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as to secure payment to the Treasury of money due the United States. (Rev. Stats., 161, 248, &c.; U. S. vs. Adams, 7 Wall., 463.)
II.—The Secretary cannot adjudge that the bank or the receiver has a valid claim against the United States to refund the $94,000.
1. Assuming that the Secretary has power to judge, he cannot decide as requested, because, on the evidence, there is no valid claim. (Receiver's case, 1 Lawrence, Compt. Dec., 362.)
2. The claim is barred by the statute of limitations, which ho executive officer has a right to waive. (Id.; 6 Op. Att.-Gen., 314.) The Secretary cannot consent to do what would be unlawful.
3. The immediate predecessor in office of the present Secretary of the Treasury approved the opinion of the First Comptroller in this case, and in the usual form directed the $65,826.40 to be covered into the Treasury.
As the late Secretary did not ask the Comptroller to reconsider the case, it is now to be deemed res adjudicata. (2 Op. Att.-Gen., 8; 4 Op., 356; 5 Op., 125, 664; 10 Op., 259; 12 Op., 358, 388; 13 Op., 156; 15 Op., 315, 350, 423; U. S. vs. Bank of Metropolis, 15 Pet., 302; Wood's case, 1 Lawrence, Compt. Dec., 9; Police case, Id., 70.)
4. No law has authorized the Secretary "to consider and allow the credit demanded." The Comptroller of the Currency alleges that the Secretary "is authorized to do (so] by section 236, Revised Statutes.”
That section provides that,
“All claims and demands whatever by the United States or against them, and all accounts whatever in which the United States are concerned, either as debtors or as creditors, shall be settled and adjusted in the Department of the Treasury."
The words "in the Department of the Treasury” do not mean by the Secretary of the Treasury.
Other sections of the statutes show who are the officers authorized to settle and adjust claims. (Rev. Stats., 269, 277.)
5. If the claim were to be allowed by the First Auditor, and certified by the First Comptroller, it could not be paid without an appropriation by Congress. The Secretary has no authority to apply money due to the Government, as the dividend of $65,826.40 is, in paying claims.
The Comptroller of the Currency alleges that by law it is his duty to pay dividends only on
claims” of whose validity and amount he is satisfied, and that he is not at all satisfied as to the exact amount due the Government as a creditor of the bank."
The claim of the Government, $188,075.47, was admitted as a valid
claim in 1872, if not some years sooner, by the then Comptroller of the Currency, (the immediate predecessor in office of the present Comptroller,) who, on March 8, 1872, paid thereon to the United States 35 per cent. as a dividend from the assets of the bank.
From May, 1867, until May, 1880, a period of thirteen years, neither the receiver of the bank, the two Comptrollers of the Currency in office during that time, the creditors of the bank, its stockholders or officers, nor any other person, have denied the justice or validity of the claim of the Government.
After all this, when the Government may perhaps have lost the evidence by which it could maintain its rights in this and other respects, it must be held that the Comptroller of the Currency now in office cannot revoke the allowance, made by his predecessor, of the claim of the Government; that the authority to allow it, having been exercised, is functus officio; and that all parties are estopped from denying the validity of the claim. (Fawcett vs. Laurie, 1 Drewry & Smale, 192; Bump's Bankruptcy, 240; In re Smith, 15 Nat. Bankruptcy Reg., 97; In re Irwin, 3 Id., 580; In re Hoyt, Id., 55; In re Miller, 1 N.Y. Leg. Obs., 180; Patton's case, 7 Ct. Cls., 363; Bank of Bethel vs. Pahquioque Bauk, 14 Wall., 401; Morse on Banks and Banking, 134; Kennedy rs. Gibson, 8 Wall., 505; Casey vs. Galli, 94 U. S., 681; 2 Bouv. Inst., n 1382; 1 Dougl., 407a; 2 Exch., 741; 1 M. & Gord., 689; Davis vs. Bank of England, 2 Bing., 393; Coles vs. Bank of England, 10 Ad. & EII., 437, 449; 10 Beav., 491; 2 Camp., 343; 7 Mass. Rep., 319; Sug. Pow., 32; 1 Tucker's Com., lib. 1, ch. 8, p. 92; National Bank es. Case, 99 U. S., 628; Cooley, Const. Lim., 622; Clark is. Buchanan, 2 Minn., 316; 33 N. Y., 603; Elec. Coll. case, 1 Hughes, C.O., 588; Seeley vs. N. Y. Nat. Exchange Bank, 4 Abb. N. Y., 61; Wood's case, 1 Lawrence, Compt. Dec., 9; Police case, Id., 70.)
The sum of $65,826,40, the dividend due as stated, should be placed. to the credit of the Treasurer of the United States. TREASURY DEPARTMENT,
First Comptroller's Office, April 4, 1881.
IN THE MATTER OF THE AUTHORITY FOR RENTING BUILDINGS FOR GOVERNMENT USE IN WASHINGTON WITHOUT AN APPROPRIATION THEREFOR IN TERMS BY CONGRESS. GEOLOGICAL-SURVEY CASE,
1. The act of June 22, 1874, (18 Stats., 133, 144,) prohibits the making of any contract
for the rent of any building in Washington, not then in use by the Government,
“ until an appropriation therefor shall have been made in terms by Congress.” 2. In the absence of a general restraining statute, the appropriation of money for a
specified service carries generally with it an implied authority to rent the buildings necessary for that service. The act of June 22, 1874, operates as such restraining statute, and limits such authority as to buildings for Government
purposes in Washington. 3. The acts of June 22, 1874, (18 Stats., 144;) of June 21, 1879, (21 Stats., 23, 28, 29;)
and of June 16, 1880, (21 Stats., 259, 274,) so far as they legislate as to renting of buildings, and make appropriations for the payment of rent, afford an example for the proper application of the rule that statutes in pari materiâ are to be construed as if parts of one act, each one of which parts is, if its words will fairly
permit, to have a purpose which does not defeat that of any other. 4. Application of the maxim, Noscitur à sociis. 5. Particular provisions of appropriation acts are not to be construed as general
legislation, and especially not as running beyond the fiscal year for which appropriation is made, unless the purpose to give them that character be at least reasonably certain. If there be doubt, and the purpose of the words employed can be fairly satisfied by construing such provisions as intended to be in force only for the fiscal year for which appropriation is made, they should be so con
strued. The question whether the Secretary of the Interior is authorized to rent buildings for the Geological Survey office for the fiscal year ending June 30, 1881, which were not in use by the Government on the 22d of June, 1874, is submitted to the First Comptroller for his opinion.
OPINION BY WILLIAM LAWRENCE, First Comptroller:
There is no• law authorizing the Secretary of the Interior to rent buildings for the purpose of the Geological Survey; nor is there any appropriation applicable to pay such rent, unless the authority and appropriation therefor can be inferred or implied from the provisions of the acts making appropriations for the service of the Geological Survey.
The legislative, executive, and judicial appropriation act of June 21, 1879, (21 Stats., 28,) for the fiscal year ending June 30, 1880, after making sundry appropriations, provides as follows:
"And the Secretary of the Interior is hereby authorized to rent such buildings as may be necessary from time to time for the purpose of the
census, the total expenditure not to exceed twenty-five thousand dollars, to be paid from the amount authorized to be expended by section twenty of act of March third, eighteen hundred and seventy-nine, census act, 120 Stats., 473;] also to enable him to provide offices for the Geological Survey, and offices for additional accommodation of pension clerks, three thousand dollars."
The “sundry civil" appropriation act of June 16, 1880, (21 Stats., 274,) makes appropriations for the fiscal year ending June 30, 1881, including one as follows:
“For the expenses of the Geological Survey, and the classification of the public lands and examination of the geological structure, mineral resources, and products of the national domain, to be expended under the direction of the Secretary of the Interior, one hundred and Gifty thousand dollars."
The deficiency appropriation act of June 22, 1871, (18 Stats., 141,) after making sundry appropriations, provides that “*
hereafter no contract shall be made for the rent of any building, or part of any building, in Washington, not now in use by the Government, to be used for the purposes of the Government until an appropriation therefor shall have been made in terms by Congress.”
Congress has thus rendered it unlawful, by the prohibition in the act of June 22, 1874, thereafter to make any contract for the rent of any building, or part thereof, in Washington, not then in use by the Gov. ernment, to be used for the purposes of the Government, "until an appropriation therefor shall have been made in terms by Congress.” The act of June. 16, 1880, makes an appropriation in terms sufficient, in the absence of any restraining law, to authorize the renting of buildings and payment therefor; and so does the subsequent appropriation act for the same purpose. (21 Stats., 151.) These acts, however, do not repeal the restraining provision as to contracts for rent of buildings in the prior act of June 22, 1871. Such repeal can arise only by implication, and it is a rule in the construction of statutes that repeals by impli. cation are not favored. There is no language in the acts cited which can be construed to raise a necessary implication of the repeal or modification of the restraining provision in the act of 1874.
All the provisions cited are in some respects on the same subject; they are in pari materia ; they are to be taken together, read, and construed, as if parts of one law. Each provision is, if its words will permit, to be so construed as to have a purpose which does not defeat that of the others. These are familiar principles. (Sedg. Stat. and Const. L., 209.) When, therefore, the appropriation for the Geological Survey is “to be expended under the direction of the Secretary of the Interior,” his direction is subject to other laws which remained unrepealed. All appropriations are expended under the direction of offi
cers of the Government, but such officers are not, on that account, released from all legal restraint in making the expenditures.
The act of June 21, 1879, gave authority to rent offices for the Geological Survey for the fiscal year 1880. It excepted from the operation of the prohibition in the act of June 22, 1874, contracts for the rent of buillings for use from time to time” for the purpose of the census. It also excepted therefrom contracts for the rental of "offices for the Geological Survey;" not, however, contracts made from time to time, but contracts for the service of the fiscal year 1880, only. The authority to rent offices for the Geological Survey, and offices for additional accommodation of pension clerks,” which is given by the act of 1879, is limited to the fiscal year 1880.
The act is to be interpreted in accordance with the maxim, Noscitur à sociis. The provision above quoted authorizes the Secretary of the Interior to rent buildings for the purpose of the census “from time to time.” This shows that it applied to the then current year, and also to others thereafter. The words " from time to time” would have been unnecessary if they did not apply to subsequent years. But in the next clause, as to the Geological Survey and pension clerks, these words are omitted.
Congress could not have failed to see that the emphatic language of the act of 1874, requiring an appropriation in terms as the only sufficient authority for entering into contracts for the renting of additional buildings, was designed to be so imperative as to demand clear, if not emphatic, words to constitute an exception to its prohibition, or to operate as a repeal thereof.
No exception is made in the act of June 16, 1880, in respect to contracts for the rental of offices or buildings for the Geological Survey for the fiscal year 1881. It does not "in terms” make any appropriation for that object; hence there is no authority to enter into such a contract.
This conclusion is strengthened by the fact that all the acts cited are appropriation acts. Particular provisions in these acts are not to be construed as constituting general legislation, unless it be reasonably certain that the legislature so intended. If there be doubt, and the purpose of the words employed in the statute can be fairly satisfied by construing them as referring only to the appropriation for the fiscal year covered by the act, they should be so construed.
The question submitted for the Comptroller's opinion is answered in the negative. TREASURY DEPARTMENT,
First Comptroller's Office, April 5, 1881.