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2d Session.

No. 85.

HENRY SMALLY.

FEBRUARY 3, 1855.–Laid upon the table, and ordered to be printed.

Mr. FULLER, from the Committee on Commerce, made the following

REPORT.

The Committee on Commerce, to whom was referred the memorial of Henry

Smally, have considered the same, and report: That, in their opinion, the claimant is not entitled to any relief. In the first place, serious doubts exist in the mind of the committee whether he has incurred any expense, or performed any services, for which he has not been amply remunerated. But even admitting that he has performed services for which he has received no remuneration, the committee cannot sanction the principle that any person may perform services for the government unauthorized by any proper officer, and subsequently make the service the foundation of a claim against the government. Such a practice will lead to great abuses. The committee append to this report the letter of the Secretary, and the report of the Lighthouse Board to him.

TREASURY DEPARTMENT, January 27, 1855. SIR : I have had the honor to receive your letter of the 28th ult., enclosing a petition of Henry Smally, of Troy, N. Y., for compensation for setting buoys in the Hudson river, in the years 1852 and 1853, and requesting the recommendations of the department on the subject; and for reply, beg leave to enclose the report of the Light-house Board on the subject. The department considers that it would be inexpedient to grant the prayer of the petitioner, as it is obvious he acted, if he acted at all, without authority, and has wholly failed to establish any beneficial service.

I am, very respectfully,

JAMES GUTHRIE,

Secretary of the Treasury. Hon. T.J. D. FULLER,

Chairman of the Committee on Commerce, H. R.

ARIE,

TREASURY DEPARTMENT, Office of the Light-house Board, January 25, 1855. Sir: I have the honor respectfully to report, in reply to the communication of Hon. T. J. D. Fuller, of the 28th ult., transmitting the petition of Henry Smally, for the passage of a law by which the petitioner shall be paid for services claimed to have been rendered by him in furnishing and setting buoys in the Hudson river, between Albany and Troy, from August 31, 1852, to June 24, 1853, referred to this office for a report.

That there is a clause in the bill making appropriations for lighthouses, &c., approved August 31, 1852, " for six spar-buoys in the Hudson river, between Albany and Troy, four hundred and eighty dollars."

That the necessary and usual instructions were given to the proper officers to make the necessary examinations, inquiries, &c., in conformity to the act of Congress, and for procuring and placing the buoys thus authorized, upon the opening of navigation the ensuing season.

That a contract was entered into with Henry Smally, “ for furnishing six spar-buoys, with sinkers, &c., complete, and for placing them, and keeping them placed in the Hudson river, between the cities of Albany and Troy; that is, "Henry Smally, of the first part, agrees to furnish the buoys, sinkers, &c., complete, painted and marked as per directions of the Light-house Board hereto annexed, to set them and keep them set, to take them up at the closing of navigation of the present year (1853,) and to keep them in their places for one year from the date of this agreement, for the sum of $500,” &c., &c.

That a petition addressed to the Hon. Jefferson Davis, Secretary of War, by H. Smally, dated June 2, 1854, was received at this office from the Treasury Department, on the 26th of June, 1854, setting forth that the petitioner is informed, and believes, that a law was passed in June, 1852, for buoys in the Hudson river, between Albany and Troy; and the petitioner states he furnished and set buoys in the Hudson river, betwen Albany and Troy, from the time of the passage of the law, (June, 1852,) to the date of his contract with the United States, (June 24, 1853,) for wbich he received no compensation for bis services.

That Mr. Henry Smally was informed that no law had been passed at the time stated by him in his petition, for buoys in the Hudson river, but that a law had been passed on the 31st August, 1852, for six sparbuoys, and he was requested to explain the discrepancy, and to furnish evidence that he had at any time furnished and kept in place any buoys authorized by law, and the authority by which he performed ihe services for which he had submitted a claim.

Mr. Smally replies, under date of June 29, 1854, that “I do not claim that from August 31, 1852, (the time when the act was passed referred to in your communication,) to June 24, 1853,

in pursuance any contract or under the direction of any one who had authority to act in behalf of the government.” Mr. Smally also stales that he set the buoys" because he knew that it was absolutely necessary for the sate navigation of the river, and that he supposed that when

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Congress passed the act of August, 1852, the government had assumed to take the entire control of setting the buoys in that part of the Hudson river, &c.

Mr. Smally also says, June 29, 1854: "Previous to the passage of the act of August 31, 1852, I had set the buoys in that part of the Hudson river, under the authority of the common council of the city of Troy. When the act of August 31, 1852, was passed, the common council of the city of Troy ceased to take any further action in the matter."

It will be observed, from the foregoing statement, that the petitioner first claimed remuneration for services, and for furnishing buoys, from June, 1852, to June 24, 1853, and states that he had not been paid for that period by the common council of Troy. When informed that no such act had been passed in June, but that an appropriation for six spar-buoys had been made on the 31st August, 1852, the statements are reiterated as to the performance of service and refusal of payment by the common council of Troy, with merely the correction of the date as given to him.

In the petition to Congress, the petitioner states that he contracted " to furnish and set six spar-buoys in said portion of the Hudson river, at the rate of $500 per year, and has continued since to furnish and set said buoys.” This las: statement is not exactly correct, as will be seen by referring to the terms of the contract, as set forth in the first part of this report.

The contract of June, 1853, was for furnishing the six spar-buoys, &c., complete, and for placing and keeping in place for one year, $500. The present contract with Mr. Smally is for keeping the buoys in that part of the river in place for one year, at the rate of $300, in conformity to the terms of the published proposals.

Mr. Smally was called upon to furnish a detailed statement of materials, &c., furnished by him, with vouchers, or such other evidence as he had of the validity of his claim; but he furnished, instead of vouchers or other evidence of his having purchased spars and other materials for this service, and that he actually placed buoys, a bill for $313, as follows: Eighteen buoys, furnished from August 31, 1852, to the close of navigation in December...

$108 Labor, services, and expenses to the close of navigation.

115 Resetting and attending to the buoys from the opening of navigation to June 24, 1853...

90

313

If the 18 buoys were procured and placed in 1852, and reset in 1853, on the opening of navigation, there could have been no necessity for providing the six authorized by law, and paid for according to the contract of 1854; and to pay for them again, would be to pay twice for the same buoys.

On the 18th of August, 1854, a full statement of the case was sent to Mr. Smally, the discrepancies in his petition and replies to inter

rogatories pointed out, and he was informed that, as he had failed to show that he had any authority for performing the service which he claimed to have performed, his claim would be reported against, unless he could furnish evidence that he had performed work for the government in conformity to a contract, or by direction of an authorized officer.

it appears from the foregoing

1. That no claim was set up by Mr. Smally until June, 1854, one year afier he had contracted for this service.

2. That there is an important discrepancy in the statements as to the time when the common council of Troy ceased to pay him for taking charge of the buoys.

3. That he assumes to determine at what time an act of Congress shall take effect, without regarding the provisos and stipulations to the act; and that the government is bound to pay him according to his own construction, enunciated at a period long subsequent to the performance of the alleged services, although he neither asked nor received authority from the superintendent of lights, or other government officer authorized to act in the matter at the time.

4. That he has failed to furnish any evidence of the correctness of the charges now made.

It is, therefore, the opinion of this board that Mr. Smally has no just claim to remuneration, and that to allow him any part of his claim would be sanctioning the principle that any individual has the right to construe and act upon laws of Congress irrespective of the Executive, whose duty it is to see that the laws are faithfully executed. The papers in this case are herewith returned. Very respectfully, your obedient servant,

W. B. SHUBRICK,

Chairman Light-house Board. Hon. JAMES GUTHRIE,

Secretary of the Treasury.

2d Session.

No. 86.

JUDAH TOURO-LEGAL REPRESENTATIVES OF.

[To accompany bill H. R. No. 740.]

FEBRUARY 8, 1855.

Mr. Kerr, from the Committee on the Judiciary, made the following

REPORT,

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The Committee on the Judiciary, to whom was referred the memorial of the

legal representatives of Judak Touro, deceased, kave had the same under consideration, and beg leave to report:

In the year 1795 the Baron Carondelet, governor general of the Spanish province of Orleans, granted to one Anthony De St. Maxent a tract of land, situated on the Mississippi river between the Bayou Leard and the Bayou Cavancoo, consisting of five thousand five hundred and seventy-five acres and forty one-hundredths of an acre, for agricultural purposes. Upon this land was situated an old Spanish fort called Fort Bourbon, and, reserving that fort expressly, the grant contained the following conditions : 1st, that by no means should the grantee clear the timber off the point which hides the Fort Bourbon, because this must remain always so as not to be seen or exposed to the fire of the boats which may ascend the river before they get above the point aforesaid.

2d. That within the distance of 200 toises from Fort Bourbun no building whatsoever shall be erected, nor anything else that may obstruct the view of the fort, within the distance of 200 toises, in which it shall not be permitted to dig canal or ditches that might incommode.

3d. That it is reserved for his Catholic Majesty the use of said lands situated between the Bayou Leard and the Bayou Cavancoo, as aforesaid, whenever he shall want it for any fortification. By the treaty

Spain transferred the provinces of Orleans and Louisiana to France; and by the treaty of 1803, France transferred them to the United States. By an act of Congress, passed in the year 1807, commissioners were appointed to investigate and ascertain the rights of persons claiming lands in the Territories of Orleans and Louisiana; and those commissioners were clothed with full power to decide

all claims brought before them according to the established usages and customs, and laws, of the French and Spanish governments; and the decision of the commissioners, when in favor of a claimant, is made final against the government of the United States.

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