clause requiring balances remaining upon the completion of buildings and not governed by any other statute, to be covered into the Treasury. This view would seem to be supported, likewise, by the provisions of section two of the same act, relating to public buildings in other respects. This view seems to be supported by an opinion of the Acting Second Comptroller, rendered August 25, 1880. (Arsenal Case, 1 Lawrence, Compt. Dec., 2d ed., 147.) And it is supported by the opinion of Secretary Sherman (1 Lawrence, Compt. Dec., App., Ch., XIV, 579-590). The Revised Statutes provide as follows:

"SEC. 3679. No Department of the Government shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract for the future payment of money in excess of such appropriations."

This relates, exclusively, to annual appropriations, not to those which, by force of the act of June 20, 1874 (18 Stat., 110), are made continuous and permanent. If this section can limit appropriations, for the pay of the Navy, so as to apply them to compensation earned in a given fiscal year, then it will, with equal force, limit, in like manner, all the continuous appropriations mentioned in the act of 1874, and so defeat its object, which would require a construction wholly inadmissible. This seems all the more certain, from the terms of the following section of the Revised Statutes:

"SEC. 3690. All balances of appropriations contained in the annual appropriation bills, and made specifically for the service of any fiscal year, and remaining unexpended at the expiration of such fiscal year, shalĺ only be applied to the payment of expenses properly incurred during that year, or to the fulfillment of contracts properly made within that year; and balances not needed for such purposes shall be carried to the surplus fund. This section, however, shall not apply to appropriations known as permanent or indefinite [continuous] appropriations."

This section is taken from the act of July 12, 1870 (16 Stat., 251, sec. 5), the effect of which is that, annual appropriations can only be "applied to the payment of expenses properly incurred during that [fiscal] year" for the service of which they are made, but "permanent" appropriations-like those mentioned in the proviso to the act of June 20, 1874 (18 Stat., 110)-can be "applied to the payment of expenses properly incurred" after a fiscal year. Thus it was said by Secretary Sherman that "the terms 'permanent' and 'indefinite' [continuous] occur in the act of [July 12] 1870 [16 Stat., 251, sec. 5] exempting such appropriations from the limitation imposed on annual appropriations." (1 Lawrence, Compt. Dec., App., Ch. XIV., 581.)

.

It follows that the unexpended appropriations made by the act of July 7, 1884 (23 Stat., 262), for "the pay of the Navy" can be used until exhausted "for the pay of officers and men of the Navy," and the un expended balance of appropriations for "the pay of the Marine Corps" can be used in like manner "for the pay of the officers and men of the Marine Corps."

In this connection it may be proper to state that, the question whether there is an existing available appropriation of money from the Treasury, for the payment of any claim, including the pay of officers and men of the Navy and Marine Corps, is to be decided respectively by the Secretary of the Treasury and the First Comptroller. No other officer has power to issue warrants. (Bender's case, 1 Lawrence, Compt. Dec., 2d ed., 318.) The Secretary of the Treasury is the only officer who, as section 248 of the Revised Statutes declares, "shall grant under the limitations herein established, or to be hereafter provided, all warrants for moneys to be issued from the Treasury in pursuance of appropriations by law." This includes accountable warrants, by which moneys are advanced to dis bursing officers to pay the officers and men of the Navy and Marine Corps, and other officers. (Rev. Stat., 1563, 3648; 1 Lawrence, Compt. Dec., App., 2d ed., 637–642; Id., App., Ch. XIV, 579, 585; Inspector's case, Id., 207; Bender's case, Id., 354.) The Secretary of the Treasury, before granting any warrant for the advance of money, must be satisfied that it is "in pursuance of an appropriation by law." (5 Op. Att.-Gen., 641; 1 Lawrence, Compt. Dec., App., Ch. XIV., 585; Bender's case, Id., 318.) A warrant, when granted by the Secretary, is not complete until countersigned by the First Comptroller, who is, by express statute, required to decide for himself whether it is "warranted by law." (Rev. Stat., 269; Bender's case, 1 Lawrence, Compt. Dec., 2d ed., 318, 329; Id. App., Ch. XII, 509, 549.)

Thus the question asked by the Fourth Auditor, by permission of the Secretary of the Treasury, is properly presented for an opinion, and is, accordingly, answered in the affirmative.*

TREASURY DEPARTMENT,

First Comptroller's Office, January 9, 1885.

*The usage of the Treasury Department, since the act of June 20, 1874 (1 Stat., 110), has been in accordance with the foregoing opinion, as shown by a letter of January 17, 1885, addressed to the First Comptroller by Charles H. Miller, Acting Chief of the Division of Warrants, Estimates and Appropriations, in the office of the Secretary of the Treasury, in which it is said:

"In reply to your verbal request of this date, as to the manner in which the appropriations made by Congress for pay of the Navy, public buildings, and light houses have been treated on the books of the Department since the passage of the law of June 20, 1874 (18 Stat., 110), in the payment of expenditures incurred hereunder in other years than the one in which the appropriations were made, I have the honor to submit the following statement:

"By the 5th section of the act of June 20, 1874 (18 Stat., 110), it is enacted"That from and after the first day of July, eighteen hundred and seventy-five, and of each year thereafter, the Secretary of the Treasury shall cause all unexpended balances of appropriations which shall have remained upon the books of the Treasary for two fiscal years to be carried to the surplus fund and covered into the Treasury: Provided, That this provision shall not apply to appropriations for light houses, public buildings, or the pay of the Navy appropriations named in this proviso shall continue available until otherwise ordered by Congress

#

*

; but the

As to pay of the Navy.-Acting under the law of June 20, 1874, the balances standing to the credit of appropriations made for pay of the Navy for prior fiscal years were consolidated, some time subsequently, into one account, so that on the 1st of July, 1876, the aggregate balance of the new continuous account stood at $58,086.26. To this balance, and to the new account thus created, there have been added each year the

6 LAWR-3

sums annually appropriated by Congress for this object, and the expenditures for this service have been paid therefrom without consideration of the year in which they accrued, provided they did not accrue prior to the enactment of the law of 1874.

This continuous account has from year to year shown an increasing balance, due to the operation of the law providing a general account of advances for the Navy (act June 19, 1878-20 Stat., 167), which on the 1st of January, 1885, amounted to $2,817,081.36. This is an apparent and not an actual balance, however, as against this sum there are liabilities unadjusted, aggregating, it is estimated, nearly $2,200,000, leaving a surplus of but about $600,000.

As to public buildings.—In addition to the provision in the act of June 20, 1874, continuing the balances of appropriations for public buildings, further legislation was enacted on this subject by the law of June 23, 1874 (18 Stat., 275), which provides "That all moneys heretofore appropriated for the construction of public buildings and now remaining to the credit of the same on the books of the Treasury Department shall remain available until the completion of the work for which they are, or may be, appropriated."

All appropriations for public buildings under control of the Treasury Department can be used, therefore, under the authority of these acts, for every legitimate object of expenditure thereunder, until the completion of the works for which the money is appropriated, and the payment of all outstanding liabilities therefor.

As to light-houses.-The appropriations for light-houses are treated in the same manner as those for public buildings. Under the provisions of the acts of June 20 and June 23, 1874, already cited, the appropriations for construction and repair, or for special works for this service, are available until used in the completion of the work and payment of all outstanding liabilities. The act of June 23, 1874, was held to apply to buildings under the supervision of the Light-House Establishment by the Acting Secretary of the Treasury on the 16th of July, 1874, in a letter to the chairman of the Light-House Establishment of that date.

After the foregoing opinion was rendered, the following correspondence was had:

NAVY DEPARTMENT, Washington, February 7, 1885.

SIR: By section 3676 of the Revised Statutes it is provided that "all appropriations for specific, general, and contingent expenses of the Navy Department shall be under the control and expended by the direction of the Secretary of the Navy."

The question whether balances of appropriations for pay of the Navy and Marine Corps, made for periods prior to the 31st day of December, 1884, are available for the purpose of paying officers and men for service since that date, I am informed, has been considered in an opinion of the First Comptroller of the Treasury, which has been accepted and approved by yourself.

I have the honor to ask whether my information is correct?
Very respectfully,

Hon. HUGH MCCULLOCH,

Secretary of the Treasury.

WM. E. CHANDLER,
Secretary of the Navy.

TREASURY DEPARTMENT, February 12, 1885.

SIR: Referring to your communication of the 7th instant, in the matter of the use of the balances of appropriations for pay of the Navy and pay Marine Corps made for periods prior to December 31, 1884, I have the honor to inform you that the First Comptroller has recently considered the subject, and in an opinion given on the 9th of January, 1885, which is approved by this Department, he decided that the balances were available until used for the payment of legitimate expenses of the appropriations whether accruing prior or subsequent to December 31, 1884.

Very respectfully,

The Hon. SECRETARY OF THE NAVY.

H. MCCULLOCH,

Secretary.

The opinion of the Comptroller is in the hands of the printer; when printed you will have a copy.

H. McC.

It must be apparent that section 3676 of the Revised Statutes gives no authority to decide whether any appropriation is available or not. It simply declares in effect that such appropriations as the proper authority may decide to be available "for specific, general, and contingent expenses of the Navy Department, shall be under the control and expended by the direction of the Secretary of the Navy." It relates to the power to control and direct expenditures, not to the existence of appropriations.

STATE OF DELAWARE v. EMERSON and others.*

(Circuit Court, D. Delaware.-June 22, 1881.),

1. CRIMINAL LAW-FEDERAL OFFICERS--REMOVAL OF CASES-REV. STAT. § 643PARTIES.-The state authorities are the proper parties to continue the prosecution of officers of the United States, against whom a prosecution was commenced in a state court for an act done under the provisions of the title 26, "The Elective Franchise," of the Revised Statutes, and removed by them, under the provisions of section 643 of the same statutes, to the Circuit Court of the United States.

2. DUTIES OF UNITED STATES ATTORNEYS.-It is the duty of the attorneys of the United States to act as counsel for such defendants.

3. REV. STAT. § 643, ConstruED.—Section 643 of the Revised Statutes contemplates a change of tribunal, not of prosecuting officers.

BRADFORD, D. J. Arthur Emerson, Artemas Wilhelm, William J. Blackburn, John Blackburn, Jacob B. Smith, and Samuel Coyle were indicted at the November term of the "general sessions of the peace and jail delivery" of Delaware, sitting in and for New Castle County, for resisting certain special State officers appointed to keep the peace at an election for a Representative in Congress of the United States of America. Indictments were framed by the attorney-general of the State, and true bills found by the grand jury of the State. These defendants were deputy marshals of the United States, authorized to act under the provisions of the Revised Statutes to be found in section 2022, p. 556, 2d ed., Rev. Stat. Under the provisions of the said Revised Statutes, § 643, they were entitled to have their suits or cases transferred for arbitrament and final decision from the courts where the indictments were pending to the Circuit Court of the United States, and accordingly, the requisite steps were taken by the United States attorney to accomplish that result. The said suits being thus transferred, and the defendants ready with their witnesses to proceed to trial, demanded (on motion by the United States attorney) that these cases be called, and either be proceeded with or that they be dismissed. The State of Delaware declined to take any part in the trial, and no authorized person appeared on behalf of the State.

The United States attorney had no right or power to prosecute the pleas of the State, and not only so, but he considered himself counsel for these defendants; and he did this on a careful construction of the statute, of its meaning, spirit, and purposes, and was so directed to consider himself their counsel by the attorney-general of the United States. In these views the court concurred with the United States

*This case is taken from 8 Federal Reporter, 411 (St. Paul, Minnesota, September 20, 1881). It supports the view taken by the First Comptroller in Thompson's case (2 Lawrence, Compt. Dec., 2d ed. 250), and in Army officer's case (5 Lawrence, Compt. Dec., 416).

attorney, and on his motion ordered a jury to be empaneled to give a verdict in the case. The court considered, and so said, that these defendants were entitled to a trial-to a verdict of guilty or not guilty; that it was unjust to deny them that right because the State of Delaware did not choose to prosecute these suits in the United States courts to which they had been transferred, and they were not to be damnified by indifference or neglect, or delay in the State authorities in prosecuting suits which they were authorized by act of Congress to prosecute if they desired to do so. It was the change of tribunal and not the change of prosecuting officers which was contemplated by act of Congress. Let this be as it may, however, the defendants had a right to the verdict of a jury. When the jury was empaneled the court again demanded to know if any one authorized by the State was here now to prosecute these charges against the defendants, and receiving no reply the jury was empaneled and sworn in the several cases. The court then explained the circumstances of the cases, and directed the jury to render a verdict of acquittal. The verdicts of acquittal were rendered accordingly, and thus were terminated the cases transferred from the State to the United States courts under section 643 of the Revised Statutes.

IN THE MATTER OF THE AVAILABILITY OF THE APPROPRIATION MADE BY THE ACT OF JULY 7, 1884 (23 STAT., 224), "FOR PAYMENTS OF UNITED STATES DISTRICT ATTORNEYS," TO PAY FOR SERVICES RENDERED BY A UNITED STATES DISTRICT ATTORNEY IN DEFENDING A SUIT AGAINST THE SECRETARY OF THE TREASURY FOR A SEIZURE OF COTTON IN 1865 UNDER THE CAPTURED AND ABANDONED PROPERTY ACTS OF MARCH 12, 1863 (12 STAT., 820), AND JULY 2, 1864 (13 STAT., 375).—SECRETARY MCCULLOCH'S CASE.

1. "The interests of the United States" are involved in suits brought by private citi zens against the Secretary of the Treasury for seizures of cotton by his authority under the captured and abandoned property acts of March 12, 1863 (12 Stat., 820), and July 2, 1864 (13 Stat., 375).

2. No provision of the Revised Statutes, or of any act since passed, makes it a part of the official duty of a District Attorney to appear in such cases.

3. But the policy of the legislation of Congress has established the rule of National Executive Common Law, that the Government is generally under a legal obligation to defend its officers when sued for the performance of an official duty.

4. The Attorney General has authority, under the act of June 20, 1874 (18 Stat., 109), to employ a District Attorney of the United States to appear for and defend officers of the United States when thus sued, in cases in which it is no part of his official duty to appear.

5. The act of July 7, 1884 (23 Stat., 224), makes an appropriation which is available to pay a District Attorney for services rendered in such cases during the fisca year ending June 30, 1885.