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TREASURY DEPARTMENT,
OFFICE OF COMPTROLLER OF THE TREASURY,

September 4, 1895. The Auditor for the Treasury Department, having before him che claim of the Oxnard Beet Sugar Company, of Grand Island, Nebr., for $11,782.50, being the first claim allowed by the Commissioner of Interna! Revenue under the appropriation in the sandry civil appropriation act of March 2, 1895, for the payment of bounty on sugar, decided that said claim was one of the character provided for by the appropriation of $238,289.08 contained in said act, and proposed to allow the same and certify the amount thereof for payment from said appropriation. In accordance with the provisions of section 8 of the act of July 31, 1894 (28 Stat., 208), he certified his decision to the Comptroller as an original construction of the statute making that appropriation. The appropriation above referred to reads as follows:

Bounty on sugar.-That there shall be paid by the Secretary of the Treasury to those producers and manufacturers of sugar in the United States from maple sap, beets, sorghuni, or sugar cane grown or produced within the United States, who complied with the provisions of the bounty law as contained in Schedule E of the tariff act of October first, eighteen hundred and ninety, a bounty of two cents a pound on all sugars test. ing not less than ninety degrees by the polariscope, and one and three-fourths cents a pound on all sugars testing less than ninety and not less than eighty degrees by the polariscope, manufactured and produced by them previous to the twentyeighth day of August, eighteen hundred and ninety-four, and upon which no bounty has previously been paid; and for this purpose the sum of two hundred and thirty-eight thousand two hundred and eighty-nine dollars and eight cents is hereby appropriated, or so much thereof as may be necessary.” (28 Stat., 933.)

The Comptroller, on account of the decision of the Court of Appeals of the District of Columbia in the case of The United States ex rel. The Miles Planting and Manufacturing Company v. John G. Carlisle and Joseph S. Miller (23 Wash. Law Rep., 33), holding the sugar bounty provisions of the tariff act of 1890, generally known as the McKinley Act, unconstitutional, called upon the Oxnard Beet Sugar Company and other claimants for the bounty provided in the act of March 2, 1895, for arguments to show why it was not the duty of the Comptroller to follow that decision and refuse payment of these bounties on the ground of the unconstitutionality of said appropriation.

At the hearing the jurisdiction of the Comptroller in the premises was seriously attacked, and it therefore becomes necessary to dispose of the jurisdictional question before considering the main issue. It was contended, in the first place, that the jurisdiction of the accounting officers of the Treasury had been taken away so far as the sugar bounty claims were concerned by reason of the following language in the act of March 2, 1895, providing for the payment of said claims—

"And for the payment of such bounty the Secretary of the Treasury is authorized to draw warrants on the Treasurer of the United States for sums as shall be necessary, which sums shall be certified to him by the Commissioner of Internal Revenue, by whom the bounty shall be disbursed, and no bounty shall be allowed or paid to any person as aforesaid upon any quantity of sugar less than five hundred pounds" (28 Stat., 934)— on the ground that the language above quoted, being found in a later act than that creating the jurisdiction of the account. ing officers over accounts generally, provided a special mode for the payment of these sugar bounty claims, and to that extent repealed all acts conferring jurisdiction upon the accounting officers. While the language just quoted gives some substantial color to this contention, it must not be overlooked that exactly similar language was contained in the tariff act of October 1, 1890 (26 Stat., 584), providing for the original sugar bounty. Under that act the practice was established of having these sugar bounty claims settled by the accounting officers, it having been then considered that the Secretary of the Treasury was not authorized to pay any such claim upon the certificate of the Commissioner of Internal Revenue except after settlement first had by the proper accounting officers of the Treasury in the usual manner for the settlement of all. public accounts. This practice, amounting to a construction of the original bounty provision, must presumptively have been known to ('ongress, and therefore a reenactment of the same language in the act of March 2, 1895, must have carried with it an intention that the bounty therein provided for should be paid as the previous bounties had been paid. (20 Opin. A. G., 719.)

Furthermore, precedents sustaining such practice are not wanting. Under the acts “to provide for the payment of horses and other property lost or destroyed in the military service of the United States” of January 18, 1837 (5 Stat.,

142), and of March 3, 1849 (9 Stat., 414), the Third Auditor was authorized to adjudicate claims for horses and other property lost in the military service. Section 5 of the act of 1837 and section 4 of the act of 1849 were as follows: .

"And be it further enacted, That in all adjudications of said Auditor upon the claims above mentioned, whether such judg. ment be in favor of or adverse to the claim, shall be entered in a book provided by him for that purpose and under his direction; and when such judgment'shall be in favor of such claim, the claimant, or his legal representative, shall be entitled to the amount thereof upon the production of a copy thereof certi. fied by said Auditor at the Treasury of the United States."

Notwithstanding the provision that payment should be made at the Treasury of the United States upon the production of a copy of the Auditor's judgment when certified by kim, it was the established practice to require settlements by 'tlie First Auditor and the First Comptroller to be made upon such judg.. ments before payments could be made by the Treasurer upon a warrant of the Secretary of the Treasury, as in the case of all other claims, and that practice was known to Congress, as shown by the report of Mr. Green in the Carmick & Ramsey Case (Senate Com. Rep., No. 270, Thirty-sixth Congress, first session, p. 18). It has always been the practice, under section 30121, Revised Statutes, and section 24 of the act of June 10, 1890 (26 Stat., 140), sections 3220 and 5218, Revised Statutes, and under many special acts “ directing the Secretary of the Treasury to pay” certain specified amounts, to require all such payments to be made through settlements by the accounting officers. Upon a careful examination by an old and experienced clerk of this office no payment of any claim whatever could be found except upon a certificate of the proper accounting officers, and it is confidently believed none such exists. Such practice seems necessarily to bave been required by the act of March 3, 1817, “To provide for the prompt settlement of public accounts” (3 Stat., 366), which created a comprehensive system of accounting for the Government, section 2 of which, incorporated into the Revised Statutes as section 236, provided that

"All claims and demands whatever by the United States or against them, and all accounts whatever in which the United States are concerned, either as debtors or as creditors, shall be settled and adjusted in the Department of the Treasury.”

It can hardly have been the intention of Congress, without a more clear expression to that effect than the language con

tained in the bounty provision of the act of 1895, to overturn a practice so long and well established.

It is further contended, however, that if the accounting officers have any jurisdiction whatever over these claims their duties are purely perfunctory and only require the putting into proper form for payment the adjudication of the Commissioner of Internal Revenue, which is to be conclusive. Reliance for this proposition is placed upon thie cases of United States v. Kaufman (96 U. S., 567), Savings Bank v. United States (16 C. Cls. R., 335, s. c. on appeal, 104 U. S., 728). What was held in those cases is well summarized in the following quotations from the opinion of. Chief Justice Waite in 104 U.S., 733:

“Under section 3220 he sthe Commissioner of Internal Rev. enue] is to refund' and pay back. His payments of money in both cases must be inade through the accounting officers of tire. Treasury Department, as he is not himself a disbursing olcer. Whether his allowance is conclusive on the other offi. : cers, through whose bands it must necessarily pass before it can be paid by the Treasurer, we did not then and need not now decide. All we said then, and all we say now is, that if payment is not made by reason of the refusal of any of the officers of the Department to pass or pay the claim after it has once been allowed by the Commissioner, the allowance may be used as the basis of an action against the United States in the Court of Claims, where it will be prima facie evidence of the amount that is due, and put on the Government the burden of showing fraud or mistake.”

Upon general principles, in addition to fraud or mistake, the jurisdiction of the Commissioner of Internal Revenue could be inquired into, as specifically held by the Court of Claims in Bank of Greencastle v. United States (15 C. Cls. R., 225). If the statute under which the Commissioner allowed the present sugar bounty claims is unconstitutional, aud therefore void, it follows that he was without jurisdiction, for jurisdiction can not be given by a void act. If the constitutionality of the statute may be inquired into by an executive officer, it follows that the Comptroller is acting within his jurisdiction, so far as the conclusiveness of the allowance by the Commissioner of Internal Revenue is concerned, in inquiring into that matter.

But it is also contended that the provision of section 8 of the act of July 31, 1894, known as the Dockery Act, under which the claim now under consideration came before the Comptroller for his action, does not authorize the Comptroller to do more than determine whether the statute under which the Auditor was proceeding to act was properly construed by him, and that the Comptroller can not, under the circumstances under which the claim is now before him, say that the statute construed by the Auditor is a nullity; that a power to construe does not confer a power to annul. The clause in question is as follows:

“All decisions by Auditors making an original construction or modifying an existing construction of statutes shall be forthwith reported to the Comptroller of the Treasury, and items in any account affected by such decisions shall be suspended and payment thereof withlield until the Comptroller of the Treasury shall approve, disapprove, or modify such decisions and certify his actions to the Auditor.” (28 Stat., 208.)

It seems difficult to see how it is possible for the Comptroller to approve a construction of a statute which, if unconstitutional, is as if it did not exist; but however that may be, the question is practically immaterial, for by another clause of section 8 of the Dockery Act the Comptroller is authorized on his own motion to revise any account settled by an Auditor, and if convinced that the Auditor has made a settlement that was erroneous, it would clearly be his duty to cause such revision to be made. The question, therefore, is one rather of form thap of substance and need not be given further consid. eration now, especially in view of the disposition lierein made of the bounty claims pow under consideration.

This brings up, therefore, for consideration the question whether the Comptroller has any power or authority under any circumstances whatever to question the constitutionality of a statute passed by Congress with all the legal formalities. It was most vigorously contended that he had not, and that any attempt upon his part to do so would constitute a dangerous usurpation of power; that the question of the constitutionality of an act of Congress could only be decided by the courts, and that until so decided by the Supreme Court it was the duty of every executive officer to obey the act, although himself convinced of its uncoustitutionality. By article 6 of the Cousti. tution the “Constitution, and the laws of the United States which shall be made in pursuance thereof, * * * shall be the supreme law of the land." Laws not made in pursuance of the Constitution are not, therefore, the law of the land. The Constitution is supreme. Laws made in pursuance thereof are as binding as is the Constitution itself, but when a law transcends the Constitution it is not binding because in on

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