accounts of Mr. Sheldon are adjusted, within the meaning of the 4th section of the act of 3d March, 1845 ? incline, on the facis stated in the letter of the Commis. sioner of the General Land Office, of the 21st ultimo, which was referred by you to me, to coucur with hiin in opinion that this case is not within that section; and, therefore, the accounting officers are not inhibited from auditing the items of the unsettled account.current now presented by the receiver.
The second question is one of more interest, and, if decided unfavorably to the claiinant, renders a decision of the first unnecessary:
The receiver has already been credited, as I infer from the documents submitted to me, with his annual salary of five hundred dollars, and his commissions of two thousand five hundred dollars for each year of his service; and the claim now set up is for additional compensation to refund to him expense actually incurred for clerk-hire in those years.
I have received a letter from the Comptroller of the Treasury, informing me that extra allowances have been made to receivers in some instances, which, on the principle on which they were made, would have influence on the construction of this. I have anxiously searched for the provisions of the law on the subject; for, however equitable or wise it may appear to be to indemnify meritorious officers for expenses incurred in the public service, it cannot be questioned that, to justify payments from the treasury, there must be the authority of law, either under an act of Congress, or a regulation of the departments, made in conformity with the law; which, under such circumstances, has the force of law.
Originally, the receivers of public moneys were allowed a commission of one per cent. on the moneys received by them, as a compensation for clerk bire, receiving and keeping, and transmitting the public moneys to the treasury of the United States. By the act of 26th March, 1804, this compensation was increased by an addition of one-half per cent to the former commission; and also of an annual salary of five hundred dollars, with the exception of the land office of Marietta.
Then came the act of 20th April, 1818, which provided that, " instead of the compensation now allowed by law to the receivers of the public moneys for the lands of the United States, they shall receive an annual salary of five hundred dollars each, and a commission of one per cent. on the moneys received, as a compensation for clerk hire, receiving, safe. keeping, and transmitting such moneys to the treasury of the United States; provided always, that the whole amount which any receiver of public moneys shall receive under the provisions of this act shall not exceed, for any one year, the sum of three thousand dollars."
On the 22d of May, 1826, two acts were approved: one (chap 713, 7 Laws U. S., 523) entitled “ An act to compensate registers and receivers of the land offices for extra services rendered under the provisions of the act of 2d March, 1821;" and the other, (chap. 714, same vol. and page,) entitled “An act to compensate receivers of public poneys for transporting and depositing the same." The act first referred to authorizes the Secretary of the Treasury, with the approbation of the President, in addition to the fees allowed by the said act and supplementary acts, to make such allowance and compensation to each of the said officers as shall appear to him reasonable and just; which allowance shall in no case exceed the expenditure incurred in clerk-bire by any register or receiver, in consequence of the additional duties imposed upon those oil. cers, &c. The second act contains two sections. The first makes it lak. ful for the Secretary of the Treasury to allow to the receivers of public moneys in the land offices a reasonable compensation for transporting to and depositing such moneys in any bank or other place of deposite, that may from time to time be designated by the Secretary of the Treasury for that purpose; and the second section inakes it lawful for the Secretary of the Treasury, in his discretion, to make a like compensation to the several receivers of public moneys for similar services by them performed since the reduction of their compensation by the act of the 20th of April, 1818. The first section was prospective in its operation; the second was plaiuly confined to services antecedently rendered since the passage of the act of 1818; and these antecedent services were to be similar-i. e., of the same kind with those for which additional allowance was authorized by the preceding section.
When the acts of 22d May, 1826, were passed, the receivers of land offices were authorized by law to defray the expense of clerk-hire, and to incur the risk, and trouble, and expense, of transmitting and depositing the money received by them. As a compensation, he had allowed him, by the act of 1818, his salary of five hundred dollars, and one per cent. commission, provided his receipts of such commission did not exceed two thousand five hundred dollars in any one year. The first act, of 2:20 May, 1826, allowed additional coinpensation for clerk hire for certain extra services, and the second authorized a reasonable extra or additional allowance for the risk, labor, and expense of transmitting and depositing public moneys received. In all other respects, the law of 1818 was unchanged. The claim under consideration is not within the provisions of the first of the acts of 22d May, 1826. The established rules for con. struction of statutes do not appear to me to justify any other construction than that the expense of clerk-hire remained a charge on the commissions secured to the receiver. Expressio unius est exclusio alterius.
Where a practical construction of laws has been given and acted on for a long time at one of the departments, it is entitled to great respect, and should not be lightly disturbed. By this principle the Supreme Court has more than once been governed in its decisions, and no one would be more reluctant to disturb such a settled order of things than I would. But after a careful examination of the regulations of the Treas. ury Department, to which I have had access, it does not appear to me that any such rule has been so adopted and acted on in regard to allowances for clerk-hire to receivers of the land offices. It certainly was not considered as settled in 1836, when it appears, by the communication of the Commissioner of the General Land Office, application was made by Mr. Sheldon for compensation on this account, and it was declined be. cause a bill was then before Congress to authorize extra allowance for clerk-hire, which bill failed to become a law. The order of Mr. Crawford in 1819 was in effect a decision in a single case, and the same remark may be made of the decision of President Adams in 1826. There was never any regulation of the department made and published on this subject, so far as I have been able to ascertain; and if there had been, with all my respect for legal constructions thus established, I am unable to perceive a pou what legal authority the decisions were made.
The regulations of 1827, 1831, 1844, and 1845, were authorized by the act of May, 1826, but are confined to the allowance for transporting and depositing moneys received they are wholly silent, as was the law itself, as to any extra allowance for clerk-hire.
The decision of the Supreme Court in the case of United States vs. Dickson, (15 Peters) does not establish, or tend to establish, any authority to exceed the maximum amount of commission limited by the proviso of the act of 1818, as to clerk hire. The point in that case, which would appear to bear on this question, is decided on page 165. The court held, that for the purposes of the law, the receiver was en. citled to his commission of one per cent. on the money so received; and if he resigned before the end of the year, he might lawfully retain the maximum, if the rate of commissions on the moneys received during the fraction of the year made that sum. But if the receiver had continued in office for the residue of the year, he was entitled to no more commis. sion, whether more money was received or not. The proviso was held not to take Dickson's case out of the enacting clause, because his com. missinn did not exceed what was allowed by the section. But if it had So exceeded that maximum, the reasoning of the court leaves no doubt that it would have been decided that the proviso would have embraced his case, and forbidden any additional allowance.
The operation ot the construction of the law, here indicated, may be very injurious to meritorious officers; the allowance, within reasonable limits, of actual expense incurred in procuring the services of necessary clerks, may be just and proper, but it is for the legislative department to determine whether the discretion shall be given to the Executive. In my opinion such discretion has not been conferred by existing laws. I have the honor to be, sir, your obedient servant,
J. Y. MASON. To the SECRETARY OF THE TREASURY.