Page images
PDF
EPUB

The legislative, executive, and judicial appropriation act of June 15, 1880, (21 Stats., 210, 224,) makes these among other provisions:

" That the following sums be, and the same are hereby, appropriated, out of any money in the Treasury not otherwise appropriated, in full compensation for the service of the fiscal year ending June thirtieth, eighteen hundred and eighty-one, for the objects hereinafter expressed, namely:

*

"Mint at San Francisco, California.—For salaries of superintendent, four thousand five hundred dollars; assayer, melter and refiner, and coiner, at three thousand dollars each; chief clerk, two thousand five hundred dollars; cashier, two thousand five hundred dollars; four clerks, at one thousand six hundred dollars each; in all, twenty-four thousand nine hundred dollars.

"For wages of workmen and adjusters, two hundred and sixty-five thousand dollars.

"For incidental and contingent expenses, eighty thousand dollars." The subject of contingent expenses is one of great importance.

These expenses rest so much in official discretion, and are so uncontrolled by law, except in the aggregate amount, that they are to be scrutinized with great care and limited to those objects which are expressed in the act, or are clearly or by reasonable inference within the purpose of the law-making power.

The danger of abuses of discretionary power is well understood: It has been said that there is an inherent and eternal difficulty in confining power of any kind within its proper limits.” (Sedgwick, Stat. and Const. L., 183, 2d ed.)

In Bacon's Aphorisms it is declared that " optima est lex, quæ minimum relinquit arbitrio judicis, optimus judex qui minimum sibi.(1 Cas., 80n; 1 Powell, Mortg., 247 a ; 2 Belt, Sup. to Ves., 391; Toullier, liv.3n, 338; 1 Lilly, Abr., 447.)

“The discretion of a judge is said to be the law of tyrants.” (Bour. Die., "Discretion.")

Discretion in the hands of executive officers is liable to abuse, possibly eren more than in the judicial department.

But, with all this, it is absolutely impossible to administer any department of Government without a large measure of discretion. It is a duty so to exercise discretionary powers as not to bring them into reproach.

Congress evidently intended to guard carefully the use of appropriations for incidental and contingent expenses, as may be seen from the following provisions of the Revised Statutes:

"SEC. 193. The head of each Department shall make an annual report to Congress, giving a detailed statement of the manner in which the contingent fund for his Department, and for the Bureaus and offices therein, has been expended, giving the names of every person to whom any portion thereof has been paid; and if for anything furnished, the quantity and price; and if for any service rendered, the nature of such service, and the time employed, and the particular occasion or cause, in brief, that rendered such service necessary; and the amount of all former appropriations in each case on hand, either in the Treasury or in the hands of any disbursing officer or agent. And he shall require of the disbursing officers, acting under his direction and authority, the return of precise and analytical statements and receipts for all the moneys which may have been from time to time during the next preceding year expended by them, and shall communicate the results of such returns and the sums total, annually, to Congress."

“SEC. 3680. No part of the appropriations which may be at any time made for the contingent expenses of either House of Congress shall be applied as extra allowance to any clerk, messenger, or attendant of the two Houses, or either of them, or as payment or compensation to any clerk, messenger, or other attendant of the two Houses, or either of them, unless such clerk, messenger, or other attendant be so employed by a resolution of one of the Houses; or to any other than the ordinary expenditures of the Senate and House of Representatives.

"SEC. 3681. No accounting or disbursing officer of the Government shall allow or pay any account or charge whatever, growing out of, or in any way connected with, any commission or inquiry, except courtsmartial or courts of inquiry in the military or naval service of the United States, until special appropriations shall have been made by law to pay such accounts and charges. This section, however, shall not extend to the contingent fund connected with the foreign intercourse of the Government, placed at the disposal of the President.

“SEC. 3682. No moneys appropriated for contingent, incidental, or miscellaneous purposes shall be expended or paid for official or clerical compensation.

“ŠEC. 3683. No part of the contingent fund appropriated to any Department, Bureau, or office, shall be applied to the purchase of any articles except such as the head of the Department shall deem necessary and proper to carry on the business of the Department, Bureau, or office, and shall, by written order, direct to be procured."

See also secs. 130, 240.

Upon the plain language of section 3683, this expenditure was unauthorized, because it clearly was not necessary AND proper to carry on the business of theMint.

It is the business of the Mint and its officers to coin money and perform duties connected therewith. An oil portrait” is not necessary

to carry on the business of the” Mint. “Flowers and flowerbaskets” were not “necessary

to carry on the business.” No one will venture to say that it was any part of the purpose of the establishment of the Mint to give a manifestation of gratitude, of hospitality, of honor, or of homage to distinguished persons, official or unofficial, by citizens or officers.

Judging of this expenditure by the letter, spirit, and purpose of written law, it is clearly unauthorized.

It is equally unauthorized by any definition which can be fairly affixed to the words or purposes of the appropriation act—“for incidental and contingent expenses."

What is incidental? It is derived from the prefix in, and cadere, to fall. In law, incident means “dependent upon or appertaining to another thing called the principal;that is, as applicable to the subject now being considered, the principal is the Mint, or its purpose to coin money and perform other duties prescribed by law. All things which are to be regarded as incidental expenses of the Mint, must have some connection with that purpose.

Appropriations are made as far as practicable for specified, clearlydefined purposes of the Mint. They all have relation exclusively to such purposes.

So far as the objects of the several items of appropriation are defined, they are the only provisions made or authorized for these purposes.

But, as appertaining to the same general purpose of the specific items appropriated for defined purposes, there may arise an unforeseen and unforeseeable necessity for an expenditure essential to keep the Mint in operation or execute clearly-defined objects.

The purpose of a contingent fund is to provide for such necessary expenditure, in order to carry out the designs of the principal appropriation. It is an incident to the principal design. It must follow the principal appropriation in its purpose. Accessorium non ducit, sed sequitur suum principale. And what is meant by the word "contingent?" As used in the statute it is almost, if not quite, a synonym of the word incidental. If there be a shade of difference, “ thin partitions do their bounds divide.” It is derived from con-tingo-contingere—"to touch on all sides." In law, it imports being “dependent for effect on something that may or may not occur,” but “touching on all sides” that on which it is “dependent for effect.”

A contingent expense is one necessary to secure, and connected with, an object or result authorized by law. It is one incurred in aid of an object when the general means of accomplishing the object are authorized by specific appropriations, and thereby rendered possible of execution in the absence of unforeseen or undefinable necessities connected therewith. It provides for the unforeseen and also for undefinable necessities. It is not generally an addition to that which is specifically appropriated for a defined purpose; for expressio unius est erclusio alterius. Thus, when "four clerks" are provided for by an appropriation, a contingent fund cannot be used to pay for additional clerks, or for the same kind of services required of the four authorized. (Clerk's case, 1 Lawrence, Compt. Dec., 305.) When a given sum is appropriated to purchase materials, a contingent fund cannot be used to purchase additional materials.

It is possible that a contingent fund may occasionally be used for a purpose for which a specific appropriation has been made; as when an unforeseen and unforeseeable contingency has rendered necessary the use of money in addition to that specifically appropriated. Such cases will probably be found rare in practice.

But if an unexpected contingency requires a transfer, at some expense, of the furniture and fixtures requisite to enable a clerk to perform his duties at a place to which he may be lawfully assigned, and no specific provision is made for such transfer, this is a proper charge on a contingent fund.

If materials are purchased, and there is an unexpected failure to deliver them, or, after delivery, unforeseen peril arises as to their custody and safe-keeping, the expenses of necessary agents, or other cost of securing them not otherwise provided for, are a proper charge on a contingent fund.

The Attorney-General has said that contingent expenses, as used in the appropriation acts, “mean such incidental casual expenses as are necessary or appropriate and convenient in order to the performance of duties required by law of the Department or the office for which the appropriation is made." (16 Op., 412.)

There would be great danger, and temptation to abuse, in giving a sanction to the expenditure under consideration. The reason or excuse, if there be any, for allowing it in the account of the superintendent, would, for example, apply with far greater force to the expenditure of the public treasure, on the occasion of inaugurating a President, for the decoration of the magnificent granite and marble public buildings of Washington. Through such laxity of interpretation, the cost of beautiful drapery, shields, oil portraits, flowers, and flower-baskets, "as well as the putting up and taking down of the same," would be defrayed out of some contingent fund appropriated for a wholly different purpose; and the admiring multitude of spectators, who properly turn out or come to do honor to the event, might not inaptly join in the choral refrain, “That's the way the money goes," under appropriations for “incidental and contingent expenses,” with decorations "touching on all sides” the public buildings, but touching on no side the public business.

There would be much to encourage those in office, and desirous of remaining, to make a liberal construction and appropriation of contingent funds on such an occurrence; and devotion to a President would

be intensified by the recollection that, “Turned by his nod, the stream of honor flows."

If a contingent fund may be diverted from the general object of a definite appropriation, or one necessarily incident thereto, and be applied in aid of public demonstrations in honor of men, then, as its expenditure is controlled merely by discretion, why may not the result of a Presidential or Congressional election be the occasion of a draft on some contingent fund? Public demonstrations are proper as well in honor of great erents as of distinguished men.

It is a patriotic duty to celebrate with bonfires, festivals, and rejoicings,” the anniversary of the natal day of the Nation; but it would be melancholy evidence of the decadence or extinction of public spirit if this could only be done by the aid of a Congressional appropriation, under cover of a contingent fund.

In the particular case of the decorations at San Francisco, public officers may well be permitted to share, at their own expense, in the tribute of respect to the Presidential party. A tribute so conferred would, perhaps, constitute a more graceful mark of honor, and insure itself a more grateful reception. A voluntary tribute

is twice blessed; It blesseth him that gives and him that takes." The public-spirited, generous people of California will never need the aid of a contingent fund to do honor either to great occasions or illustrious men. No sanction should be given to a use of public money which might detract from the full measure of respect due to their undoubted patriotism and liberality.

A refusal to sanction this expenditure from the public treasury cannot in any sense be construed as wanting in respect for any of the eminent party in whose honor the decorations were made.

No President can sanction the expenditure of public money for decorations in honor of himself, when no law has in terms or by fair inference so authorized. It is his duty to "take care that the laws be faithfully executed." The President who so recently retired from office has discharged this duty with a degree of fidelity which filled the whole measure of the Constitution, and rendered his administration illustrious for its ability, its care, its purity, and its exalted patriotism.

In addition to all this, there is a grave question of constitutional law involved in this expenditure.

The Constitution declares that “the Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States."

« PreviousContinue »