The times. [volume] (Richmond, Va.) 1890-1903, 1895-09-06
MR.. BOWLER'S DECISION.
srATUTES NOT CONFOHDING no THE
CONSTITUTION IRE NOT Law.
Tne Controller Of the Treasury is Thrown
on His Own Responsibility and Must
Exercise Certain judicial Functions

! HIS own MI"
Exercise Certain judicial Functions
WASHINGTON. ID. c., Sept. 5.-rhe
much Anticipated decision of Mr.. X. -.
Bowler, Controller Of the Treasury IN the
Sugar Bounty case was made public TINS
afternoon. The particular case was the
claim Of the Oxnard Beet Sugar Com
pany of Nebraska, for the payment OF a
portion of the sugar bounty appropriated
in tho sundry civil bill passed By the last
Congress. The amount involved in this
case was only sll.7s2.5O, being the first
claim allowed by the Commissioner OF
! Internal Revenue under an apprOprla-
ton OF s23s,0Oo to pay the producers Of
| beet, sorghum or cane sugar, previous
| 10 the 18th Of August. 1894. when the
sugar bounty provisions Of the Mckinley
law were repealed. But the decision OF
! course. involved the consutuuonality Of
! all sugar bounties
! The Controller first asserts his Juris-
dicfion over the matter and his right 10
refuse payment Of these bountcs Oh the
grounds OF the unconsututionality Of
the appropriations lie quotes tho de-
cision Of the Court Of Appeals Of the Dis
! trict of Columbia In a suit brought be-
| fore them by tho les-Plan tManufactur-
, ing Company of Louisiana, for a manda-
mus To compel the Secretary of the Treas
! ury ana the Commissioner OF Internal
| Revenue, tc pay the sugar bounties pro-
! yided by the Mckinley law, and holds
! in substance that court having decided
| all such bounties TO be unconstitutional
its decision was one Of which ne was
/ bound 10 take cognizancc. He adds:
| This brings up therefore for ccnsidcra-
/ ton the question whether The Controller
mas any power or authority under any
! circumstances whatever 10 question the
consututionality Of the statute passed
by Congress with all the legal formalities.
III was most vigorously cOntended
that he had not. and that any ATTEMPT
on MS part 10 do so would constitute a
dangerous usurpaion OF power that the
| question of the cOnstitutionalitv of an
act OF Congress could only be decided by
the courts, and that until so decided bv
the Supreme Court il was the duty OF
every executive officer 10 obey the act.
although himself convinced Of its un-
constitutionality."
~hkN A STATUTE IN NOT LAW.
lie quoted many decisions on this point
ana says: From all these cases the con-
N
or the executive officer TO obey the law .
that the Constitution is the supreme law
ana so are statutes passed i'm pursuance
tIeIttl, that statutes which do not con-
form to the Constitution are not law
ana therefore wnen a statute is i'm appar-
ent conflict with the Constitution il be-
comes the duty OF the executive officer
10 sdeiermiIg for himself as between
me statute ana the Constitution where
the statute is the law. He further argues
that while in theory, every executive Off
Ger, however subordinate is Obliged 10
obey the law, whether The Constitution
or the statute, yet practically a mere
subordinate officer who acts under the
orders OF a superior. who is bound to
determine what the law - may be justi-
fled In following the directions of his
superior. In deciding questions upon the
settlement Of public accounts. the Con-
troller Is not subject 10 the direction of
any superior upon whom he can throw
the responsibility of determining what
the law u.s. That question was finally
settled by the act OF March 80 1865 in
corporated la section 1gi of the Revised
Statutes, which. modified TO meet the
changes in the accounting system made
in the DOckery act still remains the law.
"rhe Controller" he says, has never
claimed 10 be invested with any judicial
power by virtue of which ne is authorized
10 hold and treat an act as unconstiiu-
fional otherwise than is any superior Off
Ger charged with the responsibility Of
ascertaining what the law is in order to
guide his actions
TIE coSIEOILrE HAS JUDICIAL FUNCTIONS.
But" he says. "the Controller Is an
executive officer whose luties require the
exercise of judicial functions in the
highest degree"
Exercising those functions. Controller
Bowler cites as a strange fact. that un-
less the sugar bounties can be considered
as bountes in fact, which is seriously
doubted. no direct money-act has ever
been passed by Congress until the sugar
bcl mites OF the Mckinley act.
Replying TO the position assumed by
the defenders OF the sugar bounty that
the power to appropriate Is absolutely In
Congress; that IL is "A power that is not
recognizable by the courts and that the
correction lies with the people at the
polls II its use exceeds constitutional
limits. he says: NO authorities re adj
vanced TO sustain this proposition. The
power TO appropriate is coextensiye with
the power 10 lay taxes.
"Thc appropriation Is the means by
which the purpose for which tine tax is
levied is carried out.
Unless Therefore. there IS the power to
tax. there cannot lee the power TO appro-
pirate
lie proceeds as follows:
"No single case has been presented
in which II was held or even suggested
that, If a matter had been originally be-
yond the power of the legislative BODY
because IN violation OF the Constitution,
she Legislature by subsequent act
could have made 10 valid.
rHT M'EINLNY LAW.
"The contention that a moral Obligation
| existed causing grounds to make me
present bounty Appropriation. rests on the
| alleged fact that by a subsequent repeal
of the bounty provisions OF the Mckinney
law an injury was done TO the sugar
producers. who believed that they would
receive the benefits of that bounty. II
not for the full period Of time therein
named. at least for al that had been
earned under its provisions prior 10 its
repeal. and for the crop which at the
time OF the repeal was actually grown,
but not vet manufactured But it must
NOT be overlooked that II the Mckinley
bounty was unconstitutional n wrong
was done TO the people whose money
was paid out OF the Treasury, without
their authority This theory which
rests at the basis of this moral obliga-