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at the conclusion of the examination, that he “had no complaint to make against them,” or words to that effect, is entitled to, and has had some influence upon my judgment.
If I could have discovered any satisfactory evidence of the neglect or evasion of duty by these officers in this case, it would have been no less consonant with my feelings than with my judgment to have recommended their instant dismissal from the public service. I have the honor to be, very respectfully, yours, &c.,
J. J. CRITTENDEN. To the PRESIDENT.
TRANSFERS OF SURPLUS OF APPROPRIATIONS.
The head of a department is authorized, by the 23d section of the act of 26th August, 1842, to
transfer the surplus of an appropriation for one or more objects of expenditure to supply the
deficiency of any other item of appropriation in the same department or office. The 23d section of the said act is not a temporary, but a permanent enactment, and limits trans
fers by the heads of departments to the surplus of appropriations, whilst the power conferred
upon the President extends to entire appropriatons. This opinion was given in approval of an elaborate argument of the First Comptroller of the
Treasury, wherein the subject of executive authority over appropriations for the different objects of expenditure is fully discussed.
ATTORNEY GENERAL'S OFFICE,
November 26, 1850. Sir: I have examined the question, submitted for my opinion, upon the construction of the 23d section of the act of the 26th August, 1842, and also the opinion of Mr. Whittlesey, the First Comptroller of the Treasury, upon the subject upon which your question for my opinion and advice was endorsed.
My opinion is, that the 23d section of the act of 1842 is not a temporary but a permanent enactment, and that it does authorize the head of a department to transfer the surplus of an appropriation for one or more objects of expenditure, to supply the deficiency of any other item of appropriation in the same department or office. The result of Mr. Whittlesey's conclusion is approved.
The act of 1809 (2 Vol. Statutes at Large, p. 535, chap. 28, proviso to sect. 1) and the subsequent acts regulating the power of the President, do not confine his power and authority of transferring, to the surplus remaining, after the object of expenditure for which Congress had made an appropriation has been accomplished.
The act of 1842 confines the authority of the head of the department to the transferring of the surplus; a power far short of that which is conferred upon the President in relation to transfers of appropriations. I have the honor to be, very respectfully, yours, &c.,
J. J. CRITTENDEN. Hon. Thomas Corwin,
Secretary of the Treasury.
TRANSFERS OF SURPLUS OF APPROPRIATIONS.
The 23d section of the act of 26th August, 1842, is a permanent enactment, and authorizes the
transfer and application of the surplus of appropriations, standing to the credit of the War Depariment, to supply the deficiency of appropriation for preventing and suppressing Indian hostilities.—(See opinion of the 26th instant, given to the Secretary of the Treasury.)
OFFICE OF THE ATTORNEY GENERAL,
November 30, 1850. Sir: Your letter of the 21st of this month has been duly considered. The twenty-third section of the act of 26th August, 1842, (5 Stat. at Large, chap. 202, p. 533,) is, in my opinion, a permanent, not a temporary, enactment; and authorizes the transfer and application of the surplus of appropriations, standing to the credit of the War Department, (and not yet transferred by the Secretary of the Treasury to the general account of moneys not appropriated,) to supply the deficiency of appropriation in the War Department for preventing and suppressing Indian hostilities.
That this twenty-third section is not a temporary, but a permanent enactment, is the contemporaneous exposition. That construction has been followed in practice and use by the departments, executive and legislative. It is not useful now to bring that construction into doubt.
The like opinion I have expressed more at large to the Secretary of the Treasury, in my letter of the 26th of this month. I have the honor to be, very respectfully, sir, your obedient servant,
J. J. CRITTENDEN. Hon. C. M. CONRAD,
Secretary of Wur.
DUTY OF THE PRESIDENT RESPECTING THE DES MOINES GRANT, &c.
The President is under no official obligation to interfere with the disputed question as to the legal
effect of a decision of a former Secretary of the Treasury, concerning the extent of the grant
of land on the Des Moines river to lowa. Nor to interfere with the subject-matter of the memorial of Fellows & Co., who have invoked
the aid of the Executive to compel the Secretary of War to file the report of arbitrators be
tween the Seneca Indians and themselves. The interference of the President with the performance of the particular duties assigned by law to
subordinate officers, either on the ground of correcting errors or supplying omissions, would, in general, be not only injudicious, but it would involve him in an invidious task, that would occupy his whole attention, and leave him no time for higher official duties.—(For information respecting the Des Moines grant, see conflicting opinions of Attorney General Johnson of 19th July, 1850, and of Attorney General Crittenden of 30th June, 1851.
Office OF THE ATTORNEY GENERAL,
December 2, 1850. Sir: I have, sir, examined and considered the two cases which you lately referred to ine. The first, respecting the claims of Iowa io certain lands in that State, under a grant made by the act of Congress of the 8th of August, 1846, (U. S. Statutes, p. 77 ;) and the second, being a memorial presented to you on the part of Joseph Fellows & Co., invoking you to interfere, officially, in their behalf for the decision and settlement of certain questions and interests which have arisen out of a certain contract and purchases of lands made by them from the Seneca tribe of Indians, and set forth and sanctioned in a treaty of the United States with said Indians.
The question presented in the first case depends upon the legal construction of the act of Congress as to the extent of the grant to lowa. It is insisted, on the part of Iowa, at it extends from the mouth to the source of the Des Moines river; while it is contended, on the part of the United States, that it extends only from the mouth of the river to the point where the Raccoon Fork flows into it. According to the first construction, the grant includes about 900,000 acres more than it would include is limited to the Raccoon Fork. The question involved is one of construction only—a mere legal question; and upon it there has been a remarkable difference of opinion among some of the highest and most enlightened officers of the government.
Mr. Walker, late Secretary of the Treasury, and Mr. Johnson, late Attorney General, being in favor of the more extensive, and Mr. Ewing, late Secretary of the Interior, and the Commissioner of ihe General Land Office, in favor of the less extensive construction.
By the terms of the act, Iowa is to have the alternate sections of all the lands lying within the prescribed boundary, and the privilege is given her to make choice of those sections, subject to the approval of the Secretary of the Treasury.
You are now applied to, as I understand, to determine this disputed question of construction of the act, and also to determine, perhaps, another question which has arisen in this case as to the extent and legal effect of the opinion or decision given by Mr. Walker on this subject.
In the other case—that presented by the memorial of Fellows, & Co.it appears that, by the terms of contract and conveyance made by and between the parties, and recited and approved in the treaty before alluded to, a valuation was to be made by certain arbitrators of the lands conveyed, and of the improvements thereon. That the award so to be made, according to the terms stipulated, was to be reported to. “and filed in the Office of the Secretary of the Department of War; and that, within one month after said report was filed, the unimproved land was to be surrendered to purchasers, and the improved land within two years. The memorial states that the arbitrators had made a report of their proceedings and award, and that the same had been presented to the Secretary of War, to be filed in his office; but that he had refused to receive and file the same, and that thereby the rights of the memorialist to the lands, or the possession of them, were hindered and delayed. That they had attempted, by process of law, to compel the said Secretary to receive and file the said report, but that the court hare refused to interfere, and have decided that it was a matter in respect to which a discretion had been confided to the Secretary, and that the court had no jurisdiction to control him in the exercise of that discretion. Failing in that attempt to coerce the Secretary, the memorialists have now addressed the President, and their object seems to be to induce him to interpose, and to do what the court refused to do, namely: to compel the Secretary of War to receive and file said report.
I have stated above only so much of these cases as was necessary to the view I have taken of the subject, and to enable you to exercise your better judgment as to the correctness of the conclusions to which I have come in regard to the course proper to be pursued by you, and which I proceed briefly to set forth. Neither the act of Congress making the grant in question to lowa, nor the contract of Fellows & Co., for the purchase from the Indians, make any reference or delegation of authority to the President respecting any of the matters now brought before him.
To other functionaries of the government the settlement of all these matters of controversy seem to me more properly to belong; and neither the act of Congress, in the one case, nor ihe treaty and contract of the parties in the other, provide for, and appear to have intended or contemplated the interposition of the President in any manner or respect whatever. The interference of the President with the performance of the particular duties assigned by law to subordinate officers, either on the ground of correcting errors or supplying omissions, would, in the general, be exceedingly injudicious, if at all warrantable, and would, moreover, involve him in an endless and invidious task, that would occupy his whole attention, and leave him no time for the higher duties of his office.
His duty in taking care that the laws are executed, is performed in such cases by su erintending the conduct of those subordinate officers so far as to see that they are attentive to the duties of their office, and by removing, so far as his power of removal extends, such as prove themselves to be dishonest, incapable, or negligent.
I therefore most respectfully submit to the President, as my opinion and advice, that he is under no official obligation to interfere, and ought not to interfere in either of the two cases above mentioned. If the Pres. ident, however, should take a different view of his duty, I am prepared, most respectfully and cheerfully, to give him my opinion of the merits of each of these cases. I have the honor to be, very respectfully, sir, your obedient servant,
J. J. CRITTENDEN. To the PRESIDENT.
CONCERNING COMMISSIONS ON CERTAIN CUSTOMS COLLECTED AT CIN
Where a surveyor of the port of Cincinnati neglected to collect certain duties properly certified
by the collector at New Orleans as due and payable there in cash, but permitted the goods upon which they were chargeable to be delivered to the importers, he only retaining their bonds, taken pursuant to the act of 2d March, 1831, and afterwards being found in default at the treasury for such duties, was superseded in office, and a portion of such daties subsequently collected and paid into the treasury by the successor, 10 whom the bonds were turned over, and the question as to whether either, and which of the two surveyors are entitled to be credited with commissions on the moneys thus collected, having arisen-DECIDED, that the delinquent surveyor is not, but that his successor is entitled to the commissions established by law upon the duties
thus collected and paid over. Commissions on customs were inte as a compensation for a faithful performance of the duty
of the officer collecting the revenue, and are not due to an officer who has not collected nor received such revenue, but who, in violation of his duty, devolved its collection on his successor.
ATTORNEY GENERAL'S OFFICE,
December 3, 1850. Sir: The facts appearing in the reports of the First Auditor of the Treasury, and of the commissioner of customs, upon which the question of law arises, upon which my opinion is requested, are the following:
Patrick Collins, the surveyor of the port of Cincinnati, being in default to the treasury for a large amount of duties accrued upon foreign goods imported into Cincinnati by the way of New Orleans, payable in cash under the tariff of 1842, was removed from office, and William K. Bond was appointed in his place. The defaulter Collins had, in violation of the law, suffered goods imported into Cincinnati to be delivered to the importers without payment of the duties, he retaining the bonds taken by the surveyor of that port, under the provisions of the act of 2d March, 1831, (Stat. at Large, vol. 4, chap. 87, p. 480,) entitled “ An act allowing the duties on foreign merchandise imported into Pittsburg, Wheeling, Cincinnati, Louisville, St. Louis, Nashville, and Natchez, to be secured and paid at those places.” The defaulting officer Collins turned over to his successor (Bond) the securities which had been given by importers, under the said statute of 1831, to the amount of about $50,000, of duties accrued, upon which the surveyor (Bond) has collected, received, and paid into the treasury, the sum of $30,000. The question
shall the commission of three per cent., allowed by law for collecting those duties upon foreign merchandise, be allowed at the treasury to the credit of ex-officer Collins, or to his successor, Bond ? The act of 31st July, 1789, ( Stat. at Large, vol. 1, chap. 5, sec. 29, p. 45,) allowed to the collectors of the revenue a commission per centum on the amount of all moneys by them respectively received and paid into the Treasury of the United States."
The act of 4th August, 1790, (Stats. at Large, vol. 1, chap. 35, sec. 53, p. 172,) increased the commission per centum allowed to collectors of the revenue, giving to the collectors of the districts of New York and Philadelphia three-fourths of one per centum, and to the collectors of all the other districts mentioned in that act one per centum “on the amount of all moneys by them respectively received on the said account of duties.”
The act of 3d March, 1797, entitled “ An act to provide more effect. ually for the settlement of accounts between the United States and receivers of public moneys,” (Stats. at Large. vol. 1, chap. 20, sec. 1, p.512.) enacted, “ that when any revenue officer shall neglect, or refuse to pay into the treasury the sum or balance reported to be due the United States, upon the adjustment of his accounts,”—the Comptroller shall institute suit, “ adding to the sum stated to be due on such account the commissions of the delinquent, which shall be forfeited in every instance when suit is commenced, and judgment obtained thereon, and an interest of six per centum per annum from the time of receiving the money until it shall be repaid into the treasury."
The act of 2d March, 1799, (Stats. at Large, vol. 1, pp. 707, 708,) chap. 23, sec. 2, allows to the collectors of the revenue, in certain named districts, the rates per centum therein stated, and to the collectors in all other districts three per cent. “on all moneys by them respectively received on account of the duties arising on goods, wares, and merchandise, imported into the United States, and on the tonnage of ships and vessels." Section 4 of that act provides, “that whenever a collector shall die or resign, the commission to which he would have been entitled, on the receipt of all duties bonded by him, shall be equally divided between the collector resigning, or the legal representative of