prisoner himself, if he be confined, for a writ of habeas corpus, which would be efficient for his relief if he be entitled to it. In any event, it strikes me as calculated to subserve the purposes of humanity, as well as of justice, that the courts of Arkansas should investigate this case-try it, if, upon inquiring into the facts, they are found to have jurisdiction; and if not, remand the accused for trial to the tribunals of the Cherokees. I have the honor herewith to return the papers transmitted to this office, and to be, very respectfully, sir, your obedient servant, Hon. JAMES M. PORTER, JNO. NELSON. Secretary of War. COMPENSATION OF COLLECTORS OF CUSTOMS, NAVAL OFFICERS, &c. The compensation of collectors, naval officers, and surveyors depends on the amount received from the sources enumerated in the acts of 1-22 and 1841, read together-to the maximum of $4,000, $3,000, and $2,500, for commissions upon duties; and to $2,000 from the sources enumerated in the fifth section of the act of 1841; and is in each case separately dependent on the fund derived from such sources respectively. ATTORNEY GENERAL'S OFFICE, SIR: I have considered the question propounded in your communication of the 16th instant, and am of opinion that the fifth section of the act of the 3d of March, 1841, therein referred to, does not absolutely change the preexisting maximum allowance to collectors, naval officers, and surveyors, and increase it $2,000 per annum, without regard to the sources of emolument; but that the increase thereby provided for is relative, and dependent on the amount received from the sources of emolument therein enumerated. These officers of the customs, under the acts of the 31st of July, 1789, the 10th of August, 1790, and the 2d of March, 1799, were compensated for their services by fees and emoluments arising from certain specified official acts and papers, and a per-centage on all moneys received by them on account of duties on goods imported, and on the tonnage of ships and vessels; all of which received by them during their continuance in office, whatever might be their amount, belonged to them absolutely and for their own use. This system seems to have continued in operation till 1802, when, for the purpose of limiting the compensation of collectors and others, Congress passed the act of the 30th of April of that year, by which it was declared, "that from and after the 30th day of June (thereafter,) whenever the annual emoluments of any collector of the customs, after deducting therefrom the expenditures incident to his office, should amount to more than five thousand dollars; or those of a naval officer, after like deduction, to more than three thousand five hundred dollars; or those of a surveyor, after a like deduction, to more than three thousand dollars-the surplus shall be accounted for and be paid by them, respectively, to the treasury of the United States: provided always, that nothing in the act contained should be construed to extend to fines, forfeitures, and penalties, under the revenue laws of the United States. Then followed the act of the 7th of May, 1822, which further reduced the maximum allowance to the collectors of the principal ports of the United States to the sum of $4,000; that of naval officers to $3,000; and that of surveyors to $2,500 per annum, respectively; subject to the addition, under the 18th section. thereof, of $400 for services performed in any other capacity, with a saving in their interests in fines, penalties, and forfeitures, and required such officers to account to the treasury for all their emoluments, and also for all the expenses incident to their offices. These provisions of the act of 1822 were in force when the act of the 3d of March, 1841, was passed, the fifth section of which enacts, "that in addition to the account now required to be rendered by every collector of customs, naval officer, and surveyor of ports, every such collector, naval officer, and surveyor shall, each and every year hereafter, render a quarter yearly account, under oath, to the Secretary of the Treasury, in such form as said Secretary shall prescribe, of all sums of money by each of them respectively received or collected for fines, penalties, or forfeitures; or for seizure of goods, wares, or merchandise; or upon compromises made upon said seizure; or on account of suits instituted for frauds against the revenue laws; or for rent and storage of goods, wares, or merchandise which may be stored in the public warehouses, and for which a rent is paid beyond the rents paid by the collector or such other officer; and if from such accounting it shall appear that the money received in any one year by any collector, naval officer, or surveyor, on account and for rents and storage as aforesaid, and for fees and emoluments, shall, in the aggregate, exceed the sum of two thousand dollars, such excess shall be paid by the said collector, naval officer, or surveyor, as the case may be, into the treasury of the United States, as part and parcel of the public money; and no such collector shall, on any pretence whatsoever, hereafter receive, hold, or retain for himself, in the aggregate, more than six thousand dollars per year, including all commissions for duties, and all fees for storage, or fees or emoluments, or any other commissions or salaries which are now allowed and limited by law. Nor shall such naval officer, on any pretence whatsoever, in the aggregate, receive, hold, or retain for himself, hereafter, more than five thousand dollars per year, including all commissions on duties, and all fees for storage or fees or emoluments, or any other commissions or salaries, which are now allowed and limited by law. Nor shall such surveyor, in the aggregate, receive, hold, or retain for himself, hereafter, more than four thousand five hundred dollars per year, including all commissions or fees or emoluments, or any other commissions or salaries, which are now allowed and limited by law: Provided, The aggregate sums allowed per year to the several officers aforesaid shall be exclusive of the necessary expenses incident to their respective offices in the same year, subject to the regulation of the Secretary of the Treasury. The purpose of this enactment is obvious. It was not to increase the compensation of the officers to whom it relates, but to bring into the public treasury moneys arising from the enumerated sources, which, under the then existing law, belonged wholly to these officers. It was to limit their perquisites, from whatever sources proceeding, and which it was supposed in particular ports transcended every reasonable standard of allowance. It was to abridge and not to enlarge official emoluments. It therefore provides for the rendition, by the officers named, of quarteryearly accounts, and enforces the faithful discharge of the duty, but guarding it with the most solemn sanctions. Those accounts are to be settled in the treasury; and if, upon such accounting, "it shall appear that the money received in any one year, by any collector," &c., from the sources indicated, "shall, in the aggregate, exceed the sum of two thousand dollars, such excess shall be paid by such officer into the treasury." The effect of this provision, therefore, manifestly is, to limit the compensation of the officers named, to be derived from the sources enumerated, to the sum of two thousand dollars. So much he may retain; the excess he is bound to pay over to the United States. And the residue of the clause, which is merely declaratory, was designed to give effect to the previous provision, limiting, as it does, the compensation in the aggregate, to a collector, to six thousand dollars; to a naval officer, to five thousand dollars; and to a surveyor, to four thousand five hundred dollars per year; that aggregate being compounded of the maximum allowed by the act of 1822, derived from sources for the proceeds of which the officer was, under that act, bound to account, and the maximum allowed out of the particular sources enumerated, which, for the first time, by this section, are made the subject of account in the treasury. This section of the act of 1841 leaves untouched the provisions of the act of 1822. It neither changes the commissions thereunder payable to collectors, naval officers, or surveyors, nor the maximum of compensation thereby established. It superadds regulations where none had been previously prescribed, and brings into being new relations of responsibility not before existing. The class of officers to which it applies are made by it accounting officers with the treasury, in regard to receipts which were antecedently their own. The maximum under the act of 1822 remains the maximum of compensation to be derived from the sources by which it is supplied, whilst the limitation under the act of 1841 is for the first time provided, in restraint of the profit resulting from the other sources enumerated. The section in question does not fix the compensation of the officer. It does not declare that he shall be entitled to receive, in the case of the collector, six thousand dollars per year, but that he shall not receive more in the aggregate—that is, that he shall not receive more from the customs than four thousand dollars, the maximum fixed by the act of 1822; nor from the sources enumerated in the law, more than two thousand dollars; making, together, six thousand dollars. But if the commissions, &c., under the act of 1822, do not amount to four thousand dollars, to the extent of the deficiency will his compensation from that source be lessened. And if, from the other sources enumerated in this act, his receipts do not amount to two thousand dollars, to the extent of that deficiency will his compensation from those sources be diminished; and his aggregate receipts, which never can exceed, will, in such case, be less than six thousand dollars by the amount of the added deficiencies in the two sources of compensation. The language of the act in this particular cannot be misapprehended: "No such collector shall, on any pretence whatsoever, hereafter receive, hold, or retain, for himself, in the aggregate, more than six thousand dollars per year, including all commissions for duties, (which, by the act of 1822, are limited to four thousand dollars as the maximum,) and all fees for storage, or fees or emoluments, or any other commissions or salaries which are now allowed and limited by law,' (which, by this enactment, are limited to two thousand dollars as the maximum.) That the allowances contemplated by this act were not intended to be absolute, and in the gross, is, moreover, clearly inferrible from the fact of the insertion of the limitation of two thousand dollars as the maximum to be received from the sources enumerated, which would have been wholly unnecessary if the design of Congress had been to entitle the officer to the maximum of six thousand dollars, without reference to the sources from which it was to be supplied. Upon the whole, without pursuing these considerations into further detail, I am of opinion that the act of 1822 is, in the particular under consideration, unrepealed by the act of 1841; that said acts are to be read together, and that the compensation of collectors, naval officers, and surveyors, is thereby limited to the maximum of four thousand dollars, three thousand dollars, and two thousand five hundred dollars, for commissions upon duties; and to two thousand dollars from the sources enumerated in the 5th section of the act of 1841; and that the allowance in either case is separately dependent on the fund derived from such sources respectively. The papers are returned. I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON. Hon. JOHN C. SPENCER, Secretary of the Treasury. TRANSFERS OF APPROPRIATIONS FOR THE NAVY DEPARTMENT. Since the passage of the act of 1842, the President has no power to direct transfers in the Navy Department, of moneys appropriated to one particular branch, to the account of another branch of expenditure. ATTORNEY GENERAL'S OFFICE, October 23, 1843. SIR: A brief synopsis of the acts of Congress, to which your communication of the 20th instant refers, will serve, I think, to relieve the questions therein propounded from all difficulty. The act of the 3d of March, 1809, gave to the President of the United States authority, on the application of the secretary of the proper department, during the recess of Congress, to direct, if in his opinion necessary for the public service, that a portion of the moneys appropriated for a particular branch of expenditure in that department be applied to another branch of expenditure in the saine department. The power thus conferred upon the contingencies specified in the act was general, and authorized a transfer from any one to any other object of appropriation. The act of the 3d of March, 1817, restrained the generality of the provision, by exempting from its operation all sums appropriated to fortifications, arsenals, armories, customhouses, docks, navy yards, or buildings of any sort, or to munitions of war, or to the pay of the army or navy. The act of the 1st of May, 1820, substantially repealed that of 1809, as it regarded the Navy Department, by so amending it as to limit the authority of the President to transfer moneys to such as should be appropriated "for provisions, for medicine, and hospital stores, for repairs of vessels, and for clothing;" explicitly declaring that no other transfers of appropriations in the Navy Department should be thereafter made. The law standing thus in 1832, the act of the 3d of July of that year was passed, by which the President, upon the application of the Secre tary of the Navy, was authorized, whenever, in his opinion, the unforeseen contingencies of the public service required it, to direct that a part of the money appropriated for a particular branch of the naval service be applied to another branch of the same service. This law was limited in its duration to the close of the then next session of Congress; and, not being re enacted, expired on the 3d of March, 1833. The effect of its expiration was to revive the act of 1820, which defined the limits of the Executive authority as before stated. The acts of 1834 and 1840 have relation to the authority of the President to direct transfers "at any period between the close of the year and the passage of the new naval appropriation bills;" and that power is given by these acts in comprehensive terms; authorizing, as they do, the transfer of a part of the money appropriated for a particular branch of the naval service for the former year, to be applied to another branch of the said service. This authority was expressly interdicted by the 4th section of the act of the 1st of May, 1820. When the act of the 31st of August, 1842, was passed, therefore, the power of the President to make transfers of appropriations for the naval service was regulated, in regard to the current year, by the act of 1820, and limited to the objects therein enumerated; and in regard to appropriations made for a former year, "between the close of that year and the passage of the new naval appropriation bills," by the act of 1834. The act of 1842 repeals, so far as relates to the Department of the Navy, "all acts, or parts of acts, authorizing the President of the United States, or the secretary of the proper department, under his direction, to transfer any portion of the moneys appropriated for a particular branch of expenditure in that department, to be applied to another branch of expenditure in the same department." Those "acts, and parts of acts," are the acts of 1820 and 1834, which were then alone in force. The terms of the act, "so far as relates to the Department of the Navy," apply, I think, to appropriations for the naval service generally, and are not restricted to the office of the Secretary of the Navy and the bureaus attached to it. The language is the same with that used in the acts of 1809 and 1820, conferring the authority to direct transfers to be made, and must be governed by the same rule of interpretation. Before the passage of the act of 1842, the President had the power, before the expiration of the year for which appropriations were made, to direct transfers, within the terms of the act of 1820, to the objects therein enumerated, and to none other: that authority Congress, by the act in question, have withdrawn. I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON. Hon. DAVID HENSHAW, Secretary of the Navy. |