2. In the first place there is an express power to contract for the work; in
the second, there is an implied power to contract for so much work as
the appropriation will pay for. Ibid.
3. If, therefore, Congress appropriates a certain sum to be expended by
the Secretary of War for the improvement of a river, the Secretary
exceeds his power when he makes a contract for more work than the
appropriation will pay. Ibid.
4. In such case, after the appropriation is exhausted, the contract is at an
end. Ibid.
5. If another appropriation is made, there must be a new contract for its
expenditure. Ibid.
6. The power of an Executive Department to impose fines and forfeitures
upon their contractors is derived solely from the agreement to that
effect in the contracts, 32.
7. The Secretary of the Treasury purchased the site of a custom-house at
Ogdensburg, but, under the erroneous impression that the duties were
less than the expenses, inserted in the contract a condition that the
contract should be void unless Congress should afterwards legalize it.
Held, That, inasmuch as no act of Congress was necessary to legalize
it, the contract was binding as it stood, and the condition nugatory, 78.
8. A letter from the Secretary of the Treasury, notifying him of the inten-
tion of the Government to accept the property and consummate the
contract when the legal difficulty erroneously supposed to exist should
be removed, is to be construed as an unconditional acceptance. Ibid.
9. Where a building contract provided that nine-tenths of the value of the
work done and materials furnished should be paid from time to time,
as the work progressed, it was held that, by the terms of the contract,
the actual value of the work done and materials furnished should be
estimated, and not a sum bearing to that value the ratio of the con-
tract price of the whole work to the estimated actual cost of the same,
194.
10. Where, by a contract to deliver iron pipes to the Government, it was
stipulated that the delivery should be completed on March 1, 1858;
that ten per cent. of the price should be retained until the completion
of the contract, and that the Government might, at any time, for
delay or non-compliance with the agreement, declare it forfeited, it
was held, that the failure of the contractors to deliver all the pipes by
the time indicated did not work a forfeiture of the money reserved,
when the Government continued to receive the pipes after the time
limited for the completion of the delivery, 210.
11. Where an advertisement for proposals to furnish coal for the use of the
Navy Department announced that "the price stated must be for the
coal delivered on board vessels in the port of Philadelphia," a party
whose proposal was accepted is not bound to sign a contract bind-
ing him to deliver the coal" on board of such vessels, or in such places,
in the port of Philadelphia, as the department may name or indicate,'
although the advertisement further declared that "it will be stipu-
lated in the contract that if default be made in delivering the coal at
the place and time directed by the department, then and in that case
the contractor," &c., "will forfeit and pay," &c,, 371.
12. Where, in a contract for the furnishing of flour to the army, it was
stipulated that the commanding officer of the post should reject all or
any part of the flour tendered, when pronounced by the inspectors as
not being in accordance with the contract, it was held, that the de-
cision of the officer commanding the post was subject to review by the
War Department, 389.
13. Where, in the same contract, the agreement was to furnish "good,
fresh, merchantable, superfine flour, the best that is manufactured in
the Territory of Utah," it was held that the contract was complied
with by a tender of "good, fresh, merchantable, superfine flour," as
those terms are understood in Utah, though the flour was not of the
best quality manufactured in the States. Ibid.
14. In the execution of a statute authorizing the President to erect a court
house in the city of Baltimore, it was held to be the duty of the
President to invite general competition for the contract by an adver-
tisement to be published for at least sixty days, under the provision
in the act of August 31, 1852, requiring all contracts to be advertised
for that length of time before letting, 407.
15. Where, by the terms of a contract for the transportation of supplies to
the army, a schedule of prices for the carriage of the goods was
established, varying according to the season of the year, but by the
literal terms of the instrument the time of starting was indicated as
the date to which reference must be made in ascertaining the rate of
compensation for any single trip, it was held that for trips in which
the trains that started in the summer were detained by the Govern-
ment's agents so long as to be forced to perform the greater part of
the journey in the time of the year when the difficulties of transpor-
tation were at their worst, the contractors were entitled to such com-
pensation as would have been payable if the trains had started at a
time which, without delay, would have compelled them to travel in
the inclement season, 444.
16. Interest is never given by construction under an act of Congress author-
izing the payment of money out of the Treasury to a citizen, 449.
17. Damages for the violation of a contract ought to be such as put the
injured party in as good a condition as if the covenant had been kept
by the other. Ibid.
18. The measure of damages in the case of a contract of which the party
was deprived by the Government is the amount which the party would
have taken for the transfer of his contract to another person, with his
rights and liabilities under it. Ibid.
19. Where a contractor bound himself to deliver grain at or near Camp
Floyd, as might be desired, between July 1, 1859, and June 1, 1860,
and after the delivery of a portion of the grain, the deputy quarter-
master general refused to receive the remainder within the time speci-
fied, it was held, that such refusal was a breach of the contract on the
part of the Government, and that the contractor was entitled to dam-
ages, 509.
20. The contractor and the deputy quartermaster general having agreed to
extend the time for the delivery of the grain to the 30th of June, 1861,
it was held, that the Secretary of War might permit the execution of
the agreement. Ibid.
1. The Coolie trade is not within the acts of Congress prohibiting the slave
trade, 282.
1. A naval court-martial may lawfully sentence a seaman to the peniten-
tiary in the District of Columbia, to be confined at hard labor for three
years, to be deprived of his pay, and to be marked with the letter D
on his right hip, 80.
2. Where charges were preferred against an officer in the army for disobe-
dience of orders in June, 1856; and in September following, for other
reasons, he was dismissed the service by the President, no court-mar-
tial having been ordered to investigate the charges against him, it was
held, that, on his being restored to the army, he could not be tried or
the charges pending against him at the time of his dismissal, after the
lapse of two years since the commission of the alleged offences, 181.
3. The question, whether an officer who has been dismissed the service is
liable to be tried by a court-martial for offences previously committed,
examined, but no opinion given thereon. Ibid.
COURTS-MARTIAL (Continued.)
4. There is no law authorizing a court-martial to compel the attendance
of witnesses who are not in the military service, 311.
5. Witnesses who are not in the military service cannot be compelled to
make depositions to be used in evidence before courts-martial on the
trial of cases not capital. Ibid.
1. In naval parlance the word "cruise" means the whole period between
the time when a vessel goes to sea and when she returns to the place
where her crew is paid off, and she is put out of commission, 375.
CUSTOM-HOUSE.
1. Under an act of Congress authorizing the erection of a custom-house
only at a port where the duties collected are equal to the expense of
collection, it is enough that the duties at a particular port exceeded
the expenses during the year in which the law was passed, 77.
DEPARTMENTS.
1. Where a contingent agreement was made for the purchase of property
by the Secretary of the Treasury, and the same Secretary who made
the agreement refused to take the property, on the ground that the
contingency had not occurred, and notified the vendor that such was
the determination of the Government, a succeeding Secretary is not
authorized to treat the contract as still in existence, 76.
2. The Secretary of the Treasury has no legal authority to relieve a con-
tractor on the Washington aqueduct from a bad bargain, either by
rescinding the contract or by paying him a higher price for his labor
than what he agreed to take, 80.
3. The power vested in the head of an executive department to make con-
tracts for work or materials, does not imply the power to rescind or
alter such contracts when made. Ibid.
4. A person intending to make application for a patent asks the Secretary
of the Interior beforehand whether it will be granted. The Secretary
is advised to decline giving an answer, 95.
5. Where the Secretary of the Treasury has made a contract for the site of
a court-house, and afterwards refused to take the property for a sup-
posed defect of title, the contract is at an end, 100.
6. A succeeding Secretary cannot reconsider the subject, unless upon the
discovery of new evidence not produced to his predecessor, nor known
to the party at the time of the first decision. Ibid.
7. The fact that the former Secretary made his decision immediately pre-
vious to his retiring from office, will not take the case out of the gen-
eral rule, or make his determination less binding. Ibid.
8. The Secretary of War had the power conferred upon him by law to
make a contract for the sale of Fort Snelling, and having executed
that power, he was functus officio, 103.
9. The Secretary has no right to change the terms of the contract in any
particular whatever. Ibid.
10. The bond to be accepted by the Government, ought to be executed by
the obligees, and not by their attorney, 128.
11. A power of attorney, not given on account of any valuable considera-
tion paid to the principal, may be revoked before the exercise of
authority under it.
12. The Department under whose direction a machine, for which a patent
was issued, was made and used, may legally allow the patentee the
amount claimed by him as damages for such use, if it is satisfied that
the claimant's exclusive right as patentee is good, and that the sum
demanded be fair and reasonable; provided there be any fund under
the control of the Department which is appropriated to that purpose,
13. When a question on a statute made to regulate the conduct of the
courts arises incidentally before an executive department, the lead of
the judges ought to be followed, 268.
14. When an officer of the United States entered into possession of prop-
erty, not in virtue of any public power delegated to him by the Gov-
ernment, or under any contract made with or for the Government, the
Secretary of the Treasury has no power to protect him in the enjoy-
ment of such rights as he may have under a private contract of his
own, 280.
15. Under the act of March 3, 1819, authorizing the Secretary of War to
cause to be sold such military sites as may become useless for military
purposes, the Secretary has power to annul and set aside a sale, made
by commissioners appointed to carry the act into execution, at any
time before final confirmation by him, for any just cause, 298.
16. The act of February 26, 1853, regulates the amount of compensation
payable to counsel employed by the head of a department, by the
agreement between the department and the counsel, 300.
17. In forming his judgment, the head of a department may submit the
question to the President, and adopt his opinion as to the proper sum
18. When such a submission is made, and the head of the department offers
to pay the sum fixed by the President and no more, he adopts, as
his own judgment, the opinion of the President. Ibid.
19. The matter cannot be reopened by a succeeding head of the department
after it has been thus adjudicated by his predecessor. Ibid.
20. Where Congress made a grant to a railroad company of certain lands in
Minnesota, and repealed the act at the same session, the Secretary of
the Interior was advised, in the absence of any possession on the part
of the company of the lands, or trespasses committed thereupon, that
there was no reason that the United States should consent to bring an
amicable action to try the title, 317.
21. In respect to a claim that a certain patent had been infringed in the
manufacture of pontoons for the use of the army of the United States,
it was held, that a report of the Engineer Department, and also of the
Commissioner of Patents, that the pontoons were not covered by the
patent in question, constituted sufficient evidence to show there was no
infringement as alleged, 332.
22. The Secretary of State must decide, according to his own discretion,
whether he will press the claim of a citizen of the United States upon
the attention of a foreign government, 338.
33. As a general rule, a decision upon a claim made by the head of a de-
partment cannot be disturbed by his successor; but where a claim has
been referred by Congress to the head of a department, and the de-
partment gives such a construction to the statute as defeats the claim
in whole or in part, and Congress afterwards, by reports of the appro-
priate committees or otherwise, indicates its opinion to be against the
decision of the department, the case may be opened, though a change,
in the meantime, has taken place in the head of the department, 37.
24. Such indications of opinion from the legislature are not binding on the
department, but are to be regarded merely as ground for the recon-
sideration of the case. Ibid.
25. The War Department can properly make no sale of arms, except at
auction, and on due public notice, 391.
26. The War Department has the right to supply a deficiency in the allow-
ance of arms to a State, under the act of April 23, 1808, which oc
curred in consequence of a mistake in estimating the number of the
State militia, 395.
27. Though the head of a department has no right to set off one indepen-
dent claim against another, yet where debits and credits, claims and
counter claims, arise between the Government and a contractor out
of the same contract, he may ascertain both, and regard that party as
debtor against whom the balance is found to be, 400.
28. Where a contract was declared to be forfeited by a Secretary of War,
and the action of the officer was subsequently declared to have been
illegal by the Court of Claims, a succeeding Secretary was held to have
the right to open the case for another hearing, to be decided in the
way which on such hearing should seem right and proper, 422.
DERELICT.
1. In the case of derelict property, saved under no unusual circumstances
a moiety is the maximum allowance made to the salvors, 374.
1. A district attorney can receive only such compensation as the fee bill
gives, 146.
2. The services of a district attorney or other counsel, in defending officers
for official acts, are, and must always be, rendered at the request of
the head of a department; and the legal compensation allowed for
such services in the fee bill is such sum as may be agreed on. Ibid.
3. The act of August 16, 1856, section 12, was intended to compel district
attorneys to include in their emolument accounts the fees received
from the Government for defending its officers, as well as other fees.
Ibid.
4. When the office of a district attorney is so over-burdened with business,
the departments may employ other counsel to aid him in defending
suits against public officers, or may allow him to employ a regular
assistant at an agreed salary. Ibid.
5. It is in the discretion of the Secretary of the Treasury to decide whether
an out-going district attorney shall cease all connection with pending
suits against collectors; but in some cases it would be wise to employ
the late attorney as assistent counsel with the incumbent. Ibid.
6. The Secretary of the Treasury has no authority to appoint an assistant
district attorney at a fixed salary payable out of the judiciary fund,
164.
7. The heads of the several departments may retain an assistant for a
district attorney to aid in the defence of suits against federal officers.
Ibid.
8. Such counsel should act under the direction of the district attorney, and
his maximum compensation should be fixed when he is employed.
Ibid.
9. A district attorney is entitled to his fee of five dollars per day for the
time necessarily employed in the preliminary proceedings of a criminal
prosecution, both before and after the arrest, 170.
10. A district attorney is to be paid by the day, and not by the case, for
services in the examination of persons charged with crime, 242.
11. He is to be paid his per diem for services before any judicial officer.
Ibid.
12. A district attorney is entitled to be paid his per diem for services before
a person acting as a United States commissioner, although he had not
been legally appointed, 251.
13. The acts of an officer de facto are valid in all collateral proceedings to
which he is not a party. Ibid.
14. No district attorney can receive, on any one day, more than one per
diem for the services of that day, 292.
15. A district attorney is entitled, under the act of February 26, 1853, to
mileage only from the place of his permanent residence to the place
where the court is held, 411.
16. He is entitled to mileage to and from court, as of right, in all cases of
his lawful attendance on court at a distance from his place of abode.
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