IN THE MATTER OF THE AMOUNT OF COMPENSATION DUE TO CLERKS OF SENATE COMMITTEES FOR SERVICE "DURING THE SESSION" ENDING MARCH 4, 1881, OR ANY PART THEREOF.-SENATE-CLERKS' CASE.

The legislative, executive, and judicial appropriation act of June 15, 1880, (21 Stats., 210, 212, 215,) appropriated $15,840 to pay twenty-two clerks of Senate committees compensation at $6 per day "during the session" from December 6, 1880, to March 4, 1881, and declared that said words "during the session" shall mean four months: Held, that

1. The clerks who served eighty-eight days, from December 6 to March 4, are entitled to be paid $6 per diem for four months, or one hundred and twenty days; in all, $720.

2. When one clerk has served a portion of the period from December 6 to March 4, and another clerk the residue of such period, each should be paid such proportion of $720 as the period of his service bears to eighty-eight days.

3. The clerks of committees during such session cannot, by reason of their position as such, be paid for services during an executive session, commencing on the 4th of March, called by the President.

On the 23d February, 1881, Hon. John C. Burch, Secretary of the Senate of the United States, addressed to the First Comptroller the following letter:

"I respectfully call your attention to certain expressions in the act making appropriations for the legislative, executive, and judicial expenses of the Government for the year ending June 30, 1881.' (See Statutes U. S., 1880, pamphlet edition, pp. 210-215.)

"In the first paragraph, on page 212, you will see that the compensation is provided for twelve laborers during the session, at the rate of $720 each per annum.' In paragraph 3, of the same page, 'for twenty-two clerks to committees, at $6 per day during the session,' &c. In paragraph 4, 'for fourteen pages for the Senate Chamber, three riding pages, at the rate of $2.50 per day each while actually employed,' &c. In paragraph 3, of page 215, of the same act, the following language occurs: Wherever the words during the session occur in the foregoing, they shall be construed to mean four months.

"The present session of Congress began on the 6th of December last; when it adjourns on the 4th of March next, shall I pay the clerks, pages, and laborers, who have served during the session for four months? If there have been changes in any of the positions by resignation, removals, or otherwise, shall I pay those who may be in service at the adjournment of the session for such portion of four months as has not been paid to their predecessors?

"I also respectfully call your attention to the following: No provision has been made for compensation for any services during the called session of the Senate after the 4th of March. In order to properly provide for such compensation in the 'deficiency bill' now pending in the House, it will be necessary to have in anticipation your ruling upon this: to what pay will the clerks, pages, and laborers aforementioned, who may be employed during that session, be entitled?"

OPINION BY WILLIAM LAWRENCE, First Comptroller:

The Secretary of the Senate is the disbursing officer of that body, and makes payments to laborers and clerks of Senate committees. (Rev. Stats., 52, 56, 60.) His accounts are examined and settled by, respectively, the First Auditor and First Comptroller.

The questions propounded are therefore properly submitted for the decision of this office.

The act of June 15, 1880, (21 Stats., 210, 212,215,) made appropriations for the fiscal year ending June 30, 1881, as follows:

*

"For eight skilled laborers, at one thousand dollars each per annum twelve laborers, during the session, [of the Senate,] at the rate of seven hundred and twenty dollars each per annum "For twenty-two clerks to committees, at six dollars per day during the session, [of the Senate]

The act specifies the sums appropriated. It then provides that— "Wherever the words 'during the session' occur in the foregoing, they shall be construed to mean four months."

If the statute should be construed literally, it would seem to imply that there shall be four months' service in the cases mentioned. But qui hæret in litera hæret in cortice.

Congress evidently did not intend to require four months' service; because the session extended only from December 6, 1880, to March 4, 1881, and, under the law, could not be of greater duration. (Const., art. I, secs. 2, 4, cl. 1, 2; Rev. Stats., secs. 20, 25; paragraph 3 of note to page 17, Rev. Stats., 2d ed., Constitution.)

The purpose was to pay the clerks and laborers entitled to a per diem compensation such compensation for or during the session, counting it as four months, or one hundred and twenty days.

The Senate committees will cease to exist on the 4th of March. This is the effect of the expiration of the Forty-sixth Congress on that day, or perhaps, more strictly, on the 3d of March. The terms of membership of one-third of the whole number of Senators will expire on that day. The committees are all to be reorganized, either at a session of the Senate in March-already called by the President-or at the regular session in December. (Const., art. II, sec. 3.)

Until such reorganization, there can be no committee of the Senate, no chairman of any committee, no clerk of any committee, and no committee to audit accounts, or chairman of committee to certify to services, of clerks. (Rev. Stats., 76.)

In view of the short period of the service of clerks of committees and laborers, from December 6 to March 4, Congress intended to pay them beyond the time actually employed.

The Secretary of the Senate asks how payment shall be made in case changes have occurred in laborers or clerks, by resignation, removal, or otherwise.

The proper mode will be to pay each clerk and laborer who renders service such proportion of the entire compensation, computing per diem for one hundred and twenty days, as the period of his service bears to the eighty-eight (88) days of the session. If a committee has had a clerk for the first half of the session and another clerk for the last half, each should be paid an equal sum. If a clerk has served onethird of the period of the session, he should have compensation for onethird of one hundred and twenty days. These rules will give to each laborer and clerk the benefit of the provision made in the nature of extra compensation, by counting a session of eighty-eight days as one hundred and twenty days.

The Secretary of the Senate states that no provision has been made for any service during the called session which will take place on and after the 4th of March; and that in order to provide properly for such compensation in the deficiency bill now pending in the House, it will be necessary to have, in anticipation, the ruling of the First Comptroller upon this point, namely: To what pay will the clerks, pages, and laborers before mentioned, employed during that session, be entitled?

The clerks, pages, and laborers who may be employed at the called session of the Senate will be entitled to such pay as may be provided by Congress. The appropriation act of June 15, 1880, only made provision for the regular session, from December 6 to March 4.

No provision is made for a special or called session. This act did not fix any rate of compensation for clerks, &c., for any but the one regular session.

If Congress shall deem it proper to provide compensation for clerks, &c., for a called session, they will have the benefit of such provision. None is provided by the act of June 15, 1880. The clerks during the regular session will not be required to perform service at a called session unless upon a new appointment.

TREASURY DEPARTMENT,

First Comptroller's Office, March 2, 1881.

IN THE MATTER OF CHARGING THE UNITED STATES WITH THE EXPENSE OF DECORATING THE SAN FRANCISCO MINT ON THE OCCASION OF A PRESIDENTIAL VISIT.DECORATION CASE.

1. No part of the "contingent fund" appropriated for the San Francisco Mint by act of June 15, 1880, (21 Stats., 224,) can be used in paying for decorations placed on the Mint building in honor of the visit of the President of the United States and other distinguished officers and citizens, in September, 1880.

2. The Revised Statutes show a legislative intent carefully to guard and restrict the use of money appropriated for contingent expenses. (Secs. 193, 3680–3683.) 3. Section 3683 of the Revised Statutes limits the use of the contingent funds for the purchase of articles to such only as the head of the proper Department "shall deem necessary and proper to carry on the business of the Department."

4. The terms generally employed in making appropriations for contingent expenses, and the connection they bear to definite appropriations for specific purposes, limit the use of contingent funds to the purpose of carrying on the business of the Department or bureau for which they are appropriated.

5. The purposes defined to which contingent funds may be applied.

6. The approval, under section 3683 of the Revised Statutes, by the head of a bureau of an expenditure from a contingent fund, is not conclusive on accounting officers.

7. There is no constitutional authority for Congress to make an appropriation having no reference to the public interest or welfare.

In the account of the superintendent of the Mint at San Francisco, Cal., rendered to the Treasury Department, September 30, 1880, a charge is made against the United States, in the item of contingent expenses, for "decorating the Mint for Presidential reception, $250;" which sum was paid, September 17, 1880, to Gumpertz & Spamer. The superintendent, in a letter dated San Francisco, November 20, 1880, to the Director of the Mint, says that the Mint was decorated "on the occasion of the President's recent visit to this [that] city," and, in explanation of the voucher for the payment of the expenses, adds:

"To reach the high elevation of the centre and wings of the building, it was necessary to employ skilled workmen, with suitable stagings and appliances, to do the work. It could not be done by workmen in the building.

"A considerable amount of additional material was procured. Six large shields were furnished for the wings of the building and a large oil portrait of the President for the centre; the six high stone columns were beautifully draped, flowers and flower-baskets furnished, and the building presented a very creditable appearance. The bill in question embraced a considerable amount of labor in arranging and preparing the decorations, the furnishing of shields, portrait, flowers, and baskets, as well as the putting up and taking down of the same, at an elevation

of some ninety feet. A large amount of labor was also done by the employés in the Mint. The bill was rendered for $325, but it was originally stipulated that it should not exceed $250."

Hon. Horatio C. Burchard, Director of the Mint, submitted the following:

"On the 19th of September, 1879, authority was given the superintendent of the Mint at San Francisco to decorate that building upon the occasion of General Grant's arrival from his tour abroad, and the expense was paid from his contingent appropriation, audited by the First Auditor and allowed by the Comptroller.

"On the 6th of April, 1876, authority was given by my predecessor to the superintendent of the Mint at Philadelphia to decorate that building in view of the approaching Centennial celebration, which was done at an expense of $188.70, paid for from his contingent fund, and the account was audited by the First Auditor and allowed by the Comptroller.

"The expenses of draping public buildings on occasions of mourning are paid from contingent appropriations." (See House Ex. Doc. No. 10, 1st Sess. 39th Cong., vol. 7, pp. 3, 9, 13, 27, Contingent Expenses Treas. Dept.; House Ex. Doc. No. 131, 1st Sess. 43d Cong., Vol. 10, pp. 10, 13; House Ex. Doc. No. 70, vol. 12, 2d Sess. 43d Cong., p. 10.)

The papers are submitted to the First Comptroller, to decide whether this sum of $250 can be paid out of the appropriation "for incidental and contingent expenses" of the Mint at San Francisco, (21 Stats., 224,) and allowed in the account of the superintendent.

DECISION BY WILLIAM LAWRENCE, First Comptroller:

In September, 1880, the President of the United States, with high officers of the Government and other distinguished personages, visited San Francisco and many points on the Pacific coast.

The visitors were greeted with the highest evidences of public confidence and esteem; and grand decorations, made with a lavish expenditure characteristic of a wealthy and generous people, added to the attractions of the splendid receptions given to them in the cities and among the enterprising, intelligent, and hospitable population of that fertile and beautiful region.

It was eminently proper that the Mint should be, as it was, handsomely decorated in recognition of the presence of the illustrious tourists; thus making its external appearance correspond with the attractive beauty of the golden treasures within, and rendering honors to whom they were due.

A portion of these decorations, to the extent of $250 in-cost, was procured by direction of the superintendent of the Mint; and the question now to be determined is, whether the payment of this sum out of the public funds was authorized by law. It is certain that it was not.