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These restrictions or limitations are explicit and peremptory; but subject to them your power is discretionary. I have the honor to be, very respectfully, yours, &c.,
J.'J. CRITTENDEN. Hon. A. H. H. STUART,
Secretary of the Interior.
GRANITE FOR THE CUSTOM-HOUSE AT NEW ORLEANS.
The government having stipulated that the granite to be furnished from the quarries in Quincy,
Massachusetts, for the custom-house at New Orleans, should be inspected, approved, and the quantity thereof determined by an inspecting agent of the United States, to be designated or appointed by the Secretary of the Treasury, at Boston or Quincy, cannot now legally in• sist upon trans.erring the inspection and admeasurement to New Orleans. Neither the workmanship nor the admeasurement of the granite was stipulated to be adjudged
and determined at that place. The government is bound and concluded by the admeasurement certified at Boston or Quincy,
by the agent of the government there ; subject, however, to the abatement of damage sustained during the voyage, or breakage in landing on the levee, or defect in the quality of the stone when finally delivered.
OFFICE OF THE ATTORNEY GENERAL,
January 29, 1851. Sır: In answer to your inquiry contained in your letter of the 27th of this month, I state that, upon examination of the contract between the United States and Luther Mann, respecting the delivery by him of the granite for the custom-house at New Orleans, I am of opinion that the United States are legally bound to pay for so much of this granite as has already been delivered, agreeably to the certificate granted to the said contractor, by the agent appointed by the Department of the Treasury, agreeably to the stipulations of the contract for the appointment of such agent; and that the government cannot rightfully demand or insist upon any other admeasurement, unless fraud and collusion on the part of the contractor and the agent of the government could be showna matter which is not suggested, and is not to be presumed.
The parties, by their written contract, stipulated for a special tribunal for measuring and determining the quantity and quality of the granite before it was shipped from Boston to New Orleans. The contractor, living in Boston, engaged to deliver in New Orleans the requisite quantity of granite, to be obtained from the best quarries in Quincy, Massachusetts, “the quality of the material and workmanship thereof” to be “approved," and the quantity determined by the inspecting agent of the United States at Boston or Quincy, to be designated and appointed by the Secretary of the Treasury," " breakage or damage of any kind occurring to the same during the voyage to New Orleans, or caused in landing said stones from the vessels on the levee, or any material defect in the quality of the material not discovered by the inspecting agent of the Cnited States at Boston or Quincy, as aforesaid,” to be determined in New Orleans by the architect and superintendent of the construction of said custom-house, or by either of them when the other is absent.
To transfer the admeasurement to New Orleans, after the agent of the United States had there inspected and measured them, and after the contractor had shipped them from Boston, and delivered them in New Orleans, would be a very important alteration in the terms of the contract, which the United States cannot rightfully insist upon.
Neither the workmanship nor the admeasurement of the granite was submitted to be adjudged and determined in New Orleans by the terms of the contract. So the government is bound and concluded by the admeasurement certified at Boston or Quincy, by the agent of ihe gov. ernment there; subject to the abatement by damage during the voyage, or breaking in landing on the levee, or defect in the quality of the stone when finally delivered in New Orleans. I have the honor to be, very respectfully, sir, your obedient servant,
J. J. CRITTENDEN. Hon. THOMAS CORWIN,
Secretury of the Treasury.
CLAIM OF THE ADMINISTRATOR OF JOHN RUSH FOR ARREARAGE OF PAY.
The administrator of John Rush, a sailing-master in the navy, who became insane whilst in the
service, and was placed on half-pay in the hospital at Philapelphia, where he remained until his death in 1837, but for whom payment was not made after the death of his father in 1913, has a just claim on the department for the arrearage of pay, although the name of the insane
man was dropped from the navy register. Although the department dropped his name from the naval register after 1813, under the suppo
sition of his demise, he was not only in commission as a sailing.master until his actual death, but ne was in a condition in which he could not have been legally suspended or
discharged, on account of his continuing insanity. But as there is no appropriation from which the payment can be made, an estimate of this claim
should be presented to Congress, and an appropriation asked for to enable the department to
OFFICE OF THE Attorney GENERAL,
February 11, 1851. Sir: By letter of the Secretary of the Navy, of October 12, 1849, to my predecessor in office, the opinion of the Attorney General was requested on two questions relating to the claims of the administrator of John Rush, a sailing-master in the navy of the United States, for arrearages of half pay claimed as due to the said John Rush at the time of his death,
1st." As to the validity of the claim."
2d. “ As to the authority of the department to pay it, if valid, out of current appropriations based on estimates which did not include the probable expenditure of this nature."
For the facts of the case, the Secretary referred to the file of papers enclosed, but particularly to the letter of Mr. Benjamin Rush to the department, dated March 12, 1849, as containing a full statement of the
The facts are the following: John Rush, a sailing-master in the navy of the United States, whilst in actual service, was, by the visitation of God, affected with insanity. Therefore, he was placed in the hospital, in Philadelphia, in September, 1810, and died therein on the 9th of August, 1837, continuing all that time without a lucid interval.
After he was so rendered unfit for actual service on ship-board, he was placed, in the year 1810, by Mr. Paul Hamilton, then Secretary of the Navy, on half-pay, not as a pensioner, but as an officer on shore entitled to that rate of pay, under the act of Congress approved 21st April, 1806 ; which enacted in its third section that the officers upon the naval peace establishment “ shall receive no more than half their monthly pay, during the time when they shall not be under orders for actual service.” No commission of lunacy or insanity was ever issued. No committee, to take care of the person or estate of the insane John Rush, was ever appointed; he was placed in the hospital, and died there.
During the lifetime of his father, the celebrated Doctor Benjamin Rush, the half-pay to John Rush was, through the instrumentality of the father, paid up to 31st July, 1813. In that year the father died, having, in his testament, directed his executrix and executors to apply a part of the income of his estate to the maintenance of his insane son John, so long as he continued in that condition, “provided the half-pay he received from the United States be insufficient for that purpose.”
By letter of 13th September, 1812, from the Navy Department, addressed to Doctor Benjamin Rush, in answer to his inquiry, how his son John Rush could receive the balance due and that might thereafter become due to him, the Secretary of the Navy informed the father that, if the state of John Rush's affliction“ will not permit his receiving it directly himself, any person legally authorized can receive it for him. The accounts in the present and in future cases should be made out and transmitted to the accountant of the navy; upon receiving such account, the accountant will, without delay, take the requisite order upon it.”
Subsequently to 31st July, 1813, and in the lifetime of John Rush, no payments were made. It does not appear that any account was presented for payment, or that any person was legally authorized to demand and receive payment for John Rush, who was incapacitated from receiving it himself. In consequence of an erroneous premature report of the death of John Rush, his name was omitted from the navy register.
But John Rush never resigned—was never discharged nor dismissed from the service. “Nothing has been discovered to show that he ever resigned, or that he was ever discharged or dismissed from the service.” Such are the facts upon which the opinion of the Attorney General is requested, as to the legality of the claim, by the administrator of John Rush, for half pay to said John, from 31st July, 1813, to his death, on the 9th of August, 1837.
1st. Upon the first question there is no room for doubt. In the application of human law to facts, the maxim is “ Actus Dei nemine, facit injuriam.” No court martial could have justly pronounced any sentence or order of penalty, forfeiture, punishment, disgrace, or loss of commission or rank in the navy, upon the insane John Rush, because of his insanity. It is distinctly stated that the President of the United States never did, by any order, written or verbal, dismiss John Rush from the service. The unauthorized and mistaken omission of his name from the navy register, upon a premature report of his death, can have no legal effect whatever to deprive him of his just rights as an officer. The payments made to him up to 31st July, 1813, and the claims now made for arrearages, were not and are not for or on account of a pension, but for the current pay established by law for a sailing master in the navy not under orders for actual service. John Rush was, in my opinion, upon the facts presented, a sailing master in the navy, by his commission, continuing to his death, and entitled, as such, to his pay from 31st July, 1813, to 9th August, 1837, as an officer of the navy not under orders for actual service.
Therefore, the claim presented by his administrator is valid.
2. Upon the second question, I am of opinion that, in the acts making appropriations for the support and expenditures of government for the fiscal years ending 30th June, 1850 and 1851, there are no words, general or special, which can be construed to include the arrearages of pay which accrued to Sailing Master Rush in bis lifetime as objects of appropriation, so as to authorize the Navy Department to pay them. As the claim by the administrator of Sailing Master Rush is valid against the department, an estimate thereof should be made, and appropriation asked, to enable the department to pay it. I have the honor to be, very respectfully, sir, your obedient servant,
J. J. CRITTENDEN. Hon. W. A. Graham,
Secretary of the Navy.
COMMISSIONS OF MONEYS COLLECTED BY POSTMASTERS.
The several acts of Congress, regulating the compensation of postmasters, invest the Postmaster
General with authority to allow them commissions on all moneys by them respectively collected
in each quarter of the year. And postmasters are entitled to commissions on moneys collected for postage on foreign letters,
which are payable by treaty to foreign governments, as well as upon moneys collected for postage on other matter conveyed in the mails. The amount that may become due to Great Britain for postage on British letters collected in the
United States, under existing postal arrangements with that goverument, cannot be abated by the amount of compensation which shall be allowed to postnjasters.
OFFICE OF THE ATTORNEY GENERAL,
February 15, 1851. Sir: In answer to the questions propounded in your letter of the fifth of this month, I have the honor to state:
First. That the 14th section of the act of 3d March, 1825, (Statutes at Large, by Peters, vol. 4, chap. 64, p. 105, 106,) in allowing to each postmaster a commission on the postages by lim collected,” is not restricted in its effects solely to the postages upon letters and packets “conveyed in the mail of the United States,” mentioned in the preceding thirteenth section, but extends to the postages established by the force and operation of sections fifteen, eighieen, twenty, and thirty-six. In the fourteenth section there are no words of special reference and restriction to the preceding thirteenth seetion; on the contrary, the fourteenth section has in one part a reference to an increased commission to the postmasters of fifty per cent. on the moneys arising from a postage of newspapers," a subject of revenue to the post office not mentioned in the thirteenth section. The words in the fourteenth section, “ commission on the postages by him collected,” are sufficiently comprehen: sive to include all the moneys arising from the several rates of postages to be received at the post offices, in obedience to the several sections of the statute, or which might thereafter be established, and with the collection whereof the postmasters, respectively, are entrusted and made accountable.
In every statute, comprising many things, and many provisions, one thing must be set down after another; necessarily, some must precede, and some must succeed ; all cannot be first, nor all last; but, in whatever order they are set down, we are taught, by the highest authorities, that, in the construction of one part of a statute, every other part ought to be taken into consideration; "that the construction be made on the entire instrument; and that one part of it doth help to expound another. The office of a good expositor is to make construction on all the parts together, and not of one part only by itself;" “that the construction be such as that the whole, and every part of it, may take effect, and as much effect, as may be for the purpose for which it was made.”—(4 Bac. lib.; Statute 1, p. 645. Lincoln College, case 3, Co. 59, b. 1 Institutes, 381. Touchstone, chap. 5. sec. 4, p. 87.)
A construction of this statute of 1825, which would restrict the commissions of the several postmasters solely to the money arising from the posiages which are enacted in the thirteenth section," upon letters and packets conveyed in the mail of the United States," to the exclusion of commissions on the postages enacted by the sixteenth, twentieth, thirtieth, and thirty-sixth sections, would not, in my opinion, accord with the sense and reason of the law. The statute intended to give to each postmaster a compensation “ adequade to his services and expenses,” and to that end gave commissions on the postages by him collected," at rates set down in the statute, with a provision in the forty-first section “that whenever the annual emoluments of any postmaster, after deducting therefrom the necessary expenses incidental to his office, shall amount to more than two thousand dollars, the surplus shall be accounted for," &c. To produce that maximum, commissions at the prescribed rates were authorized upon all the various postages established by law.
Second. The act of Ist March, 1947, (Sec. 1, Session Acts by Little and Brown, chap. 33, p. 147, 148.) enacts, " that in lieu of the commission allowed deputy postmasters, by the fourteenth section of the act of third of March, eighteen hundred and twenty-five, the Postmaster General may allow on the proceeds of their respective offices a commission not exceeding the following rates on the amount received in any one year, or a due proportion thereof for less then a year:” On a sum not exceeding $100, forty per cent.; over first $100, and not exceeding $400, thirtythree and a third per cent.; over first $400, and not exceeding $2,400, thiriy per cent.; over $2,400, twelve and a half per cent. “On all sums arising from the postages on newspapers, magazines, and pamphlets, fifty per cent.; on the amount of postages on letters or packets received for distribution, seven per cent.; Provided, that all allowances, commissions, or emoluments shall be subject to the provisions of the forty-first section of the act" of 1825, which fixed the maximum of emoluments at two thousand dollars for a year.
The act of 17th March, 1848, (Session Acts by Little and Brown, chap. 43, p. 230,) corrected the mistake of the act of 1847, in the rates by the yeur, instead of by the quarter; and enacted that the rates of commissions authorized to be paid to postmasters by the first section of the act of 1847 “shall be allowed and paid to them on the amount of postages