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such deceased collector, and his successor in office, whose duty it shall be to collect the same,” &c.
By the act approved May 10, 1800, entitled “ An act supplementary to an act entitled An act to establish the compensation of officers employed in the collection of duties on imports and tonnage,'” (Stats. at Large, vol. 2, chap. 54, sec. 3, p. 72,) the collectors of the several districts therein named were required to deposite for collection in the bank of the United States, or at an office of discount and deposite of said bank, “all the bonds taken, or to be taken by them, for duties, by virtue of any law of the United States; but on all money collected by the said banks the commissions aforesaid are to be allowed the said collectors in like manner as if received by them.”
The duties of surveyors of ports generally and of those to which surveyors only are assigned, were prescribed by the 215th section of the act of 1799, (Stats. at Large, vol. 1, chap. 22, pp. 642, 643,) and the act of 1831, before cited, for the following duties on foreign merchandise imported into Cincinnati, &c., to be secured paid there, required of the surveyor at the port of Cincinnati to perform the duties specially enjoined by that act, in addition to the customary duties performed by that officer in other places. When the act of 1842 went into operation, requiring duties on foreign merchandise imported into the United States to be paid in cash, instead of the former system of credits secured by bonds, it became the bounden duty of the surveyor of the port of Cincinnati, upon receiving from the master of a vessel the manifest of goods on board, certified by the collector of the port of New Orleans, to take care that the owner of the goods, or consignee, or agent of the importer, should pay the duties ,certified by the collector at New Orleans, to him, the surveyor at Cincinnati, as due and payable there.
The bonds taken at Cincinnati by the surveyor (copies whereof were certified by him to the collector of New Orleans) in double the amount of the estimate of duties made by the surveyor at Cincinnati upon the estimate of the cost of the goods furnished by the importer, were intended to obtain the permit of the collector at New Orleans, that the goods should be shipped to Cincinnati for the proper payment of the duties there instead of at New Orleans. There could not be lawfully a cash system for payment of duties at the other ports of the United States, and a credit system at the port of Cincinnati.
As the Surveyor Collins did not receive the duties upon the foreign merchandise imported into Cincinnati, but, in violation of his official duties, suilered the goods to be delivered to the importers before the duties charged upon them were paid, he had no lawful claim to a commission, per centum, on the amount of those duties received by his successor in his office.
The government had liens upon the goods for the payment of the du. ties thereon. As Collins, the surveyor, parted with the goods and lost those liens, without receiving the duties charged upon the goods, he was justly chargeable with the amount of those duties, which he should have demanded, the payment whereof, in cash, he ought to have enforced by retaining the possession of the goods until payment had been made. When he, or his legal representative, shall be credited in account at the treasury with the amount which shall be collected by his successor in office, the full measure of justice will have been meted to the Surveyor Collins and his legal representatives.
The government is not liable to pay double commissions for collection of the revenue.
Upon a view of all the acts in pari materia, I am of opinion that the commission established by law for the collection of these duties, is due to the Surveyor Bond, who has collected, received, and paid them into the treasury; that the Surveyor Collins, who did not receive, did not collect, did not pay them into the treasury, but wholly neglected and violated his duty in that respect, had no legal claim to the commission. He is not within the letter of the law, and certainly is not within the reason, spirit, or equity of the law. The commission was intended as a compensation for a faithful performance of the duty of the officer in collecting the revenue, and is not due to an officer who has not collected nor received the duties on the goods, but has flagrantly neg. lected and violated his duty, thereby devolving the collection of those duties on his successor in office, to the great delay and inconvenience of the government. I have the honor to be, very respectfully, sir, your obedient servant,
J. J. CRITTENDE.X. Hon. THOMAS CORWIN,
Secretary of the Treasury.
TRANSFERS OF SURPLUS OF APPROPRIATIONS.
The third section of the act of the 20th of August, 1842, authorizes the transfer and application
of the surplus of appropriations, standing to the credit of the War Department, and not transterred by the Secretary of the Treasury to the general account of moneys not appropriated, to
supply the dificiency of the appropriation for preventing and suppressing Indian hostilities. And such transfer will not conflict with the Ist article, eight section, and iwelfth paragraph of
the constitution of the United States, nor with the 16th section of the act of 3d March, 1795.
ATTORNEY GENERAL'S OFFICE,
December 6, 1850. Sir: Yours of the 2d of this month has been received. My letter of the 30th of November last was intended to be a full answer to your letter to me of the 22d of that month, and expressed, first, the opinions that the 3d section of the act of the 20th August, 1842, was not a temporary, but a permanent enactment; secondly, that it 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. In addition, I now give it as my opinion, that such transfer will not conflict with the first article, eighth section, and twelfth paragraph of the constitution of the United States, nor with the 16th section of the act of 3d March, 1795. (Statutes al Large, vol. 1, page 437.) I have the honor to bé, very respectfully, sir, your obedient servant,
j. J. CRITTENDEN. Hon. C. M. CONRAD,
Secretary of War.
AUTHORITY OF SECRETARY OF THE INTERIOR RESPECTING PATENT
The authority of the Secretary of the Interior to supervise the Patent Office, comprehends the
power to appoint such temporary clerks to be employed therein as shall be authorized by law,
and to cause their salaries to be paid out of any money appropriated for that purpose. The Commissioner of the Patent Office, therefore, is subordinate to, under the supertendency of,
and subject to the control of the Secretary of the Interior, in the appointment and payment of such clerks; and his authority is the same, whether the money disbursed be appropriated from fees or from the agricultural or any other fund.
ATTORNEY GENERAL'S OFFICE,
December 7, 1850. Sır: In answer to the questions you have been pleased to refer for my opinion, I have the honor to state that, in my judgment, the general supervision and direction over the Patent Office, which is vested in you, comprehends the appointment of such temporary clerks in that office as are authorized by law, and also the payment of their salary or compensation out of any money appropriated for the purpose ; and, of course, that the Commissioner of the Patent Office, in the employment or appointment of such clerks, and in the disbursement of money appropriated for their compensation, acts under the superintendency, and subject to the control of the Secretary of the Interior; and that makes no difference in the case, whether the money, so to be disbursed, is appropriated out of the agricultural fund, the Patent Office fees, or out of any other fund.
Such, I think, was the design and intention of the several acts of Congress in relation to this subject. I have looked into these acts, but I have no time to give references to them, or to write arguments in support of the conclusions to which I have come, and which are above stated. I have the honor to be, very respectfully, sir, your obedient servant,
j. J. CRITTENDEN. Hon. AlEXANDER H. H. STUART,
Secretary of the Interior.
CLAIM OF W. G. AND G. W. EWING AGAINST THE POTTAWATOMIES.
Where a claim against the Potta watomies had been adjudicated and allowed by a former Sec
retary of the Interior, and certificates therefor issued by the Commissioner of Indian Affairs to the original claimants, payable from the annuities of that tribe in three annual instal. menis, which were subsequently transferred to Suydam, Sage, & Co., and by them to the Merchants' Bank in New York, whose attorney claims fayment; but before the same was made, a rehearing was demanded, on behalf of the Indians, on the allegation that they were not originally liable to the Ewings for the amount adjudicated to them by the said Secretary ; and a question having cotemporaneously arisen between the Ewings and the said bank, concerning the terms and purposes of their transfer of the said certificates—DECIDED, that the present Secretary of the Interior ought to regard the decision of his predecessor, as to the amount due from the Indians, as conclusive; and that, if any wrong has been done, the remedy should be sought of the judiciary; and that payments of the certificates should be withheld until the
conflicting claims of the Ewings and Merchants’ Bank shall also be settled by the judiciary. It is doubtful whether Indian annuities, granted by the government, ought to be regarded as legally assignable, unless made so by law.
ATTORNEY GENERAL'S OFFICE,
January 8, 1851. Sir: I had the honor duly to receive your letter of the 28th of December last, and regret that my other official engagements have so long delayed my reply.
The case you have proposed for my opinion cannot be more briefly stated than it is in your letter, which is as follows: “I have the honor to request your opinion in the matter of the claim of W. G. and G. W. Ewing against the Pottawatomie Indians, of which the facts are as fol. lows: This case was originally adjudged on appeal from the decision of the Commissioner of Indian Affairs by my predecessor, who decided that the amount claimed was due by the Indians to the said Ewings, and claimed to be paid out of the annuity of that tribe. But, in order that too large a sum might not be withheld from them at once, he directed that certificates should be issued by the Indian office. payable to said Ewings, in one, two, and three years, respectively, in about equal instalments.”
“After the certificates were issued, but before they were paid, Judge Joseph Bryan preferred a request, on behalf of the Indians, for a rehearing of the case, alleging that it had been erroneously decided, and that the Indians were not legally liable to the Ewings fo the amount adjudicated to them. Upon this staternent, Mr. Ewing, the late Secretary, suspended the payment of the certificates, and fixed a day on which both parties might take depositions before the Indians agent at Fort Leavenworth. On the day appointed, no testimony was taken; but, subsequently, Judge Bryan filed in the department an er parte affidavit on hehalf of the Indians, and desired further time to complete his proof."
" In the meanwhile, Messrs. W. G. and G. W. Ewing placed the certificates in the hands of Messrs. Suydam, Sage, & Co., of New York, with whom they had extensive dealings as merchants, with the understanding, as they allege, that Suydam, Sage, & Co., should receive the money and make a certain distribution of it among their (W. G. and G. W. Ewing's) creditors.”
“This understanding is, however, denied by Suydam, Sage, & Co., who claim that the certificates were vritually assigned to them for their exclusive benefit, as creditors of the Ewings. Having become insolvent, while in possession of the certificates, Suydam, Sage, & Co., deposited them, as collateral security for their own debts, with the Merchants’ Bank of New York. This bank now appears, by its attorney, and claims the payment to it of the moneys due on the certificates."
“It is the question now arising between the bank and W. G. and G. W. Ewing upon which I desire your opinion: Have I any authority to decide upon a question arising between individuals only, to which neither the government nor the Indians, as the wards of the government, are parties; or must I leave the parties to their remedy in the courts of law, the accounting officers of the treasury directing the actual pay. ment as may seem proper to them?
Your predecessor in office having decided that the amount claimed was due by the Indians to the said Ewings, and should be paid out of the annuity of that tribe, and having caused certificates of said debt to be issued to the said Ewings, my opinion is, that those decisions and acts of your predecessor ought to be regarded by you as conclusive; and that if any wrong has been thereby done to the Indians, it must be redressed by the judiciary, upon proper application. I will add, however, that I think it very much to be doubted whether the Indian annuities granted by this government ought to be regarded as legally assignable, in whole or in part, except where expressly made so, or whether the officers of government, in making payment of those annuities, ought also to con sider the claims of intervening voluntary creditors, without some legal provision to that effect. As no such question, however, is left open in this case, no further remarks need be made upon it.
In the conflict of claims that are urged for the money for which certificates were issued to the Ewings, you ought not, in my opinion, to take upon yourself the responsibility of deciding between them. If you should commit a mistake in directing and making payment to the wrong party, the government would be bound to repay the money. In this, and such cases, I would advise that you should require the adversary claimants to have their respective rights settled and ascertained by the judgment of some competent judicial tribunal, and that payment should be withheld till that was done, unless the parties would all unite in a proper acquittance to the government, in order to have the money paid out of the treasury into the hands of a common stakeholder, or come to some agreement of the like kind, affording equal security.
I believe that the above embraces all the questions contained in your letter. I have the honor to be, very respectfully, sir, your obedient servant,
J. J. CRITTENDEN. Hon. A. II. H. STUART,
Secretary of the Interior.
DUTY OF THE PRESIDENT RESPECTING DISTRICT MARSHALS.
Although it is the duty of the President to take care that the laws are faithfully executed, it is
not, in general, judicious for him to interfere with the functions of subordinate officers further
than to remove them for any neglect or abuse of their official trust. He has no proper authority to employ counsel, at the expense of the government, to advise, pro.
tect, and defend the marshal of the southren district of New York in cases arising under the fugitive slave law.
ATTORNEY GENERAL'S OFFICE,
January 17, 1851. Sir: I had the honor to receive your communication of the 31st of December last, requiring my opinion whether there is any authority to grant the request made by the marshal of the southern district of the State of New York, in his letter of the 30th ultimo to the Hon. Mr. Corwin, Sectary of the Treasury, and which was enclosed by you for my examination. An earlier reply would have been given but for my constant occupation in the Supreme Court.
That request, in substance, is, that, in consequence of the great difficulty and responsibility which devolves on him in the discharge of his official duties under the fugitive slave law, counsel might be employed at the public expense to advise, protect, and defend him in cases arising under that law.
As a general proposition, it appears to me most judicious for the President, as well as more consistent with the form and spirit of our institutions, to forbear from interference with the functions of subordinate public officers, and to leave them to the discharge of their proper duties under all their legal responsibilities, and subject, also, to removal from office for every neglect or abuse of their official trust.