to auy person for his compeDsatioii who is in arrears to the United
States," and effect must be given to this, unless (1) some other statute,
or (2) the Constitution, otherwise requires.
As to salaries generally, section 1766 of the Revised Statutes is clearly
applicable. There is no statute which excepts the compensation of
Representatives, or of any officer or em ploy 6 from its operation . Section
46 of the Revised Statutes declares, that the compensation of Repre-
sentatives shall be "paid out of the public Treasury," But other stat-
utory provisions are equally imperative in requiring all compensations
to be paid, and section 46 places the compensation of Representatives
on the same footing with others by saying that it " shall be passed as
public accounts." Sections 47 and 48 provide conclusive evidence of
the amount, from time to time„ due representatives^ (5 Op. Att.-Oen.,
192); but do not exempt it in other respects from any provision applica-
ble thereto. There is, however, a provision of the Constitution on the
subject.
A provision of the Constitution cannot be changed, nor can its pur-
pose be defeated, by any statute.
. As to the salaries of three classes of officers the Constitution is not
silent. It provides, as follows:
"The Senators and Representatives [in Congress! shall receive a com-
pensation for their services, to be ascertained by law, and paid out of
the Treasury of the United States." (Art. I, sec. 6.)
"The President shall, at stated times, receive for his services, a com-
pensation, which shall neither be increased nor diminished during the
period for which he shall have been elected." (Art. If, sec. 1, par. 6.)
"The judges, both of the Supreme and inferior courts, shall hold their
offices during good behavior, and shall, at stated times, receive for their
services, a compensation, which shall not be diminished during their
continuance in office." (Art. Ill, sec. 1.)
As to the officers named in these sections, the duty of Congress to
provide a salary is imperative. As to all others, the question, whether
they shall have a salary, or serve without, is left for the discretion of
Congress. Offices of the latter class may be with emolument, or may
be offices of .trust merely without salary or any emolument. Thus,- it
was held by the Attorney -General, that the commissioners appointed
by the President for the Centennial Exhibition, under section 3 of the
act of March 3, 1871 (16 Stat., 471), were officers, holding offices of
" trust," though without compensation. (15 Op. Att.-G^en., 187.)
The principles of the common law to which reference has been made,
the reasons on which they rest, and the history and purposes of the
Constitution, may all throw light on its provisions relative to salary,
and affecting the question now under consideration. The clause of the
Constitution declaring that Representatives in Congress shall receive
compensation wa« doubtless inserted to avoid the evil effects of the
usage which prevailed in England, where members of Parliament serve
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Withholding Salary of CongresHman — Ochiltree^s Case. 109
without pay. Story, in his Commentaries on the Constitution (§ 854),
says :
" The principal reasons in favor of a compensation may be presumed
to have been the following: In the first place, the advantage is secured
of commanding the first talents of the nation in the public councils, by
removing a virtual disqualification, that of poverty, from that large
class of men who, though favored by nature, might not be favored by
fortune. It could hardly be expected that such men would make the
necessary sacrifices in order to gratify their ambition for a public sta-
tion ; and if they did, there was a corresponding danger that they might
be compelled by their necessities, or tempted by their wants, to yield
up their independence, and perhaps their integrity, to the allurements
of the corrupt or the opulent. In the next place, it would, in a propor-
tionate degree, gratify the popular feeling by enlarging the circle of can-
didates from which members might be chosen, and bringing the office
within reach of persons in the middle ranks of society, although they
might not possess shining talents, a course best suited to the equal-
ity found and promulgated in a republic. In the next place, it would
make a seat in the national councils as attractive, and perhaps more
so, than In those of the State, by the superior emoluments of office.
And in the last place, it would be in conformity to a long and well-set-
tled practice, which embodied public sentiment and had been sanctioned
by public approbation."
There are other provisions of the Constitution designed to secure the
independence of Senators and Bepresentatives, as that by which they
are ^^ in all cases, except treason, felony; and breach of the peace,
• • • privileged from arrest during their attendance at the session
of their respective houses, and in going to and returning from the
same" (Art. I, sec. 6), and that by which "for any speech or debate in
either house, they shall not be questioned in any other place." (Id.)
Without any express provision of the Constitution, but with equal force
resulting from its principles, and the complete independence of the three
great departments of the Government, it has been said, that —
" The independence of the House is so perfect, its jurisdiction so far
beyond the courts, that a judicial court cannot summon a member as a
witness. He is privileged because his presence to vote is so important,
his absence might be so ruinous to great public interests, that he can-
not be called away for mere private interests. His absence might de-
stroy a quorum; it might change the result on measures affecting war
and peace. The privilege is not that of a member to waive, and his
testimony in court can only be procured by leave of the House." (Cush-
ing, 698: 1 Hatsel, 112. 118, 171, 173; D^Ewes, 637; 1 Dwarris, 103,
105 ; Jefferson's Manual, 3 ; Journal of House, Fourteenth Congress,
first session, 605 ; Journal of Senate, Fourth Congress, 259 ; and other
instances cited in Cushing, 242, 599, note.)
Jefferson, in his Manual, says, the reason is that '^ a member has
superior duties to perform in another place." (Lawrence's speech.
House Beps., April 15 and 17, 1876, Cong. Eecord, vol. 4, part 3, 2492,
3528; Id., vol. 3, parti; United States t?. Cooper, 4 Dallas, 317 ; Lyellt?.
Goodwin, 4 McLean, 29; United States v. Kendall, 5 Cranch., 6 C. Ct.,
199).
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110 First Comptroller's Office^ Treasury Department.
In view of all this, the couclasiou seems irresistible, that the com-
pensation of a Bepresentative in Congress cannot be withheld to be
applied on his indebtedness to the United States ; because :
1. The language of the Constitution is imperative. He ^^ shall re-
ceive a compensation for ^ his services as fixed by law. (Art. I, sec. 6).
The plain meaning of this is, that he shall be paid in money from the
Treasury. If his compensation is not paid to him, but retained, it can-
not, without an abuse of language, be said, that he has received it, as
the Constitution requires. It is essential to a receipt that it acknowl-
edge the delivery of the money received. (Rex v. Harvey, Euss & K.,
Cr. Cas., 227 ; Rex v, Martin, 7 Car. & Payne, 649 ; Fisher t?. Leslie, 1
Espinasse, 426 5 Israel v. Israel, 1 Camp., N. P., 499.) Set-oflF, recoup-
ment, and the equivalent civil law " compensation " are all treated of
in the law books as distinct from, and in no sense, payment.
2. If the United States can apply the salary on a judgment in its
favor, Congress can authorize any other creditor of a Representative
to reach and appropriate it by judicial process. To say that such ap-
â– propriation satisfies the mandate of the Constitution, that the Repre-
sentative *' shall receive ^ his compensation, would be a perversion of*
terms. And it may be added, that, under such a law, not a few of the
ablest men who have been distinguished in Copgress would have been
driven from the service.
3. The clause of the Constitution in question should be construed as
imperative, requiring actual payment^ on grounds of public necessity and
policy. The same reasons, which exist at common law to deny the right
of private creditors to reach by any process the salaries of public of-
ficers, apply with equal, or greater, force to the United States as a cred-
itor. The appropriation of salaries to pay debts by process of law
might in some cases disable Representatives in Congress from attend-
ing sessions, and thus deny to the people the privilege of securing the
services of the men of their choice. A construction of the Constitu-
tion cannot be tolerated, which would defeat the purpose, so plainly
apparent, to furnish to Representatives the means of support while in
the discharge of their public duties.
The construction of constitutions and statutes, where the words ad-
mit of any doubt, "should lean strongly to avoid absurd consequences,
injustice, and even great inconvenience. • • • Great public in-
terests will not needlessly be put at hazard by the interpretation,"
Bishop, Written Laws, 82).
In view of all this, the officer is entitled to the benefit of all reason-
able doubts which may rise under the statutes. (United States r.
Morse, 3 Story, 87; Moore v. United States, 4 Ct. CL, 139,* Sherburne
V. United States, 16 Id, 494-498.)
4. The intention of the makers of the Constitution is the controlling
element in construing it. This may be ascertained from its words, its
history, and the reasons for its provisions. (Bishop, Written Laws,
I
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Withholding Salary of Congres%man — Ochiltre^s Case. Ill
70, 92a). The provision requiring that Eepresentatives receive com-
pensation was made for the reasons, and to secure the objects, already
stated: (1) to procure the services of men of talents, (2) to provide them
with the means of support, (3) to enable them, without other means, to
engage in public service, (4) to secure their independence and freedom
from "the allurements of the corrupt or the opulent," and (6) to save
them from the necessity of engaging in private pursuits as a means of
securing a supi>ort, which might interrupt the performance of their
duties.
A construction of the Constitution, which would permit the salary of
a Representative to be reached, either by the United States as a credi-
tor, or by private creditors, would defeat every object which the pro-
vision as to payment was designed to secure, and this is wholly inad-
missible. Thus, it is said: "The two rules of most general application
in construing a written instrument are — Ist, that it shall, if possible,
be so interpreted ut res magis valeat quam pereatj and 2dly, that such
a meaning shall be given to it as may carry out and effectuate to the
fullest extent the intention of the parties.'^ (Broom, Legal Maxims,
540).
The conclusion is, tbat payment cannot be withheld from the claim-
ant, Ochiltree.
The Delegates from the Territories stand upon a diflferent footing.
They are not created or required by the Constitution. They are elected
only in pursuance of statute. (The American Insurance Co. et al. v.
Canter, 1 Pet., 611, 546; Benner et al v. Porter, 9 How., 244; 3 Op. Att.-
Oen., 410.) The Constitution does not by its terms apply to their salary.
Itisthereforesabject tothelegislation of Congress. Delegates are clearly
within the provisions of sections 236 and 1766 of the Bevised Statutes.
The salary of any Delegate may be withheld, and applied on his indebt-
edness to the United States. If either of the Delegates in question
should not concur in this result, he has a remedy by suit in the Court
of Claims, and in that form the question may reach the Supreme Court of
the United States. If the First Comptroller makes a set-off in certify-
ing a balance as to compensation of a Bepresentative, there is no remedy
if his action should be deemed erroneous. (Bev. Stat., 191, 305, 311;
Bonnafon's Case, 14 Ct. Cls., 490 ; Taggart's Case, 17 Ct. Cls., 322.) But,
under the act of March 3, 1875 (18 Stat., 481), if the First Comptroller
should refuse to make the set-off, the Secretary can withhold payment,
if he shall deem it advisable. (Bonnafon's Case, 14 Ct. Cls., 489). The de-
mand of payment of this compensation is a elaim. (Claims- Assignment
Case, 3 Lawrence, Compt. Dec, 15.) Before a balance is certified, or pay-
ment made, the question may be submitted by the Secretary to the Court
of Claims under section 1063 of the Bevised Statutes. In either of these
forms the question may reach the Supreme Court, for the decision of that
highest judicial tribunal of the United States. It may, if the Secretary
shall deem it advisable, be transmitted to the Court of Claims for an
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112 First Comptroller's Office^ Treasury Department.
opiuiou under sectioa 2 of the act of March 3, 1883 (23 Stat., 485), but
this would not be conclusive. If the opinion, thus obtained, should be in
accord with that above given, payments would be withheld accordingly.
If the opinion should be otherwise, it.would be deemed proper, under the
circumstances, to leave the claimant to his remedy by suit in the Court
of Claims, in the hope, that it might be deemed suflfiiciently important
to secure upon it, the decision of the Supreme Court of the United
States.
The Secretary of the Treasury and the Treasurer of the United States
will be advised accordingly.*
Treasuby Depabtment,
First Comptroller's Office^ March 27, 1883.
* In 2 Banoroft'8 History of the Formation of the Censtitution, p. 122, it is said :
*' To complete the independence of Congress, provision needed to be made for the mp-
port of its members. The committee of detail left them to be paid for their services
by their respective States ; but this mode would impair the selr-sustaining character
of the Government. * ' •'".
'^ 'If the general legislature,' said Dickinson, 'should be left dependent on the
State legislatures, it would be happy for us if we had never met in this room.'"
The predominant idea was, to secure the independence of Congress by supporting
the members, and the intention was, to prevent this independence from being im-
paired. The Government, tbe representative of the sovereignty, should never be im-
periled from lack of support. It should be self-sustaining, self-preserving. One of
the arguments used in favor of a salary was thus stated:
"There was a danger that members might be compelled by their necessities, or
tempted by their wants, to yield up their independence, and, perhaps, their integrity
to the allurements of the corrupt or the opulent.'' (2d EUiot's Deb., !i79, 280.)
Mr. Madison said iu the Virginia Convention :
''Suppose their compensations had been appointed by the State governments, or
fixed (in amount) in the Constitution, would it be a safe government for the Union,
if its members depended on receiving their salaries from other political bodies at a
distance and fully competent to withhold themt Its existence would, at best, be bat
precarious, they miffht become extremely inadequate, and produce the very evil which
gentlemen seem to fear." (Elliot's Debates, p. 'd50.)
To withhold comi)ensation from a member for any possible reason, might destroy
his independence, vacate his scat, disfranchise his constituents, and, to make the
rule general, were all members in the same condition, destroy the Government, or
suspend its legislative functions.
Madison, in the convention (Madison Papers, p. 164), said, objecting to payment
by States, "that it would create an improper dependence." So he wished to make
the members independent by receiving compensation. If the compensation be not
received for any reason the same result is reached, to wit, improper dependence.
Mr. Randolph said :
"If the States were to pay the members, a dependence would be created that would
vitiate the whole eyttem. The whole nation has an interest iu the attendance and serv-
ices of the members."
Mr. Butler contended for payment of compensation by States for Senators, and
feared that they would lose sight of their coiisiituents, ** unlesH dependent on them for
HupportJ'^ (Mad. Pap., p. 425.)
March 27, 18^3, the Acting Secretary of the Treasury was advised, by letter, of the
opinion of the First Comptroller, and on the 29th of March, 1883, the letter was re-
turned with the indor^5ement, that " the Secretary will make no order in the matter."
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Allowances to Attorneys — J)istrict Attorneys* Assistants' Case. 113
m THE MATTER OF ALLOWANCES TO ATTORNEYS EMPLOYED AND RE-
TAINED "TO ASSIST THE DISTRICT ATTORNEYS" OF THE UNITED
STATES.— DISTRICT ATTORNEYS* ASSISTANTS' CASE.
1. Under section 363 of the Revised Statutes the usage has been, that the Attorneys-
General appoint assistants to the district attorneys in some of the districts of
the United States, who are regarded in some sense as regular assistants.
2. Under the same section the Attorneys-General have employed attorneys ''to assist
the district attorneys'' in some designated and special case, or cases, or in a par-
ticalar service.
3. Sections 269, 277,363, and 365, of the Revised Statutes, constitute the authority by
-which the bills and accounts of said assistant, or special-assistant, attorneys
are audited.
4. Section 363 of the Revised Statutes, and the act of August 2, 1861 (12 Stat., 285,
section 2), firom which this section was taken, have always been construed as
giving to the Attorney-General the exclusive authority to determine the amount
of the compensation to be paid, and as making his decision, with the proper
certificate required by section 365 of the Revised Statutes, conclusive on the ac-
counting officers. In this respect, the accounts thus allowed belong to that
limited class of claims over which the accounting ofi^cers have no discretion
as to amounts.
5. As to whether the Attorney-General can stipulate for the payment of necessary and
reasonable eacpemet of attorneys by him employed and retained, qtusrel
6. If 0O, the* amount approved by him as proper charges for such expenses is not con-
clusive on the accounting officers.
The following is taken from Senate Executive Document, No. 82,
second session, Forty-seventh Congress:
Teeastjey Department,
First Comptroller's Office,
Washingtonj D. 0., March 1, 1883.
Sib : I have the honor to acknowledge the receipt of a resolution
passed by the Senate of the United States, which was referred by your
office to this office for a report, and which is as follows :
" In the Senate of the United States,
February 27, 1883.
" Resolved^ That the Secretary of the Treasury be directed to furnish
to the Senate copies of vouchers and items audited by the First Auditor
of the Treasury on account of expenses incurred by the Department of
Justice since January 1, 1882, with the names of special or assistant
attorneys, and by what authority in law he audited the bills and ac-
counts of said special or assistant attorneys."
In compliance therewith I respectfully state that I transmit herewith
copies of the accounts, vouchers, and items therein referred to.
Section 363 of the Revised Statutes provides as follows :
" Sec. 363. The Attorney-General shall, whenever in his opinion the
public interest requires it, employ and retain, in the name of the United
States, such attorneys and counselors at law as he may think necessary
to assist the district attorneys in the discharge of then* duties, and shaU
8 D 83 n ^
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114 First Comptroller* g Office^ Treasury Department.
stipulate with snch afisistant attorneys and counsel the amount of com-
pensation^ and shall have supervision of their conduct and proceed-
ings.''
Under this section the usage has been for the Attorneys-General to
appoint assistants to the district attorneys in some of the districts of
the United States, who are regarded in some sense as regular assist-
ants. Under the same section the Attorneys-General have employed
attorneys to assist the district attorneys in some designated specisd case,
or cases, or in a particular service.
• ' • • • • # •
In reply to that part of the resolution which inquires " by what au-
thority in law • • • the bills and accounts of said special or assist-
ant attorneys " were audited, I have the honor to state that sections 363,
365, 277, and 269 of the Revised Statutes constitute the authorit^^ in
question. Section 363 expressly provides as to the compensation of
such special or assistant attorneys that " the Attorney-General shall
• • • stipulate with such assistant attorneys and counsel the amount
of compensation, and shall have supervision of their conduct and pro-
ceedings." This provision and the act of August 2, 1861 [12 Stat.,
285, Sec. 2], from which it was taken, have always been construed as
giving to the Attoriiej^-General the exclusive authority to determine
the amount of the compensation to be paid and as making his decision,
with the proper certificate required by section 366, conclusive on the
accounting officers. In this respect the accounts thus allowed belong to
that limited class of claims over which the accounting officers have no
discretion as to amounts.
I herewith return the resolution.
Very respectfully,
WILLIAM LAWRENCE,
Comptroller.
Hon. Charles J. FoLaEE, .
Secretary of the Treasury.
In addition to what was said in the foregoing letter in regard to al-
lowances to attorneys employed and retained to assist the United States
District Attorneys, it is deemed proper to add the following :
The statute authorizes the Attorney-General to << employ and retain,
in the name of the United States, such attorneys and counselors at law
as he may think necessary." (Rev. Stat., 363.) He is the sole judge
of the necessity of employing attorneys and of the number to be employed.
(Exigency Case, 3 Lawrence, Compt. Dec, 97, and cases there cited ;
Seaman-Relief Case, Jd., 138; Yorktown Centennial Case, Jd., 141;
1 Lawrence, Compt. Dec, 2d ed., App., ch. xii, 542.) Upon the same
principle, '^the amount of compensation,'' stipulated as the statute
authorizes, is conclusive on accounting officers. Long usage has settled
the question, that the stipulation of the amount may be made by the
Attorney-General after the services are rendered (11 Op. Att.-Gen.,
435; 10 Id., 48; 14 id., 384; 16 Id., 168.) In many cases it would be
impossible to stipulate in advance of the services. And a construction
of the statute, which would require this, is forbidden by the rule, that
"all laws should receive a sensible construction" (United States v.
Kirby, 7 Wall., 486), and by the rule, that "the interpretation should
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Allowanees to Attorneys — District Attorneys^ Assistants* Case. 115
lean strongly to avoid absurd consequences." (Bishop, Written Laws,
82, citing 1 Blackst., Com., 91 5 Dwarris, Stat., 2d ed., 687.) The ques-
tion, whether, in stipulating for compensation, the Attorney-General
may include therein reasonable and necessary expenses of attorneys,
has not yet been finally decided. But, ifsoj 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 ^Hhe fees in criminal cases are fixed by
statute, and no allowance can legally be made except in accordance
with chapter 16, Fees of Title XIIL (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 compensa-
tion given by section 363. This latter section is cumulative as to com-
pensation. 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 in-
tention 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 en-
able 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 Re-