The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1861-02-28

OPINION or Mn. GUSHING ON THE LOCALITY OF
THE WAR DEPARTMENT ACCEfrANCEs HELD BY
A1eeRs. PIERCE BACON.

Sm-I think the specific and precise question Of tbs
gwen by head Of department., such that which yon
submit TO me- thing adjudged-h Il DO possible Tor
question Of federal law To be adJudgeonot only by
the ong practice Of the but also By the de-
cions Of the various courts Of the United States nclud
ing the Supreme Court and acts Of CON
Of the United states the Bank Of the Metropolis
10 Peters, ST. January Term. 1884, Of the isses
technically before the supreme Court properly
assigned this Identical question: and the court una
nimousy determined that II the legal dnty OF the
partment This decision Of the Supreme Court ia justified
BY ample argument which It would be superiious here
been overruIed conadicted or qualified by any saose
quent decision, II would TO be conclusive of the
matter ~ . mere question OF law. The acceptances
passed upon In THIS case were apparently wise dsn
guishabe from the present any essential condition Of
legality whether Of form substance. sure they
were drawn on Postmaster General (r KendalD, but
there nothing the reasoning OF the court or IN legal
doctrine 70 distinguish the Postmaster General OF
this natare from the act Of Secretary Of War The
same identical question, upon just such accept
apces was fully considered, TO the conclu-
so. by the Circuit Court Of the United States for the
Eastern district Of Pennsyva (Mr Justice Baldwin,
IN the OF the United States Reside October
term, 1S4l Congressional Documents House Of Repre-
sentatvee, Thirty fourth Congress- First session. No g.
p Ill., This last case carried up which Of
course, l. would have been vain 20 do in view Of the
Bank Of the Metropolis All the Circuit Court was 70
follow, avowedly, and apply, that decision Of the su
psrv matter nai.sc h Sae mm Inc
ects are suggested in the legal conclusions OF Mr. Justice
Baldwin. (see Reside vs.. Walker ii Howard, p 2ss.)
The decision OF the Circuit Court rearmed by the
Court OF Claims. (See House Rep ut supra p 42l) An
act of Congress was passed 70 satisfy the verdict in the
And the of the legal conclusions of Mr.
Justice Baldwin in the matter has been recognized
official opinion Of Attorney General Black (Reesides
Case), July 81 1858 and In second decision Of the
Court of Claims, December s. 1859, which being acqu.
esced in by the government, closed all controversy
gardng the drafts accepted by the posnasters General
Barry and Kendall repeat that, upon these cases. the
question of the legal validity Of such accepances must
be tsken 70 be thing adudged well by the Supreme
ment although the general rule undoubtedly
cept crafts but only to take note Of them for payment
yet examples OF acceptances are sufficiently numerous
not In the Post Office only but in the War and other De
partments u establish the legality Of the act so far
cases, can serve TO that end. Indeed the act
Of acceptance acc written By the Secretary Of War
statement declaration of fact namely that on or be-
fore the day Of maturity there will be money due the
Of which will be paid. What indeed is the acceptance
OF bill by private party, or his signature to promis
debtedness Such statement or declaration by head
Of apartment, may be made in the commercial form Of
the unconditional acceptance Of specific draft the
present Of conditional acceptance like others Of
these acceptances of Secretary Floyd may BIZ made
in the form Of simple certificate of Indebtedness such
as became necessary for the Post Ace Department
issue not long sce occasion OF the failure of Con
gress 70 make appropriations for the service the de-
partment the statement declaration may be OF cur
rent Of Indebtedness case Of these accept
ances n the War Department, only Of verified actual
contaminated Indebtedness,
the Post Office Department above mentioned the paper
may be payable 70 bearer to Order 10 the party only
As the head Of department shall deem just; but, in all
these cases alike, the written statement declaration
paper which has pecuniary value 1t is transferable by
endorsement, delivery, or assignment as chose in &C
ton and the issue of it, whether for the bencf of
government or Of contractor has been decided by
supreme Court 10 be act TO the ordinary
administrative functions OF head Of department In
the face Of the judicial decisions above cited and Of the
ample and satisfactory which they are
founded 1t would be superuous for me 70 20 into that
a N al ba6ad mid
avail anything TO say that specific and express power
not conferred on the Secretary Of War; the very words
raj powers of depart nent as expounded The
cited and also IN the case OF the United States
Tnss States fs'e VS. BradeS 10 ona peta aa'
There a superficial idea abroad, effect that
purely commercial paper, in the form Of drafts and
cepaIces, not enter necessarily regularly,
the admins trative business o. the government Nothing
could be more mistaken. independently Of transfer
drafts or other such writing IN the admin Of the
Treasury Department, regular bills of constant
another OF the departments Take the State De
partment AZ an example The secretary draws and IS
drawn upon a mutiude of oil the foreign rela
tons Of the government. And these drafts CONSTITUTES
on both sides oests engagements, obligations; in a
WORD cases OF sssdtdfus Gssns and subject W all
the legal incidents of commercial bills, just the
case OF private parties TO foreign domestic exchange
5t9, and s O. in Washington, c c. r p AGA see also
Opinions of Attorney General vol S, p. H. The OF
law Is LAID down by the supreme Court as foows-
when the United states by Their oscer become
party negotiable paper they have 81 The rights ana
Or in the language OF Justice Baldwin
racor nanS o. ap menp accepts hs drSs of con.
holder snsea, and on 70 pay
-ery 70 bill Of exchange dawn and accepted BY
~<rvsie person
Or according TO expressions Of the Solicitor Of the
Treasury regard TO similar case such acceptance
admission Of assets and fixes the liability OF the
government pay the amount 10 Messrs RUSSELL Mayors
wadden their endorsers, aessrs Pierce Y Bacon.
The acceptances in the present are In elect tn
say OF Ws 70 Apply the sums becoming due on Inc
fcllar contract 10 the payment Of the drafts drawn
NJ but conditional, this would not change their legal
character other relatons for conditional accepoces
like some OF those issued by Postmaster General Kendall
are be treated If unconditional on the happeiug
funlment Of the condition Assuming the presept M
conditional scceptances 10 have been drawn In time and
amount not beyond the CONTRACT then the cgay OF the
Of the Secretary this relation would be-
ceptng the drafts but in emitting negiectng TO have
the money paid 70 the holder Of the accepances
suffering IL TO be paid scssrs Russs Majors
Taddell The engagement Of the department, Implied on
general tsrs rs 70 all 70 cause the contract 70 be
applied TO the payment Of the acceptance IL made ex
press and special in regard 70 the acceptnces which
Messrs Pierce Bacon hold by the secretarys letter OF
the Path December, 70 al 70 constitute, In tact new
promise OF the government. Doubtless the power
cept draft which may be open 70 abuse az the
present implies, and needs TO be exercised With
discretion and prudence. 50 II Of tho power make
by head Of department But the abuse does not take
away the Ana the laws make ample PROVISION for
the eirees OF mAfeasncern this respect either by
suit for damages, by Indictment by Impeachment
And private individuals dealing honestly ana ID good
faith with public officer, more especially head OF
depa tment, have right 10 presume the integrity VI nus
ought not 70 be peudced by their reliance the
reciprocal honesty anu good faith Of such high oicer Of
the government Many most OF them compu atvely
recent reported, in which there discussoo of the
responsibility OF private corporations banking compa
MES, railroad conpanies and the like, for the acts o.
their officers such the fraudulent issue Ut bonis
suck false certificates and the like In of those
the courts have been rigorous Ilay
Of the authority Of the corporation officer 10 less
according 10 the varying circumstances Of the cases ana
the bent Of MIND OF the Judges ee, Tor example the hnk
kentucky the Schuylkil Bank Parsons C.sts,
p $50 Farmers ana Mechanics Bank Butcher ana
Drov.rs' Bank 10 " Y p. 1875 s. G., Karuau 623,
City Bans Of Columbus the United states II howard,
y $50; Me- hancs' Bank VS. ~ Y and ". III RaGro4a,
Herman y. 500 But these DECISIONS while NJ the main
conI matory % the conclusions already presented by
not 81 importance M relation TO the acts
OF the government. individuals, il Is true, N uelug
with ocers VI the government, 81 be held 70
IL IL - 49, L. 49, ..-.a