The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-09-06
Their Demands Referred to the
Court of Claims for
Adjudication.
CONsTITUTIoNALITY AND LAW.
One Executive officer Who Believes
He Can Override the Acts
of Congress.


long expected and much anticipated deci-
sion of R. B. Bowler, Comptroller of the
Treasury, in the sugar bounty cases, was
made public this afternoon. The Comp
troIler refers the whole matter to the Court
of Claims for adjudication.
The particular case decided was the
claim of the Oxnard Beet Sugar Company
of Nebraska for the payment of portion
of the sugar bounty appropriated in the
sundry civil bill passed by the last Con-
gress. The amount involved in this case
was only $11, ,7S2 50, being the first claim
allowed by the Commissioner of Internal
Revenue under an appropriation Of $23S,-
600 to pay the producers of beet, sorghum
or cane sugar previous to the 2Sth OF Au-
gust, 1894, when the sugar bounty provi-
sions of the Mckinley law were repealed.
But the decision, of course, involves the
constitutionality of all sugar bounties.
The Comptroller first asserts his juris
diction over the matter and his right to re-
fuse payment of these bounties on the
ground of the unconstitutionality of the
appropriation. He quotes the decision of
the Court of Appeals of the District of Co.
Iumbia in a case brought before them by
MdHuIdCLuEll2
of Louisiana for a mandamus to compel
the Secretary of the Treasury and the Com
missioner of Internal Revenue to pay
the sugar bounty provided by the McKin-
lev law, and holds in substance that as the
court decided all such bOunties to be un-
constitutional its decision was one of which
he was bound to take cognizance. He adds:
This brings up, therefore, for consider
alton the question whether the Comp
troller has any power or authority under
any circumstances whatever to question
the constitutIonality of a statute passed by
Congress with all the legal formalities. 1t
was most vigorously contended that he
had not and that any attempt upon his
part to do so would constitute a dangerous
usurpation of power; that the question of
the constitutionality of an act of Congress
could only be decided by the courts, and
that until so decided by the Supreme
Court it was the duty of every executive
officer to obey the act. although himself
convinced of its unconstitutionaEty."
He then quotes many decisions on this
point and says:
From all these cases the conclusion is
irresistible that it is the duty of the execu-
tive officers to obey the law; that the con-
stitution is supreme and so are the statutes
passed in pursuance thereof; that statutes
which don't conform to the constitution
are not law, and therefore when statute
is in apparent conflict with the constitu-
tion it becomes the duty of the executive
officer to determine for himself the consti-
tutionality of the statute"
And he further argues that "whlle in
theory every executive officer, however
subordinate, is obliged to obey the law,
whether the constitution or the statute;
yet practically mere subordinate officer
who acts under the orders of a superior
who is bound to determine what the law is
may be justified in following the directions
of his superior. In deciding questions
upon the settlement of public accounts,
the Comptroller is not subject to the dlrec-
ton of any superior upon whom he can
throw the responsibility of determining
what the law is.
"The Comptroller" he says. "has never
claimed to be invested with any judicial
power by virtue of which he is authorized
to hold or treat an act as unconstitutional,
otherwise than is any superior executive
officer charged with the responsibility of
ascertaining what the law is in order to
guide his actions. But" he says, 1.-The
Comptroller is an executive officer whose
duties require the exercise of judicial func-
tions in the highest degree"
Exercising those functions Comptroller
Bowler cites as a strange fact that unless
the so-called cod fishery bounties can be
considered as bounties in fact. which is
seriously doubted, no direct money bounty
act has ever been passed by Congress until
the sugar bounties of the Mckinley law.
Replying to the position assumed by the
defenders of the sugar bounty that the
power to appropriate is absolutely in Con-
gress, and that it is political power OF
cognizant by the courts, and that the cor
rection lies with the people at the polls if
its use exceeds constitutional limits, he
says:
mo authorities are advanced to sustain
this proposition. The power to appropriate
is co-extensive with the power to lay taxes.
The appropriation is the means by which
the purpose for which the tax is levied is
carried out. Unless, therefore, there is the
power to tax there cannot be the power to
appropriate.
"The contention that a moral obliga-
tion existed, authorizing Congress to make
the principal bounty appropriation, he
continues "rests upon the alleged fact that
by a sudden repeal of the bounty pro-
vision OF the Mckinley act an injury was
done 10 the sugar producers, who be-
lieved that they would receive the benefits
OF that bounty, if not for the full period of
time therein named, at least, for all that
had been earned under its provisions to
its repeal and for the crop which, at the
time of the repeal, was actually grown,
but not yet manufactured. But it must
not be overlooked that if the Mckinley
bounty was unconstitutional wrong was
done to the people whose money was paid
out of the treasury without their
authority"
The papers in the principal case will be
returned to the Auditor for transmission