cluded or embraced by said act. The same remark might be made in re gard to many other cases which could be named. I forbear to enumerate more, because the application of the rule as laid down by this office in 1829, as modified by the suggestions now made, will enable you to decide correctly upon each case as it may occur. I am, sir, &c., I To the SECRETARY OF THE NAVY. FELIX GRUNDY. OFFICE OF THE ATTORNEY GENERAL, March 27, 1839. SIR: By yours of the 23d instant, the following question is presented for my opinion: "Whether the persons who were employed as clerks in the custom-house at Philadelphia, at any time from the commencement of the year 1832 to the commencement of the year 1837, but not within the last mentioned year, are entitled, under the provisions of the last session of Congress, contained in the 'act making appropriations for the civil and diplomatic expenses of Government for the year 1839,' to receive, for the time they were employed, the arrears of salary?" The provision in the act referred to is in these words: "For paying the clerks in the custom-house at Philadelphia the arrears of their salaries from 1832 to 1837, so as to make the same equal to what they received in the last mentioned year, on the same principle as has been applied at New York, $15,000, or so much thereof as may be necessary.' I think it manifest that Congress entertained the opinion that the clerks in the custom-house at Philadelphia were justly entitled to what is denominated in the act the arrears of salary, and that this provision was made to compensate them for services already rendered prior to the year 1837; and, in my opinion, the individuals who acted as clerks in 1832, 1833, 1834, 1835, and 1836, although not now clerks, are entitled to receive their due proportion of the benefits of said provision. The reference in the act to the principle, applied in New York, has no bearing on the present question. 1 am, sir, &c., To the SECRETARY OF THE TREASURY. FELIX GRUNDY. ATTORNEY GENERAL'S OFFice, SIR: In the letter of the First Comptroller to you, of the 19th instant, and which you have transmitted to this office for my opinion, the question is presented-Whether the 3d section of the act entitled "An act to provide for the support of the Military Academy of the United States, for the year 1838, and for other purposes," approved July 7, 1838, is in force, and to be applied to the year 1839? I would remark, that a provision similar to that contained in the act referred to is found in an appropriation act of 3d March, 1837, and in other acts of preceding years. I view these provisions (as Congress certainly considered them) as acts of appropriation, and intended to be limited in their operation to the year in which they were made, and as having no ef fect after the year, unless it be otherwise declared in the act. Therefore, in acting upon the subject referred to, you should act without reference to these acts, inasmuch as Congress has omitted to make a similar provision applicable to the year 1839. I am, sir, &c., &c., To the SECRETARY OF THE TREASURY. FELIX GRUND7. ATTORNEY GENERAL'S OFFICE, April 4, 1839. SIR: I have the honor to acknowledge the receipt of yours of the 29th ultimo, in which you state several difficulties which present themselves, under the 3d section of the act of Congress of the 3d of March last, “making appropriations for the civil and diplomatic expenses of the Government for the year 1839." The section referred to is in these words: "That no officer, in any branch of the public service, or any other person, whose salaries or whose pay or emoluments is or are fixed by law and regulations, shall receive any extra allowance or compensation, in any form whatever, for the dis bursement of public money, or the performance of any other service, unless the said extra allowance or compensation shall be authorized by law." In construing this section, no difficulty could arise, were it not for the introduction of the expression-" unless the said extra allowance or compen sation shall be authorized by law." This evidently creates an exception to the general prohibition; and the extent of this exception is the only point to be settled. To construe the exception as embracing all the cases which had been sanctioned by the Supreme Court of the United States, and the execu tive officers of the Government, as authorized by former laws, would be to make this section inoperative, and leave the law unaltered in its practical effect. To say that no extra allowance or compensation should in any case be made to persons having salaries, pay, or emoluments fixed by law and regu lations, would be in direct contravention of the act itself, which clearly contemplates their allowance in certain cases; that is, in such cases as are authorized by law. Both these constructions must, therefore, in my opinion, be laid aside; and such construction be adopted as will carry into effect the intention and meaning of Congress. The most striking evil under former laws was, that money placed in the hands of officers for disbursement, under general or specific appropriations, was withheld by them in several instances, under a claim for compensation for services rendered, as was alleged, not within their ordinary duties These claims were in some instances allowed by the judiciary, and in this way money appropriated by Congress for particular objects was diverted from its proper destination. The act before me cannot fail to prevent similar occurrences. There were other supposed evils of a like character existingsuch as the application of a portion of a general appropriation, and the contingent funds of the departments, to the payment of persons receiving salaries, pay, or emoluments fixed by law, for services the payment of which had not been directed by any act of Congress. In my opinion, the term ぎ "authorized by law," as used in this act, must be construed as equivalent to the expression "authorized by act of Congress," and that, in looking for the authority of law to warrant these payments, our researches are to be limited to the provisions which Congress has made upon this subject; and that, to bring a case within the exception contained in this 3d section, not only must the money be appropriated by an act of Congress, but it must be expressly appropriated for the particular services, for the rendition of which it is claimed as a compensation. This construction, it seems to me, would effect the objects intended by Congress. The consequences of the application of this principle will be-1st. That in case of a general appropriation of a sum of money for the accomplishment of a particular object, no part of it can be paid to a person receiving an annual salary, or pay and emoluments fixed by law, for any services he might render in relation to it, which services are not directed to be paid for by the act. 2d. No portion of the contingent fund of a department can be applied to the payment of extra services rendered by any person receiving an annual salary, or whose pay or emoluments are fixed by law; because no particular services are designated in the acts making such appropriations, to which the money, or any part of it, is to be applied. Instead of answering your inquiries separately, I have given you what I consider the true construction of the act in question; and leave to you the application of the rule laid down, to the different cases as they may be presented for the action of your department. There is, however, one case to which you have invited my attention, upon which it may be proper for me to be more explicit : it is in relation to the extra expenses of the officers engaged in the survey of the coast of the United States. In my opinion, the act under consideration has no application to officers engaged in this service. By the act of the 10th of February, 1807, a survey of the coast of the United States was directed to be made; and, to effect this important object, the President was clothed by that act with very large discretionary pow ers; and the sum of $50,000 was placed at the disposal of the President, for the prosecution of the work, without any particular directions being given in the act as to the application of the money. This act, which was considered obsolete, was revived by the act of 10th July, 1832, entitled "An act to carry into effect the act to provide for a survey of the coast of the United States ;" and by the latter act, the President is authorized to employ all persons in the land and naval service of the United States, and the sum of $20,000 is appropriated towards carrying said act into effect. This act, I think, fully authorizes the President to employ land and naval officers in this particular service, and to make an allowance for their extra expenses. I am, sir, &c., &c., To the SECRETARY OF THE TREASURY. FELIX GRUNDY. ATTORNEY GENERAL'S OFFICE, SIR: I have examined the letter of Mr. McCorry, and the two acts of Congress therein referred to-the one entitled "An act to require the judge of the district courts of East and West Tennessee to hold a court at Jackson, in said State;" the other annulling the same-(the first of which was approved June 18, 1838; and the last, January 18, 1839;) and am of opin ion, that it is extremely doubtful whether the commissions of the marshal and district attorney, or either of them, as made out, can be made applicable to what is, by the amendatory act, made and declared to be the district of West Tennessee. I would, therefore, advise that new commissions issue to these officers, describing them as officers of the district of West Tennessee. I am, sir, &c., &c., To the SECREtary of State. FELIX GRUNDY. ATTORNEY GENERAL'S OFFICE, April 8, 1839. SIR: I have received yours of the 5th instant, in which, by direction of the President of the United States, my opinion is required as to the authority of the President to act upon the case presented by the Clerk of the House of Representatives. I understand the case to be this: Congress, at its last session, appropria ted a particular sum of money for the mileage and pay of the members of the House of Representatives; and also appropriated another sum, in gross, for the contingent expenses of the House. It now appears, from the letter of the Clerk of the House, that the contingent fund will be deficient about $40,000; and therefore application is made to the President to transfer that amount from the specific appropriation for the mileage and pay of members, to the contingent fund of the House, to meet the demands upon that fund. The question presented for my opinion has no relation to the expediency of the measure; it is confined to its legality. I shall, therefore, in the investigation which I propose to give, confine myself entirely to an inquiry into the power of the President to do the act, or make the transfer asked for. The constitution declares that "no money shall be drawn from the Treasury but in consequence of appropriations made by law," &c. This I consider as an explicit inhibition upon the President and all others to draw from the Treasury any portion of the public money, until Congress shall have directed it to be done; and the expression in the clause of the const tution just quoted, "but in consequence of appropriations made by law." clearly indicates that Congress shall also declare the uses to which the money to be drawn from the Treasury is to be applied. The President therefore, has no power, under the constitution, over the public treasure, except to apply it in the execution of the laws. Whenever he so applies he acts within his constitutional authority. Whenever he applies it with out the directions of Congress expressed in some legislative act, or against such directions, he assumes upon himself power not conferred by the const tution. If Congress has appropriated money for one use or purpose, and has given no express power or discretion to the President to apply it to another, it seems to me that any act of his, transferring it to another use or purpose, would be wholly unauthorized by the constitution. And, surely, no assump tion of power could be more dangerous than that of expending more money upon an object than Congress had appropriated for it; and to procure money for such a purpose from other appropriations, without authority of law. would be to derange the system of appropriations contemplated by the constitution, and be placing in the hands of the President, in effect, the appro priating power. Whether, in a case like that presented for my opinion, such authority exists, depends entirely upon the provisions which Congress has made on the subject. If it has not been conferred by any act of Conagress, it does not exist; and the application made by the Clerk of the House of Representatives cannot be granted. That Congress has at all times, taken this view of the constitution, will, I think, be manifest from the different acts referred to in this opinion. The 1st section of the act of 3d March, 1809, "further to amend the sev eral acts for the establishment and regulation of the Treasury, War, and Navy Departments," which is relied on as authorizing this measure, contains the following provision: "And the sums appropriated by law for each branch of expenditure in the several departments shall be solely applied to the objects for which they are respectively appropriated, and to no other: Provided, nevertheless, That, during the recess of Congress, the President of the United States may, and he is hereby authorized, on the application of the Secretary of the proper department, and not otherwise, to direct (if in his opinion necessary for the public service) that a portion of the moneys appropriated for a particular branch of expenditure in that department be applied to another branch of expenditure in the same department; in which case, a special account of the moneys thus transferred, and of their application, shall be laid before Congress during the first week of their next ensuing session." This provision was confined to three executive departments of the Government, to wit: the Treasury, War, and Navy Departments; and even in them great caution is used, lest a misapplication of the money appropriated might be made. There are very strong reasons why this power should be given by Congress to the President, in regard to appropriations made for these departments, which, no doubt, apply to the case under consideration. In carrying into effect, in the recess of Congress, the objects of the different appropriations, it would frequently happen that the estimates made would turn out, upon experiment, to be wholly erroneous, on account of a difference existing between the estimated and real prices of labor, provisions, and materials, &c., growing out of a change of circumstances in the affairs of the country which could not be foreseen. This could not ordinarily hap pen, in any material degree, in regard to the expenditures of the House of Representatives. Of them, a probable estimate could generally, if not always, be made, which would not vary far from the truth; the principal item being for printing, which is done under a contract fixing the price. I therefore cannot believe that this case comes within the reason of the act referred to; and, in my judgment, it is a clear case for the application of the maxim→→ expressio unius est exclusio alterius. The act of March 3, 1817, supplementary to the act aforesaid, imposes a restriction upon the powers conferred upon the President by the preceding act, and declares that nothing contained in that act "shall be construed to authorize the President of the United States to direct any sum appropriated to fortifications, arsenals, armories, custom-houses, docks, navy yards, or buildings of any sort, or to munitions of war, or to the pay of the army or navy, to be applied to any other object of public expenditure." This last provision was modified, so far as relates to the support of the military establishment; and, in that particular, the act of the 3d of March, 1809, was restored by the act of 16th of February, 1818, as to appropriations made prior to the 1st of January, 1817. |