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January 4, 1881, Ilon. James E. O'Hara, a Representative in Congress from North Carolina, by letter to the First Comptroller asked his opinion-whether “the Clerk of the House is by law authorized to pay the suid parties out of said contingent fund ?”

OPINION BY Wilian LAWRENCE, First Comptroller.

The Clerk of the Ilouse of Representatives is the disbursing officer for the contingent expenses of that body (Rev. Stat., 53, 58, 59). The First Comptroller is required to settle the disbursing accounts of said clerk, and thus to pass on the legality of payments made by him (Rev. Stat, 269, 277; Sister Elizabeth's case, 2 Lawrence, Compt. Dec., 2d ed., 1:0), y reason of this, a proper usage has grown up of asking the opinion of the First Comptroller in cases of doubt before making par. mchisi

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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.”

After the 4th of March, 1883, neither of the claimants was, within the meaning of this section, "employed by a resolution of one of the Houses.” There was not, and could not be, under the resolution of March 3, 1883, any valid employment after March 4, 1883. The resolution of December 20, 1883, did not authorize any employment. It could not authorize payment to the claimants for any services prior to its date, because section 3680 of the Revised Statutes prohibits payment, except to persons after a valid employment in pursuance of a resolution.

There are various provisions restricting and regulating the use of contingent funds (Rev. Stat. 56, 60, 76, 130, 3680; Act March 3, 1879— 20 Stat., 419.) The act of August 5, 1882 (22 Stat. 255, sec. 4), provides that“After the first day of October next

all laws and parts of laws authorizing the employment ôf officers, clerks, draughtsmen, copyists, messengers, assistant messengers, mechanics, watchmen, laborers or other employés at a different rate of pay or in excess of the numbers authorized by appropriations made by Congress, be, and they are hereby repealed.”

This, of course, does not limit the authority of each House of Congress to use its contingent fund in its discretion. But this and other provis. ions may aid in ascertaining the policy of Congress as to the use of contingent funds, and the proper construction of section 3680 of the Revised Statutes. There may be, perhaps, a power inherent in each House, to use its own contingent fund in its own discretion for its own purposes, which power, under the Constitution, no statute passed by one Congress can regulate or limit for a subsequent Congress. But section 3680 of the Revised Statutes can limit the authority of the present House as to the use of its contingent fund in paying expenses not incurred by its authority or for its own purposes.

There is no authority for the payment of the claimants, and the inquiry made of the Comptroller will be answered accordingly. TREASURY DEPARTMENT,

First Comptroller's Office, January 5, 1884.



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Under this provision Grayson has received monthly compensation since June 30, 1883, up to December 17, 1883.

December 17, 1883, the Clerk of the House was notified by James G. Wintersmith, Doorkeeper of the House of Representatives of the Fortyeighth Congress, that he had, on that day, removed Mr. Grayson from the position of assistant document file clerk, and appointed in his place Allen T. Davidson.

January 7,1884, Hon. John B. Clark, jr., Clerk of the House, addressed a letter to the First Comptroller, saying that the question has arisen as to the Clerk's authority, as disbursing officer of the House, to pay said Davidson for services as assistant document file-clerk before the expiration of the fiscal year, for which appropriation was made by said act of March 3, 1883 (22 Stat., 535); and the Clerk submits the question for consideration and decision.


The Constitution (Art. I, sec. 2, par. 5) declares that:

“ The House of Representatives shall chuse their Speaker and other Officers."

This is simply declaratory of an authority inherent in every legislative body, as a necessary incident of its powers, and essential to their proper execution (1 Story, Const., 4th ed., § 687). Quando lex aliquid concedit, concedere videtur et id, per quod devenitur ad illud (Potter's Dwarris, Stats. 123). Long usage has determined that the House may authorize its principal officers to appoint subordinates. Thus, a rule of the House provides that:

“There shall be elected by a viva voce vote at the commencement of each Congress, to continue in office until their successors are chosen and qualified, a Clerk, Sergeant-at-Arms, Doorkeeper, Postmaster, and Chaplain, each of whom shall take an oath to support the Constitution of the United States, and for the true and faithful discharge of the duties of his office, to the best of his knowledge and ability, and to keep the secrets of the House, and each shall appoint all of the employés of his department provided for by law."

This rule has been adopted by, and is in force in, the House of this Forty-eighth Congress.

It is well settled that, when authority is granted to a designated officer to appoint any person in his discretion to an office, and the law does pot give the incumbent a right to hold the same for any specified period, the power of removal and of filling the vacancy thereby made is incidental to the authority to appoint (2 Story, Const., 4th ed., $1537). The role of the House above quoted gives to the Doorkeeper authority to " appoint all of the employés of his department provided for by law." This includes all employés authorized by statute or provided for by resolution of the House, and not designated by name. The power, to appoint or remove an employé, does not extend to an officer

appointed by name by resolution of the House during the period of the Congress passing such resolution. But when the Congress has expired, the resolution ceases to have prospective force. When such officer or employé is continued in his position thereafter, as is this case, by a statute, he is, within the meaning of the rule of the House, an employé “provided for by law.”

The Revised Statutes (sec. 53) have created certain officers of the House. But each House has power to appoint other officers of its own creation, and to remove, and even to refuse to employ, those provided for by a statute of a previous Congress. The right to create appropri. ate offices, and to appoint officers, is given by the Constitution, and cannot be taken away by a statute not assented to by the Congress affected thereby. A right or power given by the Constitution cannot be taken away by a statute. The resolution of December 19, 1881, creating the office of "assistant document file-clerk,” by its own force continued such office during the existence of the Forty-seventh Congress-up to noon of March 4, 1883. “The legislative, executive, and judicial” appropriation-act of March 3, 1883 (22 Stat. 531, 535), continued the same office through the fiscal year from June 30, 1883, to July 1, 1884, and provided for payment of compensation during that period. The question, which now arises, is, whether this act continued Joel Grayson in office during this fiscal year, so that neither the Doorkeeper nor the House of the present Congress can remove him. If it be assumed that this act has the same force as if it specifically named Joel Grayson as the assistant document file-clerk, and that it was so intended, still it cannot be operative to impose on the present House of the Forty-eighth Congress a person as one of its officers against its own choice or against the choice of its Doorkeeper authorized to decide for it. The House of the Fortyseventh Congress could, as it did, appoint Grayson. The resolution appointing him was warranted by that provision of the Constitution which gives to the House the power to “chuse their Speaker and other Officers." The rule of the House does not give the Doorkeeper power to remove any person appointed by resolution of the House to an office created by such resolution during the existence of the Congress which passed it.

But the House of the Forty-seventh, had no power to provide a Speaker or any other officer for the House of the Forty-eighth, Congress, because the Constitution gives to the House of each Congress the sole, uncontrolled, and independent power to choose and remove all its own officers at pleasure. Even a statute enacted by the Forty-seventh Congress could not take from the House of the Forty-eighth Congress its power to choose all its own officers. Such statute would be void. This appears so clearly by the words of the Constitution that no argument seems necessary to prove it. Neither the Ilonse of the Forty-seventh Congress, nor even a statute, could continue Grayson in office during any part of the Forty-eighth Congress against the choice or direction of the

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