lean strongly to avoid absurd consequences." (Bishop, Written Laws, 82, citing 1 Blackst., Com., 91; Dwarris, Stat., 2d ed., 587.) The question, whether, in stipulating for compensation, the Attorney-General may include therein reasonable and necessary expenses of attorneys, has not yet been finally decided. But, if so, the question, whether such expenses are reasonable in amount or character, is one open to inquiry and decision by the accounting officers. (1 Lawrence, Compt. Dec., 2d ed., App., ch. xii.)

It has been suggested that "the fees in criminal cases are fixed by statute, and no allowance can legally be made except in accordance with chapter 16, Fees of Title XIII. (Rev. Stat., U. S., 824.)" These provisions relate to the fees to be taxed in favor of the regular district attorneys, and do not limit the power to appoint and fix the compensation given by section 363. This latter section is cumulative as to compensation. Sections 823 and 824 of the Revised Statutes are from the act of February 27, 1853 (10 Stat, 161, 162), while section 363 is from the act of August 2, 1861 (12 Stat., 285, sec. 2). And it has been said, "when the legislative power professes to add to the law, as it does in the enactment of an affirmative statute, we cannot assume for it an intention also to subtract from it while there is any admissible rule of interpretation which, applied to the old, to the new, or to both, will enable all to stand." (Bishop, Written Laws, 155; Hardcastle, Statutory Law, 167; Potter's Dwarris, Stat., 70, 74, 229; Sedgwick, Construction Stat. and Const. L., 2d ed., 29, 98 n.)

It has been further suggested that "sections 905 and 906 of the Revised Statutes relating to the District of Columbia, take away from the Attorney-General the power to appoint regular or permanent assistants to the District Attorney for this District." The power given by section 363 of the Revised Statutes is cumulative as to that given in said sections 905 and 906.*

TREASURY DEPARTMENT,

First Comptroller's Office, April 14, 1883.

NOTE BY FIRST COMPTROLLER,

The act of September 24, 1789 (1 Stat., 93, sec. 35), provided, that—

"There shall be appointed a meet person, learned in the law, to act as Attorney-General for the United States, who shall be sworn or affirmed to a faithful execution of his office: whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the Departments, touching any matters that may concern their Departments, and shall receive such compensation for his services as shall by law be provided.”

The Attorney-General under this act was simply an officer. He was not the head of an Executive Department until made so by the act of June 22, 1870 (16 Stat., 162), "to establish the Department of Justice." This latter act grew out of proceedings in Congress which preceded it. On the 19th of February, 1868, Mr. Lawrence, from the Judiciary Committee of the House of Representatives, introduced House Bill No. 765, "to establish a Law Department," and made a brief speech in support of it. (Cong. Globe, vol. 67, second session, 40th Congress, 1271, 1273). The bill was recommitted

to the Judiciary Committee. It was subsequently, at the same session, reported back to the House with an amendment in the nature of a substitute, which was ordered to be printed and recommitted to the same committee. (Cong. Globe, vol. 67, 2480). The pressure of business was so great that no further action was taken by Congress on the bill.

The "bill to establish the Department of Justice," which was reported to the House of Representatives from the Committee on the Revision of the Laws, and finally passed, and which became the act of June 22, 1870 (16 Stat., 162)-"An act to establish the Department of Justice"-was taken substantially from the bill introduced by Mr. Lawrence "to establish a Law Department." The "bill to establish the Department of Justice" was fully discussed in Congress. See speeches of Mr. Lawrence and others, Cong. Globe, vol. 78, 3037, 3039, 3065-3067.

IN THE MATTER OF THE AUTHORITY TO USE AN APPROPRIATION TO PAY EXPENSES INCURRED BEFORE THE PASSAGE OF THE ACT MAKING IT -HOWARD UNIVERSITY CASE.

1. Under section 3732 of the Revised Statutes, the United States cannot be subjected to a liability, unless (1) some officer or person "is authorized by law" to incur it, or (2) there be "an appropriation adequate to its fulfillment."

2. The same principle exists without this section, which is only declaratory of the common law.

3. Under the sundry civil appropriation act of August 7, 1882 (22 Stat., 302, 331), no payment is authorized "for repairs of buildings of the Howard University" made before the act was passed.

The Revised Statutes contain the following provisions:

"SEC. 3679. No Department of the Government shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract for the future payment of money in excess of such appropriations.

"SEC. 3732. No contract or purchase on behalf of the United States shall be made, unless the same is authorized by law or is under an appropriation adequate to its fulfillment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, or transportation, which, however, shall not exceed the necessities of the current year.

"SEC. 3733. No contract shall be entered into for the erection, repair, or furnishing of any public building, or for any public improvement which shall bind the Government to pay a larger sum of money than the amount in the Treasury appropriated for the specific purpose.

"SEC. 5503. Every officer of the Government who knowingly contracts for the erection, repair, or furnishing of any public building, or for any public improvement, to pay a larger amount than the specific sum appropriated for such purpose, shall be punished by imprisonment not less than six months nor more than two years, and shall pay a fine of two thousand dollars."

Several of the acts making appropriations for the fiscal year ending June 30, 1883, were not passed until after the fiscal year commenced. In order to provide for the payment of salaries, and to carry on the

operations of the Government after June 30, 1882, when previous appropriations ceased, and until the regular appropriation acts should be passed, Congress, by joint resolution of June 30, 1882 (22 Stat., 384), and by others of subsequent dates (22 Stat., 389, 390, 392), extending and continuing the provisions of the same, provided:

"That all appropriations for the necessary operations of the Government under existing laws which shall remain unprovided for on the thirtieth day of June, eighteen hundred and eighty-two, be, and they are hereby, continued and made available for a period of twenty days from and after that date, unless the regular appropriations therefor provided for in bills now pending in Congress, shall have been previously made for the service of the fiscal year ending June thirtieth, eighteen hundred and eighty-three; and in case the appropriations, or any of them, hereby continued, are or is, insufficient to carry on the said necessary operations, a sufficient amount is hereby appropriated, out of any money in the Treasury not otherwise appropriated, to carry on the same: Provided, That no greater amount shall be expended therefor than will be in the same proportion to the appropriations of the fiscal year eighteen hundred and eighty-two, as twenty days' time bears to the whole of said fiscal year: Provided further, That authority is also granted for continuing during the same period the necessary work required for public printing and binding, and for all other miscellaneous objects embodied in the Sundry Civil and Naval appropriation acts, in advance of appropriations to be hereafter made for said objects: And provided further, All sums expended under this act shall be charged to and be deducted from the appropriations for like service for the fiscal year ending June thirtieth, eighteen hundred and eightythree."

The act of August 7, 1882 (22 Stat., 302, 331), "making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirtieth, eighteen hundred and eighty-three, and for other purposes," provides as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the following sums be, and the same are hereby, appropriated for the objects hereinafter expressed for the fiscal year ending June thirtieth, eighteen hundred and eighty-three, namely:

*

For repairs of buildings of the Howard University: To be used in repairing the main university building, Miner Hall and wings, and Clarke Hall (-dormitories, and professors' dwellings and rooms), including outbuildings, to wit: The wood work, doors, windows, porches, steps, and outbuildings, fences, basement-doors, heating-apparatus, plumbing and drainage; to paint all the wood-work, including wings, and to build new fence: and for water-supply, to be used in the construction of a wind-mill, with reservoir, laying pipes, putting in pump, and all necessary attachments, ten thousand dollars."

None of the appropriation acts for the fiscal year ending June 30, 1882, contained any appropriation "for repairs of buildings of the Howard University.” *

See the act of March 2, 1867 (14 Stat., 438), to incorporate the Howard University.

The account of the treasurer of the Howard University now in this office for settlement shows disbursements since August, 1882, of about $3,000, in making payments for repairs of buildings of the University made in July and August, 1882, before the Sundry Civil appropriation act of August 7, 1882 (22 Stat., 302, 331), was passed.

The question is thus presented, whether the treasurer of the Howard University could use money appropriated by this act in paying for repairs made before it was passed.

DECISION BY WILLIAM LAWRENCE, First Comptroller:

Repairs were made on buildings of the Howard University during July and August, 1882, and prior to August 7, 1882. There was no law which authorized these repairs to be made, nor was there any appropriation adequate to the fulfillment of the contracts for such repairs when made. Without any statute on the subject, the United States would not be liable for expenses so incurred, and, in addition to this, section 3732 of the Revised Statutes expressly declared that no such contract should be made under the circumstances stated. The Joint Resolution of June 30, 1882 (22 Stat., 348), only continued appropriations made by "existing laws"-laws existing on June 30, 1882. There were no "existing laws" as to such repairs.

The only question which remains is, whether the act of August 7, 1882 (22 Stat., 302, 331), appropriates money to pay expenses previously incurred for these repairs. It is clear that it does not.

1. This act is retroactive in some respects as to salaries. (Appropria tion Extension Case, 3 Lawrence, Compt. Dec., 216.) But it requires clear language to make a statute operate retroactively, and there is none such in the act of August 7, 1882, to make it apply to the expenditures now in question. On the contrary, it declares, as to the appropriation for repairs, that it is "to be used in repairing the main university building" in a mode specified. This looks to future repairs-not to those already made.

2. This construction should be adopted, also, because Congress, by the Joint Resolutions referred to, extended previous appropriations without making or authorizing new or additional ones. This shows, that it was not intended to provide for expenditures of a character different from those previously existing, until the regular appropriation acts should be passed.

In what has been said it is not intended to limit the effect of "deficiency" appropriation acts. Such acts frequently make appropriations to pay salaries due in pursuance of law, and to meet expenses previously incurred by express authority of law, for which there is no adequate appropriation, as well as to pay salaries to become due and to meet expenses to be incurred after the passage of the acts.

3. It may be urged, that the repairs having been made without an

appropriation, did not "involve the Government" in any liability, and hence, that there is no violation of section 3679 of the Revised Statutes, and, that, after the appropriation was made, the repairs could be accepted and thus a liability created, to pay which the appropriation may be properly applied. To this there are abundant objections.

a. The appropriation act is, by its terms, applicable only to repairs thereafter made. It does not give authority to any person to ratify or accept what has been done. It gives authority to make repairs in futuro only. No other statute gives authority to ratify or accept what has been done.

b. Section 3679 of the Revised Statutes prohibits this. The repairs must have been made by virtue of a contract, express or implied. If there could be any liability for payment, it would have been created by that contract which required "future payment." This section makes illegal every "contract," which undertakes to "involve the Government" in a liability "for the future payment of money in excess" of appropri ations already made. It is well settled, that no claim or right of action, can arise out of an unlawful contract. (Leggett's case, 2 Lawrence, Compt. Dec., 2d ed., 352). See Rev. Stat., 3690.

c. This mode of attempting to fix a liability on the United States would be a clear "fraud upon the statutes," which, upon well settled principles, cannot be tolerated. (Hardcastle, Statutory Law, 24; Sedgwick, Construction Stat., and Const. L., 74.)

The vouchers for payment of expenses incurred in making repairs prior to August 7, 1882, will be disallowed.

TREASURY DEPARTMENT,

First Comptroller's Office, April 20, 1883.

IN THE MATTER OF THE AUTHORITY OF THE CHIEF OF ENGINEERS AS SUPERINTENDENT OF PUBLIC BUILDINGS AND GROUNDS IN THE DISTRICT OF COLUMBIA TO FURNISH THE COMMISSIONER OF FISH AND FISHERIES WITH AN OLD FENCE IN EXCHANGE FOR A NEW ONE TO BE ERECTED BY THE LATTER OFFICER.-EXCHANGE-PROPERTY CASE.

1. There is no law which authorizes a public officer to exchange old material for new or vice versa.

2. Old material may, in proper cases, be sold, but the "proceeds of sales" must gen erally be disposed of in accordance with the provisions of sections 3617 and 3618 of the Revised Statutes, as the latter section is amended by the act of February 27, 1877 (19 Stat., 249).

3. The opinion of the Attorney-General of June 23, 1877 (15 Op. Att.-Gen., 322), cited. 4. Section 3618 of the Revised Statutes, as amended, applies only to sales of property, and not to original supplies transferred from one Executive Department to another, and not in excess of the appropriation of either.

The Joint Resolution of Congress of February 9, 1871 (16 Stat., 594; Rev. Stat., 4395, 4396), authorized the appointment of a Commissioner