ment; and, that no allowance shall be made for any extra services, whatever, which any clerk or other officer may be required to perform." The act of August 23, 1842, (5 Stat. at Large, 510,) declares "that no officer in any branch of the public service, or any other person, whose salary, pay, or emoluments is or are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same shall be authorized by law, and the appropriation therefor explicitly set forth that it is for such additional pay, extra allowance, or compensation." The act of August 26, 1842, (5 Stat. at Large, 525,) declares, “that no allowance or compensation shall be made to any clerk or other officer, by reason of the discharge of duties which belong to any other clerk or officer in the same or any other department; and no allowance or compensation shall be made for any extra services whatever, which any clerk or other officer may be required to perform." I think the effect of this legislation is decisive. The language is explicit. "No allowance or compensation shall be made to any officer, by reason of the discharge of duties which belong to any other officer." If the duties of an office belong to an incumbent who receives the salary affixed to the office which he fills, then any other officer who performs those duties is, by law, prohibited from receiving therefor any compensation. The language here expresses fully what Congress, doubtless, meant. This appears entirely decisive in regard to services performed subsequent to the passage of the act of 26th of August, 1842. The act of the 23d of the same month would probably have the same effect, as it superadds the indispensable preliminary condition of payment, that "the appropriation therefor explicitly set forth that it is for such additional pay, extra allowance, or compensation." In regard to that portion of the accounts which is prior to the aforesaid dates of August, 1842, and is based upon the supposed right of the acting officer to the salary of the incumbent, who has received it, another insuperable objection is presented in the want of an appropriation for its payment, unless it shall be held that the repetition of an appropriation is a duplication of amount. The act of the 20th February, 1819, (3 Stat. at Large, 484,) prescribes the salaries of the several heads of departments, of the judges of the Supreme Court, and of one or two other officers, and adds the clause, "to be paid out of any money in the treasury not otherwise appropri ated." The effect of this clause is to make these annual salaries payable out of the treasury, without any other appropriation. But Congress, from year to year, makes specific appropriations for these same annual salaries. The question is, whether it is to be deemed the intention of Congress, upon these several acts, to appropriate double salaries to these respective officers, or to appropriate specifically what had before been appropriated generally? I, subsequently to the act of 1819, Congress had again enacted that the salary of the Secretary of State should be six thousand dollars, would that, in connexion with the former legisla tion, be, constructively, an enactment that the salary should be twelve thousand dollars? I think the mere statement of the question removes all doubt from its solution. In neither case is there any intimation, much less a disclosure of the legislative will, that the salary or the appropriation should be doubled. The salary in each case is the same, and so is the appropriation. And although the latter is made specific, instead of being left in the general form, it does not operate to enlarge the sum appropriated. That is against the manifest intent. The expounder of the law is not at liberty to adopt a construction which would stultify the law maker. I am, therefore, very clearly of the opinion that when a salary has once been paid to the legal incumbent, it cannot again be drawn from the treasury and paid to another, acting under a temporary appointment, and performing the duties for which that incumbent has been legally paid, unless there be a new, distinct, specific appropriation for that purpose. As to any other question, how far additional pay, extra allowance, extra compensation, double salaries, are allowed by law, the rule is now much more stringent than it formerly was. Since the legislation of 1842 it has been extremely difficult to escape from the direct force of the repeated prohibitions. The safer course is, undoubtedly, to carry out, liberally, the manifest policy and the expressed will of the legislative department. Not only can no officer or person, whose pay is fixed by law or regulation receive any additional pay, extra allowance, or compensation, in any form whatever, for any other duty or service, unless the same be authorized by law, but the appropriation therefor must explicitly set forth that it is for such additional pay, extra allowance, or compensation. And no officer can receive any compensation for the discharge of any duties belonging to any other officer. These restrictions are as stringent as the authors of them could well devise. It would seem rather to be struggling with Congress than executing its will, to be astute to devise means of escaping from their full and fair operation. Certainly there are no considerations of public policy that can give a lead in that direction. The cases referred to in the Comptroller's report as precedents for the recent decision, are presented in a general form, without the facts in many instances essential to their full consideration. In some of them there was a vacancy, and the officer filling both offices, received only the highest salary, which was clearly admissible. In others, prior to the act of 1842, the salaries were appropriated, and were paid to the person holding both offices. But since that period, until the recent decision, there had been but two cases of inconsiderable amount contravening the opinion now expressed; and these cases, I think, ought not to be drawn into precedent. The "act to compensate John M. Moore,” late chief clerk in the General Land Office, for the time he discharged the duties of Commissioner of the office, passed February 1, 1849, instead of serving the purpose for which it was cited-that of showing that no further legislation was necessary-would seem to show that Congress entertains the exact contrary opinion, and deems further legislation necessary to authorize payment in such a case. I have the honor to be, with the highest respect, sir, your obedient servant, ISAAC TOUCEY, To the PREsident. SALARIES OF TERRITORIAL OFFICERS OF OREGON. The salaries of the territorial officers of Oregon date from the time of their appointment, but are not payable until they reach the territory and enter upon their official duties. ATTORNEY GENERAL'S OFFICE, December 21, 1849. SIR: I have considered the questions submitted to me, as to the time when the salaries of the territorial officers of Oregon are to be paid. This depends upon the 11th section of the act of the 14th of August, 1848, entitled an act to establish the territorial government of Oregon," and, in my opinion, its proper construction is, that the salaries date from their respective appointments, but that they are not payable until the officers reach the territory and there enter upon their official duties. I have the honor to be, very respectfully, sir, your obedient servant, REVERDY JOHNSON. Hon. THOMAS EWING, Secretary of the Interior. CLAIMS OF THE CHICKASAWS AND CORCORAN & RIGGS. The account of the Chickasaws is to be considered now as having been properly opened and restated, and the balance found due by the accounting officers is properly chargeable to the appropriation for the subsistence and removal of Indians. The contract assigned to Corcoran & Riggs is valid, and should be paid out of the fund otherwise payable to the Chickasaws. ATTORNEY GENERAL'S OFFICE, SIR: In the cases of the claim of the Chickasaw nation against the United States, and of Messrs. Corcoran & Riggs, as assignees of William M. Gwin, submitted by you to this office, I have formed an opinion, after careful consideration, which my other engagements prevent my doing more at this time than barely stating. Should it be your wish, I will avail myself of the very first leisure to assign my reasons. 1. I am of opinion that the account of the nation is to be considered now as having been properly opened and re-stated, and that the balance found due by the accounting officers, of one hundred and twelve thousand eight hundred and forty-two dollars, is properly chargeable to the appropriation for the subsistence and removal of Indians. 2. That the last contract with William M. Gwin, assigned to Corcoran & Riggs, is valid, and that out of the fund payable to the Chickasaws, under the first head, whatever balance is due under that contract should be paid to Corcoran & Riggs. I have the honor to be, very respectfully, sir, your obedient servant, Hon. THOMAS EWING, Secretary of the Interior. 1 CLAIM OF THE ADMINISTRATORS OF COMMODORE BARRON. The claim of the administrators of Commodore James Barron, commander of the State navy of Virginia during the war of the revolution, for commutation pay and interest, should be allowed. This opinion is founded upon the judicial decisions of the courts in Virginia, that officers of the navy of that State, during the revolutionary war, who served to its close, were equally entitled with officers of their line to commutation pay under the act of 1790, and upon reasons stated in other similar cases. ATTORNEY GENERAL'S OFFICE, January 31, 1850. SIR: At the request of the Secretary of the Interior, communicated to me in an official note of yesterday, that I would state to you, “in writing," the grounds of my decision in the Barron case, "that it may serve as a guide for future action," I have the honor to state, that the decision was founded on the opinion, that, upon the principles of the judicial decision of the Virginia courts, officers of the navy of that State, during the revolutionary war, who served to its close, were equally entitled with officers of their line to commutation pay under the act of 1790, and upon the grounds stated in the several opinions I have given in relation to such pay to officers of the line, that their claim is also due by the United States, under the act of 5th July, 1832. I have the honor to be, very respectfully, sir, your obedient servant, REVERDY JOHNSON. Mr. EDWARDS, Commissioner of Pensions. CLAIM OF THE CHICKASAWS AND CORCORAN & RIGGS. On a reconsideration of the cases of the Chickasaw nation against the United States, and of Corcoran & Riggs, assignees of William M. Gwin, there is found to exist no reason for changing the opinion expressed on the 3d of January, 1850. The account of the Chickasaws is to be considered as having been properly opened and re-stated, and the balance found due by the accounting officers is properly chargeable to the appropriation for the subsistence and removal of the Indians. The contract assigned to Corcoran & Riggs is valid, and should be paid out of the fund otherwise payable to the Chickasaws. ATTORNEY GENERAL'S OFFICE, SIR: In compliance with your request of the 8th January last, I have re-examined the cases of the Chickasaw nation against the United States, and of Corcoran & Riggs, assignees of Wm. M. Gwin, upon which I gave you an opinion on the 3d of that month, and have most carefully considered the additional evidence and the arguments of the counsel for the parties concerned, and see no reason to change the opinion referred to. Indeed, the effect of the recent evidence is to satisfy me more fully that that opinion was right, and I therefore again advise you accordingly. The press of business upon me still continuing, I must wait until the final adjournment of the Supreme Court, before I can give in detail the reasons which have led me to the conclusion to which I have come; should you then desire it, they will be submitted with pleasure. I have the honor to be, with high regard, your obedient servant, REVERDY JOHNSON. Hon. THOMAS EWING, Secretary of the Interior. DISMISSAL OF GENERAL GRATIOT FOR DEFALCATION. The case of General Gratiot, who was dismissed the service by order of President Van Buren upon a report of his defalcation by the Secretary of War, cannot now be reconsidered. An officer in default cannot save himself from dismissal by rendering quarterly accounts. He is required not only to account but to pay; and a default in either subjects him to dismissal. The decision of the President in such cases is final. ATTORNEY GENERAL'S OFFICE, April 8, 1850. SIR: The case of General Gratiot, which you have submitted to this office, I have considered with all possible care. The power of the President on the one hand, and the rights of a distinguished military officer on the other, being involved, I have delayed an opinion until becoming perfectly satisfied of its correctness. My time is now so engaged by other official duties that I can do no more than very briefly state the reasons which have led to it. They are these: General Gratiot was dismissed the service by President Van Buren's order of the 4th of December, 1838, upon a report of the case by the Secretary of War. The dismissal purports to be made under the provisions of the act of 31st January, 1823. (3 Statutes at Large, 723.) I have no doubt that the second section of that act embraces such an officer as General Gratiot then was. It covers any and every officer who, having public money in his hands, no matter how or for what purpose received, which he has no right to retain "as salary, pay, or emoluments." Such officer does not save himself from the dismissal to be made under the 3d section, by rendering quarterly accounts. The object of the law is not merely to secure such accounts with their proper vouchers, &c., but the payment of what was received, less the sum so accounted for. It devolves on the party the duty of accounting and paying; and a default in either subjects him to the provision of the 3d section-dismissal. To give the President jurisdiction under the act, all that is required is, that the officer charged with the direction of the department to which the offending officer is responsible shall report the fact of default to him. This being done, whether he will or not dismiss the alleged offender is submitted by the act to his discretion. If he finds the facts to be as reported and dismisses, the party is out of the service as effectually as if he had never been in it. The judgment is, and should be, a final one. Any other construction would lead to endless mischief, and render the act comparatively useless. It may happen that individual instances of hardship will occasionally occur, as it may happen that the President may err. But this is an inconvenience which happens in making the judgment of any tribunal conclusive. The security of the citizen is to be found in the integrity and high character of the officer. The good of the country, in the judg ment of Congress, demanded that such a power shall exist. The constant defalcations of the public money, and the insufficiency of the usual remedies to guard against them, rendered it advisable, in the opinion. of the legislative department of the government, to vest the power of dismissal of all reported defaulters in the President. His decision, from the very nature and object of the power, must be final. I advise you, therefore, that the case of General Gratiot is to be con |