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sence, then, of phraseology clearly indicating that it is to be executed by them individually, I think the true meaning of the section is, that it is to be executed by those to whom the payment is to be made—that is, to the Creek nation of Indians, or to the order of the delegation of Indians, &c.
If the release offered answers, therefore, cither of these suggestions as to parties, my opinion is, that it is in form such as the act referred to demands. I have the honor to be, very respectfully, sir, your obedient servant,
Hon. THOMAS EWING,
Secretary of the Interior.
ENDORSEMENT OF CERTIFICATES OF COUPON STOCK.
A valid transfer of certificates of coupon stock issued under the 2d section of the act of March
3), 1848, may be made by an endorsement in blank—the object of that part of the section
referring to coupons being to enable the certificates 10 pass by delivery. Although the purpose would have been, perhaps, better effected had they been, on their face,
payable to the bearer, the omission does not place them under the provisions of the 1st secuon, allowing transfers only on the books of the treasury.
ATTORNEY GENERAL'S OFFICE,
May 12, 1849. Ser: The question submitted to this office in relation to the sufficiency of an endorsement in blank to pass title to certificates of coupon stock issued under the 2d section of the act of March 31, 1848, authorizing a loan of sixteen millions of dollars, I have duly considered. I have no doubt of the validity of such a transfer. The very object of that part of the section referring to coupon stock was to make the certificates pass by delivery, instead of by transfer, on the books of the treasury. The better way to effect this purpose is to have them on their face payable to bearer; and I would advise that this he always done in future. The omission to adopt that form in the present instance does not, however, in my opinion, place the certificates under the provision of the 1st section of the law, allowing only a transfer on the books of the treasury. All that is required to pass title in them is the endorsement of Corcoran & Riggs to Peabody and his blank endorsement.
If, then, when the certificates are produced at the treasury for payment, they are known, or proved to the satisfaction of the department to be genuine, they must be paid to the holder, although there has not been a transfer to him on the books. Such endorsements place the stock in the hands of the holder, with the same title, in all respects, as if it had been made, in the first instance, payable to bearer. I have the honor to be, very respectfully, sır, your obedient servant,
Hon. WM. M. MEREDITH,
Secretary of the Treasury.
COMPENSATION OF THE OFFICERS OF THE MARINE CORPS.
The marine officers who were reduced under the 4th section of the act of March 2, 1*47, and
restored under the naval appropriation ası subsequently passed, are not entitled tv pay
during the interval. Hud it been the design of the art which restored them to give pay, during the interval of the
reduction, as well as rank, it would have been so declared. The relation back was for rank, not lur prey.
AtTorxey GENERAL'S OFFICE,
May 14, 1Sj9. Sır: I have considered the question submitted to this office as to the right of the marine officers reduced under the 4th section of the act of March 2, 1847, and restored, under the naval appropriation act of the last session, to pay during the interval, and am of opinion that they are not so entitled. At one period of the government, but only in a few instances, such pay has been allowed officers who, leaving the army or navy, were afterwards reinstated; but it was always, in my opinion, without law, and, so far from receiving the approbation of Congress, was strougly, and I think justly, condemned by a commitee of the House of Representatives. (See report of the Committee on Public Erpenditures of the 24th of March, 1842, No. 459, 2d session 27th Congress.) All principle is against it. When no service is needed, no compensation should be allowed. Any other doctrine would be mischievous, as leading to an expenditure of which Congress can have no antecedent knowledge.
The only question in the present instance is, whether it was not the design of the act of the last session, under which this restoration was made, to give the pay, during the interval of the reduction, as well as to give the rank? I think not. If it had been, it is fair to presume that it would have been so declared. The whole object was to place these gen. ilemen back in the service; but this was to be done by a new commission. The relation back was for rank only, not for pay. The right to that is to be decided upon other grounds; and I know of no other safe legal one than that of service. I have the honor to be, very respectfully, sir, your obedient servant,
RETERDY JOH WSON. Hon. Wm. B. PRESTON,
Secretary of the Navy.
THE CLAIM OF COLONEL J. M. CRESEY.
The Executive has no authority to allow the claim of Colonel J. M. Cresey for disburse.
ments made by him in organizing a regiment of volunteers during the war with Mexico under the authority of Major General Gaines. The joint resolutions of 18:26 and 1837, and the net of June 2, 1844, require the troops, for
which disbursements should be made, to have been mustered and received into service. This claim being meritorious, is commended to the favorable consideration of Congress.
ATTORNEY GENERAL'S OFFICE,
May 18, 1819. Sır: The questions submitted to this office for my opinion concerning the claim of Colonel J. M. Cresey for disbursements made by him in or. ganizing a regiment of volunteers during the war with Mexico, under the authority of Major General Gaines, have been considered.
The meritorious character of the demand entitles it to all the favor the Executive can give, and my examination has been made with a desire to have it allowed if any fair interpretation of the authority of the Executive would justify it; but I can find no such authority.
The claim can only be paid under the joint resolutions of July 16, 1846, and of March 3, 1847, and the act of June 2, 1848. Neither of these, in my opinion, embraces it. The first - the resolution of July 16, 1846– covers only disbursements by individuals in the fitting out and preparing volunteers or militia to join General Taylor's army which he or General Gaines may have called upon a State to furnish. A mere authority to an individual citizen, or to citizens, emanating from either of these officers, is not within its terms; and of course no expenses incurred under such authority are provided for by it. The other resolution and the act of Congress are equally imperative in relation to the claim. The meaning of each, so far as the question before me is concerned, is that the expenses provided for by each shall have been incurred in the particulars stated concerning volunteers before they were mustered and received into the service. But mustering and reception into the service must have followed such disbursements to bring them within the meaning of the resolution or the act. The implication of this purpose from the terms used is, in my opinion, too strong to be resisted. The patriotic character of the claim addresses itself so persuasively to me, that I can have no doubt that Congress would cheerfully allow it if their attention was called to the subject.
As it is, however, my opinion is that there is no authority for its payment. I have the honor to be, very respectfully, sir, your obedient servant,
REVERDY JOHNSON. Hon. G. W. CRAWFORD,
Secretary of War.
ACCOUNTS OF DISBURSING OFFICERS.
Disbursing officers of the government, in accepting their offices, assume the risk and trouble
of exchanges and transportation of funds, and cannot charge for insurance, but only for the
actual expenses of transportation. If they insure the amount received upon a draft to cover their liability to the government, it is
for iheir own indemnity, for if it be lost by force, theft, hazard of the elements, or any other cause, they are responsible. The transportation is never at the will of the government, but
always at ihat of the officer. Antecedent authority to insure cannot charge the department for a loss.
ATTORNEY GENERAL'S OFFICE,
May 23, 1849. Sir: The questions submitted to this office by your letter of the 21st instant I have duly cousidered, and answer as follows:
1. A disbursing officer of the government unable to exchange a treasu. ry draft at par, and compelled to present it at the place of payment, and then to transport the avails to that of disbursement, has no right to charge expenses for insurance. In accepting the office, he assumes the risk and trouble of such an exchange, and can only claim an ailowance for the actual expense of transportation. If he insures, it is to cover his own
liability to the government for the amount received upon the draft; and that liability is partially fixed when he receives the draft. If it is paid, it is absolutely fixed. If not paid, it is his duty to notify the department of the non-payment. No matter how the fund be lost, if lost-he is equally responsible. Though taken from him by force or theft, or lost by the hazards of the elements, or from any other cause whatever, the liability continues. In cases of this kind, the officer can only obiain relief from Congress. It is obvious that any other doctrine would subject the gov. ernment to constant frauds. (United States vs. Prescott and others. 3 Howard, 587.)
The answer to the second question is embraced in that to the first. The transportation is never at the will of the government, but always at that of the officer.
3. Nor could an antecedent authority to the officer to insure, charge the department for a loss. That, as stated before, is assumed the moment the money is chargeable, and remains until the amount is returned, or disbursed and accounted for. I have the honor to be, very respectfully, sir, your obedient servant,
REVERDY JOHNSON Hon. Wm. B PRESTON,
Secretary of the Navy.
CLAIM OF HENRY DE LA FRANCIA. Where an inhabitant of the United States sold to the officers of the provisional government
established in West Florida prior to 3d December, 1810, certain arms and ammunition, which were subsequently received at the garrison at Baton Rouge, and used by the said provisional government, and subsequently by the forces of the United States, in the defence of New Orleans; and, after the passage of the act of 18th April, 1814, presented his claim to the accounting officers for the price of said arms and ammunition, and failed to obtain payment, and afterwards appealed to Congress for redress, from time to time, until the 14th of August, 1045, when he obtained the passage of an act directing the liquidation and settlement of his claim; and, upon its presentation under the last-mentioned act, questions being raised concerning the amount to be allowed, and the propriety of an allowance of interesi, &c.-DECIDED, that the amount of the principal is to be graduated by the contract of purchase, and that interest is allowable thereon, under the construction given to the act of
1814, under which it was first presented, and under which similar claims were allowed. In general, the government, which is always to be presumed ready and willing to discharge its
obligations, pays no interest ; yet, from considerations of state policy, it has sometimes, as
in the case of claims under the act of 1814, allowed it. Interest, at the rate of six per cent., to be computed from the date of the sale to the date of
the act of 1848, may be allowed upon the present claim.
ATTORNEY GENERAL'S OFFICE,
May 30, 1849. Sır: The case of the claim of Henry de la Francia, referred by your department to this office, I have considered with the care demauded by the character of the questions upon which it depends, and the amount it involves.
The facts of the case, also satisfactorily established, are these: The people of West Florida, desirous of casting off Spanish rule, established a provisional government, prior to the 3d of December, 1810. Under the authority of the government, Colonel Reuben Keinper, on that day, purchased, for the use of the government, of De la Francia, arms, ammuni. tion, &c., and agreed to pay for them the sum of eleven thousand eight
hundred and fifiy dollars. On the 5th of the same month, under Kemper's letter of instructions, Captain Goss received and receipted for the arms, &c., and they were delivered at the garrison at Baton Rouge, used by the military of the government, and a portion of them afterwards used by the forces of the United States in the defence of New Orleans, in 1815. I do not state the evidence of these facts. It is sufficient to say that they are, in my judgment, most clearly established by the proofs filed with the claim. The patriotic exertions of the temporary government contributed to the subsequent acquisition of West Florida by the United States; and in a spirit of just and enlightened liberality, Congress passed the act of 18th April, 1814, for the liquidation, upon principles of justice and equity, of all clainis of the inhabitants of the province . for advances by them made for the use and benefit of the United States prior to and since the taking of possession, &c., by the United States.". Under this law, large sums have been paid; and, as appears by the vouchers on file and the opinions of the proper officers of the government, the term "advances" was construed to embrace advances or sales to the conventional government of articles of war, or any other property calculated and intended to aid in accomplishing the purposes of that government–i. e., the destruction of the Spanish power.
Among the claims presented under that act for allowance was the one now in question. Of the amount of the claim, or the fact of the purchase of the arms by Colonel Kemper, or his full authority to act for the convention, no question at that time seems to have been made. Nor was it, in fact, ever rejected. It was but suspended by the Secretary of State, Mr. Rush, and, as appears by a memorandum of Mr. Pleasanton, the Fifth Auditor, under an impression that the articles purchased had been obtained from the Spanish government by De la Francia under circumstances which still left them the owners. I can see no evidence of the justness of this impression. It is, I think, in conflict with all the clearly established facts of the case, and with the conduct of the claimant and his agent in pros. ecuting it upon the United States. Beside this grɔund for its suspension, I can see nothing in the evidence I have before me—which is all the proof in possession of the department at the time—to show any other ground against it. I have not the time, nor is it necessary, to state at length the reasons for believing that the particular objections were unfounded. A word or two will be enough. The arms, &c., were in the possession of De la Francia, as the apparent owner; and such a possession is prima facie evidence of real ownership, amounting, unless dis. proved, to conclusive evidence. There is not a word of proof, other than the mere " impression” of the Fifth Auditor that he was told the fact by the agent of the claimant, when he was urging the claim, that the arms ever belonged to Spain, much less that they had been illegally acquired from her. It is impossible that the recollection of the Auditor can be accurate. Colonel Kemper is admitted to have been both an intelligent and an honest man-qualities inconsistent with the fact siated by the Auditor. It is in evidence, too, that, being sued for the amount of purchase by De la Francia, upon his personal liability under the contract of sale, Kemper set up no such defence, although it is quite clear that he did defend the case upon perfect good faith, and upon every ground that he thought he could make good. His omission of this objection-one as fatal to the demand upon him as it would be to the demand against the United States