Removal of Capital of Montana Territory. Upon substantially this state of facts, the governor, in his communication to you, requests instructions from your Department as to the course he should pursue; and, in your letter to me, you ask for an expression of my views upon the legal questions involved in the subject of his request. It seems to me that, so far as the governor is concerned, the case is a very simple one. Whether the secretary and marshal together might or might not have legally recanvassed the votes under the circumstances mentioned, is a question upon which I do not think it necessary or proper for me to express an opinion. But it is very plain that a recanvass of the vote, if made by one of those officers alone, would not suf fice under the requirements of the local-election law, and consequently that the governor would not be legally authorized to issue a proclamation based on a recanvass which the marshal may have made by himself. I have to add, however, with respect to the legal questions involved in this matter-either as regards the discharge of the duties of the canvassing-officers, or the validity of the canvass of the votes as made and certified by them, or the final ascertainment of the fact whether a majority of the votes cast was in favor of or against the change of the seat of government-that they are of purely local concern, in which the General Government is not interested, and over which its Departments have no jurisdiction or control. They may, by appropriate proceedings, be brought before the courts of the Territory, to which their determination properly belongs. My predecessors have frequently declined to give official opinions upon questions similar to those presented by the communication of the governor of Montana, and their action in respect thereto I approve. (See 2 Opin., 311; 6 Opin., ; 10 Opin., 220.) District of Columbia-Auditor's Certificates. DISTRICT OF COLUMBIA-AUDITOR'S CERTIFICATES. The First and Second Comptrollers of the Treasury, sitting as a board of audit under the act of June 20, 1874, chap. 337, are, by the provisions of that act, authorized to allow interest at the rate of six per centum per annum upon that part of the indebtedness of the District of Columbia which purports "to be evidenced and ascertained by certificates of the auditor of the board of public works" of said District. DEPARTMENT OF JUSTICE, October 17, 1874. SIR: I have the honor to acknowledge the receipt of your letter, bearing date October 10, 1874, inclosing one of the 9th addressed to you by the First and Second Comptrollers, and requesting my opinion upon the question presented by those officers, viz, whether they, sitting as a board of audit under the act of Congress "for the government of the District of Columbia," approved June 20, 1874, should allow interest on that portion of the debt of said District purporting to be evidenced by certain certificates signed by the auditor of the late board of public works. I find, in the inclosure with your letter, a copy of one of these certificates, showing their form and tenor. I notice your suggestion that the interest of the United States will be affected by the determination of the question. It may so happen. Nevertheless it is not a debt or claim against the United States that the Comptrollers are called on to examine. If Congress has enacted a law by which, in some contingency, near or remote, the United States may be obliged to pay the debt of another government, I do not see that the nature or condition of that debt can in any way be changed or modified by such liability. If the debt bears interest it must be taken cum onere. The indebtedness to be audited is that of the District of Columbia, for the payment of which Congress has made provision, and has determined that its status shall be accurately ascertained. The act above referred to describes the class of the floating debts of the District to which the above-mentioned certificates belong, thus: "Secondly, the debt purporting to be evidenced and ascertained by certificates of the auditor of the board of public works." Whether it is lawful District of Columbia-Auditor's Certificates. and right for the District to pay interest upon these certifi cates, is, as I understand it, the question submitted. The case seems to be this: The board of public works, having entire control over the streets, avenues, alleys, and sewers of the cities of Washington and Georgetown, ordered improvements of streets, &c., to be made, and contracted with sundry persons to do the work. Under the same section of the law the board has also power to disburse upon their warrant all moneys appropriated, in pursuance of law, for improvements. (Section 37 of the act of February 21, 1871, 16 Stat., 426.) From the powers thus granted there is necessarily inferred the authority to audit and settle the accounts of contractors and other employés of the board. This duty was imposed upon an officer appointed by the board, styled the auditor of the board of public works. He represented the board, and in the examination, settlement, and allowance of accounts his action was theirs. When the funds of the board became exhausted and the amounts found due to the contractors, upon settlement, could not be paid, the auditor gave to them, (doubtless by order of the board,) as evidences of such settlements, certificates signed by him as auditor, in which it was stated that he had audited and allowed the accounts, and the amounts allowed were distinctly given. These amounts, as shown by the auditor's certificates, thus became liquidated debts, due at the respective dates of the certificates; and there being no question raised as to the legality of the contracts under which they were incurred, they are debts of the District of Columbia. I am of opinion that interest is chargeable on these certificates from and after their dates, because they are evidences of indebtedness ascertained and liquidated by the debtor at the times they bear date. They are acknowledgments by the debtor that the amounts shown by them were due at date. But payment was declined. The law in such cases implies a contract to pay interest. Interest becomes a part of the debt, as obligatory upon the debtor as the principal. In Boddam vs. Riley (2 Bro. C. C., 3) Lord Thurlow said, "When there are accounts regularly stated between the parties, there is an implied contract on the part of the debtor to pay; and all contracts to pay undoubtedly give a right to interest from the time when the principal ought to be paid." And Mr. District of Columbia-Auditor's Certificates. Justice Spencer said, in Walden vs. Sherburne, (15 Johns., 424,) "We have uniformly decided, that after an account has been liquidated it carries interest; and that an account is to be considered liquidated after it is rendered, if objections are not made to it." (See, also, Ch. J. Savage's decision in Reid vs. The Rensselaer Glass Factory, 3 Cowen, 393.) Mr. Sedgwick, in his work on Damages, well sums up the law on this subject as it is held in America, in a note at the foot of page 383, thus: "The law in this country annexes interest as an invariable incident in all cases of default to pay the principal sum, where the debtor knows what that sum is and when he is to pay it." These authorities will probably suffice to show what the law on this subject is in the case of individuals and corporations. It is not different in respect to States and territorial governments. A State cannot be sued by a citizen, but when questions of public indebtedness come incidentally before the judicial tribunals they do not hesitate to dispose of them upon the same legal and equitable principles as in the case of individuals. The State is liable to pay interest as individuals are. (Respublica vs. Mitchell, 2 Dallas, 101; Commissioners vs. Kempshall, 26 Wend., 404; People vs. Canal Commissioners, 5 Denio, 401; 2 Mason C. C. Rep., 1.) Congress, in requiring the Comptrollers of the Treasury to examine and audit the floating debt of the District of Columbia, has limited them in the performance of this duty by no rules in respect to interest, other than those which would apply to the debts of individuals, corporations, and States; and it is fairly to be inferred that it is the intent of the act that they should be governed by those rules. Moreover, section 1 of the act of April 27, 1870, (16 Stat., 91,) entitled "An act to amend the usury laws of the District of Columbia," provides that for the loan or forbearance of any money, goods, or things in action, the rate of interest shall be six per cent. per annum; and there seems to be no good reason why this act should not apply to the liquidated and overdue indebtedness of the late board of public works. I am, very respectfully, your obedient servant, Hon. B. H. BRISTOW, Secretary of the Treasury. Norse American Line of Steamers. NORSE AMERICAN LINE OF STEAMERS. By virtue of the 2d article of the treaty with Sweden of April 3, 1783, and the 8th and 17th articles of the treaty with Sweden and Norway of July 24, 1827, the provisions of article 4 of the treaty with Belgium of July 17, 1858, exempting steam-vessels of the United States and of Belgium, engaged in regular navigation between their respective countries, from the payment of duties of tonnage, anchorage, buoys, and light-houses, became immediately applicable, mutatis mutandis, to steamnavigation between the United States and Sweden and Norway. Hence, since the 17th of July, 1858, the steamers of the Norse American line, (being Swedish and Norwegian vessels,) plying regularly between Norway and the United States, have not been liable to the payment of the above-mentioned duties at American ports; and the owners thereof are entitled to have refunded to them any moneys they have paid to the customs-officers of the United States for such duties subsequent to that date. Under sections 30124 and 3013 of the Revised Statutes, the Secretary of the Treasury has authority to refund to the owners such moneys, where the payments by them to the customs-officers were exacted since the 30th of June, 1864. Where the payments were exacted prior to that date, whether these can be refunded in like manner depends upon the law as it then stood, and the practice of the Treasury Department; section 2 of the act of March 3, 1839, chap. 82, being applicable thereto. DEPARTMENT OF JUSTICE, October 24, 1874. SIR: I have the honor to acknowledge the receipt of a letter, bearing date October 5, 1874, addressed by Hon. Charles F. Conant, Acting Secretary, to this Department, and covering copies of communications from the Secretary of State addressed to the Department of the Treasury, under dates 10th of April and 31st of August, 1874; also, a copy of the letter of the Secretary of the Treasury, of October 3, 1874, addressed to the Department of State; also, the note, bearing date March 25, 1874, of the minister of Sweden and Norway, addressed to the Department of State; and lastly, a memorandum containing a copy of article 4 of the treaty of July 17, 1858, between the United States and Belgium; of article 2 of the treaty of the United States with Sweden of April 3, 1783; and of articles 8 and 17 of the treaty of the United States with Sweden and Norway of July 4, 1827. These documents all have reference to the question sub |