OPINIONS

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HON. REVERDY JOHNSON, OF MARYLAND:

APPOINTED MARCH 8, 1849.

RELEASE TO BE EXECUTED BY THE CREEK INDIANS.

The form of release of the claim of the Creek Indians upon the government, which has been submitted to the Commissioner of Indian Affairs, answers the requirements of the 3d section of the act of 12th August, 1848, if it satisfactorily appear that the chiefs and headmen who have executed it are in fact the chiefs and headmen of the Creeks, and constitute a majority of their national council.

The power of attorney authorizing Joseph Bryan to receive certain moneys from the United States for professional services rendered in prosecuting the claim of the Creeks, is sufficient for its purpose if it appear that it was executed by those chiefs and headmen who had authority to execute such an instrument.

ATTORNEY GENERAL'S OFFICE,

March 21, 1849.

SIR: I have examined the release prepared under the provisions of the 3d section of the act of the 12th of August, 1848, ch. 166, making appropriations for the civil and diplomatic expenses of the government, and dated February 6, 1849, and have no doubt of its sufficiency: provided, that the chiefs and headmen executing it are such chiefs and headmen, and constitute the whole or a majority of the council of the Creek nation. Satisfactory evidence of these facts is, I presume, to be found in the Indian department. I have also examined the power of attorney, dated the 6th of February, 1849, submitted to me in duplicate, and the account attached to the same, dated the 18th of August, 1848, empowering Joseph Bryan, one of the parties named in such account and power of attorney, to receive from the United States the sum of twenty-three thousand and fifty-five dollars and ninety one cents, ($23,055 91) for professional services rendered said nation in the prosecution of the nation's claim before Congress by said Bryan and Messrs. F. H. Elmore and Perry E. Brockus, and am of opinion that it is in due form, and sufficient for its purpose, subject to the like proviso, herein before stated, as to the release by the nation on account of the sum of one hundred and forty-one thousand and fifty five dollars and ninety-one cents, provided to be paid to the nation by the 3d section of the act referred to.

I have the honor to be, very respectfully, sir, your obedient servant, REVERDY JOHNSON.

PAYMENT OF LOSSES SUSTAINED IN THE MILITARY SERVICE.

The Senate bill reported on the 9th of February, 1849, to provide payment for horses and other property lost or destroyed in the military service of the United States, embraces field, staff, and other officers, mounted militia, volunteers, rangers, and cavalry, engaged in the military service of the United States since the 18th of June, 1812-whether the owners belonged to the regular or other military service.

ATTORNEY GENERAL'S OFFICE,

March 23, 1849.

SIR: In my opinion, the true and only admissible construction of the 1st section of Senate bill No. 455, reported the 9th of February, 1849, referred to this office by the Treasury Department, being a bill to provide for the payment for horses and other property lost or destroyed in the military service of the United States, is that it embraces every field, staff, or other officer, every mounted militia man, volunteer, ranger, or cavalry, engaged in the military service of the United States since the 18th of June, 1812, and up to the period when the bill became a law, or afterwards, who has sustained or shall sustain the damage mentioned in such section.

It is wholly immaterial whether he belongs to the regular or other mil. itary service of the United States. If he be an officer of any grade, or a private coming within the class of mounted militia man, volunteer, ranger, or cavalry, mounted on his own horse, and sustains the loss intended to be provided for, he is included within the bill. I have the honor to be your obedient servant,

Hon. Wм. M. MEREDITH,

SON.

REVERDY JOHNSON.

Secretary of the Treasury.

CUSTOMS GOODS ENTITLED TO DRAWBACK.

The act of 1849, requiring moneys received from customs, &c., to be paid into the treasury without abatement or reduction, does not deprive goods of the benefit of drawback which were already in the country, and entitled to it.

Its design was to take from goods thereafter to be imported the privilege of drawback when once withdrawn from the custody of the officers of the customs, and not to extinguish any existing right.

ATTORNEY GENERAL'S OFFICE,
March 23, 1849.

SIR: I have considered the 5th section of the act of the last session, "requiring all moneys received from customs and from all other sources to be paid immediately into the treasury, without abatement or reduction, and for other purposes," with reference to the question submitted to this office by the honorable the Secretary of the Treasury, and am of opinion that it does not deprive of benefit of drawback goods in the country at the time the act passed, which, by the then existing laws, were entitled to it.

The first part of the section, in terms, applies only to imports made from and after the 30th of June next; and upon a well settled rule of statutory construction, which prohibits, unless the intent be clear the other way, a retrospective effect, as well as from its phraseology, I am

clear that the proper interpretation of the after-part of the section, which provides that no goods subject to duty shall be hereafter entered for drawback, or exported for drawback, after they are withdrawn from the custody of the officers of the customs," is, that it does not apply to goods then in the country, and entitled to drawback. The design was to take from goods thereafter to be imported the privilege of drawback when once withdrawn from the custody of the officers of the customs. It was not the design to extinguish any such existing right. That is left, in my opinion, where this law found it-to rest upon the laws in force before and under which the right was acquired. The words in the latter part of this portion of the section, "after they are withdrawn from the custody," &c., are not properly capable of a retrospective operation, but the contrary.

My opinion, then, is, that the right of drawback exists, under the antecedent laws, in the case of all goods in the country when this act was passed; but, in regard to all subsequently imported, it is to be subject to the provisions of this act.

I have the honor to be, very respectfully, sir, your obedient servant, REVERDY JOHNSON.

Hon. Wм. M. MEREDITH,

Secretary of the Treasury.

PAYMENT OF THE CLAIM OF REPRESENTATIVES OF CHURCHILL GIBBS.

Congress having resolved that the claim of the representatives of Churchill Gibbs was provided for by the act of July 5, 1832, and the House of Representatives having again resolved to that effect, after the executive department had decided otherwise, it is now the duty of the executive department to liquidate it.

ATTORNEY GENERAL'S OFFICE,
March 27, 1849.

SIR: In the case of the representatives of Churchill Gibbs, referred to this office, I am of opinion that, both Houses of Congress having, on the 12th of January, 1848, resolved that the claim was provided for by the act of July 5, 1832, and the House of Representatives having done so again at the last session, after the executive department had, more than once, maintained a different doctrine, I am of opinion that a proper deference to the legislature demands that their construction should be adopted. That a claim should be rejected by the Executive because Congress had not, in its opinion, provided for it, and the claimant be referred to the latter for relief, and, going there, be referred back to the Executive by Congress, because, in their opinion, they had provided for it by the ex. isting laws, and that it should still be disallowed, would, in my opinion, be a reproach upon the justice of the government, which it is not only in the power, but the duty, of the Executive to prevent. Without deciding, therefore, upon the first of the two questions submitted, I am very clear that, upon the ground included within the second question, the claim should be liquidated.

I have the honor to be, very respectfully, sir, your obedient servant, REVERDY JOHNSON.

Hon. THOMAS EWING,

Secretary of the Interior.

PAYMENT OF THE CLAIM OF REPRESENTATIVE OF JOHN M. GALT.

The acts of Congress of 3d March, 1835, and 12th August, 1848, are legislative interpretations of the act of 5th July, 1832, and the expressions of opinions that it was the purpose of the third section of the act of 1832 to provide for Virginia commutation claims for half-pay as well as for those for half-pay.

Those legislative interpretations and opinions are binding on the Executive, and require the allowance of the present claim.

ATTORNEY GENERAL'S OFFICE,

March 27, 1849.

SIR: If the question presented by the case of the representative of John M. Galt, which you have referred to this office, were a new one, and depended alone on the third section of the act of the 5th July, 1832, I should entertain little or no doubt upon it. I should have construed that section as embracing all claims of a like character with those included within the first and second sections, not prosecuted to judgment and paid, or prose. cuted to judgment. These consisted, amongst others, of claims for commutation as well as half-pay.

It would seem to be singular that Congress should provide for claims sued to judgment, and not intend, although apparently meaning to do so, to cover all such claims as Virginia was responsible for, and could be sued for and made to pay, and should, by the imperfection of the terms adopted, fail to include all. But the question, as far as that act alone is concerned, is not, according to the practice of this office, to be considered an open one. My predecessors entertained a different view of the act, and have more than once so decided. But, although this is the rule of the office, yet when Congress have afterward expressed an opinion in conflict with that of the office, it has been considered as in the nature of a legislative interpretation, which becoming courtesy to the legislative department of the government requires the Executive to observe. In this case I think there is such an interpretation. The doubt under the act of 1832 was, whether commutation claims were provided for by its third section.

When the opinion of Attorney General Taney was given, he does not seem to have had his attention brought to the law of Virginia of the 16th December, 1790, (13 Henning, 131,) under which, as I think, her courts decided that the officers referred to in that law were entitled to commuta. tion. The judgments against her for such claims were not, I think, given by way of compromise, but of right, arising under this act of 1790. This opinion, also, was prior to the act of Congress of 3d March, 1835, (it was given 21st March, 1833,) which evidently contemplates commutation claims, and was of course prior to the act of 12th August, 1848, making appropriations for the civil and diplomatic expenses of the government, by which eighty-one thousand two hundred and seventy-three dollars and seventeen cents were appropriated "for repayment to Virginia of money paid by that State, under judgments of her courts against her, to revo lutionary officers and soldiers and their representatives, for half-pay and commutation of half-pay," &c. These two acts, in my judgment, are to be considered legislative interpretations of the act of 5th July, 1832, and as the expression of an opinion by Congress, with whom the propriety of paying the claims altogether rests, that it was the purpose of the third section of the act of 1832 to provide for commutation of half well as half pay. I think this should be, and is, binding on the Execu

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