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was in fact repealed, no payments could have been made thereafter under the orignal act, and it can not be contended that Congress could, by another act, continue the unconstitutional provision because people at their peril had relied upon the original act as constitutional Such view would involve the result that a constitutional prohibition against a given expenditure could always be evaded simply by passing two acts, the first unconstitutional, the second valid because passed to compensate the disappointment arising from the unconstitutionality of the first, but both accomplishing the same original purpose of paying out the people's money to a beneficiary for a purpose forbidden by the organic law. This would be to continue the original wrong, and to perpetuate the original usurpation. The justice and equity of the present bounty upon the theory of the repeal of a constitutional statute may be conceded. The question is not one of policy but of power. If the power exists, the extent of its esercise is solely for Congress to determine, and no executive officer or court can question its conclusions. But, if the power does not exist, no degree of natural justice and equity or moral obligation can justify Congress in assuming it, or make its action valid.

Congress is the agent and representative of the people when it acts within its power, but when it does not act within its power, it does not act for the people; and having once exceeded its power it can not, by its own act, ratify so as to make valid its own wrongful action. That can only be done by the people, whose representative it is, and by an amendment to the Constitution in the manner prescribed therein.

This is well illustrated by the forcible language of Mr. Justice Matthews in the opinion in Poindexter v. Greenhour (114 U. S., 270-290):

"The Government is an agent, and, within the sphere of the agency, a perfect representative; but outside of that, it is a lawless usurpation. The constitution of the State is the limit of the authority of its government, and both Government and State are subject to the supremacy of the Constitution of the United States, and of the laws inade in pursuance thereof, So that, while it is true in respect to the government of a State, as was said in Langford v. United States (101 ('. S., 341), that the maxim, that the king can do no wrong, has no place in our system of Government; yet, it is also true, in respect to the State itself, that whatever wrong is attempted in its name is imputable to its governinent, and not to the State, for, as it can speak and act only by law, whatever it does say and do must

be lawful. That which, therefore, is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the State, but is the mere wrong and trespass of those individual persons who falsely speak and act in its name.” '

This language, although spoken of a State, is equally applicable to the United States, and therefore a statute which transcends the power conferred upon Congress by the Consti. tution is not the act of the people by their agents as perfect representatives, or their word and deed, but the wrong “of those individual persons who falsely speak and act in their name"--an act of " lawless usurpation.”

Therefore, if the McKinley bounty act was unconstitutional the promise to pay the bounty was not the promise of the United States, or even the promise of their agents or representatives as such, which should be fulfilled. No moral obligation to fulfill this promise, for the making of which the people are not responsible, can arise from the wrongful assertion by their representatives, while acting beyond their power, that the promise is the promise of the people because made in their Dame.

It was suggested, however, that the people had got the benefit of their agents' act and should therefore make good the promise. But if the bounty was not given for a public purpose no such benefit was received. In all the above-cited cases where gifts were held to be unauthorized because for private purposes, that which was expected from the gift had been obtained, and yet none of the cases was upheld on this ground. Io Parkersburg v. Brown, supra, this suggestion was made without effect. It was said in that case (p. 509):

“But it is contended by the appellees that independently of the original validity of the bonds the city is liable to pay them because it misled and prejudiced their holders and prevented them from resorting to the security, or because it received the full value of the bonds in consideration of paying them.”

To which Mr. Justice Blatchford, who delivered the opinion of the court, answered:

“ The only misleading or prejudice was that the holders of the bonds, mistaking the law, supposed them to be valid obligations of the city.”

It is also suggested that when Congress gets out of the domain of law and into the realm of justice and equity, its power is unlimited. That would no doubt be true if Congress could get out of the domain of law, but it can not do so. The limit of the domain of law to Congress is the extent of the legislative power conferred upon it in the Constitution, and its power to do equity and justice is restricted by its limitations.

As the courts can not declare any act of the legislature unconstitutional on the ground that it is contrary to the principles of natural justice and equity, neither can the legislature make an act constitutional, which otherwise would not be so, simply because in passing the same it was actuated by motives founded upon the principles of natural justice and equity.

The bounty of the act of 1895 is not limited to those who may have suffered an injury by failure to receive the bounty of the McKinley Act, but is given to all alike, whether they suffered loss or not. There is nothing which indicates that it was intended to make compensation for such injury, and that can not be implied. The provision now under consideration is simply the continuation in full of the bounty provision of the McKinley Act for the benefit of those who failed to receive that which they had already earned under the McKinley Act up to August 28, the date of its repeal. It is a mere continuance of the original provision, and if the original provision was invalid it is inconceivable that the present provision can be any more valid.

4. Having reached he onclusion that the present bounty provision has no more constitutional validity than the original McKinley bounty had, it follows that the same action should be taken under the present appropriation as would be taken if the original bounty appropriation were still unrepealed and were held unconstitutional. If the Comptroller should pass the claims the Government would be absolutely concluded and the money of the people be taken from the Treasury in payment of demands not authorized by law, if the appropriation is in fact unconstitutional. By a refusal to pass the claims the ultimate rights of the claimants are in no way affected, for they lave a perfect remedy in court to test the validity of their claims and obtain payınent thereof after a final determination of the constitutionality of the law, if it be held coustitutional.

If the Comptroller had no other alternative than to pass or reject the claims, for the reasons above given, bis duty to the whole people, who can not bring their rights into court, would require him to reject them, leaving the claimants to their recourse to the courts; but Congress have provided another

means of escape, apparently with the intention of relieving an officer who finds himself obliged to differ with the legislative branch of the Government or violate his oath to support the Constitution.

By section 1063 of the Revised Statutes it is provided that

“Whenever any claim is made against any Execntive Department, involving disputed facts or controverted questions of law, where the amount in controversy exceeds three thousand dollars, or where the decision will affect a class of cases or furnish a precedent for the future action of any Executive Department in the adjustment of a class of cases, without regard to the amount involved in the particular case, or where any authority, right, privilege, or exemption is claimed or denied under the Constitution of the United States, the head of such Department may cause such claim, with all the vouchers, papers, proofs, and documents pertaining thereto, to be transmitted to the Court of Claims, and the same shall be there proceeded in as if originally commenced by the voluntary action of the claimant; and the Secretary of the Treasury may, upon the certificate of any Auditor or Comptroller of the Treasury, direct any account, matter, or claim, of the character, amount, or class described in this section, to be transmitted, with all the vouchers, papers, documents, arid proofs pertaining thereto, to the said court, for trial and adjudication.”

Section 1064 provides that cases thus transmitted shall pro. ceed to judgment as in other cases in that court, and section 707 provides an appeal to the Supreme Court of the United States.

The present claim is one involving a controverted question of law, and comes directly within the provision of section 1063, because the authority, right, and privilege is claimed on the one hand and denied on the other under the Constitution of the United States. Congress, by providing that claimants against the Government should have a remedy in court, and authorizing suits to be brought against the sovereignty of the United States which, but for that action, could not have been maintained, has provided for a determination by the courts of the validity of claims against the United States. Furthermore, by section 1063 it has invited the executive officer who finds himself in the position in which the Comptroller now is to submit for the determination of the judicial branch of the Government the settlement of claims founded upon statutes of doubtful constitutionality. Notwithstanding the fact that doubt has been suggested and the question raised in a case peuding before the Supreme Court whether section 1063 bas been repealed, the opinion of the Comptroller is so strong that it is still in force, especially as the questions pending before accounting officers, and the practice both of the Executive Departments and of the courts has so persistently treated it as continuing in operation, that he deems it advisable that the important question under consideration should be referred under that section to the end that a judgment may be rendered upon this claim from which either party can appeal to the Supreme Court and the final decision of that court be obtained.

The papers in the present case will, therefore, be returned to the Auditor for transmission by him, through the Secretary of the Treasury, to the Court of Claims, under section 1063, for the rendition of a judgment, as required by the provisions of section 1064 of the Revised Statutes, in order that there may be furnished “a precedent for the future action of (the) Executive Department in the adjustment of (the) class of cases" involved in these sugar bounties.





The expenses of an officer of the Marine Corps in charge of navy prisoners

are properly payable from the Navy appropriations.


September 6, 1895. SIR: In response to your reference of August 10, 1895, relative to charging expenses of marine officers in charge of detachments of navy prisoners to naval appropriations, and requesting the decision of this office as to whether such expenses are properly charged to the naval appropriations, I have the honor to advise you that, in accordance with the wellestablished practice of the office of the late Second Comptroller, such expenses are to be charged to the naval appropria tion, under the head of “Pay,miscellaneous, 1896,” providing for “ Expenses of court-martial, prisoners and prisons, and courts of inquiry, boards of investigation, examining boards, with clerks' and witnesses' fees and traveling expenses and costs."

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