Page images
PDF
EPUB

IN THE MATTER OF REQUESTING AN ADVANCE OF MONEY, OUT OF THE APPROPRIATION FOR SWAMP LANDS, TO A CLERK DETAILED TO MAKE INVESTIGATIONS THEREUNDER, UPON A BOND CONDITIONED FOR FAITHFUL DISCHARGE OF DUTY AS SUCH INVESTIGATOR.-SWAMPLAND CASE.

1. The appropriation of money for a stated purpose gives to the officer charged with

the execution of the purpose implied authority to make, by special agents,

any investigations necessary to a proper discharge of such duty. 2. The officer may pay to such agents, out of the appropriation, a reasonable compen

sation and the necessary expenses incurred by them. 3. A clerk in a Department may be assigned to make such investigation, and may be

paid, out of the appropriation for the purpose to which the service is incident, his proper expenses; but no compensation other than his salary as clerk can be

allowed to him. 4. No money can be advanced to him on a bond conditioned for the faithful discharge

of his duties as an agent to make investigations. 5. The head of the Department may appoint as special disbursing agent the clerk

detailed to make the investigation, who must in such event give bond as a disbursing agent before any money can be advanced to him; and after such advance, render an account of his disbursements, to be settled in the Treasury Department.

[ocr errors]

Under the act of Congress of March 2, 1855, (10 Stats., ch. 147, sec. 2, pp. 634, 635,) as extended by the act of March 3, 1857, (11 Stats., ch. 117, p. 251; Rev. Stats., 2482, 2483, 2484,) the States respectively are authorized to make proof before the Commissioner of the General Land Oflice that any of the lands purchased within such State from the United States by any person prior to March 2, 1857, were "swamp-lands," within the meaning of the act of September 28, 1850, (9 Stats., ch. 84, p. 519;) and therefore the purchase-money shall be paid over to the State wherein said lands are situate.*

The act of June 16, 1880, (21 Stats., 259, 273,) appropriates money, among other purposes

“For the settlement of claims for swamp lands, and swamp land indemnity, fifteen thousand dollars."

To carry into effect the object of this appropriation, the Commissioner of the General Land Office detailed a clerk from his office in the Interior Department to proceed to Illinois for the purpose of making necessary investigations, and directed that the clerk be paid, out of this appropriation, $100 per month, together with his actual and necessary expenses during the time so detailed.

* For the regulations as to the proof required, vide post, 140.

The Secretary of the Interior made, April 5, 1880, requisition on the Secretary of the Treasury for an advance of $100 out of said appropriation, to be disbursed by said clerk, described therein as an agent to make investigations under the acts above referred to. This agent presented a bond, executed with sureties, for the faithful discharge of his duties as such agent to make investigations.

The First Comptroller is called upon to determine whether the action taken was authorized, and whether said bond is sufficient to justify the advance of public money to such clerk as disbursing agent.

[ocr errors]

DECISION BY WILLIAM LAWRENCE, First Comptroller :

The act of June 16, 1880, (21 Stats., 273,) appropriating money for the settlement of claims for swamp lands,” gives, by implication, to the officers charged with the duty of executing the law authority to appoint an agent to make the requisite investigations, and to pay him reasonable compensation and expenses out of the appropriation. “It is a general principle of law, in the construction of all powers of this sort, that where the end is required the appropriate means are given." (U.S. vs. Bailey, 9 Pet., 255; Inspectors' case, 1 Lawrence, Compt. Dec., 201; Bender's case, Id., 317; Eveleth's case, ante, 20; 4 Op. Att.-Gen., 248; Rev. Stats., 3681; 5 Stats., 533, sec. 2.5; Minis vs. U. S., 15 Pet., 145.)

It is competent to assign a clerk in the Department of the Interior to make such investigations as that now under consideration. If it were res integra, it might well be questioned whether such an assignment would be warranted on a close construction of the laws; but the established practice has decided the question favorably to the existence of the authority here exercised. (Rev. Stats., 183; U. S. vs. McCall, Gilp., 571; Neilson vs. Lagow, 12 How., 107; U. S. vs. Jones, 18 How., 92; U. S. vs. Macdaniel, 7 Pet., 1; U. S. vs. Ripley, Id., 18; U. S. vs. Fillebrown, Id., 28; Gratiot vs. U. S., 15 Pet., 336, 371; Inspectors' case, 1 Lawrence, Compt. Dec., 206; Bender's case, Id., 317; Eveletli's case, ante, 20.)

A clerk in the Interior Department assigned to duty, as such special agent, cannot receive any compensation as such agent; but his reasonable and necessary expenses may be paid out of the appropriation made for the purpose to which the service is incident. He will, however, be entitled to his salary as a clerk while so engaged. (Rev. Stats., 170, 1763, 1764, 1765; 18 Stats., 109, sec. 3; Herndon's case, I Lawrence, Compt. Dec., 45; Bender's case, Id., 317; Evans's case, ante, 1; Randolph's case, ante, 12; Eveleth's case, ante, 20.)

In a letter to the Secretary of War, September 21, 1843, Attorney. General Nelson discussed the question whether, under the act of August 26, 1812, (5 Stats., 533, sec. 25,) the Secretary of War had authority to appoint an agent or commissioner to make an investigation, and whether there must be a specific appropriation providing compensation for the services. The Attorney-General held (4 Op., 218) that the Executive Department, being charged with the duty of seeing that the laws are faithfully executed, has authority to appoint commissioners and agents to make investigations required by acts of Congress; but that it cannot pay them for their services except from an appropriation for that purpose, for the general terms of an appropriation law should always be interpreted in subordination to the limitations imposed by existing and qualifying enactments. Even if it be conceded that this opinion was correct on the facts presented, it does not follow that the compensation and expenses of a clerk acting as an agent in making investigations of the character directed by the Commissioner of the General Land Office cannot be paid until a specific appropriation has been made therefor.

Section 3681 of the Revised Statutes (act August 26, 1842, sec. 25; 5 Stats., 533) prohibits payment of any account or charge whatever, growing out of, or in any way connected with, any commission or inquiry, except courts-martial or courts of inquiry in the military or naval service

until special appropriations shall have been made by law to pay such accounts and charges.” There is an exception which is not material to the present case.

On September 19, 1843, the Secretary of War addressed a letter to the Attorney-General, in which the former said: “A citizen has pre. ferred to this Department certain charges against persons engaged in traile among the Indian tribes which incidentally tend to implicate persons employed by the Government * in carrying on her relations and intercourse witli those tribes. I deem these charges of so serious a character as to require an investigation

and render the appointment of a special agent or commissioner necessary." He then says the act of March 3, 1813, which provides for the payment of the contingencies of the Indian Department, has heretofore been considered as covering any necessary expenses for similar exigencies."

It was upon this letter that the opinion of the Attorney-General was given. The agent now in question can be appointed if an investigation is indispensable or reasonably necessary. It should not be held, when such investigations are necessary to the proper execution of

[ocr errors]

the object, that Congress by a general appropriation act gives no incidental authority to appoint agents, and makes no provision for their payment unless such act or some other statute specially appropriates for it. The investigation proposed by the Secretary of War was not of the character of that now under consideration. It related to charges of a serious character against Government employés. The statute, in prohibiting payment of expenses growing out of any commission or inquiry,” shows that, but for the exception made, military and naval courts-martial and courts of inquiry would have been included. The word commission is one of equivocal meaning. It is used either to denote a trust or authority exercised, or the instrument by which the authority is exercised, or the persons by whom the trust or authority is exercised. (The King rs. Dudman, 4 Barn. & C., 854.) Upon the maxim, Noscitur à sociis, there would be some force in saying that the prohibition in the act of 1812 applied to commissions or similar bodies of inquiry in the civil service. Upon the same maxim the "inquiry” mentioned in the statute may be an alternative form of defining a commission, or, at least, of describing a similar body. It may be that the expenses of a single agent charged with the duties for the civil service similar in character to those of a court-martial would fall within the prohibition of the statute.

Even though the prohibition applied to an agent charged with the duty of investigating official misconduct, or delinquency of employés specifically authorized by law, it would be embarrassing and highly prejudicial to the public service to hold that the head of a Department charged with the duty of executing an appropriation act, and with clearly recognized implied powers and discretionary authority thereunder, could not pay out of such appropriation for the services of an agent sent to examine the character and progress of the work, and the skill of those charged with its performance. A denial of the right to pay for necessary services and expenses is practically a defeat of the power to make examinations. Section 3681 of the Revised Statutes should not be so construed as to effect such defeat. Its language is not so clear or imperative as to require it to be so construed. The inaxim, quando lex aliquid alicui concedit, conceditur et id sine quo res ipsa esse non potest, lays down the principle applicable to the case of necessary investigations.

No public money can be advanced on the requisition; because the clerk was not appointed as, and the bond offered by him is not the bond of, a disbursing agent. (Rev. Stats., 3618; Ex parte Randolph, 2 Brock., 447; U. S. vs. Smith, 8 Wall., 587.) The Secretary of the Interior may,

however, appoint as special disbursing agent the clerk who has been detailed to make the investigation. In such case, the clerk must give bond as a disbursing agent before any public money can be advanced to him; and he will be required to render an account of the disbursements under such bond, to be settled in the Department of the Treasury. (Rev. Stats., 161, 176, 183, 236, 250, 3614, 3622, 3623, 3624; 6 Op. Att.Gen., 24.)

A strict compliance with these requirements is important. The principle which they involve is applicable to all Departments and branches of the Government. To allow departures from it would tend to the establishment of precedents fraught with danger, and to a general relaxation of the strict practice which should govern all advances and disbursements of the public moneys.

The bond presented not being the bond of a disbursing agent, no money can be advanced on the aforesaid requisition of the Secretary of the Interior. TREASURY DEPARTMENT,

First Comptroller's Office, April 6, 1881.

Rules and Regulations. (Ante, 136.)

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., August 12, 1878. In order to dispose of the claims for indemnity provided for by the act of Congress approved March 2, 1855, entitled “An act for the relief of purchasers and locators of swamp and overflowed lands," which act was extended by the act of March 3, 1857, (as revised, now sections 24-2, 2453, and 2484 of the Revised Statutes of the United States, ) the following rules and regulations in regard to the “due proof” to be made to the Commissioner of the General Land Office, under the second section of said tirstmentioned act, (as revised, now section 24-2, Revised Statutes of the United States,) in order to obtain the indemnity aforesaid, are adopted :

The governor, or other duly authorized officer or agent, of the State claiming indemnity, will be required to furnish this office with a list of the lands for which indemnity is claimed." As soon as practicable after the receipt of this list an agent will be appointed to make an examination in the field of each of the tracts therein described, and secure such reliable information as to the character thereof as can be obtained from personal examination and observation, and by inqniry of the owner or resident thereon, if any there be, and of persons residing in the vicinity having personal knowledge of the past and present character of the land. Upon the completion of this examination at least thirty days' notice will be given the State, or claimants under the State, of the time and place when and where testimony will be receiveil touching the character of the lands described in the list filed in this ottice.

At the times and places thus fixe the agent of this oftice will attend for the purpose of examining witnesses and adoptiny such other measures as may be necessary to protect the interests of the Government.

The evidence offered by the State, or its agent, as to the character of the land, must be the testimony of at least two respectable and disinterested persons who bave personal and exact knowledge of the condition of the land during a series of years extending to the date of the swamp grant, (September 28, 1850.)

Where the testimony of witnesses having a knowledge of the condition of the land at the date of the grant cannot be obtained, the evidence of at least two respectable and disinterested persons, who have a knowledge of the land during a series of years

« PreviousContinue »