Steamers General Meigs and General Burnside. ordinarily ought to be treated as incontrovertible, evidence of the contract, and it is difficult to resist the conclusion that it was well and distinctly understood between the parties at the time the sales were made that the vendors were not to be paid for the services of the vessels after the 15th of January, but were to be paid the running-expenses; and with respect to those matters, the vessels were to be regarded as having become the property of the United States at the said date. To weaken the force of these documents, the affidavit of Boyd is introduced, in which he says that he did not disclose the contents of said letters of February 2 and May 9 to Loper at the time of the purchase; that Loper complained and said he should insist upon payment for services of the vessels, &c. Little weight, in my opinion, ought to be attached to this affidavit, for two reasons. First, Boyd knew that he had no authority to purchase the vessels otherwise than as instructed in said letters, and his failure to disclose their contents at the time of the purchase, if such was the fact, was either because he knew that Loper was aware of what they contained, or because for some reason he desired a misapprehension to exist as to the terms and conditions of the purchase. Second, the receipts show upon their face that the said letters were annexed, and they are found upon the files of the Department, annexed to the receipts. But whether annexed or not at the time of the purchase, Loper's letter to Biggs of February 4 shows that he well knew what the QuartermasterGeneral's letter of February 2 contained. It is claimed that Wilcox is entitled to his proportionate pay for the services of the General Burnside, to the 29th of April, the date of his bill of sale; but I find anrong the papers a power of attorney from Wilcox to Loper, dated the 11th day of May, 1863, by which Loper is not only authorized to collect and receive the purchase-money for one-fourth of the General Burnside, but is also authorized to collect what may be due Wilcox for "sailing, victualing, and manning the said steamship." This satisfies me that Wilcox understood the arrangement as the other parties to the sale did. I think they are all chargeable with the knowledge, Louisville and Portland Canal. and bound by the acts of Loper in respect to the earnings and expenses of the vessels. It has been argued that said owners had no motive and did not intend to give up the claim for services when they sold the vessels. What were the writings made for at that time if they were not to be the evidence of the intentions and acts of the parties? My opinion is, that they are the only evidence that can legally be considered in this case, and that they show that the former owners and vendors of the vessels have no claims against the United States for their services after the 15th day of January, 1863. Very respectfully, Hon. WM. W. BELKNAP, Secretary of War. GEO. H. WILLIAMS. LOUISVILLE AND PORTLAND CANAL. The expenditure of the appropriation provided by the act of June 10, 1872 chap. 416, "for continuing the work on the canal at the Falls of the Ohio River," whether made with or without the consent of the Louisville and Portland Canal Company, will not affect any rights which the latter may now have as to tolls. DEPARTMENT OF JUSTICE, August 7, 1872. SIR: I have the honor to acknowledge the receipt of your letter of the 5th instant, inclosing a copy of an act approved June 10, 1872, making appropriations for the repair, preservation, and completion of certain public works on rivers and harbors, and calling my attention to the following provision therein : "For the continuing the work on the canal at the Falls of the Ohio River, three hundred thousand dollars. And the Secretary of War is hereby directed to report to Congress at its next session, or sooner if practicable, the condition of said canal, and the provisions necessary to relieve the same from incumbrance, with a view to such legislation as will render the same free to commerce at the earliest practicable period, subject only to such tolls as may be necessary for the super Bridges across the Mississippi River. intendence and repairs thereof, which shall not after the pas sage of this act exceed five cents per ton." You inquire "whether the act above stated necessitates the Louisville and Portland Canal Company to accept the rate of toll prescribed by it, should they consent to the improvement being carried on." Confining myself to the question submitted by you, I have to say, in answer, that in my judgment the expenditure of the appropriation to continue the work on the canal at the Falls of the Ohio will make no difference with the rights of said company in respect to the tolls of said canal. The two clauses of the above-cited provision are separate and distinct, and the execution of the one is in no way connected with, or dependent upon, the execution of the other. Whether said company have any right to refuse, or accept, or in any way interfere with the use of the appropriation, as indicated in said act of Congress, or whether they have any right to impose, at this time, tolls in excess of five cents per ton, are questions upon which I express no opinion. I only mean to say that the rights which the company now have as to tolls, whatever they may be, will continue unaffected by the use of said appropriation in continuing the work upon the canal, whether the expenditure is made with or without their consent. Very respectfully, your obedient servant, Hon. WM. W. BELKNAP, Secretary of War. GEO, H. WILLIAMS. BRIDGES ACROSS THE MISSISSIPPI RIVER. The provision in the act of June 4, 1872, chap. 281, entitled "An act further regulating the construction of bridges across the Mississippi River,” which requires the Secretary of War, in locating any such bridge, to "have due regard to the wants of all railways and highways crossing said river," commented on and construed. * * Where a bridge is to be located under an act wherein only railway use is mentioned and provided for, the wants of railways only are to be considered. Bridges across the Mississipi River. But it is otherwise where the bridge is to be located under an act providing for both railways and wagon-ways. There the wants of both kinds of road are to be regarded, and the location should be made with a view to the accommodation of each. DEPARTMENT OF JUSTICE, August 7, 1872. SIR: I have the honor to acknowledge the receipt of your letter of the 3d instant, in which you request my opinion upon the question whether, by the act of June 4, 1872, entitled "An act further regulating the construction of bridges across the Mississippi River," all such bridges as are therein referred to are required to be highway as well as railway bridges. The act requires "that all bridges hereafter constructed over and across the Mississippi River, under any act of Congress, shall be subject to all the terms, restrictions, and re- · quirements contained in the fifth section of an act entitled 'An act to authorize the construction of a bridge across the Mississippi River, at or near the town of Clinton, in the State of Iowa, and other bridges across said river, and to establish them as post-roads,' approved April 1, 1872;" and that, "in locating any such bridge, the Secretary of War shall have due regard to the security and convenience of navigation, to convenience of access, and to the wants of all railways and highways crossing said river." It is, I presume, under the last clause of the act, which provides that due regard shall be had, in the location of these bridges, to the wants of railways and highways crossing the river, that the question to which you call my atten tion is raised. Examining the copies of the several acts for the construction of bridges over the Mississippi and other navigable rivers, which accompany your letter, I find that in most of them provision is made for railway purposes and use only, while in a few of such acts provision is made for wagon-ways. It may properly be inferred, therefore, that when only use for railway purposes is provided for, use in connection with public highways is not included. In view of this, there need be no difficulty in construing and applying the requirement of the act in relation to the regard Bridges across the Mississippi River. to be had, in locating the bridges, "to the wants of all rail. ways and highways crossing the river." If a bridge is to be located under an act in which only railway use is mentioned and provided for, the wants of railways only are to be considered; but if under an act providing for both railways and wagon-ways, then the wants of both descriptions of roads must be regarded, and the location must be made with a view to the accommodation of both. Under this interpretation of the clause referred to, the act is in harmony with all the acts for the construction of bridges over navigable rivers. Moreover, had Congress intended so important a modification of previous acts as a requirement that the bridges in question should all be constructed for both railways and highways, it is hardly to be supposed that it would have been content to make so vague a provision for the purpose as the words of this clause would constitute. It would, in fact, be leaving interests of very great value and consequence to the chances of a doubtful implication; and, as most of these bridges are authorized to be built by railway companies, interested only in the accommodation of their own business, it is not to be presumed, in the absence of explicit provision to that effect, that Congress meant to burden them with the heavy additional expense that would have to be incurred to accommodate these bridges to the uses of common highways or wagon-roads. The true intent of the provision of the act relative to the location of bridges is, it seems clear, to define more particu larly the duty of the Secretary of War in making such loca tions. In the 5th section of the act for the construction of the bridge across the Mississippi, at or near Clinton, &c., he is required to take care that it be located so as not to interfere with the security of navigation; but here he is required to have regard also to convenience of access, and to the accommodation of the railways and highways for the uses of which the bridges are intended. Very respectfully, your obedient servant, GEO. H. WILLIAMS. Hon. Wм. W. BELKNAP, Secretary of War. |