upon the routes named, and that money has been paid by the Department in consequence of fraudulent representations by these contractors.

Inviting your attention to the provisions of section 4057 of the Revised Statutes, I seek your direction as to my course in relation to these payments in view of the proposed settlement of the cases by arbitration. A copy of a communication on this subject, addressed to me by Mr. Bliss, on the 23d ultimo, is also included.

SIR: I have the honor to hand you with this a letter from the Second Assistant Postmaster-General, with the inclosures referred to by him. You will notice that General Elmer is of the opinion certain parties referred to in his letter have received moneys for services never in fact performed.

Under section 4057 of the Revised Statutes, the case presented by the Second Assistant seems to be one requiring this office to prosecute. But the cases seem also to be included within the terms of a submission agreed to by the Hon. George Bliss, acting for the Government, and by the Hon. R. G. Ingersoll, acting for the other parties.

It occurs to me that if the submission is a valid one, it will be an answer to any suit that might be commenced against the parties to it. If not valid, of course it is no answer to the suit, nor would the award conclude either party.

I refer the papers to you with the request that you will advise me whether, in your opinion, the submission is valid, and will bind either the Government or the other parties who are supposed to be liable to the Government.

Very respectfully,

Hon. B. H. BREWSTER,

Attorney-General, Washington, D. C.

T. O. HOWE,

Postmaster-General.

(Stamped:) Office of the Second Assistant Postmaster-General, October 24, 1882. Post master General.

[Bliss & Schley, attorneys and counsellors, 160 Broadway, New York. Gerge Bliss. William T. Schley.]

OCTOBER 23, 1882.

DEAR SIR: I beg to inclose you copies of agreements made with the representative of Monroe Salisbury and others, and with the representative of V. W. and J. W. Parker, looking to an arbitration of the claims of the Government upon them for money believed to have been overpaid on certain routes.

I informed you of these agreements about the time they were made, and of the circunistances which surrounded them; how we had failed to secure indictments on these routes, and, as the statute of limitation was running against criminal prosecutions, I thought it wise, after consultation, to make the agreements.

It seems to me the time has now come when it is desirable to put them in execution. It is with that end in view that I inclose them to you.

You will perceive that there is reserved to me a right to substitute some one to act in my place. I propose, therefore, to substitute Mr. H. D. Lyman.

I beg to suggest that the way is to serve upon Colonel Ingersoll a notice of the substitution, and, at the same time, a notice of the first meeting of the arbitrators. This will set the matter in motion. If this meets your approval I will prepare the necessary papers.

I hoped to have seen you when in Washington last week and talked these matters over with you, but you left the night I got there.

Your humble servant,

Hon. RICHARD A. ELMER.

GEORGE BLISS,
Assistant Attorney.

It is claimed by the Government that Monroe and O. J. Salisbury, Luke Voorhees, M. V. Nichols, or some other person or persons representing or connected wit the Salisburys, has or have received moneys from the Government, to which they were not entitled, on the four following postal routes, namely: Wells to Hamilton, Fargo to Pembina, Soledad to Newhall, and Silver Bow to New Chicago.

It is therefore agreed that the claim of the Government in the said four routes, or any of them, shall be referred to Richard A. Elmer, Second Assistant Postmaster-General, George Bliss, or any one that may be designated by him, and Robert G. Ingersoll, or any one that may be designated by him, to determine whether the said parties, or any one of them, have received from the United States any money to which they, or any one of them, were not entitled, for transporting the mails upon any of the four said routes mentioned.

It is further agreed that the said referees, or a majority of them, shall have full power to decide all questions submitted, and to act on any evidence satisfactory to them or a majority of them; and if they, or a majority of them, find that on said routes, or any of them, money to which they, or any of them, were not entitled has been received, it shall be refunded on demand, or may be recouped by the Govern

ment.

If the Government hereafter institutes any other proceedings against the said parties, or any of them, on account of any matters growing out of the said four routes, then this submission shall be void.

This instrument does not affect the ordinary proceedings of the Post-Office Department as to fines, penalties, and stoppings during the pendency of this arbitration. "Legally" stricken out, and "to which they or any of them were not entitled" interlined before signing.

GEORGE BLISS,
Special United States Attorney.

R. G. INGERSOLL,

Attorney for Monroe and O. J. Salisbury, Voorhees, Nichols, and all others interested with the Salisburys.

In pursuance of the power reserved to me, I hereby designate H. D. Lyman to act in my place and stead under the foregoing instrument.

GEORGE BLISS.

It is claimed by the Government that Virgil W. Parker, J. W. Parker, E. W Parker, or some other person or persons representing or cornected with the said V. W. and J. W. Parker, has or have received moneys from the Government to which they are not entitled, on the following postal route, namely, Las Vegas and Vinita. It is therefore agreed, That the claim of the Government in the said route shall be referred to Richard A. Elmer, Second Assistant Postmaster-General; George Bliss, or any one that may be designated by him; and Robert G. Ingersoll, or any one that may be designated by him, to determine whether the said parties, or any one of them, have received from the United States any money to which they, or any one of them, were not entitled, for transporting the mails on the said route between Las Vegas and Vinita.

It is further agreed, That the said referees, or a majority of them, shall have full power to decide all questions submitted, and to act on any evidence satisfactory to them, or a majority of them; and if they, or a majority of them, find that on said route money has been received to which they, or any one of them, were not entitled, it shall be refunded on demand, or may be recouped by the Government.

If the Government hereafter institutes any other proceedings against the said parties, or any of them, on account of any matter growing out of the said route, then this submission shall be void.

This instrument does not affect the ordinary proceedings of the Post-Office Department as to fines, penalties, and stoppages during the pendency of this arbitration. GEORGE BLISS, Assistant United States Attorney, R. G. INGERSOLL,

Attorney for V. W. Parker, J. W. Parker, E. W. Parker,

and all others interested in said route.

JUNE 17, 1882.

(Stamped:) Post-Office Department, December 29, 1882, Office of the PostmasterGeneral.

DEPARTMENT OF JUSTICE,

Washington, December 28, 1882.

SIR: On the papers referred to me by you concerning the arbitration of claims of the United States against certain mail contractors, I have to answer as follows: You request me to advise you whether the submission agreed to by George Bliss, esq., acting for the United States, and R. G. Ingersoll, esq., acting for the contractors, is valid. (Letter November 25, 18-2.)

I have not found any opinion of my predecessors bearing on the question involved, but in United States r. Ames (1 Woodbury & Minot, 89) the circuit court held broadly that a submission by the United States was invalid on account of the want of authority in any officer of the United States attorney to enter into a submission in their behalf that shall be binding: saying, "All judicial power is by the Constitution vested in the Supreme Court, and such inferior courts as Congress may from time ordain and establish. (Constitution, Art. 3, Par. 1.) No Department nor officer has a right to vest any of it elsewhere,"

The Court of Claims, however, in the case of the Great Falls Manufacturing Company (16 C. Cls. R., 195) made the following distinction, as shown by the syllabus: "Though an officer may not be authorized in terms to submit a matter to arbitration, yet if he be specially authorized by Congress to act in regard to the subjectmatter of the submission, so that he will have power to carry into effect the decree which the award may direct, he has power to submit the matter to arbitration." The chiefjustice dissented on the ground that no authority to arbitrate had been given by Congress (p. 200).

I have found no other federal decision than these, and no statute anthorizing such submission; but it appears that by section 4057 Revised Statutes the PostmasterGeneral is required to cause suit to be brought to recover such claims as those in question.

It is apparent from the statement of Mr. Bliss that if no legal impediment exists it would be greatly to the advantage of the United States to carry out the submission, and it further appears that the contractors are not only desirous to do so, but are willing to give bond to abide by the result.

Mr. Bliss is of opinion that the submission is lawful, but enters into no discussion of the subject, and furnishes no authority for his opinion, which, in view of the decisions above cited, is unfortunate. Thus far, knowing his experience in acting for the Government, I have assumed he knew of some statute or authority to warrant the course he has taken.

The circuit court proceeded apparently on the ground that, where by statute a particular authority is vested or mode of proceeding is directed it is exclusive; and section 4057 cited, gives peculiar force to the doctrine as applied to this case. It might also be said that the officers of the United States concerned in this matter, if considered either as general agents or as agents with designated powers, are unauthorized to bind their principal by this species of contract.

The Court of Claims does not dispute but avoids such reasoning by holding that the delegation of authority to submit need not be express, but may be implied from the nature and extent of control over the general subject-matter expressly given. Section 4057 seems to stand in the way of taking any benefit of this distinction.

In ordinary cases it might be put on the general power of an attorney at law to act for this client, but even there the weight of authority is, I think, that the power can be exercised only after suit brought, though there are decisions upholding its exercise before. It is doubtful whether such a doctrine is applicable to the present case, for it is difficult to imply a power in the Attorney-General to submit to arbitration a case in which the Postmaster-General is specially directed to cause suit to be brought. As a question of law, therefore, the right of submission seems to me to be in serious doubt.

Assuming, however, that both parties are desirious of securing the practicable advantage of the submission, and are willing to take such measures as may avail to put the proceeding beyond question of its legality, I suggest that end would be accomplished by the formal commencement of suits in the supreme court of the District against the respective contractors, in which, by their attorney, they should enter their appearance. Then, upon application, and by consent of parties, the court would doubtless appoint the persons named in the present agreements as arbitrators, and their award could be returned to and made the judgment of the court. This course will satisfy the reasonable doubt in your mind, and, unless open to some objection which does not occur to me, would avoid the danger of making a precedent which might, under other circumstances, be used to the disadvantage of the public.

In this connection I call your attention to Alexandria Canal Company vs. Swan (5 H. Mis. 38, pt. 2—25*

How., 86), in which suit, brought in the circuit court of Washington County, the cause after issue was referred by a rule of court to four arbitrators, upon terms specified in a written agreement filed in the case setting forth the manner in which the arbitrators were to be selected, &c. The Supreme Court upheld the proceeding, Chief Justice Taney declaring that "a trial by arbitrators appointed by the court with the consent of both parties is one of the modes of prosecuting a suit to judgment as well established and as fully warranted by law as a trial by jury." (See, also, Newcomb vs. Wood, 97 U. S., 582.)

The proposition of the contractors to give bond to abide the result, though indica tive of their good faith, does not seem to me to change the legal aspect of the case, for if by inherent defect of authority the promise of one side is not binding, it would, I think, affect the validity of the collateral no less than of the principal agreement.

I am, with respect, &c.,

Hon. TIMOTHY O. HOWE,

Postmaster-General.

BENJAMIN HARRIS BREWSTER,
Attorney-General.

The WITNESS. I had some discussion with Mr. Ingersoll about this proposed arbitration, and he wanted to open a court and bring witnesses and take their testimony, and so on, but it never amounted to anything. We did not agree on that point. We have had no other correspondence with Mr. Ingersoll. When he has come in we have talked the matter over and discussed it in various ways, but we have never made any movement as to the settlement of the cases.

Q. You say you never met as a board for the purpose of adjudicating the questions at issue?-A. No, sir; we never did.

By Mr. STEWART:

Q. Do you say that it was proposed to call and examine witnesses, and that you objected to that?-A. Well, I objected in the first place because it had not been decided that we had authority to go ahead.

Q. For no other reason?-A. For no other reason.

Q. Then, so far as appears, the Salisburys and Parkers, by their representative, expressed a willingness to go ahead, but the Government declined to do so?-A. Yes, sir; they seemed anxious all the time to effect a settlement in that way. We were not certain that if

Q. (Interposing.) You acted under the advice of Attorney-General Brewster?-A. No, sir. This case was submitted to the Attorney-General some time afterwards. We were pretty clear upon the point that we had no authority to go ahead with that arbitration, and if we had carried it to a finality and made an award or a judgment against these parties, we could not see that they would be bound to abide by the award, and if not, we would be left without recourse against them, and have our trouble for our pains.

By Mr. VAN ALSTYNE:

Q. It was the understanding of your office in the first place that this proposed arbitration was not binding upon them?-A. Yes, sir; we raised the question with the Postmaster-General.

sir.

Q. You interrogated the Attorney-General on the subject?—A.. Yes,

Q. And you took it that his answer was in corroboration of your views? A. Yes, sir.

Q. That the arbitration could only be availed of by commencing suits and then arranging some sort of an arbitration under cover of those suits?-A. Yes, sir.

Q. Those suits have never been commenced?-A. Never, to my knowledge.

Q. And that was the reason you suspended action?-A. Yes, sir.

Q. And not because of any reluctance to have the matter determined?-A. Oh, no, sir. When this matter was first submitted I called the attention of Second Assistant Postmaster-General Elmer to section 4057 of the Revised Statutes, which seemed to me to be mandatory as to the commencement of suits, and this letter which was addressed to the Attorney-General was the result of that. The Postmaster-General, discussing the matter with us, had the same view, and he said he would submit the question to the Attorney-General, as you see he did. By the CHAIRMAN:

Q. What further correspondence did you have on the subject ?—A. No further correspondence. I have had a great many discussions with Colonel Ingersoll about the matter. I told him that I thought we would have to go to suit with all these cases. In the first place, the arbitration embraced only four routes, while there were a number of other routes of the Salisburys which I thought were just as bad as this, and I said that I could not see where the Salisburys were going to gain anything by having those four routes settled up, and then we going on and sueing them on four or five other cases of the same kind.

Q. Did you make that suggestion to Mr. Ingersoll-A. Yes, sir. Q. What answer did he make?-A. Well, he made no particular answer. He had his own view of that.

Q. Did he suggest that that difficulty might be remedied by putting in all the routes?-A. He wanted all the routes settled in this way. The agreement, of course, included only four routes. We were a long time making up our minds as to what we would do about this, and during that time I took up three or four more routes of the Salisburys that we had no evidence upon, and had them investigated, and got together as strong a case on those routes as we had on the four that were included in the arbitration. I furnished Mr. Ingersoll with a statement showing: what I thought we should claim if we went on with the arbitration, and. I have a copy of it here which contains, as you will see, more routes than those that were agreed to be submitted to arbitration.

Q. Is this the statement of the amounts that you found due from the Salisburys to the Government?-A. No; this is the statement I gave Mr. Ingersoll, a memorandum as to how we proposed to take up the cases if we finally decided to go on with the arbitration. This was early in the discussion. This first statement includes only the four routes.. Afterwards I got additional information about these other routes.

By Mr. STEWART:

Q. Why have not suits been brought in these cases?-A. I cannot answer that question. I have here two tabular statements, marked respectively A and B. A embraces the Salisbury routes agreed to be submitted to arbitration and the Vinita and Las Vegas route of Parker, which was not included in the statement I gave Mr. Ingersoll, because at that time I had not sufficient data on that route to make a statement of this character. Subsequently I obtained that information.