Improvement of South Pass of the Mississippi. The second, third, and fourth questions (which may be conveniently considered together) are as follows: 2. Under the circumstances stated in the engineer's certificate of October 15, 1879, herewith, are the legal conditions in reference to maintenance of the specific channel so far complied with as to legally deserve a quarterly payment for maintenance of the channel? 3. What is the meaning of the law wherein it says the hundred thousand dollars "shall be paid in equal quarterly payments during each and every year," and wherein it further says, provided that "no part of such annual compensation shall be paid for any period of time during which the channel of said pass shall be less" than the required depths and widths? 4. In the event that the maximum channel required by law has not been maintained during the twenty days specified in Captain Brown's report, can payment be made for maintenance during the remainder of the quarter? The report of the engineers shows that there was a period of twenty days during the then current quarter when the required depths and widths of channel were not maintained. It is conceded by the counsel for Captain Eads that for that period he is not entitled to receive the quarterly compensation provided for by the act. But his contention is that he is en. titled to receive at the end of the quarter such compensation, deducting therefrom the proportion which twenty days bears to the whole quarter. One proviso in relation to payments for maintaining the channel is as follows: "Provided, however, That no part of such annual compensation shall be paid for any period of time during which the channel of said pass shall be less than thirty feet in depth and three hundred and fifty feet in width, as hereinbefore specified." The depths and widths have been changed by subsequent acts; but any inquiry growing out of such change is not relevant to our present examination. On examining a subsequent section, which provides for payment of expenditures in excess of annual payments where Captain Eads shall make satisfactory proof that such ex Improvement of South Pass of the Mississippi. penditures have been made, is found this clause: "And such payments shall be made from the five hundred thousand dollars to be released at the end of ten years before any payment shall be made from the five hundred thousand dollars to be released at the end of twenty years; and if any failure to maintain said channel of thirty feet in depth and three hundred and fifty feet in width shall occur, the date for releasing the said money held in pledge shall be postponed for an equal period of time, and the compensation for maintaining said channel shall cease until said depth and width shall be again restored, the maintenance of a channel of thirty feet in depth and three hundred and fifty feet in width for twenty years, exclusive of all such periods of failure, being intended by this act." It will be observed that the plan for compensation to Mr. Eads for maintaining the channel was by a system of quarterly and annual payments for a period of ten years, when a certain sum of $500,000 was to be released to him, and subsequently, upon the maintenance by him of the channel for an additional period of ten years, he receiving certain quarterly and annual payments, at the end of that time another $500,000 was to be released to him. The sum of a million dollars was thus, as it were, kept in pledge by the United States for the performance by Captain Eads of his full contract, which was to maintain, as well as obtain, the channel proposed by the act. On examining these provisions together, the plan is shown to be one in which the ten years was not to be held to have expired by the expiration of ten calendar years from the time of obtaining the channel. When, therefore, the meaning of quarterly and annual payments is to be considered, it is to have reference to the periods during which the channel is maintained. If there is a period in any quarter, or in any year, during which the channel is not maintained, that period is not only to be deducted in the quarterly or annual payment, but the quarterly or annual payment is to be postponed by reason of such non-maintenance. In this mode the expiration of the ten years is necessarily postponed by a time equal to those periods during which the channel is not maintained, and Captain Eads is not only subject to the deduction (which it is agreed by his counsel ought properly to be made) of the time during which the channel is not main Desertion from the Army. tained, but also to a corresponding postponement of his pay ments. To apply this principle (which an examination of the whole act, as well as of the provisions to which I have been particularly referred, satisfies me is correct) in the present case: As there were twenty days during a quarter when the channel was not maintained, the time when Captain Eads is to receive the quarterly payment is to be postponed for twenty days. He will then receive a full quarterly payment. No deduction will be made excepting that which is involved in the fact that he receives no money for the time when the channel was not maintained. His quarterly payment would have become due on October 8, 1879, but during twenty days he was entitled to no payment. The payment must therefore be postponed until the 28th of October, when, if he shall then have maintained the channel for a quarter, exclusive of the periods of failure, he will then be entitled to the quarterly payment. The words "quarterly" and "annual," in their application to the payments, are thus construed with relation to the time during which the channel is maintained; and such construction is clearly necessary in order to meet the exigency of that portion of the statute which requires the release of the money held in pledge to be postponed for a period of time equal to that during which the requisite depths and widths were not maintained. Very respectfully, your obedient servant, Hon. GEORGE W. MCCRARY, CHAS. DEVENS. Secretary of War. DESERTION FROM THE ARMY. Opinion of October 16, 1878 (see ante, page 170), relative to trial and punishment by court-martial of deserters from the military service (in which the conclusions of Attorney-General Taft, in the opinion given by him on that subject, dated September 1, 1876, were restated and concurred in), reaffirmed. DEPARTMENT OF JUSTICE, SIR: I have the honor to acknowledge the receipt of your letter of the 17th instant, in which you inclose a copy of a Minnesota Railroad Land Grant of July 4, 1866. letter of the 13th instant, from the board of commissioners on the military prisons, giving their views relative to the liability of deserters to trial and imprisonment when they have been beyond military jurisdiction for more than two years. You inquire whether the forty-eighth Article of War, alluded to by the commissioners, makes necessary any change in my opinion heretofore rendered to you upon the subject. You refer, I presume, to the opinion of October 16, 1878 in which (after restating the conclusions of my immediate predecessor in an opinion rendered by him to the War Department September 1, 1876, in which conclusions I concurred) I answered the questions put to me in your letter of the 25th of September, 1878. Upon examination of these opinions, I find that in both the forty-eighth Article of War was duly considered in connection with the one hundred and third Article and with other penal provisions contained in the Articles of War. With entire respect for the views of the distinguished officers who constitute the board above mentioned, I fail to see any good reasons for modifying or changing the conclusions reached in the two opinions above referred to. Very respectfully, your obedient servant, Hon. GEORGE W. MCCRARY, Secretary of War. CHAS. DEVENS. MINNESOTA RAILROAD LAND GRANT OF JULY 4, 1866. Patents may be issued to the State of Minnesota, under the land-grant act of July 4, 1866, chap. 163, for lands opposite that part of the railroad line from Houston, &c., to the western boundary of the State which has been constructed in ten-mile sections since February 26, 1877 (the date at which, in the event the railroad was not completed, it was provided by section 4 of said act that the lands not patented should revert to the United States), no action, legislative or judicial, having been taken to revest the lands in the United States. The provision in that section, adverted to, is a condition subsequent, and does not work a forfeiture of the grant and revest the lands in the United States until proceedings, either legislative or judicial, are had to enforce it. A location of said railroad line was made in 1866, after the passage of said land-grant act, and maps thereof were transmitted by the Gov. Minnesota Railroad Land Grant of July 4, 1866. ernor to the Secretary of the Interior in December of that year. The act of the State legislature accepting the grant was not passed until February 25, 1867, and it required the line to be run to Fremont and thence to Jackson, which involved a deviation from the location of 1866. The constructed road deviates from that location only to such extent as was necessary to conform to the requirement of the last-mentioned act. Held (1) that the road cannot be regarded as having received an official definite location until after the act of acceptance, which required a modification of the original location; (2) that the Secretary of the Interior should accept proof of the construction of the road upon the line as modified in accordance with the act of acceptance. DEPARTMENT OF JUSTICE, November 29, 1879. SIR: Your letter of February 19, 1879, informs me that by an act of Congress approved July 4, 1866 (14 Stat., 87), there was granted to the State of Minnesota certain lands to aid in the construction of a line of railroad from Houston through the counties of Fillmore, Mower, Freeborn, and Faribault, to the western boundary of the State. This grant was accepted by the legislature of the State of Minnesota, February 25, 1867, and the lands in question granted to the Southern Min. nesota Railroad Company. Maps of the definite location of this road were approved by the board of directors of the company, and filed in the General Land Office, as follows: From a point in township 104, range 8 west, to a point in township 103, range 18 west, adopted by resolution of the board of directors of the company January 1, 1867, received at the General Land Office February 18, 1867. From a point in township 103, range 18 west, to a point in township 104, range 37 west, adopted by resolution of the board of directors November 29, 1866, and received at the General Land Office December 10, 1866. From a point in township 104, range 37 west, to a point in township 104, range 39 west, adopted by resolution of the board of directors October 24, 1866, received at the General Land Office December 10, 1866. From a point in township 104, range 39 west, to the western boundary of the State. Survey ordered by resolution of the board of directors December 2, 1869, and the map received at the General Land Office May 4, 1871. The company constructed the road from Houston to Winnebago City, in township 104, range 28 west, prior to February |