city of Mexico; and, in answer to your inquiry, whether the same can be lawfully paid, beg to enclose you the copy of an opinion of Mr. Nelson of the 5th of October last, giving an exposition of the acts of Congress prohibiting extra compensation, and stating his opinion to be that no officer or person in the public employment whose salary is fixed by law can be entitled to receive an extra compensation for the discharge of a public service. This opinion (in which I concur) seems to me to embrace Mr. Thompson's case; and I am of opinion that the executive department cannot make him any allowance or compensation for his services. The subsequent acts do not forbid the allowance of travelling expenses, authorized by the act of 1835. This is not compensation to the officer, but an expense incident to a public service, which the official duty of the officer does not subject him to, and ought to be borne by the department. But the provision is for travelling expenses, and ought to be limited to that object. I have the honor to be, respectfully, sir, your obedient servant, Hon. JAMES BUCHANAN, Secretary of State. J. Y. MASON. PAYMENT OF FLORIDA BONDS, UNDER RESOLUTION OF 1845. The bonds given for loans of money to provide for the inhabitants, and suppression of Indian hostilities, in the Territory of Florida, may be paid, under the joint reso ution of 1845, from the appropriation of 1842. The amount that may be thus paid, however, under the authority of that resolution, cannot exceed the appropriation. ATTORNEY GENERAL'S OFFICE, May 8, 1845. SIR: I have considered your communication of the 3d instant, as to the extent of power conferred by the joint resolution of the 1st of March, 1845, which is amendatory of the resolution passed the 30th of April, 1844, respecting the application of certain appropriations heretofore made. I understand, from the papers which were transmitted with your communication, that the bonds of which payment is demanded were given for loans of money made to provide for the defence of the inhabitants, and suppression of Indian hostilities, in the Territory of Florida; that the money so loaned was expended for those objects; and that reimbursement has not been made to Florida of the expenditures thus incurred, or by Florida to the bond-holders. It also appears that the appropriations made by Congress for these objects by the two acts of the 23d of August, 1842, are not exhausted, and that a sum now stands on the books of the treasury, to the credit of this head of appropriation, more than sufficient to pay the bonds now presented. The material question presented for my opinion is, Does the resolution of the 1st of March, 1845, confer, or imply, authority to pay the bonds now presented for payment? The joint resolution of 1845 declares that nothing contained in that of the 30th of April, 1844, or in any other act or resolution, shall be understood or construed to prevent the Secretary of War from allowing or paying any just and equitable claims for supplies furnished, or advances or loans of money made, to provide for the defence of the inhabitants, and suppression of Indian hostilities, in the Territory of Florida, provided that the amount so allowed and paid shall not exceed the sums already appropriated by law. In construing this resolution, the intention of the legislature is a fit and proper subject of inquiry, and, when ascertained, must control the construction. That intention must be collected from the act itself, and other acts in pari materiâ. Whatever the terms employed may be, they are to be construed to effectuate the intention of the legislature. By the act of the Florida legislature of the 4th of March, 1839, the governor was authorized to raise any sum of money not exceeding one hundred thousand dollars, and to issue bonds. for the same. In execution of this power, he issued these bonds. By an act of Congress of the 23d of August, 1842, an appropriation was made for preventing and suppressing hostilities in Florida, to be expended under the direction of the Secretary of War; and, by another act of the same date, provision was made for the payment of the Florida militia, with specified restrictions. By an act of 3d March, 1843, the accounting officers of the treasury are authorized to settle claims for supplies furnished the Florida militia, on principles of equity and justice, under the direction of the Secretary of War. By the joint resolution of the 30th of April, 1844, restrictions are imposed on the settlement of these claims; and the accounting officers are directed to discharge the claims for said supplies in the following order, to wit: 1st, the amounts due to individual claimants; and, 2dly, to the Territory of Florida; with a proviso, that the whole amount of supplies paid for shall not exceed the quantity of each description to which the said troops were entitled by existing laws. The acts of 1842 and the joint resolutions of 1843 and 1844 all required that accounts should be rendered for audit and settlement, which would at least show on their face the particular description of supply for which payment was demanded; for, without this the accounting officers could not determine whether the proviso last quoted presented an obstacle to payment. There was no difficulty in meeting this requisition of law by the two classes of creditors to whom payment was directed by the reso lution of April, 1844. Individual claimants and the Territorial government could readily exhibit the items of an account for supplies furnished; but there was a third class of claimants-the holders of bonds issued under the act of 4th March, 1839-who could not do this. They had loaned their money for the protection and defence of the Territory, but had no agency or knowledge of its expenditure; and in this state of the law and the claims, the joint resolution of the 1st March, 1845, was passed. It differed in its terms from those which had preceded it in two important particulars. For the first time, payment of just and equitable claims for loans or advances of money made for the defence of the inhabitants of Florida is spoken of; and the proviso removes the restriction which limited payments for each kind of supply to the quantity of each authorized by law. Why were these important modifications made? What loans or advances of money were thus provided for? The resolution of 1844 had explicitly directed that Florida should be paid all claims for supplies; but the proviso implied that such payments were to be made on accounts specifying the description of supplies furnished: and it is not to be supposed that it was in the contemplation of Congress to pay to the Territorial government loans or advances made by individuals, and which were unredeemed by the Territory. Individual claimants. had been preferred, in the order of payment, to the Territorial government, for supplies furnished, and were paid directly at the treasury of the United States. By previous enactments, the United States had assumed the expenditures of the Territory and the payment to individuals for supplies furnished in the suppression of Indian hostilities; and, by the resolution of 1845, it seems clear to me that it was the intention of Congress to assume and pay claims for loans and advances made to. Florida for this great national object, and the terms employed are suf.. ficient for that purpose. I am not aware of any rule of construction which would forbid that this intent should be carried into effect; I am, therefore, of opinion that the resolution of March, 1845, is directory, and that the thirty five bonds now presented for payment, having been. given for loans made for the defence of the inhabitants and suppression of Indian hostilities in the Territory of Florida, may be paid under the authority of that resolution, subject alone to the restriction of the proviso, that the amount so allowed and paid shall not exceed the sums already appropriated by law. Being of opinion that the resolution has this effect, I have not deemed it necessary to examine the first question presented. The course of reasoning adopted would seem to lead to the conclusion that such payments could not be made without the authority conferred by the resolution of 1845. I do not, however, intend to ex. press an opinion as to the equitable right of the bondholders to be substituted for the Territorial government. I repeat, that I have not deemed it important to give an opinion on any other question than on the extent of authority conferred by the joint resolution of 1st March, 1845, construed, with the series of acts and resolutions, in pari materiâ. I have the honor to be, respectfully, sir, your obedient servant, J. Y. MASON. Hon. WILLIAM L. MARCY, Secretary of War. PENSIONS TO WIDOWS OF REVOLUTIONARY OFFICERS, &c. All declarations for pensions made prior to the act of 30th of April, 1844, restricting widows to only such part of the five years' pension as their husbands did not receive, are free from the influence of the restriction. From its passage to January 23, 1845, they were subject to the restriction; but subsequently to the latter date they were again free from it. Widows who prepared their declarations prior to 30th April, 1844, and filed them before 23d January, 1845, from whom any part was withheld on account of payment to their husbands, are entitled to the whole amount. ATTORNEY GENERAL'S OFFICE, SIR: Your communication of the 11th ultimo was duly received, with the statement of the Commissioner of Pensions and accompanying papers. I have been prevented from giving the subject an earlier attention by the pressure of other engagements. The question presented is so involved in its terms that I have had some difficulty in comprehending its precise purport. But I understand it to relate to the extent to which the act of 20th February, 1845, operates on the applications of widows of revolu tionary officers or soldiers for the benefit of the pension acts of 1836 and of 1838. At the date of the appropriation act of 30th April, 1844, it was the settled construction of existing laws that widows entitled to the ben efit of these pension laws should have five years' pension from the 4th day of March, 1836, notwithstanding their husbands may have enjoyed the benefit of the act of 1832 to a period later than the 4th March, 1836. The effect of this construction was to give the same amount of pension to the husband while living, and the widow, after his death, for so much time as he had survived beyond that date. The restriction of the act of April, 1844, arrested this practice, and deducted from the widow's pension so much as was paid to the husband after the 4th of March, 1836. The joint resolution of 23d January, 1845, suspended the operation of this restriction, and declared that its provisions should not affect a widow's claim, whose application for a pension, or arrear of pension, at the passage of that resolution, had been made and filed in the Pension Office, awaiting the decision of the Commissioner of Pensions thereon. The term "arrear of pension" must mean so much of pension as had been withheld for the period after the 4th March, 1836, in which the husband had been paid. The act of 20th February, 1845, supersedes the act of 30th April, 1844, and settles, definitively, that from its passage a pension shall not be granted to any widow, for or during any part or portion of the time her husband may have received one, whose declaration therefor shall not have been made on or before the 30th day of April, 1844, and shall not have been received at the Pension Office on or before the 23d January, 1845. All declarations for pensions made prior to the restriction of 30th April, 1844, are free from the influence of that restriction. Up to its date, applicants had a right to five years' pension from 4th March, 1836; from its passage, they had no such right until 23d January, 1845, when its influence on their cases was suspended. The reservation in the act of 20th February, 1845, was therefore made in favor of all declarations which were prepared prior to the restrictive clause and filed in the Pension Office prior to the 23d January, 1845, and the intent was to secure to the widows all the benefits which they were entitled to prior to the 23d January, to the same extent as if the act of 30th April, 1844, had never passed, with the single condition that they had prepared and filed their declarations within the periods mentioned in the act of 20th February, 1845. Without this, those widows whose cases were acted on before the 30th of April, 1844, would be paid by one rule, and those whose applications were prepared, but not acted on, would be paid by another. The term pension includes the claim for the less amount, which had been withheld by reason of payment for part of the five years to the husband. And the act of 20th February must be construed to carry that intention into effect. If a widow had prepared her declaration for a pension prior to the 30th of April, 1844, and filed it before the 231 January, 1845, praying for a five years' pension, and any part had been withheld on account of payment to her husband, her case is within the reservation of the act, and she is entitled to receive the full amount, as if the restriction had not been imposed. I have the honor to be, respectfully, sir, your obedient servant, Hon. WILLIAM L. MARCY, Secretary of War. ACCOUNTS AND ACCOUNTING OFFICERS. By the 4th section of the act of 3d March, 1845, no accounts adjusted by the accounting officers of the treasury can be re-opened without authority of law, except in cases where special acts have passed for the relief of individuals. The act authorizing a settlement with Clements, Bryan & Co., for subsisting emigrating Cherokee Indians, is a special one for their relief, and is excepted from the prohibitions of the act above referred to. (See United States vs. Bank of Metropolis, 15 Peters, 401.) ATTORNEY GENERAL'S OFFICE, May 14, 1845. SIR: I have considered the question presented by the Second Auditor of the Treasury in his communication to you of the 12th instant, and on which you requested my opinion. By the 2d section of an act dated 3d March, 1841, the proper accounting officers of the Treasury Department were directed and authorized to adjust the accounts of Clements, Bryan & Co. with the United States, arising under a contract alleged to have been made on the 12th June, 1838, for subsisting the emigrating Cherokee Indians, upon principles of equity and justice, with a proviso. The Second Auditor states that they now claim an additional sum, alleging that there was error in the former decision. It appears that on the 8th December, 1841, Mr. Legaré communicated to the Secretary of War an elaborate opinion on the principles which should govern the accounting officers in executing the act of 1841. I infer from the statement of the Second Auditor that the account was adjusted, and the ascertained balance paid to the claimants. The Second Auditor desires my opinion to be taken on the effect which the 4th section of the act of 3d March, 1845, has on the power of the accounting officers to re-open this account. That section declares that from and after its passage no accounts which shall have been adjusted by the accounting officers of the treasury shall be re-opened without authority of law;" and the proviso is, "that this section shall not apply to cases where special acts have passed or shall pass for the relief of individuals." The other provision of the section has no influence on this case. In an opinion which I had the honor to transmit to the Secretary of War some days since, I examined, on authority, the distinction between general and special statutes; and, without now repeating the reason or authority for the conclusion, I am satisfied that the act of 1841 was a special act for the relief of Clements, Bryan & Co. That, according to well established rules of construction, this being its character, the prohibitions of the 4th section of the act of 3d March last do not present any impediment to the re opening of this adjusted account. But I feel it my duty to state that the effect of this proviso is not to facilitate the re-opening of such accounts. The section establishes the general rule that adjusted accounts shall not be re-opened by the Executive without authority from the legislative department. The proviso excepts from the operation of this general rule the particular case of accounts adjusted under the authority of special acts for rehef of individuals, and does no more than to protect them from its prohibitions, as if the section had never passed. The question of re opening this account is therefore wholly uninfluenced by this section, and depends on general principles which governed Executive discretion as to all settled accounts at the passage of the act of 3d March, 1845. I have the honor to be, respectfully, sir, your obedient servant, Hon. ROBERT J. WALKER, Secretary of the Treasury. |