DEPOSITES OF MONEYS IN HANDS OF DISBURSING OFFICERS.

Under the order of the Treasury Department, approved by the President on the 5th of October, 1833, disbursing officers may legally keep the public moneys entrusted to them on deposite in the banks heretofore selected by the treasury, and which now have the public

money.

Disbursing officers may legally make special deposites of their funds in non-specie-paying banks, if so directed by the President, where they will agree to receive the funds in that

way.

Any bank not restrained by its charter, or other statutory enactments, nor by judicial process, from receiving special deposites, is competent to enter into a contract for the safe-keeping and return of a special deposite in such way and on such terms as may be agreed on. Payment by disbursing officers to the credit of the United States must be made to the Treasurer, or to some specie-paying bank.

ATTORNEY GENERAL'S OFFICE,

May 26, 1837.

SIR: In your letter of the 20th instant, after calling my attention to the second section of the act of March 3d, 1809, by which it is provided that certain agents of the government for the disbursement of public moneys "shall, whenever practicable, keep the public money in their hands, in some incorporated bank, to be designated for the purpose by the President of the United States ;" and to the action of the Secretary of the Treasury, approved by the President, in relation to such moneys, as well as under the deposite act of the 23d of June last, you propose for my opin ion, by desire of the President, the following questions:

"1. Can disbursing officers of the government, under the provisions of the acts and regulations referred to, legally keep the public moneys in their hands, on deposite in any specie paying banks? and if so, what action, if any, is necessary on the part of the Executive to authorize it?

"2. Can disbursing officers, under the provisions of the act of 1809, legally make special deposites of their funds in non specie-paying banks? and if so, what measures, if any, will it be advisable to adopt to render the banks liable for the safety of their deposites.

"3. In many cases, disbursing officers and others are required to pay balances in their hands into bank, to the credit of the Treasurer of the United States, that they may be credited in their account with the sum deposited, on a warrant issued as required by law. Can these officers be required to make the deposites with collectors of the customs or receivers of public moneys, to the credit of the Treasurer, so as to receive a credit in their accounts with the government? And can the collectors of the customs and receivers be legally required to receive such deposites, and become responsible for the amount to the United States? or must they be paid into some public depository which redeems its notes in specie, or be paid to the Treasurer in this city?"

In answer to the first of these questions, I have the honor to inform you that, in my opinion, the provisions of the act of the 23d of June last were not intended to apply, and do not apply, to public moneys drawn out of the treasury, and placed in the hands of disbursing officers for expenditure; and, consequently, that the act of 1809 has not been repealed or affected by those provisions. I think, however, that the act of June 23d, 1836, regulating, as it does, the deposites of the public money in the treasury, should be resorted to by the President as a guide for the exercise of the discretionary power vested in him by the act of 1809; and that, so far as circumstances may permit, he should conform to it in any

ted States of America in Congress assembled, That in all cases where public lands, taken from the bounds of a former land district, and included within the bounds of a new district, have been sold by the officers of such former district, under the pre emption law or otherwise, at any time prior to the opening of the land office in such new district, and in which the Commissioner of the General Land Office shall be satisfied that the pro. ceedings in other respects have been fair and regular, such entries and sales shall be, and are hereby, confirmed; and patents shall be issued thereupon, as in other cases.

"And be it further enacted, That in all cases where any entry has been made under the pre-emption laws, pursuant to instructions sent to the register and receiver from the Treasury Department, and the proceedings have been in all other respects fair and regular, such entries and sales are hereby confirmed, and patents shall be issued thereon, as in other respects.

The entry of Adams was made pursuant to instructions sent to the regis ter and receiver from the Treasury Department, on the 7th February and 17th October, 1831; and the entry and sale are, therefore, confirmed by the second of the above sections, provided the proceedings have been fair and regular in all respects other than the irregularity of making the sale after the erection of the Danville district.

This irregularity is to be excepted, because cured by the first section, and therefore tacitly excepted from the irregularities and unfairness refer red to in the second section, as explained in my opinion of the 10th of August last. And even had the law teen confined to the first section, I think it would have been sufficient to confirm the title of Adams; because, in my opinion, a sale of the tract in question was substantially made to him by the officers of the Vandalia land district, prior to the opening of the land office in the new district.

"3. Whether a pre-emptor has not rights which he can protect against a subsequent purchaser, who acquires his inceptive title in fraud of the same?"

If the term "pre emptor," as used in this question, be intended to desig nate a party who has actually made such a settlement and cultivation as to bring himself within the provisions of the pre emption law, (and no other can properly be called a "pre-emptor,") I shall have no hesitation in an swering the question in the affirmative.

The possession of such a party is notice to all the world of his equitable title to the benefits proffered by the pre emption law; and, until the expi ration of the time limited by the law, he has the right to avail himself of those benefits, and no third person can be allowed to intercept or defeat

them.

It will, however, be seen by the report of the Solicitor of the Land Office, in another case, (No. 57,) that, in framing this question, he did not intend to confine the word pre-emptor to the case above stated, but meant to embrace by it every actual settler and occupant of the public lands, whether entitled to the preference in purchasing given by the pre-emption law or not. It will also be seen by that report, that the Solicitor is of opinion that the rossession of every such settler is secured from the claims of persons hav ing floating rights under these acts, by the last clause of the second sec tion of the act of the 29th of May, 1830. I cannot concur in this opinion. The "right of preference" referred to in that clause, is, in my judgment,

the same right of pre-emption, or the right of purchasing at the minimum price in preference to all other persons, which is secured by section first. No other "right of preference" is known to the acts of Congress; and, in some of the early pre-emption laws, the privilege conferred on the settler is described in this very way. I am, therefore, of opinion that the settler on the public lands has no legal right to his possession as against the United States and purchasers from the United States, except where he is embraced by, and actually complies with, the provisions of a pre-emption law. Whether the actual possessions of other settlers ought not to be protected from floating claims, is a question which belongs exclusively to Congress, and which would seem to deserve the attention of that body.

Perhaps, also, it may be expedient to suspend the application of such claims to those possessions, until the sense of Congress can be taken on the subject.

"4. Whether individuals residing without the land district, or in a distant part of the State, and claiming pre-emption in virtue of the occupancy and cultivation of others, placed on the public lands as tenants, are entitled to pre emption in any case?"

This question, I presume, will have been sufficiently met in the remarks above submitted in reply to the first question.

I am, sir, very respectfully, your obedient servant,

The Hon. LEVI WOODBURY,

Secretary of the Treasury.

B. F. BUTLER.

POWER OF SENATE RESPECTING NOMINATIONS TO OFFICE.

The Senate cannot originate an appointment; its constitutional action is confined to a simple affirmation or rejection of the President's nominations; and such nominations fail whenever it disagrees to them.

The Senate may suggest conditions and limitations to the President, but cannot vary those submitted by him; for no appointment can be made, except on his nomination, agreed to without qualification or alteration.

In the case of John R. Coxe, jr., nominated for lieutenant in the navy from date, and confirmed, with the qualification that he shall take rank next after Lieutenant Elisha Peck, a commission cannot properly issue.

ATTORNEY GENERAL'S OFFICE,
March 29, 1837.

SIR: In the case of Mr. Coxe, referred to me by your letter of the 7th instant, it appears that the President, on the 16th ultimo, nominated him. to the Senate as follows: "To the Senate of the United States: I nominate John R. Coxe, jr., to be a lieutenant in the navy from this date;" and that the Senate, on the 3d instant, adopted a resolution in the following words: "Resolved, That the Senate advise and consent to the nomination of John R. Coxe, to be a lieutenant in the navy, to take rank next after Lieutenant Elisha Peck."

On this case you request my opinion "whether Mr. Coxe can be commissioned agreeably to the nomination by the President, or in accordance with the resolution of the Senate, which will place him on the register above one hundred and sixty-two lieutenants, next after Lieutenant

Elisha Peck; or whether he can properly be commissioned as a lieutenant in the navy?"

After maturely considering the above case, I am of opinion that Mr. Coxe cannot properly be commissioned as a lieutenant in the navy. The Senate has no power to originate an appointment; its constitutional action is confined to a simple affirmation or rejection of the President's nomi nation. Whenever the Senate disagrees to such a nomination, it fails; and no appointment can be made, except on a new nomination to be made by the President. Suggestions as to the views of the Senate in cases where that body disagrees to the President's nomination, may, no doubt, be informally communicated to him; but should he think it proper to conform to those views, I know of no way in which it can be done, consistently with the provisions of the constitution, except by the making of a new nomination in accordance therewith. In the present case, there is a disagreement between the two branches of the appointing power; and the nomination must fail, unless the date of the rank can be separated from the office itself, and the commission be issued for the office, (on the ground that the President and Senate have agreed to that extent,) without saying any thing of the date of Mr. Coxe's rank. In effect, however, such a commission would be substantially in accordance with the President's nomination; because, where nothing is said as to date, the officer takes rank from the time of his appointment. But such a result would be directly repugnant to the resolution of the Senate; and, therefore, the commission ought not to be issued in that form. The only other form which can be adopted, is to issue the commission agreeably to the resolution of the Senate-that is, expressly declaring that Mr. Coxe shall take rank next after Lieutenant Peck. This, however, would involve the irregularity of making the Senate, so far as regards the date of rank, the proposers of the measure; thus reversing the order of action prescribed by the constitution. The consequence is, that, in the present posture of the matter, the commission cannot issue at all.

This case involving constitutional questions of much practical import ance, I have thought it useful to examine the executive journal of the Senate, so far as printed for public use, for the purpose of ascertaining whether any proceedings of the like nature have heretofore occurred. I find the following, which are somewhat analogous: On the 4th of May, 1822, President Monroe nominated Colonels House and Fenwick and Major Eustis for promotion in the army, with dates of rank in each case, from a prior day specified in the nomination. On the 8th of May, 1822, the Senate acted on these nominations. In each case the question was divided, and the vote taken first on the proposed promotion, and then on the date of rank; the former was determined in the affirmative, and the latter in the negative. The President, as I learn from the Adjutant General, must have regarded the action of the Senate as complete, because he issued the commissions in conformity to the decision of that body. Nothing being said as to the date of rank in the commissions, the officers receiving them, of course, took rank from their appointments. These cases would seem to show that, in the judgment of the Senate and of President Monroe, the date and rank may be separated from the office itself; this, perhaps, may be done where the President nominates, as in the cases referred to, with rank from a prior day, and the Senate strike out the rank altogether; thus reducing it to the date of the appointment.

The nomination of a superior rank may, perhaps, be said to include the inferior; and it is certain that if the President chooses to accept such a confirmation, and to issue a commission thereon, he will do no injustice. to other officers. I suppose, too, that he may afterwards submit a new nomination for the same office, to rank from an earlier date, and thus obtain a reconsideration of the subject. But neither of these remarks can be applied to the case before us.

On the 16th of January, 1826, President Adams nominated Daniel Bissell to be colonel of the 2d regiment of artillery. On the 24th of that month the Committee on Military Affairs recommended the confirmation of the nomination, with the addition that Colonel Bissell should take rank from the 15th of August, 1812, and they submitted a resolution to that effect. The report and resolution were laid on the table; but, on the 2d of February, 1826, the following resolution was adopted by a vote of 37 to 2.

"Resolved, That, in the opinion of the Senate, Daniel Bissell is entitled to the place of colonel in the army of the United States, taking rank as such from the 15th of August, 1812; with the brevet rank of brigadier general from the 9th of March, 1814; and that the President of the United States may arrange him accordingly.”

This resolution, with the report and other proceedings, was laid before the President, who, on the 11th of April, 1826, transmitted to the Senate a message dissenting from the opinion of the Senate, stating his reasons. for not regarding the resolution of the Senate as a decision on the nomi. nation, and inviting a definitive decision thereon. [See executive journal, vol. 3, page 519] The subject being recommitted with the last message of President Adams to the committee, that committee, on the 22d of May, 1826, made a further report, which concluded with a recommendation that the Senate should not advise and consent to the appointment“ in the manner in which the nomination has been made." It was thereupon resolved that the nomination lie on the table; and it does not appear to have been afterwards taken up. Previous to the making of this report, and on the 17th of April, 1826, Mr. Eaton submitted the following motion: "Resolved, That the nomination of Daniel Bissell to be colonel of the 2d regiment of artillery is unnecessary, for the reasons

"Ist. That he is already in the army, and should be arranged agreeably to the provisions of the act of 1821, for reducing the army.

"2d. That an appointment to take effect now, would be an act of injustice to Colonel Bissell, by placing him in a rank different from what he is entitled to claim by existing laws."

This motion was on the same day considered and laid on the table. It is difficult to say that any particular point is settled by the proceedings in the case of Colonel Bissell; but it would seem to have been admitted by the Senate, that, without a new nomination by the President, expressly adopting the rank to which that body deemed Colonel Bissell entitled, it could not be conferred upon him. Had the Senate supposed it possessed the power to confirm the nomination as to the office, with the addition of a prior date as to rank, (the course taken in Mr. Coxe's case,) it is scarcely to be doubted that such would have been its action, especially as it was recommended by the military committee in their first report.

The above precedents, so far as any information is to be gathered from