ally been made before that time, such claims may thereafter be paid by them out of the proper funds remaining in their hands. Ibid. 9. For what period and to what amount such officers should be allowed to retain in their hands funds for that purpose, after the date when unexpended balances of the appropriation lapse, is a matter of administration, falling within the province of the Secretary of the Treasury to regulate. Ibid.

10. The provisions of section 3651 Rev. Stat. in effect prohibit the exchange of gold and silver coin for United States notes by the Treasurer, assistant treasurers, and other depositaries of public funds. Opinion of Sept. 19, 1879, 16 Op. 381.

DISCHARGE.

See ARMY, XXI. ·

DISMAL SWAMP CANAL.

The joint resolution of July 25, 1866, authorizing the sale of the stock of the Dismal Swamp Canal Company, owned by the United States, considered. Opinion of Jan. 25, 1868, 12 Op.

350.

DISMISSAL.

See ARMY, IX; MARINE CORPS, III; NAVY,

VII.

DISPOSAL OF OLD MATERIAL.

1. Under the act of 3d March, 1825, chap. 93, the President, only, has power to cause ordnance, arms, ammunition, &c., unfit for public service, upon proper inspection and survey, to be sold; and to that end, a method of effecting the sale has been prescribed by the Secretary of War, by which the property must be offered first at public auction. Opinion of Sept. 11, 1833, 2 Op. 580.

2. Upon examination of section 3618 Rev. Stat., amended by act of February 27, 1877, chap. 69, and also of section 3672 Rev. Stat.: Advised that the Chief of the Bureau of Engrav

ing and Printing cannot be authorized by the Secretary of the Treasury to exchange certain old presses for a new press with the manufacturers, so that but a small amount of money in addition will have to be paid to them therefor; yet that the Secretary may authorize a sale of the old presses to the manufacturers, the proceeds to be covered into the Treasury, and at the same time a purchase of the new press can be made from them, paying for the same out of the appropriation available for that purpose. Opinion of June 23, 1877, 15 Op. 322.

DISTRICT ATTORNEY.

See also COMPENSATION, II; FEES AND COSTS.

1. Where the decree of a judge raises a presumption against the jurisdiction of the United States courts, in cases of capture, the district attorney may cause the necessary depositions to be taken de bene esse, to be used by the Executive, in case the appellant does not prosecute his appeal, or the decree be affirmed. Opinion of Feb. 8, 1794, 1 Op. 39.

2. It is the duty of district attorneys to attend all the courts of their respective districts when required by the Government. Opinion of Feb. 18, 1830, 2 Op. 319.

3. Where a district attorney acted as counsel for a collector of customs in suits instituted against him to recover back duties paid under protest, and was adjudged by the circuit court to be entitled to receive his fees and disbursements for such service from the United States: Held that the same should not be included in his official return of fees under the act of 18th May, 1842, chap. 29, for the reason that the services were rendered as the private counsel of the collector, and not in his official capacity as district attorney. Opinion of Feb. 9, 1844, 4 Op. 308.

4. It is not the official duty of a district attorney of the United States to attend on the examination by a magistrate of a State of a complaint preferred by an officer of the Army against a citizen for violation of an act of Congress, or to leave the place of his residence to assist such officer of the Army in procuring evidence, or otherwise preparing the case. Opinion of Nov. 11, 1853, 6 Op. 218.

5. A district or territorial attorney of the

United States has no power to commence a suit in the name of the Government without instructions from the Solicitor of the Treasury, except in a case of manifest urgency, which it is his duty to communicate to the Solicitor immediately, in order that he may be instructed as to its further prosecution by the Solicitor. Opinion of Jan. 1, 1855, 8 Op. 454.

6. It is the official duty of district attorneys to appear in the Federal courts of their respective districts in all cases in which the United States shall be concerned, although the case may stand not in the name of the United States, but of some officer of the United States. Opinion of Feb. 20, 1857, 8 Op. 399.

7. The act of August 16, 1856, chap. 124, section 12, was intended to compel district attorneys to include in their emolument accounts the fees received from the Government for defending its officers, as well as other fees. Opinion of May 25, 1858, 9 Op. 146.

8. When the office of a district attorney is so overburdened with business the Departments may employ other counsel to aid him in defending suits against the public officers, or may allow him to employ a regular assistant at an agreed salary. Ibid.

9. It is in the discretion of the Secretary of the Treasury to decide whether an outgoing district attorney shall cease all connection with pending suits against collectors; but in some cases it would be wise to employ the late attorney as assistant counsel with the incumbent. Ibid.

10. The Secretary of the Treasury has no authority to appoint an assistant district attorney at a fixed salary payable out of the judiciary fund. Opinion of June 5, 1858, 9 Op. 164. | 11. The heads of the several Departments may retain an assistant for a district attorney to aid in the defense of suits against the Federal officers. Ibid.

12. Such counsel should act under the direction of the district attorney, and his maximum compensation should be fixed when he is employed. Ibid.

13. A district attorney is entitled, under the act of February 26, 1853, chap. 80, to mileage only from the place of his permanent residence to the place where the court is held. Opinion of Feb. 11, 1860, 9 Op. 411.

14. He is entitled to mileage to and from court, as of right, in all cases of his lawful at

tendance on court at a distance from his place of abode. Ibid.

15. Travel is not a "service" within the meaning of the act of February 26, 1853, chap. 80. Opinion of Feb. 18, 1860, 9 Op. 417.

16. The necessary attendance of a district attorney before one court is a sufficient cause to render it impossible for him to attend another court held in a different place at the same time. This will justify the appointment of a substitute to attend such other court, if the public interest requires it. Opinion of Dec. 11, 1860, 9 Op. 526.

17. It is not a part of the official duties of a district attorney to resist applications for the discharge of enlisted minors, under writs of habeas corpus issued out of State courts, but the Secretary of War has power to employ the district attorney for that purpose if he shall deem it proper. Opinion of Oct. 16, 1861, 10 Op. 146.

18. The plain intent of section 14 of the act of August 16, 1856, chap. 124, was to guard against injury to the public service by the accidental and temporary inability of a district attorney to attend at court, and not to allow him to hold the title of his office while all its duties are performed by a deputy or substitute of his own appointment, and the officer. himself volunteers to employ all his time in another vocation. Opinion of Nov. 2, 1861, 10 Op. 150.

19. While a district attorney who should accept a commission in the Army and neglect the duties of his civil office would be liable to be removed by the President, yet the acceptance of such a commission would not, proprio vigore, vacate the office of district attorney. Ibid.

20. The fees received by the district attorney for the southern district of New York for services in confiscation cases constitute a part of his official emoluments, and as such must be accounted for, pursuant to section 3 of the act of February 26, 1853, chap. 80. Opinion of Sept. 12, 1864, 11 Op. 79.

21. A district attorney is not required to return in his emolument accounts the compensation received for services rendered under section 12 of the act of March 3, 1863, chap. 76, in suits against collectors or other revenue officers. Opinion of Sept. 20, 1864, 11 Op. 88. 22. Section 15 of the act of June 22, 1874,

chap. 391, modifies section 838 Rev. Stat., in so far as to require the district attorney to commence proceedings in all cases covered by the latter section, excepting only where the case cannot in his judgment be "sustained." Opinion of Nov. 11, 1875, 15 Op. 523.

23. It is the duty of the district attorney, however, to report the facts to the Secretary of the Treasury in every case (as well where proceedings are instituted by him as where they are not), to the end that the Secretary may determine what "the ends of public justice require" in relation thereto. Ibid.

DISTRICT COURT OF THE UNITED STATES.

When there is a vacancy in the office of district judge the circuit judge cannot designate a district judge to hold court in that district, the act of Congress (of July 29, 1850, chap. 30) only authorizing such designation in cases of sickness or other disability. Opinion of Jan. 23, 1858, 9 Op. 131.

DISTRICT OF COLUMBIA. See also WASHINGTON CITY.

I. Generally.

II. Commissioners of.

III. Police Board.—Board of Health. IV. Sinking fund.

V. Bonds and other Securities of.

I. Generally.

1. The orphans' court of the county of Washington has power to grant letters of administration in respect to assets existing in the county, and payments made by the Treasury Department to an administrator thus appointed are regular; yet, in a case where the decedent resided in Baltimore, and left a will appointing an executor there, and letters granting administration de bonis non are afterwards granted in Maryland upon the same estate, the letters issued in Washington become subordinate to them. Opinion of April 18, 1836, 3 Op. 89.

a mandamus against the Postmaster-General to compel him to execute an act of Congress in a particular way. Opinion of May 30, 1837, 3 Op. 236.

3. The inspectors of the penitentiary in the District of Columbia have, notwithstanding the authority conferred on the warden by the act of 25th February, 1831, chap. 31, the responsibility and duty of a general superintendence and management of the institution; and it belongs to them to limit the number of subordinate officers and servants, and to regulate their salaries. Opinion of July 6, 1849, 5 Op.

129.

4. In them, and not in the warden, is vested the authority to appoint the physician and chaplain, they not being "inferior officers" within the meaning of the law. Ibid.

5. The circuit and district courts of the Dis

trict of Columbia are circuit and district courts of the United States within the meaning of paragraph No. 167 of act 18th May, 1842, chap. 29, and the clerk thereof is required to return a semi-annual account of his fees and emoluments; but said clerk, as ex officio clerk of the criminal court of said District, is not required to make such return for the criminal court. Opinion of Feb. 28, 1853, 5 Op. 678.

6. The fees of inquests super visum corporis in the county and city of Washington are to be paid out of the goods and chattels of the deceased. Opinion of June 19, 1854, 6 Op. 561. 7. In default of such goods said fees are a charge on the county, to be defrayed by the levy court, and are not lawfully payable by the United States. Ibid.

8. The question of the validity and of the formal parts and operation of a will made in the District of Columbia, as it now exists, mainly depends on the laws of the State of Maryland. Opinion of Feb. 5, 1855, 7 Op. 47.

9. In order that a devise of real estate shall be effective on lands situated in the District of Columbia, such devise must have been executed in conformity with the statutes of the State of Maryland. Ibid.

10. The distribution of the personal effects of a decedent situated in the District is governed by the lex domicilii, not the lex loci rei sitæ. Ibid.

11. No persons, not of the Army or Navy, are entitled to admission into the Government

of becoming insane they are legal residents of the District. Opinion of Aug. 30, 1855, 7 Op. 450.

12. Responsibility of clerk of the courts of the United States in the District of Columbia for fees receivable by his office reaffirmed. Opinion of Aug. 12, 1856, 8 Op. 33.

13. Construction of the act of Congress of August 11, 1856, chap. 84, amending the charter of the city of Georgetown. Opinion (unofficial) of Nov. 28, 1856, 8 Op. 546.

14. The clerk of the circuit court of the District of Columbia is bound by law to account for the fees earned and received by him in the criminal court as well as in the circuit court. Opinion of April 8, 1858, 9 Op. 136.

15. The marshal of the District of Columbia is entitled, under the act of March 3, 1807, chap. 23, to a daily allowance of twenty-one cents and a slight fraction for keeping and subsisting prisoners confined in the jail of the District on criminal charges. Opinion of March| 27, 1862, 10 Op. 210.

16. The fees of the marshal of the District of Columbia for services under the act of April 16, 1862, chap. 54, do not constitute a part of his regular emoluments, to be included in his semi-annual returns to the Interior Department, under the act of February 26, 1853, chap. 80, and are not subject to the limitation upon the amount of his compensation contained in that act. Opinion of Feb. 18, 1863, 10 Op. 458.

17. Under the order of the Secretary of the Interior requiring the marshal of the District of Columbia to state and settle his accounts for fees and expenses of courts, in accordance with the act of February 26, 1853, chap. 80, the marshal is entitled to receive for the maintenance of the prisoners confined in jail for criminal offenses such allowance as that act authorizes. Opinion of Feb. 28, 1863, 10 Op.

463.

18. The act of 1853 entitles the marshal to a reasonable allowance for such service, the amount of which is determinable by the proper accounting officers, under the direction of the Secretary of the Interior, according to a fair and just standard. Ibid.

19. The act of February 29, 1864, chap. 16, authorizing the appointment of a warden of the jail in the District of Columbia, deprives the marshal of the District of Columbia of the

power of executing sentence of death upon any person imprisoned in the jail of that District under such sentence. Opinion of March 28, 1864, 11 Op. 34.

20. The appointment of the register of wills for the District of Columbia is with the President, by and with the advice and consent of the Senate, and the tenure of the office is at the pleasure of the President, subject to the modification prescribed by the tenure of office acts. Opinion of April 25, 1871, 13 Op. 409.

21. The act of February 21, 1871, chap. 62, providing a government for the District of Columbia, does not repeal or modify the act of March 3, 1803, chap. 20, providing for the organization of the militia of the District; nor does it confer upon the legislative assembly of the District power to repeal or modify the provisions of the latter act. Opinion of Dec. 25, 1871, 13 Op. 542.

22 Congress not having placed the Secretary of War under the direction of the said legislative assembly, it has exceeded its powers in enacting that "the officers of the District militia shall be commissioned by the Secretary of War." Ibid.

23. Under the act of February 21, 1871, it is the duty of the governor of the District to commission all officers created by, the District legislative assembly. Ibid.

24. All sessions of the legislative assembly of the District of Columbia, called as well as regular, are by section 5 of the act of February 21, 1871, chap. 62, limited in duration to sixty days. Opinion of Jan. 15, 1872, 14 Op. 1.

25. The board of commissioners created by the act of June 1, 1872, chap. 260, to carry out the provisions of the act of July 25, 1866, chap. 236, and the acts amendatory thereof, authorizing the construction of a jail in and for the District of Columbia, have no power to purchase a site for the jail. Opinion of July 18, 1872, 14 Op. 60.

26. By the act of July 25, 1866, the selection of the site therefor was restricted to "a suitable place, on some of the public grounds belonging to the Government." Under that act a site was selected; but afterward, by joint resolution of March 2, 1867, Congress directed a new site to be selected, and this enactment left the restriction imposed by the act of 1866, as to the selection of the site, still in force. Ibid.

27. The act of June 1, 1872, contains nothing that enlarges the field of selection which existed previous thereto, or that renders the restriction mentioned inconsistent with its provisions: and though, under it, the board of commissioners may change the site, they cannot locate the same on any other ground than such as is already owned by the Government. Ibid.

28. The fifteenth section of the act of August 6, 1861, chap. 62, was entirely superseded by the act of February 21, 1871, chap. 62, and no longer imposes any duty or confers any authority in regard to providing accommodations for the police force of the District of Columbia, this subject clearly falling within the legislative power given by the latter statute to the legislative assembly of the District. Opinion of Oct. 11, 1872, 14 Op. 127.

29. Semble that under the sixth section of the act of March 3, 1797, chap. 20, a writ of execution upon a judgment obtained in favor of the United States, issued by a court of the United States in any State, "may run and be executed in" the District of Columbia. Opinion of April 8, 1874, 14 Op. 384.

30. Accordingly, where two such writs were directed to the marshal of said District from the United States circuit court for the western district of Tennessee: Advised that it was his duty to execute them. Ibid.

31. 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 6 per cent. 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. Opinion of Oct. 17, 1874, 14 Op. 465.

II. Commissioners of.

32. The Commissioners of the District of Columbia have authority, under the act of June 20, 1874, chap. 337, to appoint notaries public in aud for the District. Opinion of July 17, 1874, 14 Op. 419.

33. The Board of Commissioners of the District of Columbia, under its general executive and administrative authority over the affairs of the District, and its general supervision and

direction over the Engineer officer detailed to perform certain duties relating to the "repair and improvement of all streets, avenues, alleys, sewers, roads, and bridges of the District,” has power to direct the discharge of the two assistants whom that officer is authorized to appoint, whenever, in its judgment, circumstances make it expedient to determine their employment. The Engineer officer is not authorized to retain these assistants after the Board has directed their discharge. Opinion of April 6, 1877, 15 Op. 216.

34. The Commissioners of the District of Columbia have not power under the act of June 11, 1878, chap. 180, to abolish the office of the fire commissioner, whose appointment is vested in the Secretary of the Interior by the law creating the office (the act of the legislative assembly of the District of Columbia, passed August 21, 1871). Opinion of Oct. 17, 1878, 16 Op. 180.

III. Police Board.-Board of Health.

35. Under the authority of the act of August 6, 1861, chap. 62, the board of police of the District of Columbia may, at the expense of the United States, uniform the police, mount such a portion of them as may be necessary, and also employ a temporary drill-master for their instruction. But the board have no authority to appoint an assistant clerk and messenger. Opinion of Sept. 27, 1861, 10 Op. 131.

36. The ex officio members of the board are not entitled to the compensation of $5 per day allowed by the twenty-second section of that act. Ibid.

37. By section 22 of the act of August 6, 1861, chap. 62, the treasurer of the board of police is entitled to the per diem allowance of $5 as a commissioner, in addition to his official salary of $600 per annum. 10 Op. 156.

Opinion of Nov. 7, 1861,

38. The board of police of the District of Columbia have no authority to employ, in the erection of buildings to be used as police headquarters, the funds saved from past appropriations made by Congress for the payment of salaries and other necessary expenses of the Metropolitan police for said District. Opinion of June 24, 1870, 13 Op. 264.

39. The board of health of the District of Columbia, in the absence of any statutory provision on the subject, has of necessity an in