cies of the public service required the performance of the duties of the naval officer, and they were accordingly performed by the deputy of the former officer. But this was, in law, a performance of those duties by Mr. Parker himself; for the deputy has only the powers of the person ap pointing him, and is only authorized to act in the absence of his principal, who is responsible for his conduct. (Section 22 of the act of the 2d of March, 1799, to regulate the collection of duties on imports and tonnage.) From the necessity of the case, it seems, therefore, that the naval officer was obliged to hold over; and, on the ground of this public necessity, I think it must be held that the officers mentioned in the act of 1820 must be considered, in contemplation of law, as holding their offices until their successors shall be duly appointed and qualified. Elective and judicial officers cannot be allowed to exercise their functions after the expiration of the terms of service for which they were elected or appointed; but the objections which exist in those cases do not apply to mere administrative officers. And, until Congress shall make other provision on the subject, I do not see how the government can be effectually carried on, in cases like the present, without adopting the principle now suggested. I am accordingly of opinion that the question submitted to me must be answered in the affirmative. I am, sir, &c., &c., B. F. BUTLER. To the SECRETARY OF THE TREASURY. RIGHTS OF THE BALTIMORE AND OHIO RAILROAD COMPANY. Congress have not granted to the Baltimore and Ohio Railroad Company the right to pass through the public reservations in the city of Washington; the same not being included in the other squares and lots" in the city. ATTORNEY GENERAL'S OFFICE, SIR: Pursuant to your directions, I have carefully examined the correspondence between the agent of the Baltimore and Ohio Railroad Company and the Commissioner of Public Buildings, and have looked into the acts of Congress referred to therein, for the purpose of answering the following questions: 1. Do the acts of Congress vau company the right to prvo tough, dhe pune reservations in the city of Washington? 2. If such right be granted, can the company be restricted, in their route through the reservations, to any particular points; or are they at liberty to pass where they please through the reservations? The answer to be given to the first of these questions depends on the true construction of the act of the 4th of March, 1835, supplementary to the act of the 2d of March, 1831, (erroneously referred to as if passed in 1829;) and in order to ascertain that construction, it is necessary, first, to ascertain the object and effect of the original law. The act of 1831 authorized the extension, construction, and use of a lateral branch of the Baltimore and Ohio railroad into and within the District of Columbia; but restricted the route of the road to the public streets and alleys, and prohibited the company from passing through any lot, public or private, within the city of Washington. In other parts of the District the company were authorized to enter on and use the lands of individuals, if assented to by the owners; or, if not assented to, upon an appraisement to be made by a jury, in the manner pointed out in the Maryland act incorporating the company. The first section of the act of 1835 authorizes the company to locate and construct their road, within the city of Washington, through certain squares enumerated in the law, "in the same manner, and with the same rights and privileges, which are granted to them by the act to which this is a supplement, for the construction of their said road within the District of Columbia, beyond the limits of the city of Washington, anything contained in the said act to the contrary notwithstanding;" and the assent of Congress is given to the construction of the railroad through or over any of the said lots, or parts of lots, which are owned by the United States. It does not explicitly appear, in the correspondence between the agent and the commissioner, whether the public reservations are, or are not, included in the squares enumerated in the first section, or situated in other parts of the city; nor whether they are, or are not, owned by the United States. But it is distinctly stated, as part of the case on which my opinion is required, that the public reservations are not included in the squares so enumerated; but are entirely distinct therefrom, and from all other squares and lots in the city. On this state of facts, I am of opinion that the first question must be answered in the negative; and, if that question be thus disposed of, the examination of the other will, of course, become unnecessary. The first section gives no right to pass through any tract within the city of Washington, except the squares or lots specially enumerated. The public reservations, not being parcel of those squares, are, of course, not included in the grant. The second section forbids the extension of the main stem of the road, after passing through the squares or lots before named, west or south of a certain point, until the route from that point to the point of termination of the main stem shall have been surveyed and approved by the corporation of Washington; but when so surveyed and approved, the company are authorized to construct their road according to such route, and on such restrictions and conditions, as may be agreed on between the company and the corporation. This section, taken by itself, certainly does not authorize the company to pass through any public reservations, or even through any lot or square owned by the United States; but the next section (the 3d) provides, that if the "said route should pass through any unimproved lots or squares, except public reservations, the company shall [be,] and they are hereby, authorized to construct their said road through or over the same, upon the same terms, and with the same privileges, as are prescribed for passing through the squares enumerated in the first section." The phrase " except public reservations," introduced in this section, has given rise to the difference of opin. ion which exists between the agent of the railroad company and the Commissioner of Public Buildings; and as the intent of the law-makers is the cardinal rule in the construction of statutes, each of them has endeavored to fortify his own view of the subject, by referring to the opinions and suggestions of the chairmen of committees, and other members of Congress. In my consideration of the case, I must lay out of view all such intimations, and, taking the words of the law as my guide, must endeavor to ascertain from them, if it be practicable to do so, the actual intent of the legislature. Applying this rule to the third section, I remark, that it does not, in terms, authorize the company to pass through any public reservation; the authority expressly given is certainly confined to "unimproved lots or squares;" and the whole object of the section would seem to have been, to prevent any doubt as to the right of the company to pass through such unimproved lots or squares, on the terms and with the privileges before prescribed. It is argued on the part of the company, that the second section gives the right to pass in any direction-through the public reservations, as well as lots and squares-provided the corporation of Washington approved the route; and that the exception of public reservations in the third section may therefore well be construed as an exception from the duty of paying for the ground required in such reservations, and not as an exception from the authority to pass through them. I should have little difficulty in assenting to this construction, if it were true that the former sections, or either of them, had given the company the power to pass through the reservations. But, as I have already stated, this is not the fact. If the law had stopped with the second section, I think the company would have been subjected to all the restrictions of the original law of 1834, which confined them to the public streets and alleys; and, in addition thereto, to the further condition of obtaining the consent of the corporation of Washington to the designation of the route, and the construction of their road, even through such streets and alleys. But it is further urged, that the exception of public reservations becomes wholly unnecessary and senseless, if there was a previous prohibition of the same thing. I do not place my opinion on the ground that the former sections contained an express prohibition to pass through the reservations; on the contrary, my objection merely is, that the former sections give no power to pass through the reservations; and I therefore consider this exception as inserted from abundant caution, and to prevent the company from claiming a right to pass through public reservations, under the grant of authority to pass through the unimproved lots or squares. On this construction, the exception was not entirely senseless, although it was prob ably unnecessary. But whether it was inserted from over-caution or mistake, it appears to me that, as no power was previously given to pass through the public reservations, it would be repugnant to all sound rules of construction to imply such a power from words so inappropriate to the purpose of conveying it. I am, sir, &c., &c., To the PRESIDENT OF THE UNITED STATES. B. F. BUTLER. PRIORITY OF THE UNITED STATES OVER OTHER CREDITORS. Where one of two partners had given bonds with sureties to the United States for duties on merchandise imported by the firm upon which there was subsequently found to be due the sum of $30,000; and deeds of trust to a third person were afterwards executed, conveying, among other property and claims, a certain debt due the firm from the government of Naples on account of the seizure of a schooner and cargo in which they had an interest, which, under the convention with the King of the Two Sicilies, had been awarded to them, and now claimed and demanded by the trustees under the deeds of trust, they alleging that the debt of the United States for duties had been extinguished by the taking of the bond of one partner with sureties-HELD, that, notwithstanding the decision of Judge Washington in the case of the United States vs. Astley & Brooks, the debt remains against the firm, and must be first deducted from the amount awarded to them before payment can be made to them or their assignees. It is suggested, however, that this case does not turn on the point settled in the case referred to, but that the deeds of assignment expressly treat the debt in question as the debt of the partnership; and that even if the legal liability of the partnership were technically extinguished by the bond given, the partners are nevertheless bound, in foro conscientiæ, to provide for the debt. ATTORNEY GENERAL'S OFFICE, June 22, 1835. SIR: I have received and examined the several documents referred to me in the case of Messrs. Hollins & McBlair, and, in compliance with your request, will now proceed to state my opinion in respect to the claim of their trustees to demand and receive the amount awarded to that firm under the convention with the King of the Two Sicilies, for their interest in the schooner Kite and cargo. It appears from the papers before me, that in 1818 and 1819 John S. Hollins, one of the house of Hollins & McBlair, gave bonds, with two sureties, (not being partners of the house,) for duties on merchandise imported by his firm. On these bonds, there is now due to the United States, after deducting certain debenture certificates in favor of Hollins & McBlair, the sum of about $30,000. In January, 1823, two deeds of trust were executed-the one by all the members of the firm, and the other by the senior partner, John Hollins, to Robert S. Hollins and others, conveying to them, for the benefit of the creditors of the firm, certain property and claims; among other things, the claim of the assignors on the government of Naples, for the seizure of the schooner Kite and cargo. In the schedules attached to the deeds, a debt of $35,166 91 is acknowledged to be due from the firm; and the trustees are directed to pay the same out of the assigned property, and in preference to all other debts. Though the sum thus mentioned exceeds the balance due to the United States on the bonds of J. S. Hollins, it is evident, from the manner in which the debt is described in the schedules, that the parties intended to refer to that balance, and to nothing else. The trustees claim that, even supposing a debt to exist against Hollins & McBlair, which is payable out of the trust property; and supposing, too, that the priority of the United States attaches to it; they are yet entitled to receive the amount awarded to their assignors, for the purpose of applying the same in due course of law. In the case of a similar claim recently referred to me, I had occasion to examine this point, and I still adhere to the opinion then expressed: that, without entering into the general question, the words of the 6th section of the act of 1833, for carrying into effect the Neapolitan convention, are too explicit and decisive to be overcome. From the moneys to be distributed by the Secretary of the Treasury are to be first deducted "such sums of money as may be due to the United States from the persons in whose favor the award shall have been made." If, therefore, the balance on the duty bonds above mentioned is now to be regarded as a debt due from Hollins & McBlair, the moneys awarded to that house cannot, in my opinion, be paid to their trustees. But it is contended by the trustees, that the claim of the United States against the firm of Hollins & McBlair, for the duties on goods imported by them, was extinguished by the acceptance of the bond of John S. Hollins and his sureties; and that the government is not in fact a creditor of the partnership in whose favor the award has been made, and, conse quently, cannot retain the money so awarded. In support of this posi tion, the decision of Judge Washington in the case of the United States vs. Astley and Brooks (3 Washington's Circuit Court Reports, 508,) is referred to, and much relied on. If the case turned exclusively on the point involved in this decision, I should still hesitate in assenting to it, because the contrary doctrine has been strongly intimated by Judge Story, in the case of the United States vs. Lyman, (1 Mason, 482;) and I am not aware that this conflict of opinion has been settled by any decisive authority. In my judgment, however, the present case does not turn on this point. The two deeds of assignment expressly treat the debt in question as the debt of the partnership; and even if the legal liability of the partnership was technically extinguished by the bond of John S. Hollins, it is clear that the partners were yet bound, in foro conscientiæ, to provide for this debt. Besides, as the bond was given for the benefit of the whole firm, John S. Hollins would have been entitled, on paying it, to charge the amount to the partnership; and for the excess beyond his own share, his co partners would have been, in law, as well as in justice, his debtors; and he would also have been entitled to stand in the place of the United States, and, in respect to the individual property of his insolvent co-partners, to have claimed the benefit of the priority given to the United States. There was, therefore, a sufficient consideration to support the assignment in favor of the United States, and to prevent any other creditor of the firm from objecting to it. As the trustees are parties to these deeds, and have accepted them, they are bound by the admissions of their grantors; and although the United States are not parties in form, yet they have a right to affirm the trusts, and, through the medium of a court of equity, to enforce their performance. Under the circumstances of this case, I am, therefore, of opinion, that in equity, and within the meaning of the act of Congress before referred to, the balance due on the bonds in question is a debt from Hollins & McBlair; and, consequently, that it must be first deducted from the amount awarded to that house, before payment can be made to them or their assignees. I am, sir, &c., &c, To the SECRETARY OF THE TREASURY. B. F. BUTLER. PENSIONS TO WIDOWS OF OFFICERS OF THE NAVY. Where the pay of the officer was regulated, at the time of his decease, by the act of 3d March, 1835, fixing it at four thousand dollars per year, and died, leaving him surviving a widow, who demands a pension under the act of 3d March, 1817, giving half-pay, &c., to widowsHELD, that the amount of the widow's pension must be regulated by the act of 1835; deducting all allowances usually made for all rations except one from the said four thousand dollars, and paying her one-half of the residue. SIR: Pursuant to your directions, I have examined the various acts of Congress relating to navy pensions, and to the pay of officers of the navy, for the purpose of answering the question which has arisen in the case |