contemplated change in the grade of this office and by giving the rank and pay of a colonel in the Army to the chief. A new and rather anomalous office is therefore created that of "colonel in the Army and chief of the Record and Pension Office of the War Department"-but upon the condition that the President shall nominate a particular person to fill it. I do not think it is competent for Congress to designate the person who shall fill an office created by law, and practically nothing remains of the bill under consideration if this person is not to be appointed. The office is an important one, connected with the active civil administration of the War Department. I can not agree that the selection of the officer shall be taken out of the discretion of the Executive, where the responsibility for good administration necessarily rests. It is probably true that the officer intended to be benefited is peculiarly deserving and has had remarkable success in the discharge of the duties of the office; but these are considerations for the appointing power, and might safely have been left there.

If this particular appointment was backed by reasons so obvious as to secure the support of both Houses of Congress, it should have been assumed that these reasons could have been made obvious to the Executive by the ordinary methods. In connection with the Army and Navy retired lists, legislation akin to this has become quite frequent, too frequent in my opinion, but these laws have been regarded as grants of pensions rather than of offices.

If it is to be allowed that active places connected with the Executive Departments can be created upon condition that particular persons are, or are not, to be designated to fill them, the power of appointment might be wholly diverted from the Executive to the Congress.

EXECUTIVE MANSION,

BENJ. HARRISON.

February 26, 1891.

RELIEF OF ESTATE OF GEORGE W. LAWRENCE.

To the Senate:

I return herewith, without my approval, the bill (S. 3270) "for the relief of the administratrix of the estate of George W. Lawrence."

If I rightly construe this bill it authorizes the Court of Claims to give judgment in favor of the contractor with the United States for the construction of the vessels named (Agawam and Pontoosuc)

for the difference between the contract price and the actual cost to the contractor of building the vessels, subject only to the condition that nothing shall be allowed for any advance in the price of labor or material, unless such advance occurred during the prolonged term for completing the work rendered necessary by delay resulting from the action of the Government. The bill is somewhat obscure, but I have, I think, correctly stated the legal effect of it.

Undoubtedly in contracts made for Army and Navy supplies and construction during the early days of the war there was not infrequently loss to the contractor by reason of the advance in the cost of labor, resulting from the withdrawal of so large a body of men for service in the field, and the indirect result of this upon the cost of material; but I can not believe that it is the purpose of Congress to reopen such contracts at this late day and to pay to the contractors the cost of the work or material which they stipulated to do or deliver at fixed prices. In the matter of another vessel constructed by this same claimant, and in the case of one other similar claim, I approved bills at the last session, but they carefully limited any finding by the Court of Claims to such losses as necessarily resulted from the interference by the Government with the progress of the work, thus creating delays and enhanced cost.

In those cases the Government only undertook to make good losses resulting directly and unavoidably from its own acts. If the principle which seems to me to be embodied in the bill under consideration is adopted I do not see how the Congress can refuse in all cases of all sorts of contracts to make good the losses resulting from appreciation in the cost of labor and material. The expenditure that such a policy would entail is incalculable, and the policy itself is in my judgment indefensible.

The bill at last session for the relief of this claimant, in the case of another vessel constructed by him, was, as I have said, carefully put upon the lines I have indicated, and if this claim could have been maintained upon those lines I assume that the bill would have been similar in its provisions.

EXECUTIVE MANSION,

March 2, 1891.

BENJ. HARRISON.

CIRCUIT COURT OF APPEALS.

To the Senate:

I return herewith, without my approval, the bill (S. 2729) entitled "An act to amend an act entitled 'An act to establish circuit courts of appeals, and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes.'

The original act to which this amendment is proposed, constituting an intermediate court of appeals, had for its object the relief of the Supreme Court by limiting the cases which might be brought up for hearing in that court. The first section of the bill under consideration allows appeals in criminal cases where the sentence. imposes no imprisonment and the fine is as much as $1,000. The effect of this provision will be to bring to the Supreme Court many cases that, in my opinion, should be finally determined in the intermediate appellate court, and so, in part, to defeat the general purpose of Congress in constituting the intermediate court. But this objection would not alone have sufficient weight in my mind to induce me to return the bill. Section 3 of the bill is as follows: That no appeal shall hereafter be allowed from judgments of the Court of Claims in cases under the act of March 3, 1891, entitled "An act to provide for the adjudication and payment of claims arising from Indian depredations," except where the adjudication involves the construction or application of the Constitution or the validity or construction of a treaty or the constitutionality of a law of the United States: Provided, however, That upon such appeal it shall be competent for the Supreme Court to require. by certiorari or otherwise, the whole case to be certified for its review and determination upon the facts as well as the law.

I am advised by the Attorney-General that under the Indian depredations act, 8,000 cases, involving an aggregate of damages claimed of about $30,000,000, have already been filed. A number of these cases involve as much as $100,000 each, while a few involve as much as $500,000 each, and one something over $1,000,000. The damages which may be awarded in these cases by the Court of Claims are to be paid out of the trust funds of the Indians held by the United States, or, if there are no such funds, out of the Treasury of the United States. The law referring these cases to the Court of Claims has had no judicial interpretation, and many novel and difficult questions are likely to arise. It is quite a startling proposition and a very novel one, I think, that there shall be absolutely no opportunity for the review in an appellate court, in cases involving such large amounts, of questions involving the construction of the statute under which the court is proceeding, or those various questions of law, many of them new, which necessarily arise in such cases.

Neither the claimants, the Indians, nor the Government of the United States should be absolutely denied opportunity to bring their exceptions to review by some appellate tribunal. I would not suggest that an appeal should be allowed in all cases. Some limitation as to amount would be reasonable, and perhaps some discretion might be lodged in the Supreme Court as to granting appeals. The limitations, however, imposed by the section I have quoted are so severe and unreasonable, in my judgment, that I have felt compelled to return the bill to the Senate with a view to its reconsideration. BENJ. HARRISON.

EXECUTIVE MANSION,

July 19, 1892.

THE CLAIM OF WILLIAM MCGARRAHAN

To the Senate:

I return herewith, without my approval, the bill (S. 1958) entitled "An act to submit to the Court of Private Land Claims, established by an act of Congress approved March 3, 1891, the title of William McGarrahan to the Rancho Panoche Grande in the State of California, and for other purposes."

No

This bill came to me on the 20th instant, at a time when very many other bills were submitted for my consideration, and it has not been possible for me to make such an examination of the history of Mr. McGarrahan's claim as would be necessary to form an intelligent judgment as to its merits and just extent. It is quite possible that he has been wronged and that he has a claim for some reparation from the Government. I can not, however, think that this bill proceeds upon a just basis. It provides that Mr. McGarrahan shall file his claim as the assignee of Gomez in the Court of Private Land Claims for the lands described in the title; and that if the court establishes the grant to Gomez it shall be confirmed to McGarrahan. evidence that he is the assignee of Gomez is, I think, required by the bill, which assumes that fact, instead of submitting it to the If the claim is established it is provided, in substance, that all lands, part of said grant, which have been conveyed by the Government or are in the occupancy of actual settlers, or "upon which there are any smelting or reduction works, or the lands claimed in connection with such reduction or smelting works," shall be excepted from the patent which the Secretary of the Interior is directed to issue to McGarrahan. By this provision the title of the New Idria Mining Company, which has long contested with McGar

court.

rahan the title to a large part of this property, is established and that company is relieved from any responsibility to account for the profits made in mining. On the other hand, the United States waives all benefit of judicial proceedings which have resulted in its favor and gives Mr. McGarrahan an opportunity de novo to try all such questions; and the decision, if in his favor, is not only to restore to him all the lands yet undisposed of, but the United States assumes to pay him the value of the lands appropriated by others, and of their use for all these years, and to account to him for all profits that have been made by the New Idria Mining Company, or any one else, in quicksilver or other mining.

This seems to me to be wholly inadmissible. The amount involved must be enormously large, though at present incapable of any accurate estimate. If the title of the New Idria Company has been established by final decrees of court, placing that title beyond question, and that company beyond any call to respond for use and profits, why should the Government of the United States, waiving in its behalf these decrees which would protect it also, assume a responsibility to account for the value of the lands and for their use and for the net value of minerals extracted by that company or others? It will be noticed in the quotation I have made from the act that this company is allowed to take all the land it may claim, but at the expense of the United States, not of Mr. McGarrahan.

The bill is so framed as to give full protection to the New Idria Mining Company to the full extent of its largest claim, while throwing upon the United States a responsibility which that company should bear if the title of Mr. McGarrahan is established.

The United States provided a proper tribunal for the trial of claims founded upon Mexican grants. This claim was there tried, and if fraud affected the judgment it is not, I think, chargeable to the Government-the contest was chiefly between rival claimants. In this state of the case it would seem that if the United States consents to open the litigation, and to wipe out all judicial findings and decrees, that a less exacting measure of damages than that proposed in the bill should be agreed on.

It is not my purpose, as I have intimated, to express the opinion that Mr. McGarrahan is entitled to no relief. It seems to me, however, clear that he is not entitled to the relief given by this bill, and that it does not adequately protect the interests of the United States. BENJ. HARRISON.

EXECUTIVE MANSION,

July 29, 1892.