their duty, shall be considered to commence from the time of their being so disabled," &c. So soon as this law passed, the pensioner became entitled, in my opinion, to his arrearages of pension, as fully as he was to the pension itself; and although he died without having received what was due to him, still the money does not belong to the navy pension fund, but must be paid over to his legal representatives. I am, sir, &c., &c., To the SECRETARY OF THE NAVY. FELIX GRUNDY. POWER OF THE POSTMASTER GENERAL OVER MAIL CONTRACTS. Where one of two or more contractors for transporting the United States mail shall have been guilty of a violation of the twenty-eighth section of the act of the 2d July, 1836, changing the organization of the Post Office Department and providing more effectually for the settlement of the accounts thereof, the Postmaster General may annul the contract and relet the route according to law. ATTORNEY GENERAL'S OFFICE, March 25, 1839. SIR: Yours of the 23d instant is before me: in it you state that a case has occurred, in which it is established to your satisfaction that an individual has been guilty of a violation of the 28th section of the act of the 2d of July, 1836, entitled "An act to change the organization of the Post Office Department, and to provide more effectually for the settlement of the accounts thereof." You also state that this individual is a partner in one or more contracts with your department for the transportation of the mail. And my opinion is asked as to the effect of the exercise of the power conferred on you by the act referred to, and in what way it can be exercised, consistently with the provisions of said act? You have decided on the exercise of the power; that point is confided to you exclusively by law. The next inquiry is, does his being a partner only, and not the sole contractor, in other cases, make any difference, in a legal point of view, as to your power over those contracts? The act declares, and if any person so offending be a mail contractor, he may be forthwith dismissed from the service of the department," &c. My opinion is, that the offending partner can only be dismissed by annulling the contract; or, in other words, if one partner is dismissed, all are discharged thereafter from their obligations or engagements to the department. I know of no law which would authorize the Postmaster General to look to the other partners and the securities for a performance of the contract, after dismissing one of the partners. Should it be said that there is a hardship imposed upon the unoffending partner in annulling the contract on account of the misconduct of the other partner, the answer is a plain and obvious one: it is his misfortune to have united himself with a man regardless of his duties and obligations to the public; and it is better that he should bear this inconvenience than that the public interest should be sacrificed. Besides, should any other course of action be pursued by you, the prohibitions of the act of Congress on this subject could easily and at all times be evaded. Some one partner could always be placed in a position where proof of guilt could not reach him. Being of opinion that, under the post office act of 1836, the act of one partner operates upon the whole contract, and that you cannot legally dismiss one partner without discharging all, my advice is, that you proceed to relet the route according to law. I am, sir, &c., &c., To the POSTMASTER GENERAL. FELIX GRUNDY. CONTRACTS FOR SUPPLIES OR SERVICES FOR THE NAVY. All purchases and contracts made by the Navy Department should be under the direction of the Secretary of the Navy. Where the public exigencies do not require the immediate delivery of the article or performance of the service, in such cases it is necessary previously to advertise for proposals respecting the same, unless the article be a steamboat or some similar structure. Where immediate delivery is necessary to the wants of the public service, the article required must be obtained by open purchase. OFFICE OF THE ATTORNEY GENERAL, SIR: I have received yours of the 22d instant, asking my opinion as to the construction of the act of the 3d of March, 1809, "further to amend the several acts for the establishment and regulation of the Treasury, War, and Navy Departments." The difficulty arises upon the following provision in said act: "All purchases and contracts for supplies or services which are or may, according to law, be made by or under the direction of either the Secretary of the Treasury, the Secretary of War, or the Secretary of the Navy, shall be made by open purchase, or by previously advertising for proposals respecting the same." Your predecessor (Mr. Branch) obtained from Mr. Berrien, then Attorney General, his opinion upon the subject, on the 29th of August, 1829. The result of that opinion was— "1. That all purchases and contracts made by your department must be made and entered into by or under your direction. "2. That where the public exigencies do not require the immediate delivery of the article, or performance of the service, in such cases it is necessary previously to advertise for proposals respecting the same. "3. Where immediate delivery is necessary to the wants of the public service, the article required must be obtained by open purchase—that is, by purchase at the places where articles of the description wanted are usually bought and sold, and in the mode in which purchases are ordinarily made between individual and individual." Of the correctness of this opinion I entertain no doubt; still, there are cases which, from their nature, must be considered as forming just exceptions to the rule laid down. These exceptions must consist of cases which plainly and manifestly were not within the view and design of Congress when the law was passed, and which cannot, without injury to the public service, be subjected to the operation of the rule laid down. To illustrate my views as to cases to be excepted from the operation of the general rule, I will name one on which you will have probably to act-the construction of steam frigates for the protection of our maritime frontier, directed by an act of the last session of Congress. Such a means of defence was not thought of thirty years ago, when the act in question was passed. To place the construction of the machinery of such vessels in incompetent hands, (which would probably be the case, if the plan of advertising and receiving proposals were pursued,) would be, in effect, to convert them into instruments to destroy the lives of our citizens, instead of saving and preserving them. In such a case, every just rule of construction forbids its being included or embraced by said act. The same remark might be made in regard 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., To the SECRETARY OF THE NAVY. FELIX GRUNDY. EXTRA COMPENSATION TO SALARIED OFFICERS. Extra compensation to persons entitled to salaries may be allowed only where money shall have been appropriated for the particular services, for the rendition of which it is claimed as a compensation. In a 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, unless the services rendered are directed to be paid for by the act. Payment for such services cannot be made out of the contingent fund. 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 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 disbursement 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 compensation 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 executive 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 regulations, 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 existing-such 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 "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 powers; 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. TRANSFER OF SPECIFIC APPROPRIATIONS OF HOUSE OF REPRESENTA- The President does not possess the power to order any portion of a specific appropriation for the mileage and pay of members of the House of Representatives to be transferred to the contingent fund of that body. 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, appropriated 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 constitution 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 it, he acts within his constitutional authority. Whenever he applies it without the directions of Congress expressed in some legislative act, or against such directions, he assumes upon himself power not conferred by the consti 1 |