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Legislature of New Mexico.

ing in the spirit of the law to make any difference in the mode of filling both kinds of vacancies in the same way.

This view is fortified by the language of the 13th section of the act in question, which says: "And all vacancies hereby created in the grade of assistant quartermaster shall be filled," &c. The word "vacancies" is evidently used here to indicate as well offices coming into existence with the act as those vacated by promotion. Express provision is made that the vacancies in this grade shall be filled by selection from the volunteer force instead of the Regular Army; but the word also contains an implication that vacancies in the higher grades to the rank of colonel are to be filled by promotion.

I can find no grounds in the acts of Congress or regulations of the Army touching this subject for holding that the word "all," in the regulation referred to, means "accidental;" and I am, therefore, of the opinion that the vacancies in the Quartermaster's Department, above assistant quartermaster to the rank of colonel, created by said act of July 28, 1866, are to be filled by promotion according to seniority, and not at the option of the President and Senate.

Very respectfully, your obedient servant,

Secretary of War.


Where two bodies claimed to be the house of representatives of the Territory of New Mexico, and the secretary of the Territory desired instructions as to which of these bodies he should pay: Advised that, in view of the imperfect statement of facts furnished, nothing be done which might be regarded as a recognition of the legality of either of the bodies referred to, and that the secretary be informed that no instructions such as he desires can be given without more complete information.

January 31, 1872.

SIR: I have the honor to acknowledge the receipt of your communication of the 29th instant, inclosing what purports to be a journal of the house of representatives of New Mex

Legislature of New Mexico.

ico, with a telegram from the secretary of that Territory, representing that two bodies claim to be such house, and asking for instructions as to which he shall pay.

Nothing appears to have occurred to raise such a question prior to the 5th instant. On that day the house voted that three of the sitting members, to wit: Juan Antonio Sanchez, Buenaventura Lobato, and Antonio F. Gallegos were not entitled to the seats they were holding, and José Cordova, Mateo Romeo, and Juan B. Gonzales, contestants, were entitled to such seats; and also voted that Francisco Antonio Montoya was entitled to a seat, for which a certificate of election had been given to one Antonio de Jesus Sismeros, deceased. On Saturday the 6th, Monday the 8th, and Tuesday the 9th the house met and adjourned, but on the 10th, after some unimportant proceedings, the house divided, eleven members, including the speaker, withdrawing from the hall where the house was in session and eleven remaining. According to the so-called journal submitted to me, the speaker on that day, without any vote of the house, declared it adjourned until the next day, and with ten other members withdrew; whereupon the eleven remaining members proceeded to elect a speaker, sergeant-at-arms, second clerk, engrossing and enrolling clerks, and interpreters, after declaring those offices vacant, on the ground that the persons previously chosen thereto had left with the speaker and his ten associates and abandoned their duty. The speaker so elected forthwith issued his warrant to the new sergeant-atarms for the arrest of the absent members, three of whom were brought in, protesting against the legality of the proceedings, and were called upon to explain their conduct, pending which the oath of office was administered by the acting speaker to said Cordova, Romeo, Gonzales, and Montoya, and they took their seats. Then the journal for the 5th, 6th, 8th, and 9th days of the session was read and approved. Nothing further appears as to the proceedings of this branch of the body.

I am satisfied that the paper placed in my hands, called a journal, is an imperfect and one-sided statement of what transpired between and including the 5th and the 10th instant, and therefore it is an unsafe basis for any opinion as

Legislature of New Mexico.

to the validity of the proceedings of which it professes to be a record. For example: it states in one place that the ayes and noes were ordered, but, instead of giving the vote or the names of those voting, it recites what was said and done when the name of one member was called; so that it is impossible to tell from it how many were present and voting at that time.

I have nothing before me to show which part of the house was recognized by the council, the co-ordinate branch of the legislative assembly, or by the governor or judiciary of the Territory. I have no information as to the proceedings of that part of the house which retired on the 10th instant with the speaker. Twenty-six members constitute the house of representatives, and therefore fourteen are necessary to constitute a quorum for the transaction of business. I think it quite probable that one division of the house has been acting altogether without a quorum, and that the other division has been acting for at least part of the time in the same way.

I do not consider it advisable to make any decision which may be construed into a recognition of either branch of the house as a legal body under the organic act of the Territory, upon what appears to me to be a defective and prejudiced statement of five days' proceedings of one branch. It is impossible to determine what effect the proceedings of the house, or either part of it, subsequent to the 10th instant, (when the so-called journal closes,) had upon what transpired prior to and upon that day.

I therefore respectfully suggest that the secretary of the Territory be advised that no instructions such as he desires can be given without further and fuller information as to the action of the two bodies claiming to be the house of representatives for the Territory.

Very respectfully, your obedient servant,


Secretary of State.


Bonds of Consuls.


A consul's bond, given under the 13th section of the act of August 18, 1856, chap. 127, speaks and takes effect (not from its date, but) from the time of its approval by the Secretary of State.

Accordingly, where an appointee to a consulship was commissioned on the 18th of January, and his bond, though dated on the 13th of same month, was not approved by the Secretary until the 27th: Held that the bond was valid and sufficient under said act.

February 1, 1872.

SIR: I have to acknowledge the receipt of your communication of the 29th ultimo, inclosing the official bond of John Wilson as consul at Brussels, and asking whether or not it is of legal validity.

It appears that Mr. Wilson was nominated for said office on the 12th of last December; that he was confirmed by the Senate on the 18th ultimo, on which date his commission issued; that said bond bears date the 13th ultimo, and that it was approved by you, as appears from a written statement in the margin thereof, on the 27th ultimo.

By the 13th section of the act of August 18, 1856, (11 Stat., 56,) every consul is required, before he receives his commission or enters upon the duties of his office, to give a bond to the United States, with such sureties as the Secretary of State shall approve; and according to the principles laid down in the case of the United States vs. L. Barclay, (19 How., 73,) a bond given under that provision must be considered to speak and to take effect, not from the day of its date, but from the date upon which it was approved by the Secretary of State.

I am, therefore, of the opinion that the bond, if approved at the date indicated upon its margin, is a good and valid bond. Very respectfully, your obedient servant,



Secretary of State.

Compromise of Internal-Revenue Cases.


The Commissioner of Internal Revenue is not authorized by section 102 of the act of July 20, 1868, chap. 186, to compromise cases in which internalrevenue officers are charged with embezzlement under the 16th section of the act of August 6, 1846, chap. 90, the provisions whereof are made applicable to such officers by the internal-revenue law of June 30, 1864, chap. 173.

The words "all cases arising under the internal-revenue laws," in the former section, mean those cases wherein the tax-payer, and not the tax-collector, is the party seeking a compromise.

February 7, 1872.

SIR: I have the honor to acknowledge the receipt of your communication of the 11th instant, in which you submit for my opinion the following question: "Is the Commissioner of Internal Revenue authorized, with the advice and recommendation of the other officers whose advice or recommendation is required by section 102 of the act of July 20, 1868, (15 Stat., 166,) to compromise under that section, in case of internal-revenue officers, the offense declared to be embezzlement by section 16 of the act of August 6, 1846, (9 Stat., 63,) the provisions of which are, by section 51 of the act of June 30, 1864, (13 Stat., 241,) made applicable to all officers of internal revenue charged with the safe-keeping, transfer, or disbursement of the public money arising therefrom, and to all other persons having actual charge, custody, or control of moneys or accounts arising from the administration of the internal revenue.""

Section 102, above referred to, is as follows: "That in all cases arising under the internal-revenue laws, where, instead of commencing or proceeding with a case in court, it may appear to the Commissioner of Internal Revenue to be for the interest of the United States to compromise the same, he is empowered and authorized to make such compromise, with the advice and consent of the Secretary of the Treasury; and in every case where a compromise is made, there shall be placed on file, in the office of the Commissioner, the opinion of the Solicitor of Internal Revenue, or officer acting as such, with

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