Washington Aqueduct. June, 1860, for the completion of the Washington aqueduct, is applicable to the payment of debts and liabilities created in the prosecution of that work previous to, and existing at, the date of the appropriation. 2. You will find your second question substantially answered in the opinion which I had the honor to lay before you on the 31st day of July last, relative to Captain Meigs's memorial. In that paper I gave what I still regard as the true view of the clause in the appropriation bill of 1860, which you cite in your communication of the 8th instant. He is not authorized to withhold payment which the Secretary of War or the engineer-in-chief has ordered him to make, though he himself may differ from his superior officers about the justice of the debt. He cannot make distinctions between orders of that kind, and choose which he shall obey and which he shall dishonor. It is the business of the chief engineer to determine what payments shall be made, and the duty of Captain Meigs to pay as he is ordered. 3. The other point is, whether the Secretary of War, in a case like that of McGaffey, could review and change the decision of Captain Meigs, made while he was chief engineer of the aqueduct, and give to the contractor a larger sum for his work than what Captain Meigs allowed him. The contract of McGaffey contained a stipulation which expressly binds both him and the United States to abide by the decision of the engineer as final and conclusive upon all questions arising out of, or connected with, it. Believing that the estimate of Captain Meigs was severe upon the contractor, and knowing very well that no further allowance would be made to him by the War Department unless. it was manifestly just, I examined the contract with a strong desire to find something in it to legalize the appeal from the engineer to the Secretary. But the words are plain, their meaning obvious, and the construction which the law puts upon them is well settled. A man who binds himself thus, cannot escape from his obligation. Where it has been agreed that all matters in controversy shall be Washington Aqueduct. referred to the determination of a particular person, one of the parties who is dissatisfied cannot afterwards, by his own act, transfer the authority to another judge. This is true even in cases where the umpire chosen was himself interested in the result. Nay, when one party in a controversy consents to let the other decide it, he is without remedy if his adversary decides it unjustly in his own favor. But here the contract was to abide the decision of a disinterested officer, who knew all the details of the work better than anybody else in existence. It is the universal custom to insert a provision like this in all contracts which the Government makes for work. A similar practice is followed by the States, and by private companies organized for the making of railroad and other improvements. The general effect of it has been to do justice, and save contractors themselves from injury. I am not aware that any court of high authority has ever held such a stipulation to be inoperative, though the point has sometimes been contested. The subject will be found fully discussed, and the authorities cited, by the Supreme Court of Pennsylvania in the Monongahela Navigation Company vs. Fenlon, (4 Watts & Sergeant, 205.) I do not see how it can be denied that the stipulation in question covers this case. The work for which Mr. McGaffey made his claim before the Secretary may have been some extra service, though the record does not show it to be so. But extra work, as well as that specified in the contract, is to be estimated by the engineer, and all his estimates are equally final. Extra work is the most frequent subject of dispute with contractors. The contract anticipates and provides for this, by declaring that work not specified shall be valued by the engineer in charge, whose valuation shall be final and without appeal. On the whole, I am obliged to say that I think this case was at an end when the engineer decided it; that the Government did not legally owe the contractor anything beyond what was ascertained by Captain Meigs to be due; and that when it was brought before the Secretary of War, Claim of J. T. Pickett. it was coram non judice. The contractor may have been wronged, but he had no remedy except such as Congress, in its omnipotent power over the Treasury, may see fit to give him. Very respectfully, yours, &c., The PRESIDENT. J. S. BLACK. CLAIM OF J. T. PICKETT. A United States consul whose salary exceeds $2,500, is entitled to be paid his fees as commissioner for taking depositions in an admiralty proceeding in a United States district court. ATTORNEY GENERAL'S OFFICE, October 16, 1860. SIR: It appears from your letter of September 27, that J. T. Pickett, United States consul at Vera Cruz, by virtue of a commission from the District Court of the United States for the district of Louisiana, took certain depositions in admiralty proceedings against the captured steamers "Miramon" and "Marquis de la Havana." He now asks to be paid his fees as commissioner; and the question submitted is, whether he can have them, it being admitted that his salary exceeds $2,500. In the case of Converse vs. the United States, (21 Howard, 463,) the Supreme Court held that a collector of customs, who had received the maximum amount of his annual compensation as such, viz: $6,000, was nevertheless entitled to commissions upon certain purchases and disbursements made by him under the direction of the Secretary of the Treasury. There is no difference in principle between the claim of Mr. Pickett and that of the collector's representative in the case which I have cited. The taking of these depositions was not the duty of the consul, as consul. The com pensation of a commissioner is regulated by law, and I can see no objection to its payment which would not have ap Costs of Extradition. 1 plied with perhaps greater force to the payment of commissions to a collector who had received the full amount of his official compensation. I am free to admit, that the views of a majority of the judges upon this point are contrary to my own opinion, but nevertheless I cannot advise any action which will bring the executive and judicial authorities of the Government into hostile collision. Very respectfully, yours, &c., Hon. JACOB THOMPSON, Secretary of the Interior. J. S. BLACK. COSTS IN CASES OF EXTRADITION. 1. Attorneys of the United States in the several districts are not obliged by any act of Congress to appear on the part of foreign governments claiming the extradition of fugitives, and if the minister or agent of an accusing foreign government needs legal advice, or desires to have a case presented to the judicial authorities through the medium of a professional lawyer, he may select whom he pleases for that purpose. 2. By the extradition treaty between the United States and Prussia, the expenses of the apprehension and delivery of a fugitive must be defrayed by the party who makes the requisition and receives the fugitive. 3. Under that treaty, a commissioner or marshal may lawfully demand such fees as are usual for analogous services rendered to the United States. ATTORNEY GENERAL'S OFFICE, SIR: I have considered the questions propounded to you by his excellency Baron Gerolt, the minister of Prussia. The act of Congress, passed August 12, 1848, makes it very clear that all the federal judges, from the highest to the lowest, as well as the commissioners appointed by them, are bound to give their aid in execution of the several extradition treaties existing between this, and foreign governments. The judges of the several state courts are also vested with power, jurisdiction, and authority to the same end and purpose. When a federal judge or commissioner issues his process, and puts it into the hands of the marshal, the latter officer is compelled to execute it with vigor and good faith. There is no provision in any act of Con Costs of Extradition. gress which requires the attorneys of the United States in the several districts to appear on the part of the foreign government claiming the extradition of a fugitive. If the minister or agent of the accusing government needs legal advice, or desires to have the case presented to the judge or commissioner through the medium of a professional lawyer, he may select whom he pleases for that purpose, and is not confined to the officer appointed by the United States. By the treaty of extradition between the United States and Prussia, it is expressly declared that the expense of the apprehension and delivery of a fugitive "shall be borne and defrayed by the party who makes the requisition and receives the fugitive." A judge can make no charge for his services. To accept anything, even if tendered, would be a misdemeanor in office. A commissioner or marshal may lawfully demand such fees as are usual for analogous services rendered to the United States. From the note of. the Prussian minister, it appears that no charge could be made by any officer of that government against the United States for anything that he might be required to do in arresting and delivering up a fugitive from the justice of this country. I infer from this that all officers there are remunerated in some general way for the performance of every duty which the law casts upon them, without being entitled to special compensation in any particular case. It would be no violation of the treaty if Prussia would require us to pay for the services of her officers, and the United States could not complain if she did; for the two governments are mutually bound to pay whatever expenses may be thus incurred. But our system is such, that proceedings like these cannot be carried on without incurring certain costs directly incident to the proceedings themselves, which must be paid either by one party or the other; and the treaty decides that such payment must be made by the party making the claim. Very respectfully, yours, &c., Hon. LEWIS CASS, J. S. BLACK, Secretary of State. |