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received in each quarter of the year, and in due proportion for any period less than a quarter.”
Thus we see that the act of 1825 uses the comprehensive words, “commission on the postages by him collected;" that the act of 1847 employs the comprehensive words, “on the proceeds of their respective offices, a commission not exceeding," &c.; and the act of 1848 directs that the rates of commissions to postmasters, authorized by the first section of the act of 1847, shall be allowed and paid to them “on the amount of postage received in each quarter of the year.”
These three statutes, in pari materia, explain the intention of the legislature, and show that the commissions to postmasters are not restricted to any particular class of postages, but are allowable, on the proceeds of their respective offices, on the amount of postage received in each quarter of the year.
The words and proper sense of these statutes allow commissions to the postmasters of the United States on all the postages collected at their respective offices, arising under the convention between the United States and Great Britain.
In collecting and accounting for such postages, the postmasters of the United States are acting under the authority of the laws of the United States; they derive no power or authority from any foreign govern. ment, or foreign law, to demand and receive those postages. The portion of such postages, which, by the convention between the two gove ernments, is to be accounted for and paid by the United States to Great Britain, is no exception, no objection, to the commissions to the postmasters of the United States, respectively, by whom those combined sea and inland postages are collected and accounted for to the Postmaster General of the United States. For the part to be accounted for to Great Britain, the United States have an equivalent in the postages, sea and inland, to be collected in the post offices of Great Britain, and to be accounted for and paid by that government to the United States. The sum that may become due to Great Britain will depend on the postal arrangements between the two countries; and, whatever it may be, it cannot be abated by the amount of compensation that the government of the United States may please to allow its postmasters.
In conclusion, my opinion is that the Postmaster General can, under the authority and acquirements of the law, allow to each postmaster commissions on all postages by him collected; that each postmaster is entitled to the commissions on that portion of the postages by him collected on foreign letters, which is by the treaty payable (by the Postmaster General) to other governments. I have the honor to be, with great respect, sir, your obedient servant,
J. J. CRITTENDEN. Hon. NATHAN K. Hall,
Pustmaster General of the United States.
The following opinions were not obtained by the compiler from the
Departments in time for publication in the order of their respective dates:
PAYMENT OF ARREARS OF PENSIONS TO ADMINISTRATORS.
Where the arrears of a pension due at the decease of the widow of a revolutionary officer were
paid to the administrator appointed in one county of the State of Indiana, and an administrator subsequently appointed in another county preferred a claim for the same amount-DECIDED, that the Secretary of War who made the payment executed all the power conferred by Congress
in respect to it. This decision refers to the case of the United States os. The Bank of the Metropolis (15 Peters,
400) for the doctrine applicable to the power of Executive officers to review and reverse the action of their predecessors.
ATTORNEY GENERAL'S OFFICE,
January 15, 1819. Sir: In the case of the children of Sarah Easton, deceased, who was entitled to a pension as the widow of a revolutionary officer, a question arises in limine, which, I think, disposes of the subject, so far as the executive departments have any power to act upon it.
It appears that her grandson, W. H. English, in the year 1845, took out letters of administration on her estate in Clark county, in the State of Indiana, presented them at the department, and the amount due to her, exceeding the sum of $2,000, was thereupon paid over to him as her administrator.
Afterwards, in the year 1848, Mr. J. P. Cooper took out letters of administration on her estate in Jefferson county, in the same State, and now claims payment of the money to him as her true administrator.
The question presented involves the validity of the first letters of administration. This precise question was before the Secretary of War in 1845, and was then decided by him; and the money appropriated by Congress for the payment of this claim was, in pursuance of that decision, drawn from the treasury and disbursed for that object. The power was conferred on him by Congress to consider and to decide that question; and his decision, thus made in the performance of his official duty, has been executed by the payment of the money.
It is a sufficient answer to this application, that no money can be drawn from the treasury but in pursuance of appropriations made by law, and that there is now no money in the treasury thus appropriated for the payment of this claim. The appropriation is exhausted, and requires the renewed action of Congress.
In the case of the United States vs. The Bank of the Metropolis, (15 Peters, 400,) the court was requested to say, “ that if the credits given by Mr. Barry were for extra allowances which the said Postmaster General was not legally authorized to allow, then it was the duty of the present Postmaster General to disallow such items of credit.” But the Supreme Court sustained the refusal to give that instruction, and held that the power of the successor was no greater than that of his predecessor, and“ did not extend to the recall of credits or allowances made by Mr. Barry, if he acted within the scope of official authority given by law to the head of a department;" and that the “right in an incumbent of reviewing a predecessor's decisions extends to mistakes in matters of fact arising from errors in calculation, and to cases of rejected claims in which material testimony is afterwards discovered and produced.” The present case does not fall within either of the exceptions, and the former decision was made by the present incumbent; but the power granted was legitimately exercised, the act done, and the treasury exhausted; and if the authority remained to be executed over again as often as new letters of administration might appear, still there would be nothing in the treasury for it to act upon. I have the honor to be, very respectfully, sir, your obedient servant,
ISAAC TOUCEY. Hon. Wm. L. MARCY,
Secretary of War.
CLAIM FOR REMOVING AND SUBSISTING THE MIAMIES.
Where the government entered into a contract with an individual for removing the Miamies, esti
mated at 650 souls, from Indiana to the country assigned them west of the Mississippi, and to subsist them, &c., for the sum of fifty-five thousand dollars, upon condition that should the number be greater or less there should be neither addition nor reduction of the amount, and that he should not use any force to compel them to emigrate ; and the said contractor, pursuant thereto, removed and subsisted 384 of the Indians, being all who were found willing to emigrate-DECIDED, that said contractor has entitled himself to the whole sum stipulated for removing and subsisting the tribe.
ATTORNEY GENERAL'S OFFICE,
January 17, 1849. Sır: I have the honor to reply to your communication submitting the contract between the United States and Thomas Dowling, for an official opinion upon a question arising under it.
Thomas Dowling, on his part, agreed to remove the tribe of Miami Indians from their location in the State of Indiana to their new homes in the country designated and set apart for them west of the Mississippi, affording them, in such removal, sufficient and comfortable accommodations, and during the same to furnish them with good and wholesome provisions, and after their arrival at their new home to subsist them with good and sufficient rations for the period of one year, to be com. puted from the day on which they shall have reached their place of des. tination, and the day on which they shall be mustered by such officer of the government as shall have been selected for that purpose.
The United States, on their part, agreed “to pay to the said Thomas Dowling the sum of fifty-five thousand dollars, ($55,000,) which, computing the number of Indians to be removed and subsisted at six hun. dred and fifty souls, will be at the rate of $84 61 per head ; should however the number be greater or less, there is to be no additional allowance nor deduction, which sum is to include all payments to be made to the said Thomas Dowling, of any and all kinds whatsoever,” &c.
It was further stipulated that the United States should have the appointment of a superintendent of emigration; should be subject to no
extra charge for detention ; should pay no expenses that might occur in collecting, transporting, or provisioning any or all of them ; should be subject to no claim for damages or compensation, or any loss or injury to arise out of the contract; and that said Dowling should use no force or coercion to compel them to emigrate, unless specially authorized by the War Department, but should be governed by its instructions.
Under this contract, 384 Miamies are supposed to have been removed and subsisted for a year. Of the $55,000 stipulated, there has been paid $45,930 04, leaving a balance of $9,069 96. About 168 Miamies yet remain in Indiana, besides a family of eight or ten who ran away, and placed themselves beyond the reach of the agents of the contractor. The 168 are those permitted by treaty and law to receive the annuities due them from the government in Indiana, where, consequently, they claim the right to remain, and so far refuse to emigrate.
No complaint is made of any breach of the contract on the part of the contractor; but he ever has been, and is now, ready and willing to perform on his part. The question is, whether the contractor is entitled to the unpaid balance of the stipulated price.
It is obvious that the government of the United States alone had the power to coerce the removal of this tribe. The contractor had none except what the government conferred on him. If, by law, treaty, or consent, any of them were permitted to remain behind in Indiana, it was not the fault of the contractor, nor was he responsible for it. He was under an obligation to remove all of them, if the government saw fit to exert its power to that end. A willingness to do so is still avowed on his part, but it is understood that the department does not propose to remove the remainder. If it be so, as the time prescribed by the contract has long since elapsed, and it is expressly stipulated that, should the number be greater or less, there is to be no additional allowance or deduction, then it is clear that the contract is to be deemed as fulfilled on the part of the contractor, and that the whole sum is due.
The unpaid balance is to be paid to him ; but, as often held, without the allowance of any interest upon it. I have the honor to be, very respectfully, sir, your obedient servant,
ISAAC TOUCEY. Hon. W. L. MARCY,
Secretary of War.
CONCERNING STOCKS THE CERTIFICATES OF WHICH ARE LOST OR DE
Where certificates of United States stock, with coupons of interest attached transferrable by de
livery, have been lost, it is impossible for the Secretary of the Treasury to issue any other security which would truly its representative or substitute, without a legislative act author
izing what, in such cases, would be equivalent to the issue of new stock. But, in case of the total destruction of certificates, it is competent for the Secretary of the Treasury
to furnish the holder, at the time of the destruction thereof, with new evidence of the claim upon the government.
ATTORNEY GENERAL'S OFFICE,
January 17, 1849. Sir: I have the honor to reply to your letter of the 12th instant, submitting the inquiry,“ whether, in case of the loss or destruction" of certificates of stock, with coupons of interest attached, issued under the acts of Congress of April 15, 1842, and 31st March, 1848, transferrable by delivery, "the department may lawfully issue new certificates to the owners at the time of such loss or destruction, under such regulations as to proof of loss and security against fraud or error by deposite of United States stock, or otherwise, as shall protect both the property of the owners of the certificates and the public interests.”
There is a wide difference in the two cases supposed, of the loss or destruction of securities transferrable by delivery. In the former, the lost security may be put into circulation, like any other negotiable paper which passes by delivery, and the bona fide holder of it will have a perfect title against the government. It is, therefore, impossible that the department should issue any other security, which would be truly its representative or substitute, or have any legal efficacy, without a legislative act authorizing what in that case would be equivalent to the issue of new stock.
But in the other case, that of the total destruction of the certificate, the holder of it at the time of its accidental destruction has still a just claim against the government, and no other person has, or can acquire, a title in opposition to it. When, therefore, the fact is ascertained, it is competent for the Secretary of the Treasury to furnish such holder with the usual evidence of his title, which is not an issue of new stock, but the substitution of new evidence of a just debt in the place of that which is lost.
The only objection to this fair and reasonable course on the part of the government is the danger of error in ascertaining the fact of destruction. But this is entirely obviated by a deposite of United States stock of equal value, to await the result or by other equivalent security. I have the honor to be, very respectfully, sir, your obedient servant,
ISAAC TOUCEY. Hon. R. J. WALKER,
Secretary of the Treasury.
ACT OF 1848 AND TREATY WITH THE OTTOMAN PORTE.
The act of Congress to carry into effect certain provisions in the treaties between the United
States and China, and the Ottoman Porle, giving certain judicial powers to ministers and consuls of the United States in those countries, not having designated any particular place for the confinement of prisioners arrested for crime, the same is left for regulation under the 5th sec.
tion, or, in the absence of any such regulation, to the discretion of the acting functionary. The expenses of arrest and support in prison, in such cases, must be paid from the fund created
by the execution of the act. As ihe provisions of the act extend to Turkey only in respect to crimes, they (crimes) are left to
support their own expenses. The provisions of the 18th section do not apply to Turkey. Wheiher the act embraces Egypt and the Barbary States, which are under the dominion of the
Ottoman Porte, is political question, which cannot be solved without the aid of the Department of State.
ATTORNEY GENERAL'S OFFICE,
January 31, 1849. Sir: I have the honor to reply to the inquiries, submitted by you for my opinion, as presented in the letter of the Hon. Dabney S. Carr, min