meeting of March, 1817, but would have included all meetings of that character. The fact, then, of its being so confined demonstrates that Congress did not intend to embrace subsequent meetings, as its existence demonstrates that, in the judgment of Congress, the first proviso did not embrace mileage at all at any session or meeting, regular or special.

I come now, in the third and last place, to consider the authority of legislative or other construction.

It is true that until 1841, in the case of the Hon. George Evans, mileage at these special meetings of the Senate had never been paid, nor, as far as I am informed, been claimed. But it is not true that the claim in principle was never made or paid. On the contrary, it has been often asserted and allowed, and, except in a single case, without question and with the sanction of all.

The act of 1818 is admitted to be, in this particular, identical with the acts of 1789 and 1796. Since the first of these laws to the present time, 'extra sessions of Congress have been held, at which to all members full mileage was allowed, without objection from any quarter, although in many instances the mileage received at the end of the previous session and at the commencement of the particular session, taken together, exceeded the limited daily allowance during the interval; and yet this was all illegal, and a violation of clear duty by members, senators, and officers, if the Comptroller's dectrine is correct. The exception I have alluded to is the passing of the act of 6th July, 1797. (1 Statutes at Large, 533.) This act is relied upon as a legislative interpretation of the proviso I am now considering, and as confirming the views of the Comptroller. I admit that this fact would be entitled to much weight if it stood unaffected by subsequent construction But it does not so stand. The act of 1797, in words, includes only the then special session of Congress, and gives full mileage at such session. Now, it is no doubt true that the act was passed because it was doubted whether the proviso in the act of 1789 did not apply to mileage. But it does not appear that such doubt ever existed afterwards. On the contrary, as before stated, at all subsequent extra and regular sessions of Congress full mileage was allowed, without objection, to all, although in the former, and in many of the latter instances, it could not have been allowed if the proviso embraced mileage. The practical construction, therefore, of the law, by every proper department of the government, is, except in the single case referred to, against the doctrine of the Comptroller. But the doubt leading to the act of 1797 does not seem to have even previously prevailed. In 1795 a special meeting of the Senate was had on the call of Washington, beginning on the Sth and terminating on the 26th June, in that year. At this meeting, every senator but one-and he resided at the seat of government— received, and, as far as is known, without question, full mileage; and yet all of them except eight had been members of and attended the preceding session, ending the 3d March, 1795, and had received full mileage at the beginning and termination of that session-the allowance, too, sanctioned by the certificate of the then Vice President, John Adams.

Again: What else is there, in the nature of authority, against the view I hold, other than the inference to be drawn from the act of 1797, and the omission to claim the mileage by senators at such extra meetings of the Senate? Nothing. The effect of such omission is no more than that by the uniform construction under which the allowance has been made to

all, as stated, at sessions of Congress when it could not have been done if the proviso included mileage.

A word or two more on the subject of authority. The question was expressly made in Mr. Evans's case in 1841. Mr. Southard, the then President pro tempore, and, as all know, an accomplished jurist, after careful examination and consultation with the other distinguished lawyers of the body, decided it as I do. In 1845-an instance not mentioned by the Comptroller-the question again arose in the case of the Hon. Dixon H. Lewis, and was ruled in the same way by the then presiding officer, (Mr. Mangum,) after having taken time until the following session to consider it, and having also consulted the most eminent lawyers of the Senate. It was also in 1845 again made and again decided in the same way by Vice President Dallas, after full deliberation, and supported by a luminous opinion; and, at a subsequent period, also so decided by the Hon. David R. Atchison, as President pro tempore. And, finally, every member of the body but three, distinguished as many of them are at the bar, as well as in the council chamber, has received the allowance, after, as I am advised, an examination of the question, and under a full conviction that it was due under the law. With all due deference to any other authority, I think I am safe in saying that, in the judgment of enlightened men, that which 1 have enumerated should be held conclusive, even if the question, as an original one, was doubtful.

I answer your second inquiry, therefore, by saying that, in my opinion, the Secretary of the Senate is, under the first section of the act of January 22, 1818, entitled to credit for the payments of mileage disallowed by the Comptroller, whether the certificate of the presiding officer is conclusive

or not.

This opinion has been given more in detail than is my habit, because of the character of the questions submitted, and of the unaffected solicitude I have felt, convinced as I was, after the fullest consideration, that the conduct of the senators was correct, to vindicate them, to the extent of my ability, from the imputed charge, made now for the first time in the history of the government, of receiving public money to which they had no title.

I have the honor to be, respectfully, sir, your obedient servant,
REVERDY JOHNSON.

Hon. WILLIAM M. MEREDITH,

Secretary of the Treasury.

DISBURSEMENTS TO FOREIGN SQUADRONS.

The Secretary of the Navy has authority to arrange with Baring Brothers & Co., of London, for the payment of the drafts of disbursing officers attached to foreign squadrons.

ATTORNEY GENERAL'S OFFIce,
December 6, 1849.

SIR: I have examined the copy of the correspondence between the Navy Department and Messrs. Baring Brothers & Co., of London, who, in July, 1844, were nominated to and confirmed by the Senate as temporary agents of the department, and have considered the question submitted upon it for my opinion, as to the right of the department to enter into the agreement

appearing in the correspondence for the payment of the drafts of disburs ing officers attached to foreign squadrons.

I am at this time so pressed by other official engagements admitting of no delay, that I can only say, in a word, that I have no doubt of the authority of the department to make such an agreement. The authority cannot possibly be questioned, except under the act of the 6th March, 1846, (Session acts, p. 91,) to provide for the better organization of the treasury, and for the collection, safe-keeping, transfer, and disbursement of the public revenue; and, in my opinion, it is not forbidden by that

act.

As the question, however, is an important one, and is, I believe, presented for the first time to this office, I will, if you desire it, avail myself of the first moment to give my reasons in detail.

In the mean time, I suppose what I now state will answer the immedi ate purpose of your emergency.

I have the honor to be, with high regard, your obedient servant,

Hon. Wм. B. PRESTON,

REVERDY JOHNSON.

Secretary of the Navy.

AUTHORITY OF THE COMMISSIONER OF PATENTS.

The authority vested in the Commissioner of Patents to issue patents for inventions exists in full force in each case, for examination and final decision, until the patent shall have been actually issued.

And whatever intervening or interlocutory opinions he may give in the proceedings to determine questions of interference prior to the final determination and issuance of the patent, the subject remains under his control until the issuance, as that is the act which finally decides the question.

The Commissioner has authority, therefore, to permit one of two competing applicants for a patent for a similar invention to withdraw and refile his application after he has expressed an opinion favorable to the priority of the other; and such intervening opinion or decision is no bar to the issuance of a patent on the new application, if, upon a full examination of the whole subject, he considers the applicant entitled to it.

ATTORNEY GENERAL'S OFFICE,
December 22, 1849.

SIR: I have carefully considered the questions submitted to me in the case of Wade and Mathews, conflicting claimants for a patent for apply. ing rosin oil in the manufacture of printing-ink.

The facts are these: In 1848, Wade applied for a patent, but before it was issued a like application was made by Mr. Mathews. An inter ference was then duly declared, and notice given, as in such case re quired. Neither party being present on the day fixed by the notice, and no evidence received, the then Commissioner, Mr. Burke, decided the priority of invention in favor of Wade, because of the priority of his application, and notice given Mathews that unless he appealed from the decision by a limited day, a patent would issue accordingly. An appeal was not taken; but before the time limited for taking it, Mathews with drew his application, and made his deposite of twenty dollars, and filed a new application in the words of the first. The Commissioner then declared an interference between this application and that of Wade; and gave notice to the parties, as in case of original interference. Wade in

sists that the decision of the Commissioner upon the former application is a bar to the present, and that he has a right to a patent.

Your first inquiry is, "Can the unsuccessful party, under these circumstances, withdraw his application and refile it, and the Commissioner declare an interference?" A proper answer to this question depends altogether, I think, upon the construction of the 7th and 8th sections of the act of the 4th of January, 1836, "to promote the progress of the useful arts," &c. (5 Statutes at Large, 117.) There are no other provisions affecting it. If by these the entire authority vested in the Commissioner is executed when he decides, in a case of interference, in favor of either party, and his duty thereafter in the issuing of a patent is but ministerial, then the course pursued in this instance in declaring a second interference was illegal, and Wade is entitled to his patent.

It is certainly true, that a special authority once fully exercised in the way prescribed, is exhausted; and it is equally true that it can only be exercised in the way prescribed. It is also clear, as a general rule, that in such jurisdictions powers not delegated are not to be implied; but it is equally clear that when not expressly prohibited they may be implied, if necessary to the discharge of a power which is delegated. No authorities are cited for these propositions, as they are familiar and perfectly well settled. What, then, are the powers, in a case like the present, of the Commissioner, and when are they fully exercised? His power to issue a patent is under the 7th section of the act of 1836; and he is only authorized to issue, when, upon examination, it shall not appear to him "that the same had been invented or discovered by any other person in this country prior to the alleged invention or discovery thereof by the applicant, or that it had been patented, or described in any printed pub. lication in this or any foreign country, or had been in public use or on sale with the applicant's consent or allowance, prior to the application." Being satisfied as to these several facts, and also satisfied that the in. vention is "sufficiently useful and important," it then becomes his duty to issue a patent.

Under this provision it is manifest that the whole subject rests on the judgment of the Commissioner until the patent is actually granted. It is that grant which finally decides the question submitted to him; and, by the plain words of the law, his authority to make the grant depends upon his being satisfied, at the moment he does make it, upon each one of the points made by the law necessary to the validity of the application. The remainder of this section only provides for a mode in which, when the decision is against the applicaut, he may have it reviewed by another tribunal-being, by that act, a board of examiuers, and now, under the act of 3d March, 1839, section 11, (5 Statutes at Large, 353,) the chief judge of the District of Columbia.

As far as this section of the act is concerned, it is clear that the authority of the Commissioner is not only not exhausted by any preliminary or intervening opinion he may form on the question of title to patent before he issues the patent, but that his duty is not performed, and, on the con trary, is violated, if, at the time he issues it, he is not satisfied upon the facts necessary, under the law, to the validity of the claim.

Let us see if, in this respect, there is any difference between the 7th and the 8th sections of the act. I think not. In the 8th, as well as in the 7th, in my opinion, the power of the Commissioner is not extinguished

and the matter put beyond his reach, by anything to be done by him, short of the issuing of the patent. The proceedings in the present case were had under the 8th section. That section provides that, when an application for a patent is made "which, in the opinion of the Commissioner, would interfere with any other patent for which an application may be pending, or with any unexpired patent which shall have been granted, it shall be the duty of the Commissioner to give notice thereof to such applicants or patentees, as the case may be; and, if either shall be dissatisfied with the decision of the Commissioner on the question of priority of right or invention, on a hearing thereof, he may appeal from such decision on the like terms and conditions as are provided in the preceding section; and the like proceedings shall be had to determine which, or whether either of the applicants is entitled to receive a patent as prayed for."

It will be seen that this provision, as far as the action of the Commis. sioner is concerned, refers to but one of the grounds upon which he is to be satisfied under the 7th section, and that but partly; that is to say, the ground of priority of invention between the applicant and any other applicant whose application is pending, or any unexpired patent.

All the other conditions required by the prior section are here omitted. Was it, then, the purpose of this section to limit the authority of the Commissioner, or rather to limit his duty, as that was prescribed by the previous section? Under that I think it is clear that, to the moment of issuing the patent, his authority exists in full force, and his duty in equal force, to patent or not, as he may then be satisfied of the title. Does this latter section authorize him to issue a patent to one who he is not only not satisfied is entitled to it, but who he may be satisfied is not entitled to it? I think not.

The title to patent depends on the 7th section. Its provisions must be found to give it, and refer to the period when, under them, the Commis sioner is empowered, and it is made his duty, to decide for or against application; he must have like authority, and it must be equally his duty, to decide under the 8th section. If this was not the case, this result would follow: that the act, in one section, would make the claim depend upon the judgment of the Commissioner at the time of issuing the patent; and in the other, though the reason were precisely the same, would make it wholly independent of what at that time might be his opinion.

The act is not, I think, liable to such an objection. The two sections are to be considered together; although they look in part to different states of things, in connexion with the application, they look to the same endthe granting the patent only to the party entitled to it under the act. The latter is not to be construed so as to repeal that part of the former which not only does not empower the Commissioner to issue the patent unless he is satisfied upon each of the conditions upon which it makes the claim to rest, but, on the contrary, makes it his duty, unless so satis fied, to refuse it. But what places this view beyond doubt is, that the 8th section contains no authority to issue a patent at all. It has no provision which, in words or by implication, can be construed to give the power. The patent, then, is issued under the authority of the 7th sec tion, and can only go to him who, at the time it is issued, the Commissioner is satisfied is entitled to it under the terms of the section. These, as already stated, so far from authorizing him to grant it when he is not satisfied as to priority of invention, prohibits his granting it."