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legal character. The term 'debts' includes those debts or claims which rest upon a merely equitable or honorary obligation, and which would not be recoverable in a court of law if existing against an individual. The nation, speaking broadly, owes a 'debt' to an individual when his claim grows out of general principles of right and justice; when, in other words, it is based upon considerations of a moral or merely honorary nature, such as are binding on the conscience or the honor of an individual, although the debt could obtain no recognition in a court of law. The power of Congress extends at least as far as the recognition and payment of claims against the Government which are thus founded."

The view expressed by Judge Taney as to what is required by the nature of our institutions in matters of this kind was concurred in by Attorney-General Stanberry, in an opinion rendered in 1867 (12 Op. 112), wherein he held that the Secretary of the Navy could waive a forfeiture stipulated in a contract with his department in a case where the contractors had acted in entire good faith and the delay in the execution of the work was occasioned by unexpected misfortune. While the equity referred to in that case did not arise out of the action of the Government itself, the same principle which was there invoked to sustain the action of the Secretary is assuredly applicable in cases where the contractor's plight is the result of the exercise by the Government of its sovereign power after the making of the contract.

It follows from the views above expressed that, in my opinion, the Secretary of War has authority, under the circumstances of this case, to relieve Mr. Hilliard from the further performance of his contract as to gloves required to be delivered after the tariff act became effective, both under the original and the supplementary orders. As to the gloves delivered or which should have been delivered prior to the taking effect of the act, Mr. Hilliard has, of course, no claim for relief, and I do not understand that he makes such a claim.

Respectfully,

The PRESIDENT.

GEORGE W. WICKERSHAM.

BONDS OF SURETY COMPANIES DOING BUSINESS IN STATES WHERE THEY ARE NOT AUTHORIZED.

Bonds of surety companies executed in States in which they are not licensed, for principals residing in those States or for contracts to be performed therein, are valid and enforceable against such companies, no matter how flagrant their violations of the law of the State may have been as regards failure to qualify to do business in the State. The execution of a bond by a surety company at its home office, or outside of the boundaries of a State wherein it is not licensed, for a principal residing in such State or for a contract to be performed there, would not be the doing of business by the surety within the State.

The question whether or not in either such case the Treasury Department should accept such bonds is one of administrative policy, regarding which the Attorney-General can not properly express an opinion.

DEPARTMENT OF JUSTICE,

December 24, 1909.

SIR: I have your letter of December 10 setting forth certain previous correspondence concerning the acceptance of sureties under the act of Congress of August 13, 1894 (28 Stat. 279), and adding:

"The correspondence in the matter has been referred to the Solicitor of the Treasury for his opinion, a copy of which, dated December 3, 1909, is herewith inclosed.

"The two important conclusions reached by the Solicitor are as follows:

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"First. That the bonds of surety companies executed in States in which they are not licensed, for principals. residing in such States or for contracts to be performed therein, are valid and enforceable against them (the surety companies) no matter how flagrant their violations. of the law of the State may have been in respect to their failure to qualify themselves to do business within the State.' However, he does not advise the acceptance of bonds so executed.

"Second. That the execution of a bond by a surety company at its home office or outside of the boundaries. of a State wherein it is not licensed, for a principal residing in such State or for a contract to be performed therein, 'would not be a doing business by the surety company in the State * * * and hence is not forbidden by the laws of the State; and that I see no reason why the depart

ment should not accept bonds of surety companies executed under the circumstances proposed in your inquiry.'

"I have, therefore, the honor to request your opinion as to the correctness of the Solicitor's conclusions in the premises."

In reply thereto I beg to advise you that neither of the two questions above referred to has been heretofore presented to the Attorney-General or considered by him in any previous opinion. The question as to whether or not a contract of suretyship executed between a bonding company and the Government in a State in which the company was without authority to do business would be binding and enforceable was expressly mooted and not. answered in the opinion of October 28, 1909 (28 Op. 35), for the reason that it was not involved in the inquiry at that time. The question as to whether or not the execution of a bond by a surety company outside the boundaries of a State wherein it is not licensed, for a principal residing in such State, or for a contract to be performed therein, would constitute the "doing of business" within such State, was not considered in such previous opinion for the reason that the facts as then submitted concerned only the execution of a bond within a State for the faithful performance of a contract within such State by a surety company not authorized to do business therein.

Answering now the two questions examined by the Solicitor of the Treasury it seems quite clear, first, that the contract of suretyship referred to would be valid and enforceable against the company; and, second, that the execution of a bond in the manner supposed would not be the doing of business within the State.

As to whether or not in either such case the department should accept such bonds (assuming the Secretary of the Treasury is otherwise authorized) is a matter of administrative policy in which the Attorney-General can not properly interfere.

Very respectfully,

WADE H. ELLIS,

Acting Attorney-General.

The SECRETARY OF THE TREASURY.

PAYMASTER'S CLERK IN THE NAVY-STATUS TRAVELING HOME.

The Attorney-General declines to express an opinion upon the question whether a paymaster's clerk in the Navy retains his status as such clerk while traveling home under orders received prior to the revocation of his appointment, for the reason that the question is hypothetical in its nature.

The validity of article 1367 of the Naval Regulations as applied to cases arising in the future can not properly be considered.

The rule is well established that the Attorney-General will not, except in matters of great importance, express an opinion upon any question involving the payment of money which should ordinarily be referred to the Comptroller of the Treasury for decision.

DEPARTMENT OF JUSTICE,
December 28, 1909.

SIR: Under date of the 3d instant you request my opinion as to whether a paymaster's clerk in the navy, upon completing duty abroad retains his status as such clerk while traveling home under orders prior to the revocation of his appointment, and whether article 1367 of the Navy Regulations is a valid regulation.

Article

Paymasters' clerks in the navy are authorized by sections 1386, 1387 and 1388 of the Revised Statutes. 1367 of the Navy Regulations provides:

"When a pay officer is detached from a ship abroad, thereby involving also the detachment of his clerk, the pay of the latter, without commutation of rations, shall be continued after his detachment and settlement of accounts for the time necessary to enable him to reach, by the shortest and most direct route, the place in the United States which he left under his appointment."

In regard to this matter you say:

"The practice of the department has been to order a paymaster's clerk, upon the completion of his duty abroad, to proceed to his home in the United States, his appointment to be considered as revoked upon his arrival there, and article 1367 above quoted provides that his pay shall continue during the period of travel.

"In a recent case, however, where a paymaster's clerk serving on a vessel in Philippine waters was directed, upon

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the detachment of the pay officer with whom he was on duty, to assist such officer in settling his accounts and then to proceed to his home in the United States, it was held by the Comptroller of the Treasury (decision July 29, 1909, affirmed September 29) that the allowance of pay to the clerk during the period of travel home was not authorized, and the opinion was expressed that article 1367 of the Navy Regulations, in purporting to 'extend the term and pay' beyond the time allowed for settling accounts, contravenes the law.

"If the view of the Comptroller that 'with the completion of the duties of the paymaster the clerk's tenure of office ceases' and he is no longer under the law a paymaster's clerk, although his appointment has not been. revoked, is correct, the Navy Regulations would appear to require modification, as would also the practice of treating the clerk, until his appointment is revoked, as an officer of the navy, subject to orders and to naval laws and regulations."

Under the circumstances disclosed by your letter, I do not deem it proper to express an opinion upon the questions presented. In the first place, your inquiry as to the status of a paymaster's clerk while traveling home under orders. prior to the revocation of his appointment, presents a hypothetical question, no actual case being cited. Such questions the Attorney-General has uniformly declined to (20 Op. 288; 22 id., 77; 24 id., 118.) The question as to the validity of article 1367 of the Navy Regulations as applied to cases that may arise in the future is also hardly a proper subject for me to pass upon. (20 Op. 738.)

answer.

But assuming that a concrete case requiring the determination of these questions could be presented, there is still another reason why I should refuse to render an opinion on the subject. Underlying both your inquiries is the question as to the pay of paymasters' clerks, which, it appears, the Comptroller of the Treasury, in pursuance of authority conferred upon him by law, has already decided. It is a well-established rule of this office that, in view of section 8 of the act of July 31, 1894 (28 Stat. 162,

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