Chiriqui Improvement Company. fit for the purposes of this contract which the said Ambrose W. Thompson or the said Chiriqui Improvement (Co.) has obtained or shall obtain from the Government of Costa Rica for a railroad between the Gulf of Golfito Dulce and the Chiriqui Lagoon or any part of the way between those places or between any other points on the Atlantic and Pacific. "August 4, 1860. "AMBROSE W. THOMPSON, [L. S.] "For himself and the Chriqui Improvement Co. "ISAAC TOUCEY, [L. S.] "Secretary of the Navy. "In presence of — "CHAS. W. WELSH." Since the appropriation of the 22d June, 1860, there has been no legislation up to the 3d March, 1881, which has any relevancy to the question submitted, which is in these words: "Whether the contract entered into May 21, 1859, between the United States, represented by Isaac Toucey, Secretary of the Navy, of the one part, and the Chiriqui Improvement Company, represented by Ambrose W. Thompson, of the other part, for the acquisition by the United States of certain lands, rights, and privileges therein mentioned, which contract was made subject to the condition that the same should be approved and ratified by Congress at the then next session thereof, and which condition was, by a further agreement, dated August 4, 1860, so extended as to include the second session of the Thirty-sixth Congress, is or is not a valid subsisting contract?" The paper writing bearing date 21st May, 1859, was in no sense a contract. The Secretary of the Navy had no authority to pledge the United States in any such way, nor did he propose to do so, for it is expressly stated in the paper that it is conditioned upon the approval of Congress and upon its making the necessary appropriation. I see nothing in the legislation on the subject that indicates an intention on the part of Congress to make the United States a party to the scheme or proposition made to Congress by the Secretary of the Navy, Mr. Toucey, and the Improvement Company and Mr. Thompson. Chiriqui Improvement Company. The language in which is made the appropriation of the act of the 3d of March, 1881, is perfectly clear and entirely free from ambiguity, and I can not possibly leave the plain words of the law, which contain no reference to the alleged contract, and resort to extraneous matter of any kind for the purpose of finding a pretext for making the law applicable to the alleged contract and giving it a sense which its language taken by itself does not convey. In my opinion this would be legislation, and not interpretation. It is time enough to look outside of a law for aid in getting at its meaning when a doubt arises on its face; but where the language of the law is "plain and unambiguous," say the Supreme Court of the United States (6 Wall., 479, 480), there is no "room for construction." To yield to the argument of the counsel for the Isthmus Pacific Railway Company would be to deprive the Secretary of the Navy of the wide discretion given him by the act in the matter of establishing naval stations and coal depots, by holding his function to be simply the ministerial one of pay. ing the money appropriated for the fulfillment of a binding contract, and that, too, in the face of the language that the appropriation is to be available for expenditure" as soon as suitable arrangements can be made to the proposed end," which does not look much like Congress considered the Secretary's hands as tied by a contract. It results, then, that the paper writing relied on as a contract has never possessed that element in the least degree. Very respectfully, yours, The SECRETARY OF THE NAVY. A. H. GARLAND. Klamath Indians. KLAMATH INDIANS. The Attorney-General deems it inexpedient to express an opinion upon certain questions proposed, relating to a right of fishery in the Klamath River, California, claimed in behalf of the Klamath Indians; such questions being justiciable in the appropriate courts at the suit of the Indians themselves who are interested in them. DEPARTMENT OF JUSTICE, July 11, 1887. SIR: Your communication of the 7th instant, submits for opinion a series of questions. The first relates to a claim to a right of fishery by prescription in the Klamath River set up by the Indian Bureau in behalf of the Klamath Indians; the second asks to know whether such right, if established, is not protected by the treaty of Guadalupe Hidalgo; the third asks if the legisla tion and executive action resulting in fixing the limits of the reservation occupied by these Indians was not a recognition of their exclusive right to fishing privileges within the limits of the reservation; the fourth inquires whether, if such treaty and prescriptive rights exist, the State of California can divest them; and the fifth asks whether the Indians can not be protected by the Department of the Interior in these rights if they should appear to exist. The matters covered by these questions are clearly justiciable in the appropriate courts at the suit of the Indians themselves who are interested in them. They are essentially judicial in their character, and as each is readily resolvable into a case at law or in equity, I do not see how it can be said to be a question arising in a course of executive administration. There is nothing in the nature of the protectorate or guar dianship exercised by the United States over the Indian tribes that warrants the Executive Department of the Government in assuming to determine a controversy properly cognizable by the Judicial Department of the Government, because the well-being of an Indian tribe requires that such controversy should be decided. The organic distinctions between the three great divisions of Government established by the Constitution must be respected or collisions and discords inimical to good government will inevitably take place. Sureties for the Performance of Contracts. When the questions arose between the State of Kansas and the Shawnee and Miami and Wea Indian tribes as to the power of the State to tax certain lands held in severalty by individuals of these tribes, the three tribes filed bills in equity against the State officials seeking to enforce the right to tax, and the suits thus brought were finally determined in favor of the Indians by the Supreme Court of the United States, (The Kansas Indians, 5 Wall, 737; see also the case of The New York Indians, Ib. 761.) My predecessor, Mr. Butler, declined to pass upon claims arising under a treaty with the Cherokee Indians, on the ground that a board of commissioners had been established by the treaty for the purpose of determining cases of that kind, saying that the Attorney General had "no power to give an official opinion, on the request of a head of a department, except on matters that concern the official powers and duties of such department," (3 Opin. 369; see also section 356 Rev. Stat., and 13 Opin. 160 and 11 Opin. 407.) It seems to me, therefore, that as the only way to settle the questions submitted is by judicial proceedings it would be hardly proper for me to express an opinion on them, while my doing so might, at the same time, be regarded as an attempt of the Executive branch of the Government to forestall such proceedings. Very respectfully, your obedient servant, SURETIES FOR THE PERFORMANCE OF CONTRACTS. Under section 7 of the act of August 3, 1886, chapter 849, authorizing proposals for certain work to be invited, which shall be subject to "such provisions as to bonds and security for the quality and due completion of the work as the Secretary of the Navy shall prescribe," the Secretary may, in his discretion, accept as surety (instead of an individual) a body corporate empowered to assume that relation. DEPARTMENT OF JUSTICE, SIR: Your communication of the 11th instant and the inclosures therein mentioned present the following case: Sureties for the Performance of Contracts. By an act of Congress approved 3d August, 1886, section 7, the Secretary of the Navy is required, before making contracts for the construction or completion of the vessels whose construction or completion is authorized by the act, to invite proposals for the work, which shall be subject, amongst other regulations, to such "provisions as to bonds and security for the quality and due completion of the work as the Secretary of the Navy shall prescribe." Invitations for proposals under the act have been made, and several contracts have been awarded to the Bethlehem Iron Company, a Pennsylvania corporation, which offers as its surety the Guarantee Company of North America, or the American Surety Company, corporations existing under State authority, and empowered to contract as sureties or guar antors. The question arising upon this state of facts is presented by you in the following words: "Can the Secretary of the Navy, under existing law, accept as security for the performance of a contract in which the United States are concerned, the obligation of a company incorporated and acting under State law, in lieu of the obligation of an individual surety or sureties, and, if so, what conditions are necessary to be observed with reference to a determination of the question whether such security, when tendered, is or is not to be deemed adequate and sufficient for the protection of the United States as a party to the contract to which it relates?" I prefer to answer this question with a view to the facts of the actual case before me, and not with reference to contracts of every kind in which the Government may be interested, which is understood to be the scope of the question. Looking at the wide discretion given you by the seventh section of the law, I have no doubt that the matter of security is entirely within your discretion, unconfined by previous law or practice, and, consequently, that under this section you can accept any body corporate as surety that may be empowered to assume that relation and is in your judgment sufficient, the sufficiency of such body corporate to be determined by you after proper inquiry, the nature and extent of which is lodged by the law in your sole discretion. |