The Washington times., 1901-10-08
MUST BIZ RBARPROPRIATED
Money Legally Covered Into the
Surplus Fund Not Available.
District Commissioners Apply for
the Transfer of Retent and Final
Payments to Contractors-RuIinG
by Comptroller of the Trcnsurv.

The Commissioners of the District re
Gently addressed n letter TO the Secretary
of the Treasury, in which they request
that certain balance for appropriation
for Bridges, District of Columbia, 1899. ~
be taken from the surplus fund and made
available for expenditure
The Secretary of the Treasury trans
mitted the request to the Comptroller of
the Treasury for an expression of his
views on the question involved in the
communication. The facts of the case are
as follows:
The amount so carried to the surplus
fund was 2,2S6.23. The Commissioners
state that of this sum $2024SS represents
the 10 per cent retained from the con-
tractor for the construction of the bridge.
under the provisions of the act of June
II. 1873, and s20S SO an amount due the
contractor final payment under his
contract. These amounts they now de-
sire to use to pay the contractor, and to
deposit the 10 per cent with the Treasurer
| of the United States to be invested or
held by him, as required by the acts of
February %. 1885. and March 3. 1887.
In deciding the question Robert ].
TraceweR says:
Section Of the act of March 2, 1889,
tions that have been heretofore or that
| snail be hereafter made for the District
| OF Columbia, heretofore or hereafter re-
| naming unexpended at the end of two
| years from the close of the fiscal year
Tor which such appropriations have been
| or shall be made, shall be covered into
| the Treasury, one-half TO the credit of
the surplus fund and one-half to the
credit of the general fund of the District
of Columbia
Under authority of this act and the
general Surplus Fund act of June 20, 1874.
your action in covering in this sum was
presumably taken. If the fund was an
'unexpended balance within the meaning
OF this act it was covered into the
| Treasury 10 the surplus fund not merely
oy the transaction involved in the issu-
| ance of your covering warrant but by
operation of law, and it is not within your
power 10 take 1t therefrom and make it
available for expenditure.
The law presumes that tc be done
which should be done, and, irrespective
of your action in the matter, balances OF
appropriations belong to the surplus fund,
although the actual covering of the same
into the Treasury Is effected by your ac-
ton. On the other hand. the Secretary of
the Treasury has no authority to cover
money to the surplus fund which does
not belong thereto by operation of law,
or which is exempted from the act. His
action in Issuing warrant which techni-
cally accomplishes that object, If found
to be erroneous and not according to law,
is subject to correction by him.
That the word unexpended as used by
Congress in the acts of June 20, 1874, and
March 2, 1889, supra, must be construed
as meaning not already applied to pay
ment, seems clear from a reading of the
context of those acts 1t has been argued
that the word was intended by Congress
to mean, not subject to expenditure or
unobligated, and hence, that a balance of
appropriation against which there are any
outstanding claims is not an unexpended
balance within the meaning of the Surplus
Fund act, but such reading would null
lily the purpose of that act and would
make meaningless direct provision
therein. Its purpose is thus stated by Sec
retary Sherman in decision made Icy him
April 20. 1877:
q Section of the act approved June
20, 1874, provides that all uneXpended bal
ances of appropriations with certain ex-
ceptionsl which shall have remained on
the books of the Treasury for two fiscal
years, shall be carried to the surplus fund
and covered into the Treasury. This sec
tion was adopted. after the fullest con-
off the payment of accrued claims, by COW
cring into the Treasury, after two years, |
the balance of the appropriation from |
which they might have been paid. The |
plain purpose of this act was TO confine |
officers of the Government to the allow |
ance and payment of liabilities within |
these fiscal years. During that period the |
appropriation was available. and not aft |
erward.'
I'm the same decision he says:
AN proper claims are likely to be |
promptly made and paid. Some just |
claims may arise and be delayed by neg
lect or want of proof, but to provide for |
these, and at the same time TO give the !
claimant the benefit of the nnding of the |
Auditor and Comptroller, the Secretary |
is directed al the beginning of each ses- |
sion to report TO Congress, with his an |
nual estimates any balances of appro- |
priations for specific objects affected by |
this section which need be reappropria- |
ted
The argument is clear. If the words |
'uneSpended balances do not mean the !
entire balances of the approximations |
whether subject to claim on account of /
existing liability or not, there would be |
no need to report any balances to Con- |
of the balance which would be needed |
to meet accrued claims would be the ;
only. part for which there would be any
need. whether left upon the books or
whether reappropriated by Congress
1T is very evident that it was just this
part of the balances, the part not act
ud4iy spent DuI oDilSdltu, Hnlch Congress
had in mind when the Secretary of the
Treasury was directed to report such bal
anceS as need to be Teappropriated If
the uneXpended balances TO be covered
into the Treasury are merely exclusive
of such as are needed to pay outstanding
claims or claims not yet matured tie
main purpose of the act is defeated ard |
the provision, requiring the Secretary OF |
the Treasury to report such balances |
as need to be reapprOpriated, becomes |
meaningless, since there could be no use |
for balance not needed TO pay cut
standing claims.
This conclusion is made clearer by
consideration of the last proviso in sec
ton of the act of June 90 1874, supra, the
Surplus Fund act, which is as follows:
q" And provided further, That this sec |
tion shall not operate to prevent the full
hllment of contracts existing at the date |
of the passage of this act
SO far, therefore, as that part of the
balance now due to the contractor is con-
cerned. l am of the opinion that your ac-
tion in covering 1t to the surplus fund |
was required by law and that It cannot
now be withdrawn and made available
for expenditure, and that any claims
against said balance will have to be re-
ported to Congress in the usual manner
balance represented by the amount re
tained from the contractor stands
think. on different basis.
THE acts of June II, 1873, February 25,
1885, ard March 3, 1887, supra require that
10 per cent of all new works on account
tanned as an additional security and a
guarantee fund to keep the same in re-
pair for term of five years, and that the
amount so retained shall be invested in
bonds of the United States or the District
of Columbia for the benefit OF the con-
ira gptOr or retained in hn 1Nrea c,tr,y |