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Department of Justice,
Washington, December 23, 1871.
SIR: I have the honor to acknowledge the receipt of your letter of the 9th of September, inclosing a copy of one addressed to me on the 3d of September. 1870, by the Hon. J. D. Cox, then Secretary of the Interior, in reference to transactions of John W. Wright, who had been appointed by the Department of the Interior as agent for certain Indians, and requesting my attention to the subject of Mr. Cox’s letter.
Soon after that letter was received, the matter which it presented received a careful consideration in this Department, and I was under the impression that the result had been communicated to the Department of the Interior. Learning by your letter that such was not the case, I immediately submitted the matter to the Solicitor General for examination and report. These conclusions are stated in his letter to me of the 21st instant, which I herewith transmit. I concur in his judgment.
If you desire that suit shall be brought against Mr. Wright and his sureties, I will direct the district attorney to proceed accordingly; and to put himself, for information as to the facts, in communication with such officers of your Department you may designate.
Very respectfully, your obedient servant.
Hon. A. T. AKERMAN,
Attorney General of the United States
Hon. C. DELANO,
Secretary of the Interior
Department of Justice,
Washington, December21, 1871
Sin: I have examined the papers in the case of J. W. Wright. referred to by you, with request for my opinion upon the following questions. Viz
First. Upon the facts stated in the letter of Hon. J. D. Cox late Secretary of the Interior, addressed to the Attorney General, dated September 3. 1870, is time said Wright guilty of embezzlement within the meaning of the sixteenth section of the art Congress approved August 6, 1846?
Second. Is the bond executed by said Wright and his sureties a valid obligation upon which the United States may recover and have damages for the alleged breaches thereof ? I. The penal sanction of the sixteenth section of the act of 1846 is. in terms, confined to officers of the United States and other persons charged by that act, or some other act of Congress, with the safe-keeping, transfer, and disbursement of public moneys. It does not appear in this case that Mr. Wright was charged by any act of Congress with the safekeeping, transfer, or disbursement of public money. In the determination of the question first above presented, it is, therefore, only necessary to inquire whether he was an officer of the United States. The duties assigned to Mr. Wright are set forth in the letter of appointment, and instructions addressed to him by the Hon. James Harlan, late Secretary of the Interior, of date July 11. 1866. That letter is as follows:
“It having come to my knowledge that a considerable number of Cherokee, Creek, and other Indians have appointed you their attorney in fact to collect claims for back pay and bounty for military services rendered the Government of the United States, before the several Departments, and you having filed in this Department a bond in the penal sum of $100,000 conditioned for the faithful performance of your duties, you are hereby authorized and empowered, as a special agent of this Department, without compensation, except such fees as are now or may hereafter be authorized by this Department, to collect and pay over to the parties in cases in which you have been constituted attorney in fact as aforesaid, in accordance with the rules prescribed by this Department, the claims of Indians before the several Departments of the Government upon the following conditions, viz:
“That you shall pay over promptly all money so collected by you to the parties legally entitled to the same, and, if necessary, go to the Indian country and tender the same to such soldier, or his heirs, less only such commission or fee as is or may be fixed by the rules prescribed by this Department for its collection you to take the receipt of such claimant, witnessed by the United States interpreter and agent for the tribe to which such Indian belongs, and file such receipt with the Commissioner of Indian Affairs, or, in case the money is not for any cause paid over within the period of four months from a date of its receipt, the same shall be deposited with the Secretary of the Interior, and that, in all cases, you faithfully conform, in the collection of claims, to such rules as have been or may be hereafter prescribed by this Department. This appointment to be revoked at the pleasure of the Secretary of the Interior.”
It will be observed that Mr. Wright is distinctly recognized in that letter as the attorney of a considerable number of Creek, Cherokee, and other Indians, for the collection of claims for back pay and bounty for military services rendered to the Government of the United States by such Indians, and, having executed to the United States a bond in the penal sum of $100,000, conditioned for the faithful performance of his duties as such attorney and agent, he was authorized and empowered as special agent of the Interior Department, without compensation, except such fees as were then or might thereafter be authorized by said Department, to collect and pay over to the Indians, whose attorney he was, their claims for military services. This is the whole extent and scope of his authority and power. Does this constitute him an officer of the United States?
In the case of The United States vs. Hartwell, 6 Wallace, 393, the Supreme Court said: “An office is a public station or employment conferred by the appointment of Government. The term embraces the ideas of tenure, duration, emolument, and duties.” So far as can be learned from the papers referred to me, it does not appear to be claimed that Mr. Wright was appointed in pursuance of any law of Congress, or that his compensation was fixed by law, and it seems that he was not to receive any compensation from the United States, but was to be paid out of the funds collected for the Indians such fees as the Secretary of the Interior might allow. His appointment was necessarily limited in duration and specific in its objects. It seems to me, therefore, clear that Mr. Wright did not become by virtue of this letter of instruction, or by the execution of the bond, or by any other of the acts referred to in the papers before me, an officer of the United States, within the meaning of the sixteenth section of the act of 1846. It therefore follows that he cannot be successfully proceeded against criminally under that section.
Third. Whatever conflict of opinions may have existed relative to the power of the United States to enter into contracts and to take bonds with surety in the absence of statutory direction, it can no longer be doubted that a bond voluntarily executed to the United States, and founded upon sufficient consideration and not prohibited by a statute, nor contrary to public policy, is a valid obligation, whether authorized by statute or not. (United States vs. Hodson, 10 Wallace, 395.) The bond in this case appears to have been required of Mr. Wright in connection with the appointment conferred upon him, upon the idea that the Government exercises a peculiar guardianship over the Indians, and it was in their interest that the bond seems to have been required.. While I do not find that the taking of such bond was required or authorized by any statute, it does not appear to have been prohibited by law or by public policy. The bond having been voluntarily executed by Mr. Wright and his sureties, they would be stopped to deny, in a civil action, the authority of the Secretary of the Interior to take it, or the validity of Mr. Wright’s engagement with the United States. What would be the measure of damages, and whether or not the consideration of the bond could be impeached in such a proceeding, are questions which cannot be authoritatively determined otherwise than by a judicial tribunal.
I am, therefore, of opinion that the Secretary of the Interior would be justified in proceeding by civil action on the bond to hold Mr. Wright and his sureties responsible for any breach of its conditions, and to seek the recovery of whatever damages, if any, the Government has sustained.
Very respectfully, your obedient servant.
B. H. RRISTOW, Solicitor General.
Hon. A. T. AKERMAN, Attorney General, Approved:
A. T. AKERMAN,