position of the legal heirs and devisees, and not liable to the control of the personal representatives of the deceased, be adhered to. I am, sir, very respectfully, your obedient servant, To the SECRETARY OF THE TREASURY. THE SMITHSONIAN LEGACY TO THE UNITED STATES. · The entire legacy bequeathed to the United States by James Smithson, for the purpose of founding an establishment in the city of Washington for the increase and diffusion of knowledge, should be kept entire for effectuating the purposes of the testator. The expenses of prosecuting for the said legacy, and of receiving and transporting it to this country, including additional expenses incurred, therefore, ought to be defrayed out of the appropriation made by Congress. The personal effects other than cash and stocks, which have been transferred to the United ATTORNEY GENERAL'S OFFICE, SIR: I have the honor to acknowledge the receipt of yours of the 11th of October last, requesting my opinion upon various points in relation to the Smithsonian legacy. A separate answer of your inquiries is deemed unnecessary, as the opinion I entertain, m about to express in general terms, will be found to cover most f James Smithson, of London, on the 23d day/ 1826, executed his last will agd testament; by which, upon the happeg of certain contingencies, he bequeathed to the United States of America all his property, to found at Washington, under the name of the Smithsonian Institution, an establishment for the increase and diffusion of knowledge among men. The Congress of the United States, by an act passed 1st of July, 1836, accepted the bequest, and directed the President to appoint an agent to assert and prosecute the claim; and by the said act pledged the faith of the United States to apply the moneys and other funds which might be received to carry into effect the provisions of said will. By the 4th section of said act it is provided, "that, to the end that the claim to said bequest may be prosecuted with effect, and the necessary expenses in prosecuting the same be defrayed, the President of the United States be, and is hereby, authorized to apply to that purpose any sum not exceeding $10,000," &c. From these provisions, it appears to me that Congress intended that there should be no diminution of the funds bequeathed for the purpose specified in said will; but that the whole, whatever they might amount to, should be applied to carry into effect the intended object of the testator. And when the object of the bequest is considered, it cannot be supposed that Congress would act in any other than a liberal spirit. My opinion, therefore, is, that the amount of the whole money and other funds received by the agent of the United States under the act of 1st of July, 1836, without reduction, constitute the Smithsonian fund, for the purposes specified in said Smithsonian will; and that the whole expenses of prosecuting said claim, receiving it, and transporting the same to this country, including any additional expenses which may have been incurred here, ought to be defrayed out of the appropriation made by Congress. It appears that the cash and stocks, which, when converted into money, amounted to £106,490 11s. 9d., were decreed to the United States, as the amount of the legacy and bequest in said will. This sum, after deducting £116 2s. 2d., the amount of costs refunded, is the amount which should be paid to the Treasurer of the United States, to be kept and disposed of according to the provisions of the act of July 1, 1836, and the 6th section of the act of July, 1838; and all expenses, of whatever kind or nature, should be paid out of the appropriation made by Congress. In relation to the disposition of the other personal effects of Mr. Smithson, which have been transferred to this country by the agent of the United States, my opinion is, that Congress should direct the diposition of them. I have the honor to be, sir, your obedient servant, To the SECRETARY OF THE TREASURY. FELIX GRUNDY. WHAT BANKS CAPABLE OF BECOMING PUBLIC DEPOSITORIES. The act to regulate deposites of the public money authorizes the selection of banking corporations chartered by the acts of the legislatures of the different States, in those States, only, as depositories, plainly excepting private banking associations, and such as the North American Trust and Banking Company. ATTORNEY GENERAL'S OFFICE, SIR: I have received yours of the 29th of October, in which you state that the North American Trust and Banking Company of New York have applied to your department to be selected as a depository of the public money, under the provisions of the act of Congress of the 23d of June, 1836; and you submit for my opinion the question, whether the associations formed under the general banking law of New York are corporations, within the meaning of the deposite law, and whether they can legally be selected by you as public depositories? I have also to acknowledge the receipt of the arguments and opinions of three distinguished members of the New York bar, in favor of the application of the said company. To determine upon the question thus submitted for my examination, recourse must be had to the act of 1836, entitled "An act to regulate the deposites of the public money;" as, upon the true construction of that act the decision of this question must mainly depend. The language of the 1st section is, "That it shall be the duty of the Secretary of the Treasury to select, as soon as may be practicable, and employ as depositories of the money of the United States, such of the banks incorporated by the several States, by Congress for the District of Columbia, or by the Legislative Councils of the respective Territories for those Territories," &c. This provision contains the designation of the only kind of institutions which are authorized to be selected by the Secretary of the Treasury as depositories of the public money. It must be taken for granted that the Congress of the United States well understood the legal import and meaning of the terms used by them in their enactments. They say banka incorporated by the several States, &c. This must mean (for it can mean nothing else) banking corporations chartered by the acts of the legislatures of the different States, as they alone can incorporate State banks, or create State corporations. And any moneyed institutions, or banking associations, which are not corporations, and thus created, are not embraced within the meaning of the act. By the 3d section of the deposite act, every bank to be thereafter selected is, among other things, to furnish the Secretary of the Treasury with a copy of its charter." What can this mean, but the act creating it, and specifying the terms and conditions of its existence? In the arguments of counsel which have been presented for my consid eration, it is conceded that the moneyed institutions about to be created under the act of the legislature of New York of April 18, 1838, are not, technically and strictly speaking, corporations. And if this concession were not made, and these institutions were to be tested by those legal rules and principles applicable to corporations, they would be found deficient in many of the legal requisites, such as a common seal, &c. Instead of placing these institutions upon the footing of corporations, it might be more correct to say of them that this is their true character: that all the citizens in the State of New York had the right to use the privilege of banking until the legislature of that State prohibited its exercise; and that the legislature of 1838 have restored that right to its citizens under certain limitations and restrictions calculated to secure the public against imposition and fraud. They have, however, by that act created no corporations; but have permitted banking associations, or moneyed partnerships, to be formed upon the terms and conditions specified in the said act. At the time of the passage of the deposite act of 1836, there were in the United States two kinds of banking associations-one incorporated by the legislatures of the States; the other, private banking companies. Congress, looking to that state of things, declared that none but banks incorporated by the laws of the different States, &c., should become depositories of the public money. This at once put aside all private associations as depositories of the public moneys. The system of banking about to be put in practice under the general banking law of New York was not then in use in the United States; and, therefore, cannot be presumed to have been within the view of Congress when they passed the act of 1836. Had that law, or any other similar to it, been in existence; and had institutions been already created and in operation under such law, Congress would then have been called upon to decide upon the expediency and propriety of employing them as public depositories. But such not being the fact, it would not become any executive officer to apply to such institutions the act of 1836, unless they should be clearly within its meaning, which is not believed to be the case. The proper construction to be placed upon the deposite act of 1836 would be, in my opinion, to make it apply to such incorporated banks as were then known and in use, and others chartered or incorporated in like manner; and not to extend it to a species or kind of banking unknown and unused in the United States at that time, and the practical results of which are yet to be developed. From the foregoing view, you will readily see that my opinion is adverse to the application of the North American Trust and Banking Company. I am, sir, very respectfully, your obedient servant, To the SECRETARY OF THE TREASURY. FELIX GRUNDY. CLAIM OF AUGUSTA FOR EXPENSES OF FLORIDA WAR. The claim of the city of Augusta, for expenses incurred and supplies furnished on account of the public service for the defence of Florida, comes within the act of May 28, 1836, and ought to be allowed. OFFICE OF THE ATTORNEY GENERAL, SIR: I have the honor to acknowledge the receipt of your communication of the 17th of October, with the accompanying papers, respecting the claim of the city of Augusta against the United States. In forming an opinion upon the subject submitted for my examination, I shall be governed by those considerations alone which would have influenced my judgment had my opinion been asked immediately after the passage of the act of May 28, 1836; nor shall I consider any decision heretofore given by your department, as having the least effect upon the case before me. You having reopened the case, it now stands as though it had never been decided on, and no opinion heretofore expressed by your department should prejudice the claim of the applicants. It appears that, upon the breaking out of hostilities by the Indians against the frontiers of Florida in the winter of 1835-'36, the city of Augusta, together with other cities in the south, promptly advanced money to procure a volunteer military force to march immediately to the frontier and protect the inhabitants. Every one in the least acquainted with emergencies of this character knows that, upon such occasions, the amount of expendi ture is but little considered, and regular accounts are not kept; higher objects almost entirely engross the attention of those engaged in providing the relief which the country needs, and which the general government, on account of its remoteness, cannot furnish in proper time. In all such cases, more money is expended than is necessary in cases where the government has time to act for itself. Of all this, Congress was well aware when the act of the 28th May, 1836, was passed. The first section of that act provides "that the Secretary of War be, and he is hereby, directed to cause to be paid the expenses that have been incurred, and the supplies that have been furnished, in the States of South Carolina, Georgia, Alabama, Louisiana, and the Territory of Florida, on account of the militia or volunteers received into the service of the United States, for the defence of Florida: provided, that the accounts for these claims shall be examined and audited at the treasury, as in other cases." The expenses that have been incurred, and the supplies that have been furnished, are to be paid for. From these expressions, I should infer that Congress did not intend that the Secretary of War should make further inquiry than to ascertain the amount expended, and the supplies furnished, and that they were on account of the militia and volunteers received into the service of the United States for the defence of Florida, The pi quiresti. in this section is all that can create any difficulty; that ree accounts for these claims shall be examined and audited as in other cases." This by no means imposes the necests to them that are applied to regular military the preceding part of the section, the only id down; that is, "the expenses that have that have been furnished," &c. Besides, in having the accounts examined and audited, that it might be seen that the supplies d expenditures were not only made, but made bona fide, for the purpor specified in the act. at the treasu I am of opinion that the claim of the city of Augusta comes within the purview of the act of the 28th of May, 1836, I am, sir, very respectfully, &c., &c., To the SECRETARY OF AR. FELIX GRUNDY. ABANDONMENT OF CREEK RESERVES. The removal of the Creek reservees from their reserved lands, without the intention of returning and occupying them as their place of residence, is an abandonment, which gives the right of possession and occupancy to the United States. The right of the United States accrues and becomes complete immediately upon such an abandonment. ATTORNEY GENERAL'S OFFICE, SIR: I have the honor to acknowledge the receipt of yours of the 3d instant, with the accompanying papers, respecting the Talassee Fixico reserve under the Creek treaty of 1814. The substance of your first inquiry is, Has there been a voluntary abandonment of the land in controversy by the Indian reservee? The treaty provides that, "upon the voluntary abandonment thereof [meaning the reserve] by such possessor, or his descendants, the right of occupancy or possession of such lands shall devolve to the United States, and be identified with the right of property ceded hereby." In deciding the question of abandonment according to the foregoing provision in the treaty, nothing more is necessary than to ascertain that the reservee left and removed from the land, without an intention of returning and occupying it as his place of residence. His long absence from the reserve should at all times be considered as affording evidence of his original intention at the time of removal. In my opinion, the right of the government cannot be affected by any contracts or assignments made by the reservee, nor can his motives in making his removal have the least influence upon the title of the United States, except so far as the question of temporary or permanent absence might be involved. The foregoing, as I understand it, is the law applicable to your first inquiry. It is not my province to decide upon the facts. Your second inquiry presents the question, If there has been an aban donment, when did the right of occupancy and possession of said lands devolve to the United States, and this land become identified with the right of property ceded by said treaty ? |