Missouri River, Fort Scott and Gulf Railroad Co. question occasionally arose whether an appeal can lie from the decision of a Comptroller to a head of a Department, this act provides that heads of Departments may submit to the Comptroller their objections to his decisions, but that the Comptroller's ultimate decision cannot be revised or reversed by them; that this can only be done by the legislative or judicial department of the Government. Very respectfully, your obedient servant, Hon. WM. W. BELKNAP, Secretary of War. GEO. H. WILLIAMS. MISSOURI RIVER, FORT SCOTT AND GULF RAILROAD COMPANY. Construction of the act of July 25, 1866, chap. 241, granting lands to the State of Kansas to aid in building the Kansas and Neosho Valley Railroad, which road subsequently came into the ownership of the Missouri River, Fort Scott and Gulf Railroad Company. That company is not entitled to compensation from the Government for transportation performed over said road, notwithstanding there may have been no notice given by the Government to the company, previous to the performance of the transportation, that it was to be done at the latter's expense. DEPARTMENT OF JUSTICE, SIR: I have the honor to acknowledge the receipt of your letter of the 19th instant, in which you ask my opinion whether, under the act of July 25, 1866, entitled "An act granting lands to the State of Kansas to aid in the construction of the Kansas and Neosho Valley Railroad," &c., the Missouri River, Fort Scott and Gulf Railroad Company, successor to the Kansas and Neosho Valley Railroad Company, is obliged "to transport troops, munitions of war, supplies, and public stores upon its road for the Government, when required to do so by any Department thereof, at the cost, charge, and expense" of the company, unless upon requisition for such transportation notice is specifically given by the Government to the company that the service demanded is to be performed at the expense of the company. This notice appears to be claimed by the company as essen tial in virtue of the first sentence of the 3d section of the act, Missouri River, Fort Scott and Gulf Railroad Co. which is in the words following: "That the grant of lands hereby made is upon condition that said company, after the construction of its road, shall keep it in repair and use, and that (it will) at all times be in readiness to transport troops, munitions of war, supplies, and public stores upon its road for the Government, when required to do so by any Department thereof, at the cost, charge, and expense of said company." Admitting the plausibility of the claim made by the railroad company, I am constrained to conclude that the company's construction of the act in question does not comport with the intent of Congress in its passage. Two ideas may be attached to the words "when required to do so by any Department thereof," contained in the section cited. One is, that the liabilities of the company are to be measured by the necessities of the Government, and the other is, that the company is only bound to transport troops and public stores when called on for that purpose by the Government, and not at the instance of unauthorized parties. I cannot persuade myself that Congress intended to confer upon any officer or Department of the Government power to pay one land-grant railroad for transportation and refuse payment to another, at discretion; which would be the case if the company was liable or not, as the notice might or not be given at the time of its employment. I do not see that the notice contended for is necessary, so far as the interests of the company are concerned; for when transportation is required by the Government the same labor and expense are devolved upon the company with or without the notice. Probably if it was intended that the Government should, in any case, pay for the transportation provided for, the act would also have provided that the Government should not be charged higher rates for the service than those charged to private parties. Whether the company received more or less land, and whether vouchers were given or not by the officer or Department at whose instance the services were rendered, are not material considerations; for the company accepted the grant made by the act with all the conditions thereby imposed, and the question, therefore, is wholly one as to the effect of that Re-imbursement of Expenses. act. Giving to it what appears to me to be a natural and reasonable construction, the company is not entitled to compensation from the Government for the transportation described in its claim. Very respectfully, your obedient servant, Hon. WM. W. BELKNAP, Secretary of War. GEO. H. WILLIAMS. RE-IMBURSEMENT OF EXPENSES. An internal-revenue officer, while in pursuit of an escaped prisoner, shot and killed the latter, for which the officer was indicted in a State court, tried, and acquitted; and having sustained a considerable outlay in his defense, he afterward presented at the Treasury a claim against the Government for re-imbursement of the amount: Advised that there is no law authorizing the re-imbursement. DEPARTMENT OF JUSTICE, July 26, 1872. SIR: I have received your letter of the 24th instant, inclosing a letter to you from the Commissioner of Internal Revenue, with papers inclosed relative to the refunding of $1,700 expenses incurred by late deputy collector and deputy United States marshal W. B. Whitmore, and requesting my opinion as to the propriety of allowing the amount claimed. The case, stated in the papers, I find to be as follows: That Mr. Whitmore, acting as deputy United States marshal, arrested a party engaged in illicit distillation in Caloosa County, Georgia; that the arrest was by due process of law; that the prisoner resisted and attempted to escape from the officer, who pursued, and, after repeated warning, shot and killed him. Whitmore was thereupon indicted for murder in a State court, was tried and acquitted. He paid the expenses of his defense to the amount above stated, and presents vouchers for the same, asking to have the amount refunded to him. Not finding any law authorizing the re-imbursement asked by Mr. Whitmore, I see no recourse for him except to Congress for the passage of a special act. Very respectfully, your obedient servant, Hon. GEO. S. BOUTWELL, Secretary of the Treasury. GEO. H. WILLIAMS. Trusses for Disabled Soldiers. TRUSSES FOR DISABLED SOLDIERS. By the act of May 28, 1872, chap. 228, entitled "An act to provide for furnishing trusses to disabled soldiers," Congress designed to furnish soldiers of the Union Army, who were ruptured while in the line of duty, with the best truss that could be procured; but left it discretionary with the Surgeon-General to adopt one style, or different styles, always keeping in view, however, the selection of that which in his judgment is best adapted to the particular case for which it is intended. DEPARTMENT OF JUSTICE, July 30, 1872. SIR: I have the honor to acknowledge the receipt of your letter of the 20th instant, with its inclosures. On the 28th day of May, 1872, Congress passed an act entitled "An act to provide for furnishing trusses to disabled soldiers," the 1st and 2d sections of which read as follows: "That every soldier of the Union Army who was ruptured while in the line of duty, during the late war for the suppression of the rebellion, shall be entitled to receive a single or double truss, of such style as may be designated by the Surgeon General of the United States Army as the best suited for such disability. "That application for such truss shall be made by the ruptured soldier to an examining-surgeon for pensions, whose duty it shall be to examine such applicant, and for every such applicant, found to have a rupture or hernia, shall prepare and forward to the Surgeon-General an application for such truss, without charge to the soldier." To carry out the provisions of this act, the Surgeon-General convened a board of medical officers to examine the trusses submitted to them, who, after examination, reported that the trusses, a sample of which was submitted by Bartlett, Butman & Parker, and also the Chase truss, were the best adapted for the purposes indicated in the act, which report was approved by the Surgeon General. The Banning Truss Company object to this report on the ground that the Surgeon-General has no power under the act to designate more than one style of truss, which must be the best in use, and that their truss answers this description; and my opinion is asked upon the question thus presented. Trusses for Disabled Soldiers. Every applicant under the act in question is to be examined by a surgeon for pensions, who, if such applicant is found to have a rupture or hernia, is required to apply for a truss to the Surgeon-General, whose duty it is to furnish such applicant the one best suited to his disability. I see nothing in the act which requires the Surgeon-General to adopt and use in all cases the truss manufactured by any person or company, unless in his judgment that truss is the best suited for all cases. No doubt the Surgeon General is bound to furnish the truss best suited to the disability of the applicant; but that duty involves, of course, a decision as to the peculiarities of the disability, and the suitableness of the truss for such peculiarities, which decision he can make, if he chooses, in each case as it arises. If one style is best suited to all cases of hernia or rupture, then I think the Surgeon-General is bound to furnish that style; but if one style is best adapted to a case or class of cases, and a different style is best adapted to another case or class of cases, then, in my opinion, he is at liberty to use the style meeting this requirement. Congress intended, as it seems to me, to furnish soldiers of the Union Army who were ruptured while in the line of duty with the best truss that could be procured, but at the same time it is left discretionary with the Surgeon General to adopt one style in all cases, or he may furnish different styles in different cases; but always the style best suited to the circumstances of the case in which it is furnished. The Banning Company claim that their truss is the best suited for all disabilities of hernia or rupture; and if that be so, then the act makes it the duty of the Surgeon-General to furnish trusses of that style. But whether it is the best suited to all such disabilities, or whether it is the best suited to any such disabilities, or whether the two styles approved by the board of medical officers are the best suited to any or all of such disabilities, are questions for the Surgeon-General to decide, and upon which I am not at liberty to express any opinion. Very respectfully, your obedient servant, Hon. Wм. W. BELKNAP, Secretary of War. |