The morning times., 1895-08-12
CONCERNING MIR. BOWLER.


1NhbOi oOlhC ObSCIN dlIOHS uuNc
been recently published by Senator
| Blanchard, OF Louisiana, ON the authority
| OF the Comptroller OF the Treasury to
| pass ON the constitutionality of the provIs-
ions OF the act of Congress giving bounties
on sugar produced in the United States
thoroughly believe in the constitutionality
ofthose provision-, and in their wisdom and
| justice. But with great respect for That
| learned and able Senator, 1t seems to me
he labOrs under some misapprehension as 10
| the powers OF the comptroller, and has
| fallen into some errors as TO what the Ia W
| is iii relation TO that officer. To some
| of these attention viii be called, and IL
will be nIaintained that the comptroller
not only has the power, but 1T is his duty
! III clear case, To declare an act OF Con-
| greSs Unconstitutional This proposition
| the honorable Senator denies and attempts
to support his position on several grounds
/. lie says: The judicial power is by
! the Constitution vested in the Supreme
! Court OF the United States, and such in
ferior courts as Congress may establish
The office or comptroller Is not such In
| ferior court"
His ergo is, that because courts have
| power in cases over which they have juris-
diction TO pass ON ConstitUtionali;y OF acts
OF Congress, the Comptroller has DO such
power n matters over which he has jUr.s-
diction. His ergo Is a non seQuituT. In
| fact, IL proves precisely what he seeks to
/ dlsprove.
The allowance and payment of claims
against the government is a power OF tie
Executive Department OF the government,
entrusted TO specified officers. including
| the comptroller.
Whenever the exercise Of that power re-
! quires an executive officer TO pass on the
! constitutionality of an act OF Congress,
| his authority is necessarily rs ample within
! the executive domain as is that OF court
in cases in the judicial domain. The con-
stitution itself is a law-the highest law
| and the comptroller is hound by his Of
! ficial oath, TO support it as the highest law
! over aud above any attempts by Congress,
in the form OF statute, to repeal, annul
or disregard any OF its provisions. 1t is
| only by force OF the acts of Congress, that
the Court Of Claims, and the circuit courts
| in some specified cases, can exercise any
| jurisdiction over claims against the United
| States-the conclusion is inevitable that
the comptroller has just as ample power to
| decide on the constitutionality of an act of
! Congress in the allowance OF claims, as a
| court has in other matters within its ap-
| propTiate jurisdiction. II this We're not
| so there would be no remedy. And this
view is sustained by an act OF Congress.
| The act OF March 80, 1868, Rev. Stat
| 191, makes ii the duty OF tie comptroller
| to countersign all warrants for the payment
OF claims which shall be warranted by
! law" If an act Of Congress is passed to
! pay q class of claims which the constitu-
| tion declares cannot exist against the
| government, such claims are not war
! ranted by law The statute has thus ex-
| pressly invested the comptroller with the
| power and made il his duty TO decide
| whether they are so warranted" This
| power is as Dluch an executive function for
| executive action as q similar power in
courts is a judicial function in cases over
which they have jurisdiction.
The courts derive their power to de-
clare an act unconstitutional from their
authority TO decide, and the Comptroller
derives like power from his authority
| TO decide, The source or power is the same
! as to judicial and executive officers The
constitution does not III terms confer the
power on courts.
2. Senator Blanchard says "The most
that can be claimed for the Comptroller in
the way OF judicial power is that he is a
! ministerial officer with quasi judicial func-
tons
The Comptroller has no judicial power
at all On this subject there is a strange
| confusion OF terms. Executive officers fire.
quently have duties of two classes-( / min
isterial. and p those requiring the ex erciSe
OF discretion and Judgment
BOuYier defines ministerial: THAT which
is done under the authority of a superior:
opposed to judicial as, the sheriff is a min
isterial officer bound to obey the judicial
commands OF the court"
When any officer acts ministerially he
is u mere automaton. There are cases
where the Comptroller acts ministeriaIIy, as
In the case OF u. S. VS. James, Is How. R.95.
When, as sometimes happens, Congress
specifically authorizes the head of an ex-
ecutive department, by constitutionallaw
to allow claim, this, when done, is
conclusive on the Comptroller. He has no
discretion to refuse to certify the sum due
the claimant But in most cases the allow
ance is entrusted to auditors, or in other
cases the final decision rests with the
Comptroller.
IN SucD case he exercised discreet ion
and Judgment, or, as it Is sometim es said,
he acts JudiciaIly. He does not exercise
judicial power, but in the exercise OF ex-
ecutive power he acts Judiciany-that Is
he exercises judgment end discretion 1t
was in view OF this that Mr. Madison said
in the First Congress that the duties of the
Comptroller ''partake OF q judiciary quail
ity as well as executive. The principal
duty seems to be deciding upon the lawful
ness and justice OF claims'' Aud the
Supreme Court, in Watkins vs. the U. s.
% Wall, 764), refers to the duties as re-
quiring Intelligent scrutiny" and de
cision." Here then are recognitiohs of the
unqualified power of the Comptroller to
judge, as fully as court can, of every
question arising upon the right of claim
ant, including the constitutional validity
OF the act of Congress under which a claim
is made. And this power is SO ample and
unlimited that it Is well settled that no
court can by mandamus, mandatory in
functions or otberw ise interfere with,
or control the exercise of the power The
principle announced in Gaines VS. Thomp-
son q Wallace, 357) is applicable as well
to the Comptroller as to the head of depart
ment. The court said:
I'm general . duties i'm
posed by act of Congress arenot mere minis
terial duties. The head Of an executive
department - is cont inually re-
quired TO exercise judgment and discretion.
He must exercise his Judgment in expou nding
the laws of Congress under which