if the other construction be adopted, then also is the section inapplicable, because there was, in this case, an assignment by Follin in his lifetime. On the construction which I have thus given to the act of 1831, there is nothing in that act which, under the circumstances of the case, as assumed in your question, can confer the right of pre-emption on the widow and children of Follin; and if this be so, then the act of the 19th February, 1833, is, when taken in connexion with the former law, decisive on the question proposed to me.

It is, perhaps, scarcely necessary to add, though I do it to prevent any misconception in this respect, that this opinion is given on the above question as you propose it, abstractly, and on the supposition that all the facts assumed in it are essential parts of the case referred to me.

I have the honor to be,

Your obedient servant,

To the Hon. LEVI WOODBURY,

Secretary of the Treasury.

B. F. BUTLER.

No. 88.-(Ops. Aty. Gen.; G. L. O. p. 176.)

The Treasury Department has no power to reverse or revise a decision of a register, made under act of February 19, 1833, as to the validity of a purchase.

If such decision be founded in material error of law or fact, it may suspend the issuing of a patent until a judicial investigation is had, or the subject is settled by Congress.

ATTORNEY GENERAL'S OFFICE,

April 30, 1836.

SIR In answer to the questions proposed to me in your letter of the 8th instant, I have the honor to state that, in my opinion, your Department has not the legal power to revise and reverse the decision of the register of the land district, as to the validity of the purchases alleged to have been made under the first section of the act of the 19th of February, 1833. The proviso to that section requires that "the register of the land district in which the lands lie shall be satisfied of the validity of the purchase." The register being thus made the judge, and no authority being conferred on the Department to revise the decision, the case comes within the principles stated in my opinion of the 21st instant, as to the authority of the Department to review the decisions of the registers and receivers under the pre-emption laws, and to suspend the execution and delivery of patents until the conflicting claims of the parties shall have been judicially determined.

I have the honor to be, very respectfully,
Your obedient servant,

The Hon. LEVI WOODBURY,

Secretary of the Treasury.

B. F. BUTLER.

GENERAL LAND Office,

November 12, 1837.

SIR: I send you the following copies from the Official Records of Opinions in the Attorney General's Office.

They may not all come within the letter of the Senate's resolution, and do not appear to have ever been communicated officially to this office. Their publication will be useful for all the points of law solved by them are daily arising, and perplexing the various clerks of this office. I understand one object of the Senate was, the convenience of the office; and had I known in time of the existence of such Opinions, they would have been introduced in chronological order. I have prepared a Syllabus of each; which please have inserted with this note.

ASBURY DICKINS, Esq.

Secretary of the Senate.

I am, &c.

M. BIRCHARD, Solicitor.

No. 89. (Liber A, p. 48.)

Cumberland road. Reimbursement (out of the fund reserved under the 7th section of act of 30th April, 1802) of appropriations made by United States.

Ohio is not bound to reimburse, from the proceeds of the sales of public lands, any part of a voluntary appropriation by Congress, unless the reimbursement be expressly stipulated for.

WASHINGTON, April 13, 1818.

SIR: By the 7th section of the act of April 30, 1802, for the admission of the State of Ohio into the Union, it is among other things provided "that one-twentieth part of the proceeds of the lands lying within the said State, sold by Congress from and after the 30th day of June next, after deducting all expenses incident to the same, shall be applied to the laying out and making public roads leading from the navigable waters emptying into the Atlantic to the Ohio," &c. In conformity with this provision, the act of the 29th March, 1806, was passed, entitled "An act to regulate the laying out and making a road from Cumberland, in the State of Maryland, to the State of Ohio;" the 6th section of which appropriates thirty thousand dollars to this object, but expressly provides that this sum shall be reimbursed out of the funds reserved under the 7th section of the act admitting that State into the Union. Three acts have since passed on the same subject; to wit, the act of the 14th February, 1810, appropriating $60,000 to this road; that of the 3d March, 1811, appropriating $50,000; and that of the 14th February, 1815, appropriating $100,000. These three acts assume that of the 29th March, 1806, as their basis. The title of the three acts is identically the same, to wit, "An act in addition to the act to regulate the laying out and making a road from Cumberland, in the State of Maryland, to the State of Ohio;" and each act contains the identical provision of the act of the 29th March, 1806, to wit, that the sum appropriated shall in each case be reimbursed out of the fund reserved by the 7th section of the original act admitting the State of Ohio into the Union. The identity of title, of the subjectmatter, of the character of the provisions, and the express reference in the title of the three last acts to the first, incorporate the four acts and

make them one, forming an exact and complete system. The act which has recently passed the Senate and the House of Representatives takes a new title; it is, "An act making further appropriations for the construction of the Cumberland road." Its provisions are as different from the former acts as its title. It contains no reference to the act admitting the State of Ohio into the Union, nor to the fund reserved by the 7th section of that act, as the four former acts do; it contains no reference to the original act for laying out the Cumberland road, as the three latter acts above mentioned do; and it differs from them all, fundamentally, in containing no provision for the reimbursement of the sums which it appropriates out of the fund reserved for this purpose by the act of admission.

On this state of the case, you ask me, "whether the omission to provide for reimbursement by the act which has just passed the Senate and House of Representatives, can be considered as affecting the claim of the United States to such reimbursement from the sale of the lands; that claim being secured by compact between the United States and the State of Ohio, and a condition on which that State was admitted into the Union ?"

With great deference, I do not understand that this was a condition on which the State of Ohio was admitted into the Union. The six first sections of the act of the 30th of April, 1802, provide completely for the admission of that State into the Union. The 7th section begins thus: "And be it further enacted, that the following propositions be, and the same are hereby, offered to the convention of the eastern State of the said Territory, when formed, for their free acceptance or rejection; which, if accepted by the convention, shall be obligatory upon the United States." The State being declared perfectly free to accept or reject, I cannot perceive that the admission of Ohio into the Union depended in any degree upon her acceptance or rejection of those propositions; but that, on the contrary, the section in question contemplates her equally as a State and a member of the Union, whether she should accept or reject those propositions.

She did, however, accept them, and they became a compact; not connected in any manner with the existence of the State, but not the less binding as a compact. If the compact were such a one as the question seems to suppose, there would be no doubt in the case; that is, if Ohio had stipulated that all appropriations which should be made by Congress towards opening roads to that State should be reimbursed out of the sales of the lands, the omission in the bill before us to provide for such reimbursement would have been immaterial; for the omission would have been supplied by such a stipulation. Such, however, is not the compact; it is, merely, that one-twentieth part of the nett proceeds of the sales of public lands shall be applied towards opening roads to the State: but there is nothing said of any contemplated appropriation by Congress, nor consequently of the reimbursement of such appropriation. That Congress has not hitherto construed this compact as giving, by force of its own terms, a right to reimbursement for any appropriation they might choose to make, is very apparent from their having uniformly annexed to their appropriations the express condition of reimbursement. Whether the Government would be entitled to reimbursement for the appropriations now in question, must depend on the intention of the law. Is there

any thing on the face of the law to warrant the belief that reimbursement is intended? I confess that I can see nothing to warrant this belief. They had before them four successive acts in which reimbursement is expressly stipulated. With these precedents in full view, they have made an absolute and unconditional appropriation without any allusion to reimbursement. Since, then, whenever reimbursement is intended, it is expressly provided for, I can see no inference which can be drawn from the omission to provide for it, but that it is not intended. And I can see nothing in the terms in which the fund is reserved in the act of admission which supplies this defect, or would authorize the Government to charge upon that fund these unconditional appropriations. These cannot, I think, be regarded (from a comparison of all the acts together) in any other light than as gratuitous donations, auxiliary to the fund reserved by the seventh section of the act of admission. This fund must still be applied to the object of opening roads to and through the State; but I cannot perceive that it can be legally charged with the present appropriations, because I do not think that such is the intention of Congress. I will merely add, that if such was their intention, it would have been very easy to have expressed it; and it cannot be believed that, with the four former precedents in their view, they would have failed to express it if it had been their intention.

It is true that these appropriations are stated on the face of the bill to be for the purpose of finishing the existing contracts, but I cannot perceive that this affects in any manner the question of reimbursement: for, it does not, by any means, follow that the destination of these funds, without any provision for reimbursement, to the same object with other reimbursable funds, entitles the former, also, to reimbursement. This is not to be ascertained by the identity of the object, but by a comparison of the terms in which the respective grants are made.

The PRESIDENT of the United States.

No. 90.-(Liber A, p. 105.)

Conflicting claims to the Surveyor's office in the Virginia military district. The United States, as trustee, has the right to insist that contesting claimants of this description shall have their controversy judicially settled.

Patents should be suspended for that purpose.

RICHMOND, July 29, 1819.

SIR: I have received, this morning, the letter addressed to you by James Taylor and others, relative to the conflicting claims to the Surveyor's office for the Virginia military tract, in the State of Ohio; and as by your endorsement on the letter, you request my opinion on the proposition it contains, with as little delay as my convenience will permit, I hasten to give it to you at once. That proposition is, that no patent may issue on return made by Mr. Wallace, the last-appointed Surveyor, until his title to the office shall be brought to a legal decision; which I think perfectly reasonable, with this addition that no patent issue, on any return made by Mr. Anderson, (since he had notice of his

removal,) until his title also be brought to a similar decision. If the question were free from difficulty, and could not assume a form to be placed before the courts of the country, or if it were of paramount importance that the Executive should decide it at once, we should have no choice left, and I should express, without hesitation, the opinion I have formed upon the subject; but neither of these things is true, and it is therefore that I advise a judicial settlement of the whole controversy. The decision as to the right of office between the two Surveyors is, by no means, so easy a matter as the letter from Messrs. Taylor and others represents it. It would, indeed, be very easy, if you were to limit your attention to the facts and views of the subject presented by those gentlemen; but there are other facts and other views which seem to have escaped their attention, but which enter seriously and deeply into the consideration of the question, and render it not less difficult than it is delicate among these, I will at present mention only, that, before the deed of cession for the Northwestern Territory was executed, the lands between the Scioto and Little Miami stood pledged, by a public law of Virginia, to her officers and soldiers on the continental establishment, and that the United States, therefore, took the cession subject to this prior right of these officers and soldiers; and that ever since the cession, the Governments both of Virginia and the United States have treated that tract of country as having been reserved by Virginia from the cession, so far at least as to subject it to location and survey under the military land warrants of Virginia only, and by officers deriving their authority solely from the laws of that State, without any pretension on the part of the United States that a law of Congress was necessary to confer any new authority either on those warrants or those officers. If contemporaneous exposition be the best, the practical contemporaneous exposition of this deed of cession is, that Virginia is in the rightful exercise of her authority in directing all the measures preparatory to the emanation of the patent, and that, consequently, so far as the United States are concerned, there is no cause of complaint in the late appointment of Mr. Wallace, under a law of that State. As between the Surveyors themselves, I forbear at this time the expression of any opinion, or the further examination of the subject, after having suggested the propriety of submitting the whole controversy to a decision by the judiciary. I have suggested this course for the following reasons:

First. The office of Surveyor, as claimed by Mr. Anderson, is, I understand, under a commission which gave it to him by the tenure of good behaviour. The office, therefore, is to him an estate of freehold; on which, according to the genius of our constitution and laws, he has a right to expect, and has the power of demanding a trial, in the usual form, before his country.

Secondly. The facts of both the Surveyors' offices being open at the same time for locations and surveys, and both of them in operation simultaneously, render controversies between the locators in the different offices unavoidable; and these controversies, also, they have the right and the power of submitting to judicial decision.

Thirdly. However the Executive of the United States might decide this question, although the subsequent operations might go on in conformity with their decision, it would not prevent the judicial examina