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rights, and resents any interference in their exercise by the Legislature. Natural, however, as it always is for these feelings to arise in the coordinate branches of the government, when considering their relative rights and powers, to yield to them, to be guided by them, is to turn from the way of truth and discretion, and to fall into gross error.
The question presented is one of law purely. Your committee has considered it as an abstract question, dispassionately and calmly.
Sec. 12 of the Organic Act contains the following provision:
Three classes of expenditures are here provided. First, sums to be expended by the Governor to defray the contingent expenses of the Territory, including the salary of a clerk," &c. Second, "sums to be expended by the Secretary," * “to defray the expenses of the Legislative Assembly, the printing of the laws and other incidental expenses.” These officers are to account to the Secretary of the Treasury for the manner in which they expend these sums, and are under his direction. Third, “ expenditures by the Legislative Assembly, for objects specially authorized by acts of Congress making the appropriations." Nothing more is wanted to determine the respective rights of the officers and Assembly, than a simple reading of this part of the section. The law says the Governor shall make certain expenditures for certain objects; the Secretary certain other expenditures for certain other objects, and the Legislature other expenditures for objects which Congress may provide for. One can not intrude into the rights of the other.
When the act says, the Secretary shall expend sums for certain objects, it clothes him with full power in the premises. To hold otherwise would be going too far. If we can control the Secretary in the matter of public printing, we may control the Governor in the payment of the salary of the clerk of his office—we may even say who that clerk shall be. The words of the act authorizing the Governor to appoint and pay a clerk, and the words authorizing the Secretary to procure the printing to be done are exactly the same.
To put the close construction on the words of the act, that it provides for the PAYMENT for the public printing by the Secretary, but leaves him powerless to CONTRACT FOT ITS EXECUTION, is to leave no department of government authorized to contract for it. The negative upon the power of the Legislature to make an expenditure not authorized by act of Congress, does not confer the right. The power does not exist anywhere if not with the Secretary.
There are certain expenses which are fixed—they can be estimatedthey are annual—they are ordinary—they are necessary. These are named, and they are named because they can be. There are others that are not fixed; they are not annual nor ordinary; such as expenditures for penitentiaries, schools, colleges, &c., &c. It is clearly the
. object of the law, to restrict the power of the Legislature, over expenditures which can not be specifically named in the act; and it therefore provides that these expenditures are to be for purposes to be specially authorized by acts of Congress making appropriations for them. How is there any act of Congress making an appropriation for the printing of our laws? One must be found specially authorizing the Legislature
to make an expenditure for such object, or else the Legislature has no power to make it.
It is to be noticed that the object for which the Legislature is to spend money, if at all, is to be SPECIALLY authorized by Congress; and not so only, but it is to be so specially authorized by an act making the appropriation. Such a law is not to be found. The appropriation law does not specially name printing at all. That law is to be found at page 306, Laws of 1857-8, and is as follows:
" Territory of Nebraska; for salaries of Governor, three Judges and Secretary, ten thousand five hundred dollars.
“For contingent expenses of said Territory, one thousand dollars.
“For compensation and mileage of the members of the Legislative Assembly, officers, clerks, and contingent expenses of the Assembly, twenty thousand dollars."
Does this act specially authorize the Legislature to expend money for printing? And yet it is the only act making appropriations for this Territory.
But let us look at the matter as a practical question. If this House were to have printing done without regard to the Secretary, where would the pay come from? Could we compel the Secretary to pay it? We have no means of doing it. He is independent of us. is not under our control, but his. He could refuse to pay for the printing, and we could not compel him to pay for it. We are powerless in his hands.
Your committee are, for these reasons, of opinion that the Secretary, and not the House, have control of the entire matter of the printing, and therefore recommend that he be requested to procure two thousand copies of the Governor's Message to be priuted for the use of the House.
Your committee are at a loss to understand why the Secretary raises the question of making this session an extra or a regular session in connection with postage, and not in connection with the other expenses of the session. There seems no reason why postage should be refused members as it is, and yet all the other expenses be paid in case we do not render this a regular session.
He presents the matter to us, however, and it demands consideration.
The question may be thus stated: If an extra session be called by the Governor prior to the time of holding the regular session, are the expenses of such extra session to be paid, or are the sums appropriated by Congress to be withheld until the regular session? The power to call an extra session is conferred upon the Governor in Sec. 12, where the organic act says "There shall be but one session of the Legislature annually, unless on an extraordinary occasion the Governor shall think proper to call the Legislature together." It is conceded by the Comptroller of the Treasury, in his letter transmitted by the Secretary with the information that the Government is liable for the expenses of such extra session. It is, however, provided, and evidently with great care, that the expenditure on the Legislative Assembly shall not exceed $20,000, whether at regular or extra session, or both. Now if the United States is liable for the expenses of the extra session, but in one year not liable for any sessions beyond $20,000, it would appear that the expenditure of this $20,000 commences with the first day of the first session, be it regular or special, and runs on till the $20,000 is all paid out. It can not be possible that when the Legislature has been solemnly convened by the Governor, either on an ordinary or an extraordinary occasion, that the expenses are to be held back till the year or a part of the year has expired. It can not be that our postage is to go unpaid till it is discovered whether there is to be a regular session, and how much is or will be paid thereout, and then pay or repudiateaccording as the condition of the Treasury may require.
The Comptroller says in his letter, that the Governor attempts, in his proclamation, to make the session the regular one, but that he can not do it but we may. The Comptroller certainly mistakes the proclamation. It sets forth the alarming condition of the country as constituting the extraordinary occasion which justifies him in calling an extra session, and says that this extraordinary occasion has rendered it necessary to call the Legislature together in advance of the time fixed by law, which is nothing more nor less than saying it is necessary to call an extra session.
With the question of whether it is or is not expedient to make this the regular session, we have nothing to do.
Your committee are of opinion that the expenses of this session should be paid as they are incurred from day to day, without reference to whether any other session be held until the whole $20,000 are expended, and would recommend that the Secretary be requested to pay the postage of members accordingly. All of which is respectfully submitted,
B. P. RANKIN,
Mr. Stewart from same committee submitted the following
MAJORITY REPORT. The select committee to whom was referred the report of the Secretary of the Territory relative to the disbursements of the public moneys, having had the same under consideration, beg leave to make the following majority report.
It appears from the instructions of the Secretary of the Treasury, which accompany and make a part of the report of the Secretary of the Territory, that the only rules by which the Secretary is to be guided in the disbursement of the public moneys appropriated by the General Government, are to be found in the 117th paragraph of the Act of Congress of May 18, 1842, the second section of the Act of Congress of August 29, 1842, and the Act of Congress organizing the Territories of Kansas and Nebraska, under and by virtue of which said several acts of Congress, together with the interpretation thereof, the Secretary of the Territory assumes the right, not only to disburse the public moneys aforesaid, but also in the matter of the public printing, to select the person or persons who are to perform the work, thereby exercising legislative and judiciary powers.
Your committee, however, are of the opinion that no such powers as thus assumed, are vested in that officer, and that their exercise is not
only unwarranted by any of the provisions of the above entitled acts of Congress, but also not deducible from the instructions of the secretary of the treasury accompanying the report of the Secretary of the Territory.
Your committee have been unable to discover in any of the communications of the secretary of the treasury, any decision in regard to the right claimed, but simply a reference by said Secretary to the said Acts of Congress, upon which your committee have also based their conclusions. It will be seen by reference to the Act of Congress of May 18, 1842, that said act has reference solely to the amount of the appropriations, and not to the object or manner of disposing of the
The act reads thus: “ That the Legislative Assembly of no Territory shall hereafter in any. instance or under any pretext whatever exceed the amount appropriated by Congress for its annual expenses."
It will thus be seen that by no forced constructions, is the Secretary authorized to assume the control of the public printing, or to dictate to the legislative department of the Territory, any appropriations for the Territory, but plainly recognises the right of the Territorial Legislature to make appropriations not exceeding the amount limited by Congress.
Again, it will be seen by reference to the Act of Congress of August 29, 1842 that said act refers merely to the place where the accounts of the Territory shall be audited; secondly, to the manner in which the vouchers and proofs shall be presented; and thirdly, requires that "no payment shall be allowed unless the Secretary of the Treasury shall have estimated therefor, and the object been approved by Congress.” The following is the language of the act:
“ That all accounts for disbursements in the territories of the United States of all money appropriated by Congress for the support of Government therein shall be settled and adjusted at the Treasury Department; and no act, resolution, or order of the Legislature of any Territory, directing the expenditure of the sum shall be deemed a sufficient authority for such disbursements, but sufficient vouchers and proof for the same shall be required by said accounting officers.”
Again, it will be seen by this act as in the act above referred to, that there is an entire absence of any power given the Secretary of the Territory to dictate in the matter of the appropriations, or the objects to which the same is to be applied, but that it is evident from the language of the act, the power over the whole subject of appropriations for the purpose of carrying on the Territorial Government, is given to the legislative department, keeping within the amount limited by Congress. It will also be seen by a reference to the 12th section of the Organic Act, that the provisions therein contained refer merely to the manner of disbursing the appropriations, regarding the Secretary of the Territory as a mere conduit pipe through whose hands the appropriations are to pass, and nowhere recognizing
said disbursing officer as possessed of legislative or judicial power. And it will be further seen that said act plainly recognizes the power of the Legislature to state the person who is to perform the work of public printing. Your committee are further of the opinion that the subject of printing is plainly under the control of the Territorial Legislature, not only by express words of the several acts but by necessary implication, as being one of the incidental powers belonging to the law-making powers, and without which should the Secretary of the Territory at any time refuse to provide for such printing, legislation would be retarded.
In regard to the other subjects included in the Secretary's report, the minority of the committee having reported thereon and the whole committee concurring therein, the majority of your committee make no mention in their majority report.
Your committee recommend the adoption of the following resolution, viz:
Resolved, That the Chief Clerk be instructed to procure two thousand printed copies of the Governor's Message for the use of the House.
Mr. Kline moved to refer the communication of Secretary Morton together with the reports thereon to a committee of the whole House.
The Chair here announced Mr. Roeder as committee of one on translating and printing in the German language, the Governor's Message.
Mr. Seymour moved to instruct the Clerk to procure two hundred printed copies of the Secretary's communication to the House, together with the reports on the same.
On motion of which the ayes and nays were called. Ayes-Messrs. Briggs, Cassell, Davis of Cass, Davis of Washington, Daily, Dean, De Puy, Fleming, Kline, Lee, Marquette, Norwood, Roeder, Seymour, Shields, Stewart, Wattles, Young.--18.
Nays—Messrs. Bramble, Clark, Clayes, Cooper, Doom, Gwyer, Hall, Mason, Noel, Rankin, Steele, Steinberger, Taffe.-13.
Mr. Steele moved, that the House do now go into Committee of the Whole on the Secretary's communication and the reports thereon.
Mr. Stewart moved that the communication and reports be considered in Committee of the Whole on Wednesday next.
Mr. Mason moved that the Secretary of the Territory be requested to furnish this House with two thousand copies of the Governor's Message.
Mr. Steele moved to defer consideration of that question until Wednesday next.