The record-union., 1892-03-12
expended balance of the appropriation of

expended balance of the appropriation of
S10,1SS So.
This balance so remaining for two years
lapsed into the treasury pursuant to a gen.
eral law, u. s. r. s., Sec. 3691).
On The 23d day of June, 1860, Congress
passed an Act (U. S: Stat.,. Vol. 12,. p. 1o4),
the fourth section of which authorized the
Secretary of War to pay out of the above un-
expended balance any of said bonds and
coupons remaining outstanding and unpaid
and bearing date subsequent to the first day
OF January, 1854. 1t is not perceived why
petitioners bond and coupons could not have
been fully paid out of this appropriation.
STAT yo o9gIesT 9I d passeG am afe
an unexpended balance of an appropriation
made by an Act, approved August 5, 1854, to
refund to the State of California expenses in
CURED in suppressing Indian hostilities, said
balance having lapsed and been covered into
the treasury on the 30th day of June, 1868,
$40, ,1S3 63, provided that nothing shall be
PAID except subject to existing provisions of
law and upon the finding and certificate of the
Third Auditor that the same is actually due"
1t will be observed that the Act of 1851
authorized loan not exceeding 100000,
and that 100000 of that amount was issued
In bonds prior to the repeal of that Act, and
that the repeal did nota fleet the bonds thus
issued.
Then followed the Act of 1852, which au-
thorized further issue OF bonds to an amount
not exceeding 100000, thus making $780,
OOO, SO tDaL JQe STATE QlQ not appropriate
more than the sum last mentioned.
Now Congress did in 1855 appropriate the
sum of 1924, ,259 So for the payment of these
bonds and the interest thereon. The sum was
sufficient 10 pay the full amount OF SS00,000
of bonds and the interest thereon, as an esti-
mate of the interest, l think, will show. In
deed do not understand that it is contended
that the amount was insufficient.
The contention of petitioner with respect TO
the Act of Congress of August 3, 1854, is that
1t made conditions which were not in any
way binding on the bondholders, and which
they could at their option comply with or
not. In substance, the contention is founded
upon the idea that the condition of the State
Act was that Congress would pay into the
State Treasury such sums as it might apprO-
pirate. But this Is too strict a construction.
The letter of the statute does not warrant it.
1t appropriates such moneys as Congress
may appropriate to defray the expenses in
Cured, without making any expression as to
the manner of the appropriation which might
be adopted by Congress. Immediately follow
Ing The action which Congress did take by the
Act of 1855, the State acquiesced therein and
fully recognized the propriety of it by ap-
pointing Commissioners to represent the State
and exhibit the vouchers required. More than
this, Congress, with the duty upon it to paw
these expenses had the right to scrutinize the
claims, and TO lake reasonable precautions
against unreasonable or illegal demands
The bond on its face provided for payment
at the Office of the State Treasurer only upon
the condition that "the sum be not sooner
paid from funds anticipated in said Act to be
States" 1t was clearly anticipated that the
Government might pay the money over to the
State, and, in such event, the bonds would be
paid at the Office of the State Treasurer At
The same time it is a fair and reasonable con-
struction OF the Act to say, that what was an
tcipated was the substance of the thing,
rather than the form, and that the prompt
action by which Congress did undertake to
Pay the demands at its own treasury came
fully within what was anticipated, and fully
met the conditions upon which the promise
State hinged. fat
from the necessity of making an appropria-
ton out of its own treasury.
No reason is assigned why the bond and
coupons involved in this proceeding were not
presented TO the Secretary OF War. The Con-
gressional appropriation was not exhausted.
The unexpended balance was reappropriated
in June, 1860, by an Act which did not annex
any conditions whatever, but authorized the
Secretary of War, upon presentation, to pay
any of such outstanding and unpaid bonds
and coupons. There was then in the fund
over $4,000.
Eight years later this unexpended surplus
was again reappropriated to the payment of
said bonds and coupons by an Act which re-
quired as a condition only the reasonable pre-
caution that the Third Auditor should certify
that bond or coupon presented was actually
due.
AS late as March 8, 1881 OJ. S. Stat. vol. 81.
p. $40, Congress directed the Secretary of the
Treasury to pay out of such unexpended bal
ance (Which it reappropriated for that pur-
pose) to the lawful holder, four of these bonds
Tor $3.50 each with interest thereon to 1st
of July, 1850, After all this the original APP
preparation still remained unexhausted and
SS, ,357 16 Of it again lapsed into the United
States Treasury.
The petitioner claims that Shy the express
terms of the Act of 1862 the moneys now in
the State Treasury (the admitted surplus of
100000 not otherwise appropriated, which
was there on March 81, 1891, the date of his
demand) are applicable to the payment of that
bond and the detached coupons held by the
petitioner"
This contention, I think, is unsound, in
dependently of what has been said in regard
to the conditional character of the appropria-
tion. The language of the appropriating
clause wide the concluding paragraph of Sec
ton II is, "And shall be paid out of any
priated, 10 pay the expenses of the expedi-
tions mentioned in this Act" Effect must bs
given to these last words following the word
appropriated, - and can find no other mean
ing for them than this: That the appropria-
tion is out of any moneys which may be AT
any time in the treasury placed, or received
there for the purpose of paying the war ex-
pense designated from whatever sources thev
might be derived. There were three sources
in contemplation. The Government might
pay the money into the State Treasury The
Government might make land donations. the
proceeds of the sales of which would find its
way into the treasury. On the failure of both
these, in whole or in part, the State would
make the necessary appropriation for the pur-
pose. The qualifying words mentioned are
not meaningless, but on the contrary mani
fest an intention not then to make an inde-
pendent appropriation out of the State Treas
ury to pay the bonds, but merely then to ap-
propriate all the moneys which might be re-
ceiyed from money appropriations, or land
donations of the Government, leaving the mat
ter of providing for discharging the oblisa-
tions of the State, in case of disappointment
from the sources mentioned, for future legis-
lation. These two intentions are not incon-
sistent with each other, nor with the text of
the Act.
This view is, 1 think, sustained as matter
of legislative construction by the fact that at
different times the Legislature of California
has made appropriations for the payment of
sundry OF these bonds and coupons, which
were not paid out OF the Congressional ap-
preparation.
The following are the appropriations re-
ferred to: March 81, 1866 laws 1S65-66,
516l, S32, 800; March 2s. 1s6S laws 1867
1s6s-76, 698), 81, $50 II: March 80. 1879
laws 1s71-72, 793l 81, 100.
The. Act passed March II, 1851, entitled
"An Act authorizing the Governor to cali out
troops to defend our frontier, and providing
for their pay and compensation - Laws s 81
p. 4o2l, throw light upon the intention OF the
Legislature in this regard. This Act made ali
the expenses payable out of the WAR Loan
Fund" though IL did not create such a fund
II evidently contemplated that there would
be such fund. None had, so far as have been
able TO ind, been created before that time
This Act was repealed by the Act of 1852
which nowhere speaks of the AWar Loan
FUND.- but, in It's twelfth section, provides
that Nv henever the Treasurer shall derive a
sufficient sum fTom the tax herein provided
10 be levied, he snail make certain arrange
lnents for the payment of the Interest," etc
The Act does not provide for levy1ng any tar:
and the language can be construed only as re,
ferring TO such war fund as might be derived
nom the United States Government ana. per-
haps also, rom such special appropriations
as the State might make.
The petitioner here claims that the Act of
1892 operates as an appropriation out OF the
general tund OF the treasury of the first sur
plus moneys that may come therein. without
regard 70 the purposes K which such inonev|