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guaranty of them, is not a bank or a banker within the meaning of” said section. In the course of its business, which was to invest its capital, the corporation loaned money and took bonds and promissory notes secured by mortgage, and it also received bonds and promissory notes so taken and secured for the purpose of negotiating sales of them. And yet the Supreme Court held that this was merely incidental to the business of the corporation, and therefore did not make it a bank or a banker.
Brokerage is not the business of the express companies; they are carriers; and the issuing of money orders and travelers' checks is a mere incident to the business of carriers, the companies, for a consideration, issuing their own orders, upon themselves, for the payment of money upon presentation to their authorized agents.
My opinion is, therefore, that the transactions described do not bring the companies within the terms of the law which defines a broker, and that they are not liable to the brokers' tax under the provision of the war-revenue act above quoted. Respectfully,
JAMES E. BOYD,
Assistant Attorney-General. Approved:
JOHN W. GRIGGS.
CONTRACT-FINAL PAYMENT-PASS A LOUTRE.
The remote possibility that in some way and at some time the crevasse
in Pass a Loutre may injuriously affect the channel in South Pass, can not justify the United States in withholding final payment on the contract for opening and maintaining said channel after it has been opened according to contract and shall have been maintained for a
period of twenty years. The contractor was under no obligation to close the crevasse, unless it
was necessary in order to maintain the channel and protect the works. The question whether a necessity exists to close the crevasse is one of
fact, not of law; and the facts and inferences are opposed to its existence.
DEPARTMENT OF JUSTICE,
May 17, 1900. SIR: By the act of March 3, 1875 (18 Stat., part 3, p. 463), the United States entered into a contract with James B. Eads for the improvement of the South Pass of the Mississippi River. The provisions of this contract, as subsequently modified, are contained in the act mentioned and the acts of June 19, 1878 (20 Stat., 168), and March 3, 1979 (20 Stat., 363). The provisions necessary to be con: idered in connection with the question you have submitted and which will be stated hereafter, are as follows:
The act of March 3, 1875, authorized James B. Eads and his associates “to construct such permanent and sufficient jettees, and such auxiliary works as are necessary to create and permanently maintain, as hereinafter set forth, a wide and deep channel between the South Pass of the Mississippi River and the Gulf of Mexico, and for that purpose he may construct, in the river, outlet, or pass, and likewise in the Gulf of Mexico, such walls, jettees, dikes, levees, and other structures, and employ such boats, rafts, and appliances, as he may, in the prosecution of said work deem necessary” (p. +63).
The consideration provided for such construction and maintenance was as follows:
“The United States hereby promise and agree to pay to said Eads, or to his assigns or legal representatives, five million two hundred and fifty thousand dollars for constructing said works and obtaining a depth of thirty feet in said channel, and the annual sum of one hundred thousand dollars for each and every year that said depth of thirty feet shall be maintained by the jettees and auxiliary works aforesaid in said South Pass during twenty years after first securing the said depth.” (Page +63.)
During the progress of the work payments were to be made, according to the depth and width of the channel from time to time obtained, "on certified statements of an engineer officer, who shall be detailed by the Secretary of War, and whose duty it shall be to report the depth of water and width of channel secured and maintained from time to time in said channel, together with such other information as the Secretary of War may direct." (Page 464.)
After a channel 30 feet in depth and not less than 350 feet in width bad been obtained and maintained for twelve months consecutively,” the final payment was to be made, “making a total aggregate of four million two hundred and fifty thousand dollars for the aforesaid payments, the respective depths and widths of channel being measured at average flood tide, as ascertained and determined by the Secretary of War.” (Page 464.)
The provision relating to the retention of the one million dollars as security for the maintenance of the channel thus obtained for a period of twenty years, followed:
"When a channel thirty feet in depth and three hundred and fifty feet in width, shall have been obtained by the effect of said jettees and auxiliary works aforesaid, the remaining ont million dollars shall be deemed as having been earned by suill Earls and associates; but said amount shall remain als security in the possession of the United States for the purposes hereinafter set forth, interest at five per centum per annum on the same being payable to said Eads, his assigns, and legal representatives, semi-annually, from the date when a channel of thirty feet in depth and three hundred and fifty feet in width shall have been first secured, so long as said money, or any part thereof, is held by the United States." (Page 167.)
Payments for the maintenance of the channel during the twenty year period were regulated as follows:
** That after said channel of thirty feet in depth and of not less than three hundred and fifty feet in width shall have been secured, one hundred thousand dollars per annum shall be paid in equal quarterly payments during each and every year that said channel of thirty feet in depth and three hundred and fifty feet in width shall have been maintained by said Eads and his associates by the effect of said jetties and auxiliary works aforesaid in said pass, for a period of twenty years, dating from the date on which said channel of thirty feet in depth and three hundred and fifty feet in width shall
be first secured: Provided, however, That no part of such annual compensation shall be paid for any period of time during which the channel of said pass shall be less than thirty feet in depth and three hundred and fifty feet in width, as hereinbefore specified." (Page 464.)
The final release and payment of the one million dollars reserved as security for the maintenance of the channel for twenty years was thus stipulated :
"That the said channel of thirty feet in depth and three hundred and fifty feet in width having been maintained for ten years, one-half of the one million dollars hereinbefore mentioned shall be released and paid to said Eads, his assigns, or legal representatives; and said depth amd width having been maintained for ten additional years, the remaining half of the said one million dollars shall be released and paid as aforesaid." (Page 465.)
The act further provides (p. 466) for annual reports by the Secretary of War to Congress of all important facts relating to the jettees and auxiliary works, “ to the end that the Congress of the United States may be kept fully advised as to the faithfulness and efficiency with which the said works are being executed."
The act of June 19, 1878 (20 Stat., 168), modifies the terms of payment under the contract of March 3, 1875, and provides for the appointment by the President of a board of five
а Army engineers to examine the works and make a full report to the President, which shall be laid before Congress.
The act of March 3, 1879 (20 Stat., 365), makes an appropriation of $24,000 for examination and surveys of the South Pass to ascertain the depth and width of the channel secured and maintained, and to enable the Secretary to make full reports to Congress respecting the character and permanency of the works.
Such being the essential provisions of the contract between the United States and James B. Eads, you enclose in your communication of the 26th ultimo, a letter of the Chief of Engineers of the United States Army, of that date, presenting the following statement of facts, and formulating the question upon which an opinion is desired:
“The statutory channel, of the width and depth required by the contract, was secured by the contractor on July 8, 1879, and the first moiety of the $1,000,000 above named, reserved as a pledge, was appropriated by joint resolution of Congress, approved February 14, 1889 (25 Stat., 1335), and was duly paid, after ten years of maintenance.
“For the maintenance of the channel, so secured, Eads was to be paid $100,000 per annum, in equal quarterly payments, during every year said channel should be maintained for a period of twenty years, commencing on the date when the channel should be first secured; this time began to run July 8, 1879.
*Under the interpretation by the Attorney-General (16 Opin., 392) the terms quarterly" and "annual" in their application to payment for maintenance of channel, after completion, have reference to the time during which the completed channel is maintained, excluding from the computation of such time all periods of failure to maintain the channel.
" The method of determining the maintenance of the channel is by examination and surveys, under the direction of an officer of the Corps of Engineers, the expense of such examinations and surveys being specially provided for by Congress. At the expiration of every period during which the channel has been maintained at the required width and depth for three full months, or ninety days, the engineer officer in charge certifies to the fact, and, upon his certificate, the quarterly' payment is made.
• Quarterly' payments, under the rule as stated, have been made to the contractors from July 8, 1879, to date, and during all this time the channel, of the width and depth required by the contract, has been maintained by the contractors, with the exception of occasional interruptions caused by deposits of silt or mud in the channel, or change in the bed of the stream, which remain until removed either by the action of the river itself or by auxiliary work by dredging.
The action of the War Department in accepting the work of the contractors in the maintenance of the said channel has been regularly reported to Congress in the annual reports of the Chief of Engineers, showing, as to