INTRODUCTION. The EXECUTIVE GOVERNMENT OF THE UNITED STATES, in its relations to foreign nations, their citizens or subjects, to the States within and subject to the National jurisdiction, to citizens of the Republic, and to the Legislative and Judicial branches of the Government, derives its authority from, exercises its functions by virtue of, and governs or is governed by, law, written and unwritten. The written law, which recognizes, grants, regulates, or limits executive authority and the scope of its duties, requires interpretation and construction as fully as the similar law applicable to legislative or judicial power, and duty. It is a necessary incident of the authority, by which executive power is exercised and executive duty performed, that such authority should, as to executive questions, generally be the exclusive judge in construing the laws authorizing its creation, existence, and modes of procedure; for, otherwise, it would not be a co-ordinate and independent branch of the Government, but would be liable to have its functions crippled, if not usurped and overthrown, by one or both of the other two co-ordinate branches invested with portions of sovereignty. The power of the Executive branch of the Government to judge of and construe the written laws, which relate thereto, is as essential to its existence and independence, as is a similar power of the Judiciary or of Congress, respectively, in relation to its jurisdiction and duties. When power is given to an executive officer to act, he must, of necessity and as an incident thereof, have authority to judge and decide on all executive questions relating to his action, because of the rule that "whenever a power is given everything necessary to the making of it effectual is given by implication." (2 Inst., 306; 12 Rep., 130; Potter's Dwarris, Statutes, 123.) And when executive authority is given to be exercised in a prescribed mode, its actions and determinations, on executive questions affecting the rights of parties, are conclusive, exclusive, and generally subject to no review. (Exigency Case, 3 Lawrence Compt. Dec., 97; Id., Introduction, XXVII-XLI; State v. Marlow, 15 Ohio, St., 134.) If this be not so, then the exercise of executive authority is practically nugatory and without purpose or effect. And, by a well-settled principle, effect is to be given to the lawful exercise of authority so as to make it effectual, rather than to permit it to fail of its object. The Executive branch of the Government, in executing whatever power it can itself fully exercise without invading the functions of any other branch of sovereignty, does not require either the consent or construction of any authority but its own. The same principles must necessarily apply in ascertaining and giving effect to the unwritten law authorizing and controlling the Executive Government. Power given by unwritten law is as effective as that given by written law. There are of course many questions which in their character are judicial, and the determination of these by the Judiciary is conclusive on the other branches of the Government. Recognizing this to the fullest extent, and with the highest sense of loyalty to the Judiciary, it is not saying too much to affirm that THE LAW OF THE EXECUTIVE GovernMENT embraces a range of subjects as wide in extent, as great in variety, as complex in character, involving as many public and private interests as profoundly important in their relations to the perpetuity of Republican institutions, the advance of civilization, and the well-being of mankind, as any system of law which can exist. It may also be said with propriety that, in a small degree, it has been the mission of this series of volumes of the DECISIONS OF THE FIRST COMPTROLLER, to give construction to some portions of the written LAW OF THE EXECUTIVE GOVERNMENT, and to present in a limited measure some principles of the International, inter-State, and National Executive, common law. The labors of the present First Comptroller in this direction will terminate with the volume now given to the public, and, with a few cases, perhaps, in the volume which will follow after this. The work, of preparing the volumes thus far, has been somewhat embarrassing, because unaided by any similar publication. In one sense, it has been a pioneer work. But it has been rendered somewhat pleasant, by the indulgent favor of many who are eminent in the legal profession, and by a taste to which, it may with propriety be said, the investigation of legal subjects is congenial in a degree far greater than can be evidenced or measured by any results accomplished. It is hoped and believed that the work, so imperfectly begun, will continue with increased public favor and largely increased value in the learned and able hands to which it will doubtless be entrusted. Those who continue the work will be honored by the disapproval and hostility of some whose frauds will be exposed and defeated and whose illegal demands will thereby fail of their purposes, and of others whose errors of law and fact will be revealed and corrected, and who will regard such work as an unwelcome intrusion, and of still others, well-meaning men, confident in asserting what they honestly regard as their rights, but who cannot tolerate any judgment, however honest and correct, if at variance with their own-Parvum parra decent. Some suggestions will now be made, in the hope that they may reach Congress, which would be out of place under other circumstances. In order to secure entire uniformity in the construction given to statutes by accounting officers, and in the principles of National Execu tive common law by them announced, the jurisdiction of the First Comptroller should be extended to include the final decision of every question of law which may arise in the system of accounting; or, if the First Comptroller, under the name of Comptroller General, the Second Comptroller, and the Commissioner of Customs, the latter under the name of the Third Comptroller, should be organized into a quasi judicial tribunal, with an appropriate title, and with the jurisdiction above mentioned, this, it is believed, would be an improvement on the present system. The public interests would be promoted, if Congress should make the official tenure and salary of the First Comptroller the same as that of the Justices of the Supreme Court of the United States; and, if the policy is to continue of allowing judges of the courts of the United States to retire on salary after a prescribed age and period of service (Rev. Stat., 714), for like reasons the same privilege should be accorded to First Comptrollers, whose duties are to a large extent substantially judicial in character. The other Comptrollers should be put on the footing of the Justices of the Supreme Court. Grateful acknowledgments are tendered to the five successive Secretaries of the Treasury*-eminent, distinguished and deserving of high honors for the confidence reposed in, and for the marked consideration shown to, the First Comptroller, by them, respectively, during the period of the preparation of the five volumes of the Comptroller's Decisions. This volume is now submitted to the liberal and enlightened portion of the officials and public, for whose use it is designed. TREASURY DEPARTMENT, WILLIAM LAWRENCE, First Comptroller's Office, December 31, 1884. The Hons. John Sherman, William Windom, Charles J. Folger, Walter Q. Gresham, and Hugh McCulloch. DECISIONS OF THE FIRST COMPTROLLER (WILLIAM LAWRENCE) IN THE DEPARTMENT OF THE TREASURY OF THE UNITED STATES. 1884. IN THE MATTER OF THE AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF ONE CONGRESS BY RESOLUTION TO CONTINUE THE EMPLOYMENT OF PERSONS AFTER SUCH CONGRESS HAS EXPIRED.— HOUSE-RESOLUTION CASE. The House of Representatives of the Forty-seventh Congress, by resolution of March 3, 1883, directed its Doorkeeper "to retain upon the laborers' roll until otherwise ordered" the names of T. and G. The House of the Forty-eighth Congress, by resolution of December 20, 1883, directed its Clerk to pay to each of them $60 per month, out of the miscellaneous items of the contingent fund, for services rendered from March 4, 1883, to December 3, 1883. Held: 1. That the powers of the House of Representatives of the Forty-seventh Congress, ceased at noon of March 4, 1883, after which the resolution of March 3, 1883, was inoperative, and, hence, only gave employment and right to compensation to and including March 4, 1883. 2. That the House of Representatives has authority to dispose of its contingent fund in its own discretion, except so far as it is limited by act of Congress. 3. That section 3680 of the Revised Statutes limits the use of the contingent fund of each House of Congress, so that no payment can be made therefrom "to any clerk, messenger, or other attendant of either of them, unless * * employed by a resolution of one of the Houses," the effect of which is to allow compensation only after a valid employment by resolution. 4. That as the resolution of March 3, 1883, gave no authority for employment after March 4, 1883, the resolution of December 20, 1883, cannot authorize payment for any services after March 4, 1883, and prior to its passage. March 3, 1883, the House of Representatives resolved that its Doorkeeper be, and is, "directed to retain upon the laborers' roll until otherwise ordered the name of Alexander B. Thomas and [Wilson Grice] now in charge of the cloak-room, at the rate of $60 per month." December 20, 1883, the House resolved: "That the Clerk of the House pay out of the miscellaneous items of the contingent fund to Alexander B. Thomas and Wilson Grice $60 a month each for services rendered from March 4, 1883, to December 3, 1883, as per resolution of the House passed March 3, 1883." 1 DEC, VOL, 5 |