Sureties of Marshal of Utah.

date of the application as the earliest period at which the claimant's right to the warrant can be regarded as absolute for purposes of bequest or succession. The idea of a vested interest coeval with the date of the statute is thus utterly excluded.

It has been thought in some quarters that by the words "minor children," in the act of September 18, 1850, Congress intended to designate such persons as were living, and under full age at that time. But there is nothing in the statute to sustain this position, or to warrant the inference that children born after its date are excluded from its benefits. The widow of a deceased soldier is also provided for; but it is expressly declared that she is equally entitled to bounty land, whether her husband died before or after the passage of the act. It is very evident, therefore, that Congress did not intend to fix the date of the statute as the period at which the widowhood or minority of the applicant must be proved to have existed.

All of these considerations indicate that the true inquiry in a case like that which you have submitted is, whether the applicant being qualified in other respects, was a minor when he filed his petition? If so, he is entitled to bounty land, but not otherwise.

Yours, very respectfully,

J. S. BLACK.

Hon. JACOB THOMPSON,

Secretary of the Interior.

SURETIES OF MARSHAL OF UTAH.

The sureties of the Marshal of Utah need not be residents of the Territory.

ATTORNEY GENERAL'S OFFICE,

June 9, 1860.

SIR: I am of opinion that the sureties of a marshal of Utah Territory, need not be residents of the Territory. The act of 1789, requires the sureties of a marshal to be "inhabitants, and freeholders of the district." I am told

Case of George Stealey.

that in Utah there are no freeholders. But that act does not apply to the marshal of a Territory.

Yours respectfully,

Hon. JACOB THOMPSON,

Secretary of the Interior.

J. S. BLACK.

CASE OF GEORGE STEALEY.

1. The act of May 9, 1860, authorizing the Third Auditor to cause the account of George Stealey to be settled on principles of equity and justice, gives exclusive jurisdiction over the subject-matter to that officer, without any appeal to the Secretary of the Treasury.

2. The requirement that the settlement should be made upon satisfactory "vouchers," does not preclude the introduction of any kind of evidence, showing that the party is entitled to the credit he demands. 3. "Justice" in a statute means legal justice, and "Equity" means that modification of rigid legal rules which a chancellor would apply to the matter.

ATTORNEY GENERAL'S OFFICE,

June 11, 1860.

SIR: I have examined the act for the relief of George Stealey, approved May 9, 1860, by which his account for services is referred to the Third Auditor, with authority to cause the same to be settled upon principles of equity and justice, and the amount thereof to be paid out of any money in the Treasury not otherwise appropriated, the said settlement to be made upon satisfactory vouchers showing that the expenses were actually incurred, and that the prices paid were just and proper, under the peculiar circumstances of the case. (12 Stats. at Large, 841.)

This act gives exclusive jurisdiction over the subjectmatter to the Third Auditor, and from his decision no appeal lies to the head of the Treasury Department. He is the sole umpire between the Government and the claimant, and his decision is final and binding upon them both.

6

The question you ask is, "whether Mr. Stealey, should be required to produce satisfactory vouchers' to show the sums expended by him in order to an allowance and payment?" The last clause of the act answers that question

Case of George Stealey.

in perfectly plain English. The settlement must be upon satisfactory vouchers. The act says so totidem verbis. Upon looking at the Auditor's letter to you, I think I can see that his difficulty arises from some misconception about the meaning of the word voucher. That word does not necessarily signify a written receipt of the person to whom the money was paid by the claimant. It means any kind of evidence, showing that he is entitled to the credit he demands. A "satisfactory voucher" in a case like this is that proof, which satisfies the judgment and conscience of the Auditor, that the money claimed is justly due. If a receipt has been lost or destroyed, evidence of that fact, coupled with proof of the contents of such receipt is a voucher as much as the original receipt would have been if produced. This is true also, if he can show that he actu ally paid the money, and for some good reason did not take any receipt at all.

The Auditor regards the act of Congress as being contradictory, because it directs the claim to be settled upon principles of equity and justice, and then makes the production of vouchers a condition. I do not regard it so. Justice in a statute, means legal justice, and equity means that modification of rigid legal rules which a chancellor would apply to the matter. This phrase, "according to equity and justice," which we find so often in acts of Congress like this, amounts to little or nothing, and does not change in the least the duties of the officer whose business it is made to settle the accounts. If it had not been in this law, the Auditor would still have been bound to perform his functions according to justice and equity.

Upon the whole, I am of opinion, that the Auditor's duty under the law, is to hear and examine all the evidence which the claimant can produce concerning the services rendered and expenses incurred, and to allow him so much as he can prove himself entitled to.

I am, very respectfully, yours, &c.,

Hon. P. CLAYTON,

J. S. BLACK.

Acting Secretary of the Treasury.

Officers de Facto.

OFFICERS DE FACTO.

The acts of an officer de facto are always held to be good where the public or third parties are concerned; and the legality of his appointment can never be inquired into except upon quo warranto, or some other proceeding to oust him, or else in a suit brought or defended by himself, which brings the very question whether he was an officer de jure directly in issue.

ATTORNEY GENERAL'S OFFICE,

June 12, 1860.

SIR: Mr. W. D. Hooper asks to be allowed in his accounts for certain disbursements made by him while he was performing the duties of secretary of the Territory of Utah, and you ask my advice on the question, whether your department is "justified by law in regarding Mr. Hooper as secretary of the Territory, and in sanctioning his official acts in these transactions ?"

The organic act of Utah provides for the payment of the expenses of the Legislative Assembly out of the Federal Treasury, and declares that the sums to be appropriated for that purpose shall be expended by the secretary of the Territory, who is to render an annual account to you of his disbursements.

It appears that Mr. Babbit, the secretary appointed and sent out by the President in 1856, was killed by the Indians before he reached the post of his duty. The news of his fate reached Salt Lake only just before the time fixed for the meeting of the Legislature. It was absolutely neces sary to have a secretary long before a new one could be sent out from here. The Governor appointed Mr. Hooper pro tempore, who gave a bond and took the oath, and remained in the office until the 22d of June, 1858, when he was for the first time relieved by the appearance of a regular appointee of the President. The State Department not only acknowledged him as an officer by allowing him to hold the place undisturbed for nearly two years, but afterwards paid him his salary. He did not, however, receive the money which was appropriated to defray the expenses

Officers de Facto.

of the Legislature, and he was driven to the necessity of issuing a kind of scrip, (so the Comptroller calls it,) for mileage and compensation of the members, and for fuel, labor, furniture, transportation, &c., for the use of the Legislative Assembly. Some of this paper is now in his own hands, and some of it is held by other parties, but all of it is unpaid by the Government, though the money appropriated for that purpose is lying unexpended in the Treasury.

I am of opinion that if Mr. Hooper was the acting secretary of the Territory, though he was not regularly appointed, a public obligation created by debts, which would have been binding on the Government if made by a regular secretary, cannot lawfully or justly be repudiated on the mere ground that his title to the office was defective. The acts of an officer de facto are always held to be good where the public or third parties are concerned. legality of his appointment can never be inquired into The except upon quo warranto, or some other proceeding to oust him, or else in a suit brought or defended by himself, which brings the very question whether he was an officer de jure directly in issue. If the present were an inquiry into his claim for salary there would be good reason to doubt his right to receive it, but that has been already settled in his favor; the questions now are whether innocent parties who were not bound to know whether he had a legal commission or not, and who must therefore be supposed to have dealt with him in good faith, shall lose the price of the articles they furnished through him to the Government, and whether members of the Legislature shall go without pay or mileage because the United States did not appoint a secretary in proper form. To refuse payment on such grounds after getting the goods and the services, might save money, but it would be a mode of administering the Government much more economical than righteous. The fact that Mr. Hooper holds some of these claims himself, does not change the case. He claims, as I understand, in right of the original creditors of the Government, and stands in their shoes.