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The facts stated are equivalent to a renunciation or resignation of the office. No law requires the resignation or renunciation of an office to be in writing. The voucher in this case is a sufficient writing in connection with the facts. (People vs. Carrique, 2 IIill, 93; Miller vs. Thatcher, 2 Term R., 87; Regent, &c., us. Williams, 9 Gill & J., 365; Angell & Ames on Corp., 10th ed., 434; 1 Dillon on Corp., sec. 164; Rex vs. Pateman, 2 Term R., 777; U. S. vs. Wright, 1, McLean, 509; People vs. Porter, 6 Cal., 26; Van Orsdall us. Hazard, 3 Hill, N. Y., 213; State rs. Fitts, 49 Ala., 402; Marbury vs. Madison, 1 Cranch, 137; 3 Nev., 566; Bouv. Dic., tit. "Resignation"_"Abdication.")
Resignation is simply the act of an officer by which he declines his ottice, and renounces the further right to use it."
This Mr. Evans did, notwithstanding the certificate of the Secretary of the Interior. (1 Perry on Trusts, secs. 259, 270; Doyle vs. Blake, 2 Sch. & Lef., 239; Evans vs. Jolin, 4 Beav., 35; Smith us. Knowles, 2 Grant, Cas., 413; Crook ve. Ingoldsby, 2 Ir. Eq., 375; Doe vs. Harris, 16 M. & W., 517; Paddon vs. Richardson, 7 DeG. M. & G., 563; James rs. Frearson, 1 Y. & C., Ch. Ca., 370; Noble vs. Meymott, 14 Beav., 471 ; Stacy rs. Elph, 1 M. & K., 199; Cruger vs. Halliday, 11 Paige, 314; Drane vs. Gunter, 19 Ala., 731; Shepherd vs. McEvers, 4 Johns. Ch., 136; Deefendorf vs. Spraker, 10 N. Y., 246; Ex parte Hennan, 13 Pet., 230.) General Garfield was elected in January, 1880, a Senator of the L'nited States for a term to begin March 4, 1881. In January, 1881, he declined the office, and Hon. John Sherman was elected. (See Miller r8. Supervisors, 15 Cal., 93.)
No law requires the appointment of a clerk to be in writing. A party appointed to an office may decline to accept, and his declination may be evidenceil by acts. (Collins vs. U.S., 15 Ct. Cls., 22; United States vs. Moore, 95 U.S., 760; Collins vs. United States, 14 Ct. Cls., 575; Marbury vs. Madison, 1 Cranch, 157.)
On the questions of resignation and estoppel the accounting officers are required to pass, because these enter into and determine the right to salary. (Angell & Ames, Corp., 10th eil., 434; Willcock on Mun. Corp., 210; Gabriel vs. Clarke, Cro. Car., 138; Verrior vs. Sandwich, 1 Sidl., 305; Rex vs. Goodwin, Doug., 383, n. 22; Milward vs. Thatcher, 2 Term R., 87; Rex vs. Pateman, 2 Term R., 779.)
Executive officers cannot pass on the question whether an officer has forfeited his title to office; that is judicial.
The fact that during the fiscal year ending June 30, 1880, no claim was made for salary by Mr. Evans as "returns clerk,” goes far to show that his services performed were not then deemed as having been rendered by him as such clerk.
It may well be urged, also, that it was well understood that he had no claim for salary as "returns clerk," else the appropriation would not have been otherwise expended.
The Revised Statutes provide:
“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."
It is clear that the Secretary of the Interior did not regard the services of the claimant "in recording and filing contracts in the Returns Oflice, per act of June 2, 1862," as having been rendered for the salary of returns clerk. This conclusion results not from the certificate of the Secretary, which, taken by itself, would show the contrary, but from the facts. It is corroborated by the distinguished ability and great fidelity which have characterized the successful administration of the Interior Department under the guidance of its learned and able Secretary.
In the confusion which has existed as to the law, in cases in many respects similar to that now presented, it is by no means strange that the excellent and efficient clerk who makes the claim should have believed it to be fully sanctioned by law.
But the law, properly administered, gives it no sanction.
The action of the Auditor in declining to allow credit for the pay. ment to Mr. Evans is hereby affirmed. The charge of the disbursing clerk is disallowed. TREASURY DEPARTMENT,
First Comptroller's Office, January 4, 1881.
IN THE MATTER OF THE RIGHT OF THE ASSISTANT CLERK
OF THE COURT OF CLAIMS TO FEES FOR SERVICES AS REFEREE IN CASES OF OUTSTANDING CLAIMS AGAINST THE DISTRICT OF COLUMBIA.-RANDOLPH'S CASE.
1. The act of June 4, 1830, (21 Stats., 162,) makes an appropriation to pay the fees
of referees in cases in the Court of Claims unıler the act of June 16, 1880, (21
Stats., 221.) 2. The fees of referees in cases under the latter act are to be paid by the Commissioners
of the District of Columbia. 3. Where the referee appointed by the Court of Claims under this act is assistant
clerk of the Court of Claims, he is not entitled to fees as referee, even though
his annual salary is less than $2,500. 4. The referee is not an officer.
3. An appropriation in general terms is applicable as well to cases authorized by sul)
sequent as by prior laws. 6. An apparent conflict in the mere words of different statutes relating to the same
subject, should be reconciled so as to give effect to the general policy and system
they establish, rather than be held to create anomalies inconvenient in practice. i. Construction given to the Revised Statutes, sections 1763, 1764, and 1765, as also
to the act of June 20, 1874, (18 Stats., 101, 109.)
The act of June 16, 1880, (21 Stats., 284,) "to provide for the settlement of all outstanding claims against the District of Columbia," &c., enacts that-
· When the trial of any claim against the District of Columbia, prosecuted under the provisions of this act, involves the taking and stating of a long account,
said court fof Claims shall have power to award a reference to a competent referee to take and state such account
and any such referee shall be allowed such compensation for his services as the court may determine, not exceeding ten dollars per day for time actually employed, to be paid on the order of the court by the Secretary of the Treasury, and charged to the account of the District of Columbia."
At December term, 1880, on January 4, 1881, the Court of Claims ordered that “there be allowed to John Randolph the sum of thirtyfive dollars as compensation for three and one-half days' services (rendered after June 30, 1880) as referee appointed by the court in the case of Samuel Cook vs. The District of Columbia, and that the Secretary of the Treasury pay the said amount to said Randolph and charge the same to the account of the District of Columbia.”
The order having been sent by Mr. Randolph to the Secretary of the Treasury for payment, he, on January 11, 1881, referred it to the First Comptroller.
DECISION BY WILLIAM LAWRENCE, First Comptroller :
Mr. Randolph is, and was when he acted as referee, assistant clerk of the Court of Claims, with an annual salary of $2,000. (Rev. Stats., 1053, 1054, 1765; act June 20, 1874, 18 Stats., 101, 109; Bowen vs. U. S., 100 U. S., 508.)
The questions which arise in this matter are these: 1. Is there an appropriation ! 2. If the payment is authorized, shall an account be stated in the Treasury Department, or shall the claim be referred to the Commis sioners of the District of Columbia, to be paid by them, and to render an account therefor?
3. Is the claimant, being an officer, entitled to payment? 1.—The act of June 4, 1880, (21 Stats., 155, 162,) “making appropriations to provide for the expenses of the government of the District of Columbia for the fiscal year ending June thirtieth, eighteen hundred and eighty-one, and for other purposes," appropriates
“For general contingent expenses of the District of Columbia, not otherwise sufficiently provided for, * twenty thousand dollars.”
It then provides:
“SEC. 2. That all moneys appropriated by this act, together with all revenues of the District of Columbia from taxes or otherwise, shall be deposited in the Treasury of the l nited States as required by the provisions of section four of an act approved June eleventhi, eighteen hundred and seventy-eight, and shall be drawn therefrom only on requisition of the Commissioners of the District of Columbia (except that the inoneys appropriated for interest and the sinking fund shall be drawn therefrom only on the requisition of the Treasurer of the United States), such requisition specifying the appropriation upon which the same is drawn; and in no case shall such appropriation be exceeded either in requisition or expenditure, and the accounts for all disbursements of the Commissioners of said District shall be made monthly to the accounting officers of the Treasury by the auditor of the District of Columbia on vouchers certified by the Commissioners as now required by law: Provided, That said Commissioners shall not make requisitions upon the appropriations from the Treasury of the United States for a larger amount during said fiscal year than they make on the appropriations arising from the revenues of said District: And procided further, That they shall submit their annual estimates to the Secretary of the Treasury by the tirst day of October of each year."
The act of June 11, 1878, “providing a permanent form of government for the District of Columbia,” (20 Stats., 102,) declares: “ SEC. 3. That the Commissioners
shall have Power to apply the
revenues of said District to the payment of the current expenses thereof
"SEC. 4. That the said Commissioners may, by general regulations consistent with the act of Congress of March third, eighteen hundred and seventy-seven, entitled “An act for the support of the government of the District of Columbia for the fiscal year ending June thirtieth, eighteen hundred and seventy-eight, and for other purposes,' or with other existing laws, prescribe the time or times for the payment of all taxes and the duties of assessors and collectors in relation thereto. All taxes collected shall be paid into the Treasury of the United States, and the same, as well as the appropriations to be made by Congress as aforesaid, shall be disbursed for the expenses of said District, on itemized vouchers, which shall have been audited and approred by the auditor of the District of Columbia, certified by saidd Commissioners, or a majority of them; and the accounts of said Commissioners, and the tax-collectors, and all other officers required to account, shall be settled and adjusted by the accounting. officers of the Treasury Department of the United States. Hereafter the Secretary of the Treasury shall pay the interest on the three-sixty-five bonds of the District of Columbia issued in pursuance of the act of Congress approved June twentieth, eighteen hundred and seventy-four, when the same shall become due and payable; and all amounts so paid
shall be credited as a part of the appropriation for the year by the C'nited States toward the expenses of the District of Columbia, as herein before provided."
The service rendered by the claimant was for the District of Columbia, in a case in the Court of Claims.
The appropriation act of June 4, 1880, (21 Stats., 162,) in the item for contingent expenses not otherwise sufficiently provided for, is sufficiently comprehensive to cover this claim. There is no other appropriation applicable, and it is not to be presumed that there is no appropriation, if the act of June 4, 1880, is sufficiently clear and comprehensire to include it.
An act making an appropriation in general terms applies as well to cases arising under subsequent as under prior laws. (Audit case, 1 Lawrence, Compt. Dec., 37.) This results from the rule of construction: Generalia verba sunt generaliter intelligenda.
There is, then, an appropriation applicable to this claim.
II.-Both the act of June 11, 1878, (20 Stats., 102,) and the act of June 4, 1880, (21 Stats., 162,) require this claim to be paid by the Commissioners of the District on a voucher "audited and approved by the auditor of the District," and with money in the Treasury placed to their credit, “only on requisition of the Commissioners.” When paid, the voucher is to be carried into the “accounts of said Commissioners," to be " settled and adjusted by the accounting-officers of the Treasury Department.”
There could be no doubt of this if the act of June 16, 1880, (21 Stats., 284,) had not declared that the claim should “be paid on the order of the court by the Secretary of the Treasury, and charged to the account of the District of Columbia.”
Assuming that there is an appropriation for the payment of this claim, and then comparing the acts of June 16, 1880, June 11, 1878, and June 4, 1880, there is an evident conflict in the mere words they employ. One declares that the claim shall be paid by the Secretary of the Treasury.
The act of 1878 says that all the money applicable to expenses of the District shall be paid by the Commissioners on vouchers "approved by the auditor of the District,” and “the accounts of said Commissioners including such payments shall be settled and adjusted by the account. ing-officers of the Treasury Department."
It may be urged that, as to this claim, the act of June 16, 1880, creates an exception, and to that extent works a repeal of the mode of payment.