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reviewed the report, and concurred with it, except as to one item, and as to that directed the Auditor to compute the amount due upon it. This was done, and the sum ascertained to be $27,132 64, and that sum reported to the Secretary of the Treasury on the 1st November, 1844, as the whole amount payable to the claimant.
Afterwards, and when Mr. Mason became the Attorney General, an application was made to him to open the case. But on the 14th May, 1845, in a letter to Mr. Webster, one of the counsel of the claimant, and on the 30th July, 1845, in one to the claimant himself, he refused to consider it, upon the ground that it had been disposed of by the action of his predecessor. Copies of these letters are on file in this office.
The declaratory resolution of the 10th August, 1846, was then passed, and these proceedings had under it: The Secretary of the Treasury directed the First Comptroller to examine the claim; who did so, and made an elaborate report upon it on the 20th February, 1847. To this report the counsel of the claimant replied, with the perinission of the Secretary; and that officer, on the 2d Juve, 1847, decided upon it, reducing some of the allowances made by the Comptroller and increasing or making others, and directing the account to be made out accordingly and reported to him. This was done, and the amount ascertained to be $26,029 70; and on the 3d June, 1847, he awarded that to be the sum due, and it has been since paid to the claimant or his attorney.
The subject is now again sought to be revived, upon the ground that the law and the resolutions referred to have not been executrd by the late Secretary of the Treasury, and the claiins recognised by them allowed. It is upon this question you desire the opinion of this office. I think that the claim is, under existing legislation,
finally disposed of. That the adjudications of the different departments of the government upon matters submitted to them are in general to be considered as final, has never been doubted. That mistakes in some matters of fact by a head of a department may, in certain cases and for certain purposes, be reviewed and corrected by his successor, is clear; and that claims rejected for want of proper evidence may be afterwards allowed upon its · subsequent discovery, in certain cases, is also clear. But neither proposition is universally true. If the decision pronounced is quasi judicialif the head of a department is by law made the judge of the claim, to decide upon its existence and its extent, and his decision is erroneous, it is equally conclusive, whether this error be from a misconception of the facts or the law. Where mistakes in accounting, or misapplications of his own principles to the facts, or of the facts to his principles, shall have occurred, it may, in certain instances, when apparent, be corrected.
But, as a general rule, judicial examination and decision, in the exercisé of judicial jurisdiction, is conclusive. In my opinion, this was the character of the power given to the Secretary of the Treasury in this case; and this is the character of his adjudication.
That he designed his decision to be conclusive, is very manifest. In the first place, the Comptroller concludes his report to the Secretary of the 20th of February, 1847, in this way: “It is the interest of all parties, including the claimant himself, and certainly of the government, that this most expensive and protracted litigation should now be closed forever by your decision; and for this, among other reasons, and because the mount above indicated by me may possibly be due in equity to the
claimant, I recommend that the above reported amount of $15,045 37 be now adjudged to him by you as a full judgment and decree, and as a final indemnification under the aforesaid act and resolution of Congress.
In the second place, the Secretary, in his decision--the award of the 3d of June, 1841-- with the whole case before hiin, and professing to audit and liquidate, under the authority of the resolution of the 10th of August, 1846, all the claims and demands of the claimant, “ upon prin. ciples of law and equity, and in such manner as to secure to said Sibbald an indemnification for the injuries and damages sustained by him, occasioved by the interference of the agents of the government with his property and rights,” using the very words of the resolution, allowed to Sibbald the sum of twenty six thousand and twenty nine dollars and seventy cents; and added, that that sum, with the amount before awarded under the act of August, 1842, “ will be full and final satisfaction of all claims whatever of the said Sibbald against the United States under the said act of August 23, 1812, and the said resolution of August 10, 1846, or either or both of them."
The amount thus awarded, and as thus awarded, has, as before stated, since been received by the claimant or his attorney. In my judgment, this is a final disposition of the claim, and to be esteemed, in law, as a full exrcution of the act of Congress and resolution. There is no error apparent upon its face of the correctness of this allowance.
It is in the very language of the resolution, and it professes to be the result of an audit and liquidation of all claims whatever due Sibbald under the resolution or the law. It may be that the Secretary has misconceived the facts, or misapprehended the law. But he was the judge of both, made so by the law and resolution, under which alone the claim can be allowed by the department; and his judgment is, in my opinion, conclusive.
But if there could be any doubt that such is the effect of his decision, standing by itself, and unacted upon by the clainant, I think his receiv. ing the sum allowed by il estops him from questioning that such allowance is a “ full and final satisfaction” of his entire claim. It was given as such, and, if received, it is received as such. I have the honor to be, very respecttully, sir, your obedient servant,
BEVERDY JOHNSON. Hon. Wm. M. Meredith,
Secretary of the Treasury.
CLAIM OF THE MESSRS. BENSON AGAINST THE NAVY DEPARTMENT Under the resolution of Congress of March 3, 1819, respecting the claim of A. G. & A. K.
Benson, arising out of contracts made with the Navy Department for the transportation of naval stores to and upon the Pacific, the Secretary has as well authority to pay as to adjust it. The charter-party claim, though not previously made, if arising out of the contracts men
tioned in the resolution, is embraced by it. The amount which may be ascertained io be due is payable out of, and chargeable to, appropriation for the current year for contingent expenses for transportation.
ATTORNEY General's OFFICE,
July 3, 1849. Sir: The questions of law submitted to me in the case of A. G. and A. K. Benson, " arising out of the contracts made with the Navy Department for the transportation of naval stores in the Pacific,” I have carefully considered. They are three.
1. Whether, under the resolution respecting them of March 3, 1819, (Session acts, 158,) your authority is to pay as well as adjust the claims?
2. Whether the particular claimi made under the charter-party, amongst the papers, is embraced by the resolution ?
3. Whether there is any fund in the department out of which whatever sum shall be found due cau be paid ?
First. The doubt on this head arises, I suppose, from the absence of the word “pay" in the resolution; but I am clearly of the opinion that the word used," settle,” is of equivalent import, and was so intended. If the purpose had only been to authorize the Secretary to audit the claims, it would have been answered by empowering him only to adjust or ascertain them; but this was not done. He is not only to adjust, but to settle. The laiter term can only mean to discharge-to pay-wliat, upon adjustment, should be found due.
Second. This question arises, I understand, from the fact that no such claim as this was made upon the department, before the resolution was passed, in the applications, from time to time, for settlement, by the claimants under the contracts referred to in the resolution. I think the objection is without foundation. The resolution is to be construed by itself. If it excludes no claim arising out of the contracts, it makes it the duty, as well as gives the authority to the Secretary “to adjust and settle it."
It is immaterial whether it had been before asserted or not, and what may have influenced the claimants in not asserting it. If it grows out of their contracts with the department for transportation of naval stores to the Pacific, it is embraced, and to be adjusted and settled wholly inde. pendent of the time and manner of making it.
Third. The difficulty here, I suppose, is in the absence of a specific appropriation in the resolution, or elsewhere, for the payment of what may be found due. The Fourth Auditor, by bis letter to the Secretary of June 30, places the objection upon this ground. Is it a sound one? I think not.
In the first place, if I am right in my view of the first question, that the resolution of the 3d of March authorizes the payment as well as the adjustment of the claiins, it must be evident that Congress never designed a further application to itself. The authority to pay-always equivalent in such cases to a direction to pay-would be idle, if Congress knew that they had placed no fund under the control of the Secretary with which he could pay. It would not only be a narrow interpretation of the resolution to give it that meaning, but an imputation upon the intelligence of the legislature. Congress, therefore, must have designed payment by the Secretary of the amount ascertained, by his adjustment of the claims, to be due to the claimants. This being their intent, is there no head of appropriation to which it can be charged ?
I think-and in this opinion I have no doubt—that it can be paid out of, and charged to, the appropriation for naval service for the current year, for, amongst other purposes, “ contingent expenses that may accrue
• for freight and transportation. The resolution recognises the claims as due upon contracts with the department“ for the transportation of naval stores." Whatever doubts may have existed at any time as 10
the validity of the contracts, they are now at an end. Congress had the right to sanction them if it thought proper; and this they have clearly done by the resolution. The amount, then, they direct to be paid is, in their judgment, due upon legal contracts for naval transportation. It is an extremely limited and technical construction that confines the power of the department, under such an appropriation, to pay only for transportation actually done. If contracted to be done, and only not done because of the conduct of the department, the claim which the contractors may have upon the government is as much “an expense” accruing for, or on account of transportation, as if the service was fully performed. Á different construction would not only be narrow, but unjust. That the contracts in question were entered into long since can make no difference. No matter when made, what is due for or on account of them is an “ expense" for transportation," and chargeable, as such, to the head of appropriation referred to.
Upon the whole, then, my opinion is
First. That the Secretary has authority to pay, as well as to adjust the claims.
Second. That the charter-party claim, though not previously made, if arising out of the contracts mentioned in the resolution, is embraced by it.
Third. That the amount which may be ascertained to be due is pay-able out of, and chargeable to the appropriation for the current year, for contingent expenses for transportation. I have the honor to be, respectfully, sir, your obedient servant,
REVERDY JOHNSON. Hon. WM. BALLARD PRESTON,
Secretary of the Navy.
INSPECTORS AND WARDEN OF THE WASHINGTON PENITENTIARY.
The inspectors of the penitentiary in the District of Columbia have, notwithstanding the au.
thority conferred on the warden by the act of 25th February, 1831, the responsibility and duty of a general superintendence and management of the institution; and it belongs to
them to limit the number of subordinate officers and servants, and to regulate their salaries. In them, and not in the warden, is vested the authority to appoint the physician and chaplain,
they not being “inferior officers” within the meaning of the law.
ATTORNEY GENERAL'S OFFICE,
July 6, 1849. Sir: I have considered the questions submitted by you to this office, upon the points in controversy between the warden of the penitentiary in this District and the inspectors, as stated in the letter of the present officer to your department of the 28th May last.
Without addressing myself specially to each of the inquiries, I state generally that, in my opinion, the inspectors had authority to pass the resolutions of which the warden complains, of the 24th of May.
By the act of the 31 of March, 1829, (4 Stat, at Large, 365)--an act not referred to in the warden's letter—the inspectors are vested by the 4th section with, amongst other powers, that of appointing and removing at pleasure “such keepers and other inferior officers and servants as may be required for the service and government of the penitentiary.” The preceding section gave the authority to appoint the warden to the President. The 13th section made it the duty of the inspectors to appoint a physician to the institution. And the 14th gave them the power, and made it their duty, “to provide for all the convicts the means of religious worship and moral instruction,” &c. Under this act, it is clear that neither the phy. sician nor the chaplain (the authority to appoint the latter being implied in what is just quoted of the 14th section) was an inferior officer within the meaning of these terms as used in the 4th section. Had they been, there would have been no need of the 13th and 14th sections in the particulars referred to. In that case, the power being expressly vested in the inspectors to appoint all inferior officers, the power to appoint a physician and chaplain would have existed. The giving it, therefore, afierwards, by express terms or necessary implication, demonstrates that it was not intended to have been given by the general terms antecedently used. Such officers, therefore, are not esteemed “inferior" ones within the true meaning of the 4th section.
The subsequent act of the 25th February, 1831, (same Stat. at Large, 445,) by its 3d section, only, as far as the questions before me are con cerned, alters the act of 1829 by giving to the warden the authority to appoint and remove, at his pleasure, all is the subordinate officers” of the institution except the clerk, and gives to the inspectors the authority to appoint and remove him.
My opinion is, that the terms “ subordinate officers,” in this section, are equivalent, and only equivalent, to those of “inferior officers," in the 4th section of the former law; and that they do not, therefore, embrace the offices of physician and chaplain. These are left under the provisions of the 13th and 14th sections of the act of 1829, and are to be appointed now by the inspectors. I answer the second question, therefore, in the warden's letter to you, by saying that these two officers are not subordi. nate officers, within the proper meaning of the third section of the act of 1831; and that the authority of the board to appoint and remove them is derived from the 13th and 14th sections of the act of 1829.
Second. I am further of the opinion that, notwithstanding the authority devolved upon the warden by the 3d section of the act of 1831, the general superintendence of the institution vested in the inspectors by the former law is still in them. The number of officers is not by either act to be fixed by the warden. That, as well as the salaries to be paid them, is to be ascertained by the inspectors. They are directed, by the 4th sec. tion of the original act, “ so to manage the affairs of the penitentiary, if it be possible, that the proceeds of the labor of the convicts shall pay all the expenses of the penitentiary, and more.” To do this, the number of offi. cers and their pay, when the act does not ascertain them, are necessarily to be ascertained by the inspectors; and indeed, by the 5th section of the act, all the officers and servants, other than the warden, are to receive such annual or monthly pay as the inspectors shall direct. This provision clearly gives them not only the right to fix the pay, but from time to time, as they may think the exigencies of the institution demand it, to change it. That Congress appropriate a specific sum for salaries in any current year, makes no difference as to the power and duty of the inspectors. They are not to expend it if they are of opinion that with such an expenditure " the proceeds of the labor of the convicts” will not enable the institution to pay all its expenses. This, as far as it “ be possible,” it is not