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7. The term “Department,” as generally used in statutes, does not include the “Gov
ernment Printing Office," the “Botanical Garden,” the “benevolent institu
tions," and similar independent establishments. & The bonds required of inspectors, under section 3711 of the Revised Statutes,
should, as a matter of convenience, be filed in the Treasury Department. 9. The inspectors are not officers. Hence, evidence of their appointment should be
required by accounting officers. 10. Form of bond prescribed for inspectors. 11. The Commissioners of the District of Columbia, in making purchases of coal and
wood for the public service, are subject to the provisions of sections 3711, 3712, and :3713 of the Revised Statutes.
The facts sufficiently appear in the decision.
DECISION BY WILLIAM LAWRENCE, First Comptroller :
The Saint Ann's Infant Asylum, in the District of Columbia, was incorporated as a private charitable corporation by act of Congress of March 3, 1863. (12 Stats., 798.)
The act of March 3, 1879, "making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirtieth, eighteen hundred and eighty, and for other purposes," appropriated "for Saint Ann's Infant Asylum, five thousand dollars.” (20 Stats., 400; see act June 20, 1878, Id., 208.)
The act of June 23, 1874, (18 Stats., 216,) requires this appropriation to “be placed to the credit of the proper fiscal officer of such corporation.”
The fiscal officer is required to show that the money has been properly expended, and for this purpose to render accounts, to “be settled and adjusted in the Department of the Treasury.” (Rev. Stats., 193, 236, 309, 310, 3623, 3624, 3625, 3633, 5488-5194.) The accounts are to be stated by the First Auditor.
Section 277 of the Revised Statutes, prescribing the jurisdiction of the First Auditor, does not, in terms or specifically, enumerate this class of accounts as among those to be received and examined by that officer; but he is held to be the proper auditor to receive and examine all accounts not specifically, or by reasonable inference, assigned to some other officer.
This results from the fact that all accounts are to be settled in the Department of the Treasury; that when this Department was first organized under the Constitution there was but one auditor, who examined all accounts; and by necessity, if not by necessary inference, he is invested with the jurisdiction stated. (Senate-Clerks' case, ante, 66.)
Among the vouchers in the accounts rendered for the fourth quarter of the fiscal year 1880, by Sister Elizabeth (Relihan), the fiscal officer
of Saint Ann's Infant Asylum, are two, for coal and wood respectively, of $110.50 and $210; but there is no evidence that the wood or coal was "inspected and weighed or measured” by any person appointed under section 3711 of the Revised Statutes.
The First Comptroller has to decide whether these vouchers can be allowed.
The Revised Statutes contain these provisions:
“SEC. 3711. It shall not be lawful for any officer or person in the civil, military, or naval service of the United States in the District of Columbia to purchase anthracite or bituminous coal or wood for the public service except on condition that the same shall, before delivery, be inspected and weighed or measured by some competent person to be appointed by the head of the Department or chief of the branch of the service for which the purchase is made.
“Sec. 371.3. It shall not be lawful for any accounting officer to pass or allow to the credit of any disbursing officer in the District of Columbia any money paid by him for purchase of anthracite or bituminous coal or for wood, unless the voucher therefor is accompanied by a certificate of the proper inspector, weigher, and measurer that the quantity paid for has been determined by such officer.”
The validity of the vouchers turns upon the question whether the coal purchased, as represented in the vouchers, was "for the public service.” If so, the vouchers cannot be passed or allowed without the certificate of the proper inspector; otherwise, they may.
It is clear that the fiscal officer of this asylum is not an officer of the United States, (Butler's case, 1 Luwrence, Compt. Dec., 25; Providence-IIospital case, Ia., 79;) yet she is in some respects an agent or person in the service of the United States.
Coal and wood purchased for the use of such corporation are not for the public service” within section 3711 of the Revised Statutes. The asylun is a private corporation. The Government has no share in appointing its officers or agents, nor in its management or control; nor any connection with its administration, except as the law requires the settlement of accounts of its expenditures under appropriations made by Congress. Its fiscal officer iş not technically a disbursing officer or agent of the United States, and hence gives no bond to the United States. (Butler's case, 1 Lawrence, Compt. Dec., 25; Providence-Hospital case, Id., 79.)
Section 3711 of the Revised Statutes only applies, by its own terms, to coal or wood purchased for a “branch of the (Government] service." This is clear, because the inspector (as that section requires) is to be "appointed by the head of the Department or chief of the branch of the service for which the purchase is made."
This private corporation is not charged with any Government ser
rice. Sections 3711 and 3713 properly apply to asylums and institutions under the management and control of the Government, the oflicers and agents of which are appointed by the President, head of a Department, or otherwise, under the authority of an officer of the Government. (Cox vs. U.S., 14 Ct. Cls., 512; Clerk's case, 1 Lawrence, Compt. Dec.. 305.)
When a public charitable institution in the District of Columbia is not under the special direction of any one of the Departments" of the Gorernment, the “chiet” officer of the institution necessarily appoints the inspector of fuel therefor. The terin “Department” includes the seven Executive Departments. (Rev. Stats., 158; U. S. vs. Bellew, 2 Brock., 281; Const., art. II, sec. 2, cls. 1 and 2.)
In a more comprehensive and popular sense the word “ Department” sometimes includes Congress, the legislative department; and the Courts, the judicial department. (Const., art. I, sec. 8, cl. 18.) It sometimes has a Territorial application, (Parker vs. V. S., 1 Pet., 293;) but generally, when used in statutes, it applies technically and strictly only to the seven Executive Departments.
The term “Department” does not generally, in statutes, include the "Government Printing Office," whose chief officer is the “Public Printer," but not an officer of any “Department.” (Rev. Stats., 3758; 19 Stats., 145, 146.) Benevolent institutions controlled by officers and agents of the Government, and supported by it, but not connected with or under the control of any Department, do not generally fall within the term “Department” as used in the statutes. The Government Printing Office is a “branch of the public service," whose “chief” officer appoints inspectors under section 3711. The "Botanical Garden” is not a “Department”—it is an independent “branch of the public service;" it grew up, and has continued to flourish, on annual appropriations. (Rev. Stats., 1826, 1827, 1832, 1833; 21 Stats., 215, 238, 272.)
If a fiscal officer of a private charitable corporation misappropriates money appropriated by Congress, he is amenable to the law, and the corporation is also civilly liable for his acts. The Revised Statutes provide that "all
persons receiving public moneys shall render distinct accounts of the application thereof according to the appropriation under which the saine may have been advanced to them.” (Sec. 3623.)
It is true that under the act of June 23, 1874, (18 Stats., 216,) money appropriated for private charitable institutions is not 6 advanced directly to the fiscal officers thereof, but it is, upon requisition,
“placed to the credit of” such officer on the books of the Treasurer of the United States, or of an assistant treasurer or designated depositary.
It is paid out on the checks of such fiscal officer.” Practically, and in legal effect, the money is advanced to the fiscal officer.
Section 5491 of the Revised Statutes renders liable to punishment as for embezzlement "every officer or agent of the United States who, having received public money,
fails to render his accounts for the same as provided by law."
The fiscal officer of a private charitable institution may very properly be regarded as an agent of the United States in disbursing money of the Government, and rendering an account thereof. A person who is intrusted with the disbursement of public money, and to render an account to the Government, has all the essential qualities of an agent. Undoubtedly, a criminal statute is to be strictly construed, but not so strictly as to impute to Congress a neglect of duty to make provision for the punishment of faithless persons guilty of misappropriating public money, when statutory provisions, by every reasonable construction of language, and by their manifest purpose, are applicable to such persons. (See E.r parte Randolph, 2 Brock., 482.)
A fiscal officer guilty of misapplying funds is also, of course, personally liable in a proper civil action; whether to the corporation or to the United States it is not necessary now to decide.
The law does not in direct terms specify the form or declare what disposition shall be made of the bonds of inspectors under section 3711 of the Revised Statutes; but section 3713 makes it the duty of the accounting officers of the Treasury Department, before passing any voucher, to require “a certificate of the proper inspector that the quantity paid for has been determined by such officer.”
For this purpose, evidence of the appointment of the inspector should be produced. The law requires it. (Rev. Stats., 3712.) Mere evidence that a person was acting as such might not be quite satisfactory, since these inspectors are not officers. (U. S. vs. Germaine, 99 U. S., 508.) Hence no officer is bound, in legal contemplation, to know who are inspectors. The bond duly approved would be evidence of such appointment; but this is not the only evidence which can be received.
It would be desirable to have a bond filed with the First Comptroller, (Rev. Stats., 269,) the Second Comptroller, (Id., 273,) the Commissioner of Customs, (Id., 317,) or the Sixth Auditor, (Id., 277, 3674,) as the same might relate to coal or wood, the payments for which are evidenced by vouchers to be passed by these officers, respectively. This, however, is not practicable, since each inspector is required to give only one bond, and the same inspector may certify vouchers to be passed by more than one of the Comptrollers.
It would be a convenient practice for all officers taking bonds to which access may be necessary or desirable in the settlement of accounts, to file them in the Treasury Department, where they would be within reach of all the accounting officers.
The statute requires the bond to be given “ to the satisfaction of the appointing officer.” It is ascertained that very informal bonds have in some cases been accepted. For convenience, a form is hereto appender.*
The vouchers rendered by Sister Elizabeth (Relihan), as fiscal officer of Saint Ann's Infant Asylum, are allowed. TREASURY DEPARTMENT,
First Comptroller's Office, April 2, 1881. * The following is prescribed as a proper form of bond of an inspector, weigher, and measurer:
know all men by these presents, That we, John Smith, of the District of Columbia, in the United States of America, as principal, and John Jones, of John Davis, of --, as sureties, are held and firmly bound unto the United States of America in the sum of five thousand dollars, lawful money, to be paid to the said United States; for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents,
Sealed with our seals, and dated this 28th day of March, in the year of our Lord one thonsand eight hundred and eighty-one.
The condition of the foregoing obligation is such, that whereas the Secretary of the Treasury (or other officer as the case may be] has, pursuant to law, constituted and appointed the said John Smith, a competent person to inspect and weigh or measure anthracite and bituminons coal and wood purchased by any officer or person in the civil
, military, or naval service of the United States, in the District of Columbia, for the public service, and before the same shall be delivered:
Now, therefore, if each ton of coal weighed by said John Smith shall consist of two thousand two hundred anıl forty pounds; and it cach cord of wood to be so measured by him shall be of the standard measure of one hundred and twenty-eight cubic feet, aud it said Johu Smith shall well and truly execute and discharge all the duties required of him by law by virtue of such appointment, then this obligation to be void and of no effect; otherwise, to remain in full force and virtue.
[Seals must be of wax or wafer.] Signed and sealed in presence of
UNITED STATES OF AMERICA,
of being duly sworn, depose and say that I am the surety of John Smith in the foregoing bond, and that I am worth the sum of dollars over and above all just debts and liabilities for any cause whatever, to the best of my knowledge and belief.
I certify that the above-named sureties are personally well known to me, and that they are sufficient for the penalty thereof.