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so, or awaiting reappointment, to those who were clerks on the 3d of March, during the regular session, and reappointed on the 18th of March.

In view of the explicit language of the several acts and of the resolution of the Senate, it is entirely immaterial that the act of June 15, 1880), by providing compensation for one hundred and twenty days for a session and service of eighty-eight days, gave pay for this period to most if not all of the clerks; nor is it material that the “sundry civil" appropriation act of March 3, 1881, (21 Stats., 435, 456,) makes the following provision :

“ To enable the Secretary of the Senate and the Clerk of the House of Representatives to pay to all committee clerks, pages, and other employés of the Senate and House of Representatives, respectively, and who shall be so employed at the adjournment of this Congress, who do not now receive annual salaries, a sum equal to thirty days' pay at their present rate of compensation, as extra pay; and an amount sufficient to pay the same is hereby appropriated out of any money in the Treas. ury not otherwise appropriated, and shall be immediately available."

Can the clerks of the regular session in service March 3, but not reappointed, be paid as proposed ?

I.-As to the effect of the act of March 3, 1881: 1. The clerks cannot be paid under the act of March 3, 1881, because it appropriates money only " for

clerks to committees during the special session.” It requires two conditions precedent to a right to compensation: First, that the claimant be a clerk to a committee; second, that he be such during the special session. The claimants were not clerks at all during the special session prior to March 18. Hence they are not within the act of March 3.

Until March 18, there was no Senate committee, and, hence, up to that time there could not have been any clerk to a Senate committee. For this reason they are not within the act of March 3.

The act by its plain terms applies only to those who were clerks and chile they were such.

2. Can the clerks in service at the regular session on March 3, and reappointed March 18, be paid by virtue of the act of March 3?

Clearly not. It appropriates money for those only who were clerks to committees.” Plainly, this means only for the time in which they were such clerks.

But from March 5 to March 18, there was no Senate committee, and hence there could have been no clerk to a committee. The act is not aided by the resolution.

H. Ex. Doc. 219- -6

A resolution cannot make a party a clerk of a committee by so call. ing him, or by declaring him to be such when in fact he is not. An act of Congress might require accounting officers to give effect to such a declaration, and authorize payment accordingly. That would be legislation. This resolution of the Senate, however, is not legislation; it is not a law; nor can it have the force of law.

The Senate resolution evidently was passed upon the correct idea that from March 4 until March 18 there was no committee, and consequently there could have been no clerk of a committee.

11.No payment can be made by force of the act of June 15, 1880, to clerks-either those who were or those who were not reappointedfor the period from March 5 to March 18.

1. As to the per diem clerks, the appropriation is exhausted.

2. If it were not 'so, the act, by its terms, limits the appropriation, so far as they are concerned, to clerks who were such during the regular session, and for the period covered by one hundred and twenty-one days. It does not provide the means of making the payment directed by the Senate resolution, but by its terms and purpose denies the right to it.

As neither the act of June 15, 1880, nor that of March 3, 1881, makes an appropriation for the payment of the per diem clerks according to the Senate resolution, the effect of the resolution is to be considered:

III.—The resolution cannot per se provide the means or appropriate money to make the payment which it directs to be made.

1. By the Constitution, no money can be drawn from the Treasury but in consequence of appropriations made by LAW.” (Art. I, sec. 9, cl. 7.)

This resolution is not a law. Legislative power is vested not in the Senate alone, but “in a Congress,

which shall consist of a Senate and IIouse of Representatives." (Const., art. I, sec. 1.)

2. The resolution has also to encounter another obstacle.

These clerks had a compensation, “fixed by law,” at six dollars per day during the regular session.

The resolution proposes to give them “additional pay, extra allowance, or compensation ” for services rendered during the regular session. It must be for such services, because it applies only to “clerks of the committees of the Senate who held such positions on the fourth day of March, 1881.” It cannot be for services rendered from March 5 to March 18, because, as already shown, there was no Senate committee aluring that time, there could have been no clerk of a committee, and hence no services legally rendered.

Some, if not most, of the clerks of the regular session have not been reappointed, and so are not now clerks. Assuming, then, that the resolution intended to give additional or extra compensation to clerks of the regular session, it must be ineffectual, because the Revised Statutes provide as follows:

“SEC. 1765. No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regu. lations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by laro, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation."

It is not intended to hold that this section takes from the Senate the right to give to its clerks or employés extra compensation out of its contingent fund.

The section, in its broad, general terms, if unqualified by any other provision, would seem to deny such right; but it is to be construed as in pari materia, with section 3680, which reserves to each House of Congress the right to give extra allowances from such fund to any clerk after he has been employed by a resolution of either House.

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IV.-No payment can be made from the Senate "contingent fund." The act of June 15, 1880, (21 Stats., 212,) appropriates"For contingent expenses of the Senate

“For miscellaneous items, exclusive of labor, forty-five thousand dollars."

1. If this appropriation stood alone, uncontrolled by other legislation, the Senate could by resolution dispose, in its own discretion, of the contingent fund, and so pay these clerks a per diem for the time from March 5 to March 18.

The accounting officers of the Treasury Department cannot lawfully call in question the authority of the Senate to dispose of its own contingent fund in its own discretion, unless some law has so regulated its expenditure as to restrain the power of the Senate in its use, and impose a duty on executive officers to ascertain what payments can lawfully be made thereout. The Senate is, for some purposes, an inde. pendent, co-ordinate branch of the Government, having powers so transcendent and important that no executive or judicial officer can properly arraign the mode in which it shall dispose of its contingent fund, when such mode is not prescribed by a special provision of law. (Seward's case, ante, 53; Allen vs. Blunt, 3 Story, C. C., 745; P. & T. R. Co. vs. Stimpson, 14 Pet., 458; U. S. vs. Jones, 18 How., 95; U.S. ts. Kaufman, 96 U. S., 567.)

2. The resolution does not in terms declare that payment shall be made from the contingent fund. If, however, the resolution were available, it might properly be held as referring to that fund, since it is the only fund to which it could apply; and the maxim of construction would properly be invoked: Ut res magis valeat quam pereat.

The chief importance of the question under consideration lies not in its bearing upon this case, but in its general application in principle, as affecting the accounts to be kept and rendered by the Secretary of the Senate to the First Auditor and First Comptroller. Every voucher is to be charged to a proper head of appropriation. (Bender's case, 1 Lawrence, Compt. Dec., 317; Rev. Stats., 3675.)

3. Any payment out of the Senate contingent fund by virtue of the resolution is prohibited by the Revised Statutes, which provide as follow:

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

If section 3682 should be so construed as to give literal effect to its general and comprehensive terms, it would deny the right of the Senate to use a contingent fund for the payment of clerks. But the section is taken from the act of July 12, 1870, (16 Stats., 250, sec. 3,) which sufficiently shows that it is not intended to apply to either branch of Congress, because in that act express provision is made, under the head of "contingent expenses," for the payment of clerks. This section, therefore, does not take from the Senate its general parliamentary authority to use its contingent fund in its own discretion. The general terms of the section may be properly restrained, upon the maxim: Verba generalia restringuntur ad habilitatem rei vel aptitudinem persona. Besides such restraint, it may also be construed as in pari materia with section 3680, which provides, in effect, that no part of the contingent

* As to the compensation to be paid from the contingent funds of the two Houses of Congress, the Revised Statutes provide as follows:

“SEC. 76. No payment shall be made from the contingent fund of either House of Congress, unless sanctioned by the Committee to Audit and Control the Contingent Expenses of the Senate, or the Committee on Accounts of the House of Representatives, respectively.”


fund of the Senate shall be applied

as payment or compensation to any clerk, messenger, or other attendant of either (House,]

unless such clerk, messenger, or other attendant be so employed by a resolution of one of the Houses."

The twenty-two Senate clerks whose case is now under consideration were not employed by authority of a resolution of the Senate prior to March 18. Until that date they cannot, therefore, be entitled to the benefit of the contingent fund, because section 3680 is prospective in its operation, applying only to clerks after they have been "employed by a resolution," &c. The prospective character of this section is shown by the language employed and well-known rules of interpretation. There is a maxim properly applicable here: Nova constitutio futuris formam imponere debet, non præterites. (Broom, Leg. Max., 34; 14 How., 488; 24 1 d., 212; 3 Dall., 386, 391; 2 Pet., 380; 2 Show., 17; 2 Wall., 329; 3 Sum., 538; 2 St., 161; 1 W. & M., 323; Hemp., 469.)

A retrospective statute is to be strictly construed. (3 Metc., Ky., 255; 13 Ga., 480.)

A high legal authority lays it down as in general true that no stat. ute is to have a retrospect beyond the time of its commencement. (Bac. Abr. "Statute.")

This principle has been steadily maintained both in England and this country. (Sedgwick, Stat. and Const. L., 161; 15 Ia., 257; 7 Allen, 139; 37 Vt., 599; 1 Cold., Tenn., 398; 57 Pa. St., 209; 30 Md., 500; 27 Beav., 579; 41 Mo., 25; 21 Wis., 268; 105 Mass., 287; 48 N. Y., 57; 22 Tex., 214; 7 Ind., 59; 28 Ga., 597; 26 Ark., 124.)

In the act of June 15, 1880, appropriations are made, under the head of " contingent expenses,” for clerks and other employés entitled to per diein compensation; while those entitled to annual salaries are appropriated for in the form of a general appropriation.

But the appropriation for clerks is not technically made a “contingent fund" by being classed under that head. Its real character is to be determined by the purpose to which it is to be applied. The definition of a technically contingent fund is well understood. (Decoration case, ante, 69.)

The appropriation of forty-five thousand dollars "for miscellaneous items" in the act of June 15, 1880, is clearly a "contingent fund," or

” fund for contingent expenses," within the meaning of section 3680 of the Revised Statutes.

It is placed under the head of "contingent expenses" in the act. This and similar appropriations have always been so classed in the "Digests of Appropriations" made for use in the Departments; and

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