THOMAS M. NEWELL. [To accompany bill C. C. No. 15.] JULY 25, 1856. The COURT OF CLAIMS submitted the following REPORT. THOMAS M. NEWELL vs. THE UNITED STATES. To the honorable the Senate and House of Representatives of the United States in Congress assembled: The Court of Claims respectfully presents the following documents as the report in the case of Thomas M. Newell vs. The United States: 1. The petition of the claimant. 2. Documents presented by the claimant as proof, transmitted to the Senate. 3. Opinion of the court. 4. Bill for the relief of claimant. By order of the Court of Claims. In testimony whereof, I have hereunto set my hand and affixed the seal of said court, at Washington, this tenth day of July, A. D. 1856. [L. S.] SAMUEL H. HUNTINGTON, To the honorable the Judges of the Court of Claims : The petition of Thomas M. Newell, of Savannah, State of Georgia, respectfully showeth: That your petitioner, on the 15th day of October, 1834, being at the time a master commandant in the United States navy, was suspended from command by the sentence of a courtmartial for the space of five, but which was remitted in part so as to reduce the time of suspension to two years. That in said sentence nothing was contained which deprived your petitioner of any portion of his pay, nor was his pay in any way alluded to. That by the fortieth article of the Rules and Regulations for the government of the navy, contained in the act of Congress of April 23d, 1800, (2 Stat. 51,) it is very clearly implied that the sentence of a court-martial must contain express words of deprivation in order to affect a suspension of pay. And your petitioner is informed and believes that the practice of the department has been in cases of suspension, where the sentence is silent as to pay, to allow the same pay as to officers on leave of absence or waiting orders. That during the two years of his suspension, he was allowed only half-pay, whilst at least for that period subsequent to the passage of the act of 3d March, 1835, which fixed the pay of masters commandant, when waiting orders, at $1,800 per annum. That for this period, (from the 3d March, 1835, to the 15th of October, 1836, being one year, seven months, and twelve days,) he is entitled to the unpaid portion of his salary at the rate of $1,800 a year, amounting to the sum of $1,455, for which he prays the judgment of this honorable court. That this claim has been presented to Congress, to wit, the 31st Congress, but has not been acted upon by either house, and that your petitioner is sole owner thereof. And, as in duty bound, he will ever pray. THOMAS M. NEWELL. A. H. LAWRENCE, Before me, a justice of the peace in and for said county, personally appeared Charles De Selding, attorney in fact, on the sixth day of July, A. D. 1855, and made oath that the facts stated in the foregoing petition are true, to the best of his knowledge and belief. JOHN L. SMITH. THOMAS M. NEWELL vs. THE UNITED STATES. Opinion of the court, by Gilchrist, C. J.: Upon consideration of the acts of Congress relating to the subject, and the letters of the Fourth Auditor, dated on the 8th of January, 1852, and on the 7th of June, 1856, it is the opinion of the court, that the United States owe the claimant the sum of fourteen hundred and fifty-five dollars; and we report a bill accordingly. THOMAS RHODES AND JEREMIAH AUSTILL. JULY 22, 1856. The COURT OF CLAIMS submitted the following REPORT. To the honorable the Senate and House of Representatives of the United States in Congress assembled: The Court of Claims respectfully presents the following documents as the report in the case of Thomas Rhodes and Jeremiah Austill vs. The United States: 1. The petition of the claimant. 2. Brief of claimant's counsel. 3. Brief of the solicitor of the United States. 4. Opinion of the court on preliminary question, in which testimony is ordered to be taken. 5. Claimant's depositions of witnesses in the case. 6. Documents referred by the House of Representatives, returned to the House in a separate envelope. 7. Opinion of the court on the facts. 8. Bill for the relief of claimants. By order of the Court of Claims. In testimony whereof, I have hereunto set my hand and affixed the seal of said court at Washington, this tenth day of July, [L. S.] A. D. 1856. SAMUEL H. HUNTINGTON, To the honorable the Court of Claims: The petition of Thomas Rhodes, of the State of Mississppi, and Jeremiah Austill, of the State of Alabama, respectfully represents, that a resolution of Congress was passed May 24, 1828, (4 Statutes at Large, 322,) "authorizing the Postmaster General to cause to be examined the route from Mobile to Pascagoula, and if, in his opinion, it should be the most expedient route to the city of New Orleans, he shall be, and hereby is, vested with full power and authority to adopt that route in lieu of the present one from the city of Mobile to New Orleans." In pursuance of this authority, the Postmaster General, on the first of August, 1828, whote to the postmasters at New Orleans and Mobile, requesting them to examine said route, and report to him their opinion whether its establishment as a mail route would advance the public convenience. They were required to ascertain the distance; to examine the quality of the ground; to estimate the probable expense of opening a good road for stages; and to ascertain the time that would be saved in conveying the mail between the two cities, and the expense of the transportation of the same three times a week. An examination of the route was made by the postmasters aforesaid, and a report was forwarded to the department, before the 6th day of October, 1828; and on that day the Postmaster General acknowledged the receipt of the report, and informed the postmaster at New Orleans that it was entirely satisfactory, and subsequently informed the postmaster at Mobile that the joint report met his entire approbation. It being understood, either from an advertisement of the department, or from information obtained from the postmaster at Mobile or New Orleans, that the Postmaster General wished to contract for carrying the mail from Mobile to New Orleans by Pascagoula bay, the petitioners, Rhodes for himself, and said Austill, on the 10th of August, 1828, made a proposal in writing for conveying the mail between the two cities, by way of Pascagoula, three times a week each way. He offered to transport the mail for fourteen thousand dollars a year, but added, that the road from Mobile to Pascaguola must be made by or at the expense of the United States; and then proceeded to say that he would make the road suitable for stages for four thousand dollars, and keep it in repair for four years, the term of the proposed contract. In case he should be required to make the road, the money to be paid on the conpletion of the work. That it was an essential part of Mr. Rhodes' proposal, and an express condition of his offer to carry the mail for $14,000, that the government should either make the road, or pay him four thousand dollars for making it; the money to be paid, as aforesaid, on the completion of the work. On the 7th of October, a letter from the department informed the petitioner, Rhodes, that his proposal for carrying the mail from Mobile to New Orleans, by land and water, at the rate of fourteen thousand dollars per annum, was accepted by the Postmaster General, and requested him to begin with all practicable expedition to convey the mail upon a plan to be designated by the postmasters of Mobile and New Orleans. Although the terms of the acceptance were general, and made no express reference to the opening of the road, yet, as he was required to put the mail in immediate operation, which could not be done until the road was opened, and as this was well known to the department when it gave this direction, they necessarily construed the acceptance of the department, coupled with this direction, as an order to construct the road and put the mail in operation |