The daily union. [volume] (Washington [D.C.]) 1845-1857, 1851-03-27

son when Attorney General, by which viii be tina,
the law officer of the government denied the authority
claimed by the Comptroller the subject and sustained
| the legality Of the payments.
/ ATTORNEY ciEsERAL's OFrrcE,
! November 81, lS4Y.
Sin: The questions you have submitted for my opinion
IN the matter of the accounts of Asbury Dckns dis
busing agent Of ray and mileage of the of the
United States have considered with the due to their
First Whether by law the certificate. of the presiding
officer OF the Senate conclusive in support of the charges
for payments ~. made by The Secretary and, i not
Second Whether, under the first section of the Of
the 22d January lSlS the Secretary entitled TO credit
for the payments Of the mileage disaowed by the Comp
troler. Z III lNH '~E ai#. .Ha#
is This inquiry involves The respective rights Of Con-
gress and Of the accounting officers the treasury II
brings more or less into conflict the relative powers Of the
legislative and executive departments and it, quently
OF much interest That Congress should possess and
cluslvey possess form other the right decide
upon the compensation 70 be paid to its MEMBERS is
apparent from the necessity of the power the perfect
dependence Of the body The 9th section of the LIST article
the constitution therefore provides that and
representatives shall receive compensation for their
vices TO BE AsckHrAiSEp BY LAW and paid out Of The treasury
| p the United Staies.n
Ihenbso,e right to this compensation when ascertaned
and ascertanei, by iap in the power of the
President Of the United States still less Of any subord
nate executive officer defeat TO interfere Ii be-
comes then, completely Withdrawn from all such power
as would have been had been given by the
stitunon itself ~. t.
The question: then s whether in this case the compensa
ton paid to senators by the disbusng agent nscer
tanned by law and, such, be paid out OF the
treasury am clear in the opinion that it What the
constitution requires is, that the law shall the
of the allowance Ii does not prescribe the manner
in which this shall be done that left the discretion Of
Congress. Whether 1t to be accomplished by giving
liked salary, or allowance varying with the varying
cusances Of the members, and what conditions if any
should be attached TO either mode all left legsIa-
power. And is also equally obvious ie manner
aiming the facts which the law may make
TO the receipt of what allows aiso be regulated BY
the power provision of The latter kind enters into
the ascertanment TO be paid and constitutes
as much part Of The any other provision
the law may contain. When the compensation 10 be
ceived is not fixed sum to be paid each member whether
he attends not, whatever may be his conduct or
wherever may be his residence but whole part con-
diona attendance residence other
such is not "se,raedt BY iatc" until conditional
circumstances also under the law The two
things unite before the compensation s
Being in such does Of itself give tide 10
the compensation. That may be- and yet nothing be due
him under the law He may have attended the session
ALL and be whou, legal for Attendance or he
may only parsly have attended, and be without such es
for full attendance In the first he receives no
compensation, and in the latter full How them
Is the amount to be decided Is the mode which
the law itself points ou Is there any fixed until
that s done' And is not the amount when fixed and
only when so fixed the compensation, ascerained by
which the senator entitled to eceyei This
to be perfectly evident
The question, then, in the before me- How and
when, by the law is the compensation which senator
is under enled and 10 have paid Of the treasury
certsined TINS depends altogether upon the Of the
22d Of January 1918, t3 Statutes Large 404) there be-
ing no other law regarding il in force. ~ .
The provisions of that act, far they relate this
question, these The first section says That, at
every session of Congress, and every meeting Of the
Senate In the recess of Congress after the third day of
March, in the year thousand eight hundred and
teen, each shall be entitled eight dollars
for every day he has attended shall attend The Senate
and shall also be allowed eight dollars for every twenty
miles OF estimated distance by the usual road from
his place OF residence the of Congress- the
meneemen and end of every such session and meeting
nd ranvn nf hes hasb aTsll
be detained by sickness his Journey from such
sion meeting, or, aer his ARRIVAL has been, Is shall
be unable to attend the Senate he shall be entitled the
daily allowance and the President of the Senate pro
ismport when the Vice President has been shall be alb
sent when his Office shall be vacant shall during the pc
nod Of his services receive, addition his compensation
member OF the Senate eight dollars for every day he
has attended or shall attend the Senate" @ -.,., Il
The third section provides, That the said compensation
which shn be due the members of the Senate shall be
certified by the President thereof, and shall be passed
public accounts and paid out Of the public treasury"
have recied every part Of the act which bears all on
the question am considering Il will be that the CON-
pensslon Of senators IL hred and defined sum- pay
able at all events As far the per diem allowance
cerned 1t IS made TO depend upon attendance the body
sickness under such circumstances the law
failure to attend. In the of such sickness during the
session. the daily allowance be paid without regard
service and when occurs IN journey to or from the ses
sion meeting during that period and
II q Is also TO be paid without reference the continuance
Of the session The compensation then the OF each
senator by the law itself ascerainej the Of
the constitution Facts to be made appear before that
is effected The law, by its terms merely,
nothing which gives senator claim any certain
pensaon for his services, to be paid of the treasury.
The inquiry, then is How, under the law the compen
saton be aseranedi IL be by the Secretary of
Treasury, by any of the subordinate officers OF the de-
psrmenta Was the design Of the constitution or 1t
have been the purpose Of the law matter vital
to the independence Congress be decided that
10 have these officers SIT IN judgment upon a question
which, for obvious reasons, should be submitted
TO the highest executive docIiop IL not and IN my
opinion, II clearly not The compensation Is to be
aseertAined the which the directs and in
other mode-the prescribed by the 81 section That
these words That the said compensation
chioh staH be due the members Of hs SENATE SHALL M
cssuIrrrD PsEsmrsT THEREOF, and that which
SHALL CERTIFIED THr SPEAKER; and the SMALL
BE- passed public aeoun and paid Of s public
uryn
The President IN the and the Speaker in the
other sone made the judges by the law OF the
Of compensation due senator representative delegate Ii
n made their duty, and theirs alone, 10 certify that
This duty necessarily involves the right examine and de-
eide upon the Law and the fact upon which the claim de-
pends and the duty exclusive the right Of
and decision must also be exclusive The facts
them the Of senatorsof being senator attendance
in the body the excuse Of sickness place OF residence
estimated distance from the place meeting and thai
there season meeting of the Senate all Of which
into the consideration Of the compsnsaion-sre sub
mied to the exclusive jurisdiction Of the aiding officer of
the body. His duty To certify would, my iuds ssnt Of
ITSELF " the contained other provision affecting the
question, make the power exclusive one and the result
nnsl But 1t does upon that slone. The same sec
~ the declares that when the certificate had M
counts, out Of the public treasury" Issny dscre
here vestd the accounting oEoers What ere the
pess' What they TO psy' IL the amour, GER
uhcd to be due The a~ says IN words. That amount