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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 perform-
ance of the service, in such cases it is necessary previously to advertise for proposals re-
specting 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,
March 25, 1839.

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

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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 appli-
cation 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.

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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.

ATTORNEY GENERAL'S OFFICE,

April 4, 1839.

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

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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 departinents, 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 pro. per 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 en. gaged 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.

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TRANSFER OF SPECIFIC APPROPRIATIONS OF HOUSE OF REPRESENTA-
TIVES TO CONTINGENT FUND.

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 au. thority 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

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tution. If Congress has appropriated money for one use or purpose, and has given no express power or discretion to the President to apply it to another, it seems to me that any act of his, transferring it to another use or purpose, would be wholly unauthorized by the constitution. And, surely, no assumption of power could be more dangerous than that of expending more money upon an object than Congress had appropriated for it; and to procure money for such a purpose from other appropriations, without authority of law, would be to derange the system of appropriations contemplated by the constitution, and be placing in the hands of the President, in effect, the appropriating power. Whether, in a case like that presented for my opinion, such authority exists, depends entirely upon the provisions which Congress has made on the subject. If it has not been conferred by any act of Congress, it does not exist; and the application made by the Clerk of the House of Representatives cannot be granted. That Congress has at all times taken this view of the constitution, will, I think, be manifest from the different acts referred to in this opinion.

The Ist section of the act of 3d March, 1809, "further to amend the several acts for the establishment and regulation of the Treasury, War, and Navy Departments," which is relied on as authorizing this measure, contains the following provision:

"And the sums appropriated by law for each branch of expenditure in the several departments shall be solely applied to the objects for which they are respectively appropriated, and to no other: Provided, nevertheless, That, during the recess of Congress, the President of the United States may, and he is hereby authorized, on the application of the Secretary of the proper department, and not otherwise, to direct (if in his opinion necessary for the public service) that a portion of the moneys appropriated for a particular branch of expenditure in that department be applied to another branch of expenditure in the same department; in which case, a special account of the moneys thus transferred, and of their application, shall be laid before Congress during the first week of their next ensuing session."

This provision was confined to three executive departments of the government, to wit: the Treasury, War, and Navy Departments; and even in them great caution is used, lest a misapplication of the money appropriated might be made. There are very strong reasons why this power should be given by Congress to the President, in regard to appropriations made for these departments, which, no doubt, apply to the case under consideration. In carrying into effect, in the recess of Congress, the objects of the different appropriations, it would frequently happen that the estimates made would turn out, upon experiment, to be wholly erroneous, on account of a difference existing between the estimated and real prices of labor, provisions, and materials, &c., growing out of a change of circumstances in the affairs of the country which could not be foreseen. This could not ordinarily happen, in any material degree, in regard to the expenditures of the House of Representatives. Of them, a probable estimate could generally, if not always, be made, which would not vary far from the truth; the principal item being for printing, which is done under a contract fixing the price. I therefore cannot believe that this case comes within the reason of the act referred to; and, in my judgment, it is a clear case for the application of the maxim-expressio unius est exclusio alterius.

The act of March 3, 1817, supplementary to the act aforesaid, imposes

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