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only the right but the duty of the inspectors to accomplish. If the number of officers be unnecessarily large, or the compensation more than is called for, they should reduce both. This is not the same power with which the warden is clothed by the 3d section of the act of 1831, of appointing and removing all “ subordinate officers.” When he does this, the offices yet remain. The abolivion of the office, when necessary to a proper economy, can only be done by the inspectors, under their general duty of providing for the economical administration of the institution; and the same observation is obviously applicable to the fixing, and, from time to time, reducing the pay of the officers. This can be accomplished only by virtue of the same superintending power of the inspectors. The two authorities are altogether distinct; the one being vested in the inspectors, and the other in the warden. I answer, therefore, the first of the questions propounded to you by the warden, by saying that inspectors, with a view to economy, which it is not only their right but their duty to bring about, have authority to limit the number of subordinate officers. And for like reasons, I answer his third question by saying that, notwithstanding the appropriation by Congress referred to by him, the inspectors have the right, and it is their duty, if they think proper economy demands it, to reduce the pay of the officers. I have the honor to be, very respectfully, sir, your obedient servant,

REVERDY JOHNSON. Hon. THOMAS EWING,

Secretary of the Interior.

CLAIM OF THE MESSRS. BENSON AGAINST THE NAVY DEPARTMENT.

The amount of six thousand eight hundred and ninety-two dollars allowed by the Secretary

of the Navy on account of the claim of A. G. & A. K. Benson against the Navy Depariment, may and should be paid from the appropriation for the year ending 30th June, 1850, for contingent expenses that may accrue for freights and transportation.

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ATTORNEY GENERAL'S OFFICE,

July 9, 1849. SIR: The question upon which the Fourth Auditor requests the opinion of this office, in the case of the claim of Messrs. A. G. & A. K. Benson, was examined by me, and intended to have been decided in my answer on the 3d instant to the third inquiry heretofore propounded to me by you in the same case. I there say, that whatever is allowed “ be paid out of, and charged to, the appropriation for naval service for the current year, for, amongst other purposes, contingent expenses that may accrue for freight and transportation.

I entertain this opinion still, and with a thorough conviction that I am right. It was intended to cover the very point suggested by the Fourth Auditor, and I think does. I answer his inquiry, therefore, by saying, that the amount you have allowed on account of the claim (six thousand eight hundred and ninety two dollars) can be, and should be, paid " from the appropriation for the year ending 30th June, 1850," for contingent expenses that may accrue for freights and transportation. I have the honor to be, respectfully, sir, your obedient servant,

REVERDY JOHNSON. Hon. WM. BALLARD PRESTON,

Secretary of the Navy.

COMPENSATION OF A LIEUTENANT IN THE NAVY.

A second lieutenant, who was dismissed from the service on 1st December, 1842, and recom

missioned on the 20th April, 1843, to take rank from date of his original appointment, is

not entitled to pay during the time he was out of the service. Pay is never to be allowed to officers except whilst they are in service, unless pursuant to

some act of Congress providing for the particular case.

ATTORNEY GENERAL'S OFFICE,

July 13, 1819. Sır: The claim of Second Lieutenant Osman Peters, of the revenue service, for arrears of pay from 1st of December, 1842, to the 20th of April, 1843, referred by you to this office, I have examined. On the day first named he was dismissed the service; and on the latter day recommissioned, to take rank from the 24th of July, 1839, the date of the original appointment, as second lieutenant.

In a case heretofore before me of a similar claim submitted by the Navy Department, I have decided that pay is never allowed except whilst the officer is in service, unless there be some act of Congress providing for the particular case. The reference back to the date of a prior appointment to give rank, does not entitle to pay during the time the party was actu. ally out of service. It entitles only to rank. In the present instance, the officer was appointed by the President under the power vested in him by the act of 3d March, 1799. (1 Statutes ut Large, 699.) The pay is fixed, of course, by law, and intended to be for service. It is now regu. lated by the act of 20 July, 1836, (5 Statutcs at Large, 65;) and was so when Lieutenant Peters was dismissed. When the President, therefore, reappointed him in April, 1843, he had no authority to pay him except from that time. That, the law said, was the beginning of his service, and the date at which it commenced. I am, therefore, of opinion that the claim cannot be allowed. I have the honor to be, very respectfully, sir, your obedient servant,

REVERDY JOHNSON. Hon. Wm. M. MEREDITH,

Secretary of the Treasury.

PENSIONS OF DISABLED OFFICERS, SEAMEN, AND MARINES.

The commissioners of the navy pension fund were authorized and directed to make such rules

and regulations as should appear to them expedient for the admission of persons on the roll of navy pensioners, and for the payment of such pensions; and they having provided that peo. sions are to commence from the time of completing the proofs, and the same having been continued since their powers were transferred and devolved upon the Secretary of the Vary,

the practice should be adhered to. It may be doubtful whether the provisions of the 2d section of the act of 4th February, 1822,

though general, are not*to be confined to cases of cla ms for revolutionary pensions. The c aim of James Lewis, however, cannot be allowed.

ATTORNEY GENERAL'S OFFICE,

July 14, 1949. Sir: I have thought of the question you have submitted to this office in the case of the pension claim of James Lewis. It is whether the provisions of the 2d section of the act of 4th February, 1822, though general, are not to be confined to cases of claims for revolutionary pensions.

I am by no means certain that such is not its true construction; and if the claim in this instance depended on that point alone, I should hesitate to decide against it. There are objections to it, however, upon other grounds, which, in my opinion, are insuperable. Between the act of 1800 and that of 1806, Congress passed the act of 26th March, 1804, (2 Statutes at Large, 293,) entitled "An act in relation to the navy pension fund." The 6th section of that law provides that the commissioners of the navy pension fund be, and they are hereby, authorized and directed to make such regulations as may to them appear expedient for the adinission of persons on the roll of navy pensioners, and for the payment of the pensions. A case similar to the present has been before this office, and the then Attorney General, (Taney,) in deciding it, was of opinion that this section of the act of 1804 gave the commissioners the power to fix, by regulation, the period at which the pensions should commence, and the principle by which the amount within the limit of the act of 1800 was to be graduated. Under the act of 1804, the practice, I understand, was to date the pension from the completion of the proof, and not the beginning of the disability; thus making the rule upon the subject of all pensions the same, by regulation under the provisions of the act of 1804, and by law under the very terms of the act of 10th April, 1806; that is to say, dating them from the proof of title, and not from the happening of the disability. In the subsequent case of James Cochrane, my immediate predecessor, Mr. Toucey, concurred fully in the view taken by Mr. Taney, and said that it rested with the Secretary of the Navy to decide according to the regulations now in force; or, if no regulations are, then to exercise a sound discretion—not an arbitrary one, but a discretion according to the settled course of the department. He also says: “ If it has been ihe settled rule of the departinent to decide that the pension shall commence at the time of completing the proofs, in conformity with the rule prescribed by Congress in the case of those pensioners who were disabled by known wounds received in the revolutionary war, it would certainly be very difficult for the Secretary, in the exercise of a sound discretion, at this late day to dissent from it."

I think both of these opinions are sound; and, although it may be doubtful whether the section you refer to in the act of 1822, though gen. eral in its terms, does apply to other than revolutionary pensions, I think the claim in the present case cannot be allowed. It is ever unsafe to unsettle a fixed and established practice in matters of this kind. It might subject the government to unlimited demands, and at a period when the means of detecting the injustice are lost. I have the honor to be, very respectfully, sir, your obedient servant,

REVERDY JOHNSON. Hon. THOMAS EWING,

Secretary of the Interior.

PAYMENT OF AMOUNT AWARDED TO HENRY DE LA FRANCIA.

As the original claimant, Henry de la Francia, was dead at the passage of the supplementary

act of 14th August, 1848, authorizing the Secretary of State to settle his claim for advances, &C., and as the claim was assets belonging to his estate, the avails of which are to be accounted for as such, the amount awarded should be paid only to an administrator duly appointed and authorized to receipt for the estate.

But, as it appears that a competent court has decided Joseph de la Francia to be the sole dis

tributee entitled to the amount from the administrators, the Secretary is advised to take a receipt from him or his attorney also.

ATTORNEY GENERAL'S OFFICE,

July 17, 1849. Sir: In the opinion I gave you, on the 30th May, 1849, as to H. de la Francia's claim, I considered the act of the 14th August, 1848, supple. mentary to an act to authorize the Secretary of State to liquidate certain claims therein mentioned, passed the 18th April, 1814, as authorizing you to audit and settle the claim of the estate of Henry de la Francia for the advances referred to in the supplement. I am of that opinion still. It is, however, another question as to what party is entitled to receive the amount which you may ascertain to be due.

The original claimant, when the last act was passed, was dead. Joseph de la Francia represents himself to be the sole heir and distributee of the estate. That Congress never designed to give to him, except in his character of representative of Henry, the sum which might be found due, I have no doubt. Indeed, they could not have done so without leaving the United States still responsible for the claim to whoever might, as cred. itors of Henry or otherwise, be legally entitled to share in it. It was assets belonging to his estate, and to be received and accounted for as such. I am of opinion, therefore, that you are bound to pay the amount which you may award to the administrator of Henry's estate. But, to guard against all bazard, I recommended an administration to be taken upon the estate of Henry, and an account passed charging the administrator with the claim, and then a final account distributing the balance. This has been done, as appears by the papers I handed you this morning. By such final account, it appears that the court has decided Joseph to be the sole distributee, by the administrators paying to him the balance of the claim in question, when received.

I am of opinion that this justifies the payment now of what you may decide to be owing on account of the claim. Let the administrator of Henry give a receipt for the amount; and, by way of caution, take also a receipt from Joseph or his duly constituted attorney. 1 have the honor to be, very respectfully, sir, your obedient servant,

REVERDY JOHNSON.. Hon. John M. CLAYTON,

Secretary of State.

PAYMENT OF AMOUNT AWARDED TO HENRY DE LA FRANCIA.

Under the power of attorney executed by Joseph de la Francia to James Bowie, the latter had

authority to subtitute Isaac Thomas in his stead; but the latter could not legally substitute

William Cost Johnson in his stead. The receipt and acquittance in blank, purporting to have been signed by said Thomas, if acthentic, gives authority so to fill it up as to make it a full discharge and acquittance of al title to the sum awarded to Joseph de la Francia by the Secretary of State.

ATTORNEY GENERAL'S OFFICE,

July 20, 1849.

Sır: I have considered the two additional questions in the case of the claim of the representatives of Henry de la lerancia submitted to this

office by your reference to day. Time does not permit me to state the reasons for my opinion upon them. I must content myself with briefly answering them.

First. I am of opinion that, under the original power of attorney of Joseph de la Francia of the 10th of February, 1826, in favor of James Bowie, the latter had an authority to substitute in his stead another attorney. This he did, on the 4th of April, 1842, by the appointment of Isaac Thomas. No substitution by him is legal. His power, therefore, in favor of William C. Johnson, of 30th May. 1849, is, in my opinion, void.

Second. But I am clear in thinking that the paper signed in blank, purporting to be the act of Thomas, the attorney substituted by Bowie, if anthentic, gives authority so to fill it up as to make it a full discharge and acquittance by Thomas, the properly-constituted agent of Joseph de la Francia, of all title to the sum awarded by the Secretary of State as due to Joseph on account of the claim in the proceedings mentioned in his award. I have the honor to be, very respectfully, sir, your obedient servant,

REVERDY JOHNSON.

Hon. Wm. M. MEREDITH,

Secretary of the Treasury.

CLAIM OF THE HEIRS OF THOMAS EWAL.

Interest as well as the principal of the claim of the heirs of Thomas Ewal for commutation

for military services may be allowed, as in the case of John M. Galt. (See opinion of 27th

March, 1819, in Galt's case.) Although interest as a general rule will not be paid upon claims against the government, there

are instances in which the government, from considerations of policy, allows it.

ATTORNEY GENERAL'S OFFICE,

July 20, 1849. Sir: The point suggested in the case of the claim of the heirs of Thomas Ewal, upon which you have desired my opinion, I have considered. It is certainly true that, as a refusal or delay of a debtor sovereign to pay a debt is never to be presumed, interest as a general rule is not to be exacted. But there are exceptions, and, in my opinion, this claim furnishes one. It is now too late to inquire whether interest originally could have been claimed uponi commutation of pay. The opinion I gave on the 27th of March last, in Galt's case, to which you refer, and under which you have acted, I see no reason to question. It is true, that, in the claim now before me, a judginent has not been obtained against Virginia for the amount demanded; but it is clear that she is liable for it, and that her courts will so decide. In that event, you concede that the United States will be compelled to indemnify Virginia if she pays, or to pay the claimants if they then shall present their claims to the United States. This being so and I think it is beyond all doubt-I am of opinion that the interest should be paid as well as the principal, and at once. To compel the claimants to incur the expense of a suit against Virginia which can but result in one way, and to the delay consequent upon it, whilst it could not possibly inure to the benefit of the United States, would be to

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