Third. That if the deposit bank in which the money is to be deposited shall refuse to receive as cash the notes designated by the Secretary, and which such bank receives in the ordinary course of business on general deposit, he may withdraw the public deposits and select another depository which will agree to receive them.
Fourth. That if he can not find a depository which will so agree, then that the Secretary can not direct or authorize the receipt of any notes except such as the deposit bank primarily entitled to the deposits will agree to receive and deposit as cash.
Fifth. That although a deposit bank might be willing to receive from the collectors and receivers, and to credit as cash, notes of certain banks which conform to the first section, yet, for the reasons before stated, I am of opinion that the Secretary is not obliged to allow the receipt of such notes.
Sixth. The Secretary is forbidden to make any discrimination in the funds receivable "between the different branches of the public revenue," and therefore, though he may forbid the receipt of the notes of any particular bank or class of banks not excluded by the bill, and may forbid the receipt of notes of denominations larger than those named in the bill, yet when he issues any such prohibition it must apply to all the branches of the public revenue.
Seventh. If I am right in the foregoing propositions, the result will be that the proposed law will leave in the Secretary of the Treasury power to prohibit the receipt of particular notes provided his prohibition apply to both lands and duties, and power to direct what particular notes allowed by the law shall be received provided he can find a deposit bank which will agree to receive and [credit] them as cash.
III. Are the deposit banks the sole judges under this bill of what notes they will receive, or are they bound to receive the notes of every specie-paying bank, chartered or unchartered, wherever situated, in any part of the United States?
Answer. In my opinion the deposit banks, under the bill in question, will be the sole judges of the notes to be received by them from any collector or receiver of public money, and they will not be bound to receive the notes of any other bank whose notes they may choose to reject, provided they apply the same rule to the United States which they apply to their own depositors. In other words, the general rule as to what notes are to be received as cash, prescribed by each deposit bank for the regulation of its ordinary business, must be complied with by the collectors and receivers whose moneys are to be deposited with that bank. But it will not therefore follow that those officers will be bound to receive what the bank generally receives, because, as already stated, they may refuse of their own accord, or under the direction of the Secretary of the Treasury, any bank notes not expressly directed by act of Congress to be received in payment of the public dues.
I have thus answered the several questions proposed on the bill before me; and though I have been necessarily obliged to examine the subject with much haste, I have no other doubts as to the soundness of the construction above given than such as belong to discussions of this nature and to a proper sense of the fallibility of human judgment. It is, however, my duty to remind you that very different opinions were expressed in the course of the debates on the proposed law by some of the members who took part therein. It would seem from these debates that the bill, in some instances at least, was supported under the impression that it would compel the Treasury officers to receive all bank notes possessing all the characteristics described in the first and second sections, and that the Secretary of the Treasury would have no power to forbid their receipt. It must be confessed that the language is sufficiently ambiguous to give some plausibility to such a construction, and that it seems to derive some support from the refusal of the House of Representatives to consider an amendment reported by the Committee of Ways and Means of that House, which would substantially have given the bill, in explicit terms, the interpretation I have put on it, and have removed the uncertainty which now pervades it. Under these circumstances it may reasonably be expected that the true meaning of the bill, should it be passed into a law, will become a subject of discussion and controversy, and probably remain involved in much perplexity and doubt until it shall have been settled by a judicial decision. How far these latter considerations are to be regarded by you in your decision on the bill is a question which belongs to another place, and on which, therefore, I forbear to enlarge in this communication. I have the honor to be, sir, with high respect, your obedient servant,
B.F. BUTLER.
AN ACT designating and limiting the funds receivable for the revenues of the United States.