Kansas and Arkansas Valley Railroad Company.

be express in a particular where, if it had remained silent, an implication of a right in the company to cross the limits of the easement might possibly have been raised; for it has said that in cases where "heavy cuts and fills" require more than the prescribed width, the company may use the additional land necessary "not exceeding one hundred feet in width on each side of said right of way." This looks very much like a manifestation of purpose that nothing shall pass to the company that is not granted by express language.

I am, therefore, unable to find any support for the company's claim in the second section.

This brings me to the second question, namely, whether the disputes between the Cherokee Nation and the railway company, growing out of the latter's taking timber and other materials outside the limits of the easement, are not to be compared and settled by the courts under the eighth section of the act, "and, if so, what, if any, action shall be taken by the Department looking to permission or prohibition of construction pending judicial decision on the point at issue."

The eighth section, to which you refer, is as follows:

"That the United States circuit and district courts for the western district of Arkansas and the district of Kansas, and such other courts as may be authorized by Congress, shall have, without reference to the amount in controversy, concurrent jurisdiction over all controversies arising between said Kansas and Arkansas Valley Railway and the nations and tribes through whose territory said railway shall be constructed. Said courts shall have the jurisdiction, without reference to the amount in controversy, over all controversies arising between the inhabitants of said nations or tribes and said railway company; and the civil jurisdiction of said courts. is hereby extended within the limits of said Indian Territory, without distinction as to citizenship of the parties, so far as may be necessary to carry out the provisions of this act."

The language of this section is so broad that I can not doubt it was the purpose of Congress to give the courts therein named jurisdiction over such a controversy as the Cherokees have with the railway company for trespassing on their domain; but I do not understand that the right of the Cherokees to go into court, thus conferred, diminishes in

Interstate Commerce Commission.

any degree the duty of the Executive Department of the United States to use its authority to protect them against what the Department may regard as violations of their rights. And to this end the Department has the remedies at hand that are provided by law for the protection of the Indians under its general control and supervision.

If convinced the company is violating the rights of the Indians, you should notify it to desist, and to make reparation for any damage it may have already done; and failing to do this according to your notice, and the facts sent to this Department, proper steps will be taken in the premises. I have the honor to be, sir, your obedient servant, A. H. GARLAND.

The SECRETARY OF THE INTERIOR.

INTERSTATE COMMERCE COMMISSION.

By the provisions of the act of February 4, 1887, chapter 104, creating the Interstate Commerce Commission, the terms of the five Commissioners first appointed thereunder must be computed from January 1, 1887, although their appointments were made March 22, 1887. But they are entitled to draw pay only from the time they entered upon the discharge of their duties respectively.

DEPARTMENT OF JUSTICE,

July 5, 1887.

SIR: Your letter of the 28th ultimo submits for opinion two questions: (1) "When, under the interstate-commerce law, the terms of the Commissioners begin," and (2) "from what date are they entitled to draw their salary?"

The eleventh section of the act of Congress entitled "An act to regulate commerce," approved 4th February, 1887 (Acts Second Session Forty-ninth Congress, Pamphlet Edition, page 379), provides "That a commission is hereby created and established, to be known as the Interstate Commerce Commission, which shall be composed of five commissioners who shall be appointed by the President, by and with the advice and consent of the Senate. The Commissioners first appointed under this act shall continue in office for the term of

Interstate Commerce Commission.

two, three, four, five, and six years, respectively, from the first day of January, anno Domini eighteen hundred and eighty-seven, the term of each to be designated by the President; but their successors shall be appointed for terms of six years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the Commissioner whom he shall succeed."

On the 22d March, 1887, the President, pursuant to this law, appointed five Commissioners to serve respectively for the periods of two, three, four, five, and six years from the 1st January, 1887, who have all entered on the duties of their office, but I am not informed when they did so respectively. As the law provides that the Commissioners "first ap. pointed" shall continue in office for a "term" to be computed from the 1st of January, 1887, and that "the term of each shall be designated by the President," I have no doubt that reference must be had to the 1st of January, 1887, as the point from which to reckon the official term of each of these first appointees, although his appointment did not take place, in fact, until the 22d of March, 1887, for such is the clear intention of Congress, and effect must be given to it. It is true that it does not often occur that the term of a civil office covers a period during which the appointee could not have performed service, but such a thing is very common in the military and naval service, where increased rank is frequently conferred on an officer from a date sometimes years anterior to the appointment that conferred it.

Having now disposed of the first question, I am brought to the second, as to the time from which the Commissioners are entitled to draw their salaries.

It by no means follows that because their term of office begins on the 1st day of January, 1887, the Commissioners are entitled to be paid from that day. On the contrary, it has been settled by a long and unshaken usage of the Government, supported by repeated opinions of my predecessors, that when Congress is silent on the subject, an officer's salary begins only from the time when he commences to do some official act, or, in some cases, particularly in the Army and Navy, presents himself for assignment to duty. This is well illustrated by the case of Judge Brocchus, who was appointed

Interstate Commerce Commission.

a Territorial judge, but having, for some reason, failed to qualify, was superseded. His claim for pay was denied on the ground that he had not taken the oath of office or entered upon its duties, although he had formally accepted the appointment. (10 Opin., 308.)

This practice has been steadily adhered to in cases arising in the Army and Navy where claims have been made for the pay of an increased rank during the interval between the date from which the rank took effect, by relation, to the date of the appointment, except in cases where the officer promoted has in fact performed the duty proper to the increased rank during the interval and was legally assignable to that duty.

So, also, when an officer improperly dismissed from the service has been restored with the rank to which he would have been entitled had the injustice not been committed, it has been uniformly held that a claim for pay during the time he was out of the service was not maintainable, in the absence of some statute to that effect.

Said Mr. Attorney-General Clifford in Du Barry's case (4 Opin., 608): "It would be absurd to hold that the pay of an officer might commence before he was appointed or commissioned, and equally so to allow him to receive compensation under his commission when no service had been rendered to the Government for a period of time before it was in existence. The rule, if adopted, would authorize the Executive to bestow gratuities to an alarming extent without the consent of the House of Representatives, and that, too, as it seems to me, in direct violation of law and of the Constitution." See also 2 Opin., 27, 638; 3 Opin., 105, 124, 641; 4 Opin., 123, 256, 318, 348; 5 Opin., 132; 7 Opin., 304; 10 Opin., 250, where the positions above taken are fully sustained. The opinion of Mr. Attorney-General Cushing in 7 Opinions (supra) would seem to meet the question directly.

So that the statute creating the Commission, for certainty and uniformity, fixes the period at which the terms of the Commissioners shall commence; but being silent as to when their pay shall begin, we are left to the general principle upon which such question has heretofore been determined.

It follows, then, that the Commissioners under the inter274-VOL XIX--4

Chiriqui Improvement Company.

state-commerce law can draw pay only from the time they entered upon their duties respectively.

I have the honor to be, sir, your most obedient servant, A. H. GARLAND.

The PRESIDENT.

CHIRIQUI IMPROVEMENT COMPANY.

The instrument (set out in the opinion) signed by Ambrose W. Thompson, for himself and the Chiriqui Improvement Company, and Isaac Toucey, Secretary of the Navy, dated May 21, 1859, is in no sense a contract obligatory upon the United States.

The appropriation of $200,000, made by the act of March 3, 1881, chapter 133, "To enable the Secretary of the Navy to establish at the Isthmus of Panama naval stations and depots of coal for the supply of steam-ships of war," has no application thereto.

DEPARTMENT OF JUSTICE,

July 7, 1887.

SIR: Your communication of the 23d June last presents for opinion the following case:

By an act approved 3d March, 1881 (21 Stat., 448), being the sundry civil appropriation act, it was, amongst other things, provided as follows:

"To enable the Secretary of the Navy to establish at the Isthmus of Panama naval stations and depots of coal for the supply of steamships of war, two hundred thousand dollars, to be available for expenditure as soon as suitable arrangements can be made to the proposed end."

The money thus appropriated has never been applied to the object mentioned in the law, although still available for that purpose.

It is claimed by the Isthmus Pacific Railway Company, as the representative or successor of the Chiriqui Improvement Company, and the claim is pressed with much industry, that this appropriation of $200,000 was intended by Congress to be paid as the consideration for the benefits secured to the Government by an alleged contract made by the United States through Isaac Toucey, Secretary of the Navy, of the first part, and the Chiriqui Improvement Company and Ambrose W. Thompson, of the second part, on the 21st May, 1859, which is in the following words: