Fort Leavenworth Military Reservation. Respecting that part of the reservation which is included within the pink lines traced on the plat thereof, as surveyed by Captain F. E. Hunt, a copy of which plat accompanied your communication, I have to say that the Supreme Court of the United States, in the case of United States vs. Stone, (2 Wall., 525,) has substantially decided that the land thus described never was a portion of the territory allotted to the Delaware tribe of Indians; that it was legally reserved by the President for military purposes; and that the Secretary of the Interior, in 1861, transcended his authority when he ordered surveys to be made of this land. Practically, then, the decision of that case disposes of so much of the subject of your communication as relates to the legally-established limits of the reservation; there being, as I understand, no doubt concerning that part of the reservation which is described on the plat by yellow lines. But, while the United States appear to now bold the lands embraced by the said plat as a military reservation, they never having parted with the title thereto, it would seem that the jurisdiction over the same has passed to the State of Kansas by virtue of the act of June 29, 1861, admitting that State into the Union. The effect of that act was to withdraw from Federal jurisdiction all the territory within the boundaries of the new State, excepting only the territories of Indians having treaties with the United States which provided that, without their consent, such territory should not be subjected to State jurisdiction, (see United States vs. Ward, 1 Wool., C. C. Rep., 17; United States vs. Stahl, ibid., 192.) The reservation is within the territorial limits of the State, and does not come within the exception adverted to. To restore the Federal jurisdiction over the land included in the reservation, it will be necessary to obtain from the State of Kansas a cession of jurisdiction, which, I have no doubt, will be readily granted by the State legislature upon application. The papers are herewith returned. Very respectfully, your obedient servant, Hon. WM. W. BELKNAP, GEO. H. WILLIAMS. Secretary of War. Costs. COSTS. Semble that by the laws of Texas the defendant in a civil action, which has resulted in his favor, is liable to the officers of the court for so much of the costs of the suit as was incurred in his behalf, but no more. Where, however, the taxation of costs is erroneous or improper, the remedy of the party aggrieved is by motion to the court to retax. DEPARTMENT OF JUSTICE, April 22, 1872. SIR: I have the honor to acknowledge the receipt of your letter of the 11th instant, referring to the case of Willis Walker vs. Captain Charles Bentzoni, Twenty-fifth United States Infantry, in the district court of El Paso County, Texas. Captain Bentzoni has, as you say, under a law of the State of Texas, been compelled to pay the costs in the case of said Walker against him, although he, as defendant, received a verdict in his favor, the plaintiff making oath of his inability to pay. You inquire if any such liability, on the part of Captain Bentzoni, exists under the laws of that State. According to the laws of Texas concerning costs in the district courts of that State, it would seem that each party to a suit is responsible to the officers of court for the costs incurred by himself; but, at the same time, the party in whose favor the judgment is given is entitled to an execution for all his costs against the adverse party, under such limitations as are prescribed by law. I do not understand that the successful party is liable to the officers of the court for the costs incurred by the unsuccessful party in the event of the latter being unable to pay them. In the case of Cleveland vs. Henderson, (4 Texas Rep., 182,) it was held that where a plaintiff had recovered judgment for costs, but was unable to make them out of the defendants, he was responsible to the officers of the court for so much only of the costs of the suit as was incurred in his behalf. The same rule would, I think, be applied under the Texas laws to the case where judgment is rendered for a defendant. So that, in the case referred to, the defendant may be regarded as liable to the officers of the court for so much of the costs charged in the fee-bill as was incurred by himself, Claim of Captain R. H. Wyman. but no more. Certain items so charged are apparently costs incurred in behalf of the plaintiff, and for which the defendant is not legally liable. But where the taxation of costs is erroneous or improper, the remedy of the party aggrieved is by motion to the court to retax. Very respectfully, your obedient servant, Hon. Wм. W. BELKNAP, Secretary of War. GEO. H. WILLIAMS. CLAIM OF CAPTAIN R. H. WYMAN. The papers in this case presenting, in important particulars, inconsistent and contradictory statements, are returned without an opinion, to the end that the facts upon which the claim is based may be more definitely ascertained before passing upon its merits. DEPARTMENT OF JUSTICE, May 1, 1872. SIR: In your communication of the 8th ultimo to the Attorney-General, asking an opinion upon the claim of Captain R. H. Wyman for a share of the prize-money decreed to the captors of the steamer Gertrude, captured by the United States steamship Vanderbilt, in April, 1863, you say, "The material facts in this case are stated in the various papers herewith transmitted." The papers referred to comprise, among other things, a report upon said claim made to you by the Naval Solicitor, under date of April 1, 1872; and also a copy of a letter addressed to Attorney-General Speed, dated August 10, 1864, by the then Secretary of the Navy, Mr. Welles, touching the same matter. On examination of these, I find that there exists, to some extent, an inconsistency between the statements of fact presented in these two papers, and they are contradictory of each other in particulars which seem to be important. In this condition of things, if it devolved upon this Department to determine what are the actual and established facts of the case submitted by you, I could not discharge that duty without much difficulty, if at all. But it is not within my province to determine the facts of the case. This must be Eight-Hour Law. done by your Department; and until it is so done, I do not feel authorized to enter upon an examination of the questions of law arising on one or the other state of facts. Should you be pleased to furnish me with a statement of the ascertained facts upon which the claim of Captain Wyman is predicated, I will with pleasure give you an opinion upon any question of law arising out of the facts on which you may desire my opinion. The papers mentioned are herewith respectfully returned. Very respectfully, your obedient servant, B. H. BRISTOW, Solicitor-General and Acting Attorney-General. Hon. GEO. M. ROBESON, Secretary of the Navy. EIGHT-HOUR LAW. The provisions of the act of June 25, 1863, chap. 72, declaring that eight hours shall constitute a day's work for all laborers, workmen, and mechanics employed by or on behalf of the United States, are not applicable to mechanics, workmen, and laborers who are in the employment of a contractor with the United States. That act was not intended to extend to any others than the immediate employés of the Government. DEPARTMENT OF JUSTICE, May 2, 1872. SIR: I have considered the question submitted in your letter of the 25th ultimo, viz: Whether or not the act of Congress of June 25, 1868, (15 Stat., 77,) which declares that eight hours shall constitute a day's work for all laborers, workmen, and mechanics employed by or on behalf of the Government of the United States, is applicable to the case of two hundred stone-cutters now employed near Richmond, Virginia, in getting out granite for the building in course of erection for the Department of State. Accompanying your letter, in originals, are the contract and supplemental contract between the United States and Albert Ordway, under which, as is stated by you, these stonecutters are employed. On examination of the contract and supplement, I find that Mr. Ordway, the employer of the men in question, stands in the relation of a contractor with the Eight-Hour Law. Government of the United States, and not its servant or appointee. By his contract he has undertaken to furnish to the Government stone of a certain character and description in quantities regulated by the terms of the contract. He assumes the whole burden of quarrying the stone, preparing it for use, and delivering it at the place of building. The men who are employed by him to do this work can no more be said to be employed by or on behalf of the Government than the laborers or mechanics employed in the workshop of any manufacturer engaged in making machinery for the Government under a contract. The letter of the act of Congress limits its operation to laborers, workmen, and mechanics employed by or on behalf of the Government of the United States, and I am aware of no reason to suppose that the act was intended to have operation beyond the immediate employés of the Government. Mr. Ordway himself employs the men, and he alone is responsible to them for their wages. He would certainly have just cause of complaint if the Government should undertake to interfere between him and his employés by prescribing regulations for their labor. Their work is being done at his instance, under his employment, and for his benefit. He is at liberty to discharge such as do not comply with the terms of their employment, and employ others in their stead. I am aware of no rule of law which would make the Government in any event answerable to them for his default, or hold it responsible for any failure of engagement on their part. The case of Hilliard vs. Richardson (3 Gray, 349) is a careful review of the law on the subject, and fully sustains what I have said. I am, therefore, of opinion that the act of Congress above cited has no application whatever to the men employed by Mr. Ordway in this business. The papers accompanying your communication are herewith returned, as requested. Very respectfully, your obedient servant, B. H. BRISTOW, Solicitor-General and Acting Attorney-General. Hon. HAMILTON FISH, Secretary of State. |