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Opinion of the Court.

tained to his office. This was supposed to be in conflict with the provision of the organic act, which authorized the appointment of an attorney for the Territory by the President. The court, however, held that the duties of the office created by the territorial legislature were not identical with those of the attorney for the Territory created under the organic act, and that it differed especially in that his functions only extended to the prosecution of individuals accused of crime in the judicial district in which he kept his office, in cases arising under the laws of the Territory, and that for other districts a district attorney should be elected in like manner and with like duties. And the court with some hesitation based its decision on this ground, and on the fact that the act had been in operation without contest for many years.

It is true that in a case of doubtful construction the long acquiescence of Congress and the general government may be resorted to as some evidence of the proper construction, or of the validity, of a law. This principle is more applicable to questions relating to the construction of a statute than to matters which go to the power of the legislature to enact it. At all events, it can hardly be admitted as a general proposition that under the power of Congress reserved in the organic acts of the Territories to annul the acts of their legislatures the absence of any action by Congress is to be construed to be a recognition of the power of the legislature to pass laws in conflict with the act of Congress under which they were created.

The question of the appointing power, which is the matter in controversy here, was not before the court in that case. We do not think that the acquiescence of the people, or of the legislature of Utah, or of any of its officers, in the mode for appointing the auditor of public accounts, is sufficient to do away with the clear requirements of the organic act on that subject. It is also, we think, very clear that only that part of the statute of Utah which is contrary to the organic act, namely, that relating to the mode of appointment of the officer is invalid ; that so much of it as creates the office of auditor of public accounts and treasurer of the Territory is valid; and that it can successfully and appropriately be carried into effect

Opinion of the Court.

by an appointment made by the governor and the council of the Territory, as required in the act of Congress. The judgment of the Supreme Court of the Territory of

Utah is affirmed.

JACK v. UTAH TERRITORY.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAJI.

No. 144. Argued December 5, 1889. – Decided January 6, 1890.

Clayton v. Utah, ante, 632, affirmed and applied to this case.

The case is stated in the opinion.

Mr. Eppa Hunton, (with whom was Mr. Jefferson Chandler on the brief,) for appellant.

Mr. Solicitor General for appellee.

MR. JUSTICE MILLER delivered the opinion of the court.

This case, which is an appeal from the Supreme Court of the Territory of Utah, differs from the preceding case of Clayton against the same appellees, in the fact that Jack was charged with usurping and intruding into the office of territorial treasurer for the Territory of Utah, as Clayton was alleged to be an intruder into the office of auditor of public accounts. These two offices were created by the same statute of the Territory, at the same time, and the mode of election prescribed by that statute was changed at the same time by the same statute to an election by the people, and Jack claims to have been elected treasurer at the same general election in which Clayton was elected auditor; that he received the commission of the governor of the Territory, and that he has held the office ever since by reason of the fact that no other election had been held and no other person had been lawfully appointed to the office. The same principles govern this case as

Statement of the Case.

govern the other. The judgment of the Supreme Court of the Territory of Utah was based upon the same grounds, and for the reasons given by us in that case we affirm the judg. ment in this.

Affirmed.

UNITED STATES v. CARR.

APPEAL FROM THE COURT OF CLAIMS.

No. 411. Submitted December 3, 1889. — Decided January 6, 1890.

When a sum of money has been voluntarily paid by the United States to a

mail contractor, by mistake of fact, or under circumstances to bring the payment within the provisions of Rev. Stat. § 4057, the amount may be applied by the government towards the payment of any balance that may be found due him, in the settlement of his accounts, for other services

under his contract. A contract to carry the mails from one station to another station, by way of

two intervening specified stations, a stated number of miles and back, is not performed by carrying them over that route one way, returning from the terminal station to the place of beginning by a shorter route, avoid

ing the intermediate stations. When a contractor for carrying the mails seeks to recover the full contract

price, for a service which, as actually performed, was less than that contracted for, the burden of proof is on him to show knowledge or infor

mation by the Department of his conduct in the premises. Knowledge by the Post-Omice Department of the failure of a mail contractor

to perform the full service required by his contract is not to be presumed from reports of the local postmaster to the Department that the service had been performed.

Carr filed his petition against the United States in the Court of Claims on the 17th of February, 1885, averring that the Postmaster General entered into a contract in writing with him in April, 1878, for carrying the mails of the United States from Salinas City, in the State of California, to Gabilan, in that State, and back from Gabilan to Salinas City for the annual sum of $796, a copy of which contract he attached to his petition; that at the time of the letting of the contract, and for upwards of four years prior thereto, the mails were carried upon the route aforesaid, outward from Salinas to Santa Rita,

Statement of the Case.

a distance of three miles, and from Santa Rita to Natividad, a distance of four miles, and from the last-named place to Gabilan, a distance of eight miles, and on the return trip direct from Gabilan to Salinas, a distance of about ten miles, without passing through Natividad and Santa Rita ; that he believed that the mode of transportation last aforesaid was established under the authority of the Postmaster General for said route, and proposed to carry the mails upon said route for the compensation aforesaid, upon the understanding that the mails were, during the term of the contract, intended by said proposal to be carried in the manner before stated; that he commenced service under the contract July 1, 1878, and for four years, including the 30th day of June, 1882, carried the mail six times a week from Salinas, by way of Santa Rita and Natividad, to Gabilan, and back direct from Gabilan to Salinas, by a direct line, not passing through Natividad and Santa Rita ; that the compensation was paid up to January 1, 1882, but not from the first of January to the first of July, 1882; and that the Postmaster General had refused to pay petitioner the sum of $398, the amount of compensation due for the period last mentioned, upon the ground that petitioner had not performed his contract, inasmuch as he had not carried the mails from Gabilan to Salinas by way of Natividad and Santa Rita. Petitioner further alleged that at the letting he presented proposals to the Postmaster General for carrying the mails upon four other routes for the period of four years, namely, from July 1, 1878, to June 30, 1882, and obtained contracts therefor at certain compensation in the proposals named; that from the compensation due on the last-named contracts, $348.25 was withheld on account of the first-named contract, and there was also deducted from the four last contracts the sum of $35.92, for certain alleged delays in the transportation of the mail. Petitioner therefore prayed judgment for the sum of $782.17.

The findings of fact and conclusion of law are as follows:

“1.

“In April, 1878, the Postmaster General and the claimant entered into a contract to carry the mails on route No. 46,118,

Statement of the Case.

in the State of California, from Salinas, by. Santa Rita and Natividad, to Gabilan and back, six times a week, for the annual sum of $796. The material portions of said contract are set forth in Finding V.

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“ The mails were carried on said route under said contract for four years, commencing July 1, 1878, and ending June 30, 1882, as follows:

“The mails were carried by the claimant from Salinas, by way of Santa Rita and Natividad, to Gabilan, and back to Salinas by a direct route from Gabilan to Salinas. The distance from Salinas, by Santa Rita and Natividad, to Gabilan is twelve miles; the distance from Gabilan to Salinas by a direct route is ten miles.

“That the said route was operated by the claimant since the year 1870, the mails being always carried in the same manner in which the same were carried by the claimant, namely, from Salinas, by way of Santa Rita and Natividad, to Gabilan, and from Gabilan to Salinas direct, and until the date of the certificate of inspection of the 12th of May, 1882, have always been certified as duly carried and paid for accordingly by the Post-Office Department. The provisions of the contract under which said service was performed were in all respects similar to the provisions of the contract sued on.

“III. “For the failure of claimant to carry the mails via Santa Rita and Natividad, as aforesaid, from July 1, 1878, to March 31, 1882, the Postmaster General, upon May 13, 1882, entered a deduction from his compensation of $746.25, which deduction equals one-quarter of the total compensation fixed by the contract for whole service under it during the period covered by the alleged delinquency.

“There is no proof that any subsequent failure to said date of the claimant to carry the United States mail via Santa Rita and Natividad has ever come to the notice of the Postmaster General or the Post-Office Department.

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