Evening star. [volume] (Washington, D.C.) 1854-1972, 1901-10-07
THE SURPLUS FUN D
OPINION OF THE CONTROLLER IN
REGARD TO 1T.
Questions Asked by the Commission.
ers of the Secretary of the
Treasury.

Controller, Tracewell has rendered to Sec
rotary Gage an opinion relative to letter
addressed to the Secretary by the District
Commissioners Gin which they ask that q
certain balance of appropriation for
bridges, District of Columbia $780, which
| was carried to the surplus fund by war
| rant No. "a, dated June 20, 1901, be taken
from the surplus fuEd and made available
for expenditure You request an express
sion Of my views on the question involved
in their communication.
1.-The amount SO carried to the surplus
fund was $2,23623. The Commissioners
| state that Of this sum $2,O24.SS represents
the 10 per cent retained from the contractor
for the construction of the bridge under
the provisions of the act of June H. 1875
60 Stat, 1867, and $2OS.99, an amount due
the contractor as final payment under his
contract. These amounts they now desire
to use to pay the contractor and to de-
posit the 10 per cent retent with the treas
urer of the United States. to be invested or
held by him as required by the acts of
February 25, 1885, and March g. 1887
After discussing the various phases of
the law involved in the question the con-
| troller concludes his decision as follows:
$50 far. therefore. as that part of the
balance now due to the contra ctor Is con-
cerned, am Of the opinion that your ac-
ton In covering 1t to the surplus fund was
required by law and that 1t cannot now
be withdrawn and made available for ax-
penditure, and that any claims against said
balance will have to be reported to Con-
gress in the usual manner for an appro-
priation. That part of the balance repre-
sented by the amount retained from the
contractor stands, I think, on different
basis.
1.-The acts Of June IL, 1873, February 25,
1885, and March 3, 1887. supra, require that
10 per cent of all new works on account of
the District of Columbia shall be retained
as an additional security and a guarantee
fund to keep the same in repair for term
Of five years, and that the amount SO re-
tanned shall be invested in bonds of the
United States or the District of Columbia
for the benefit of the contractor or retain-
ed in the treasury without interest until
the period of guaranty has expired. It Is
thus segregated from the appropriation and
Is made trust fund. and while the prac-
ury until final settlement with the contrac-
tor, at which time the exact amount to be
retained can be determined 1t is clear that
the trust attaches to the fund and takes II
out of the appropriation whenever any part
of 1t comes under the operation of the law.
do not think that the provisions Of the
surplus fund act should be construed so a q
to defeat this law or impair the trust Gre
ated thereby, and hence I am Of the opin-
ion that the 10 per cent due to the con
tractor was not covered into the TREASURY
by operation of law. but merely by an ac.
ton on your part which can be corrected
II found to have been enormously taken.
Under this view of the question, there
can be no objection. If it meets with your
approval, to comply with the request Of
the Commissioners so far as the amount Of
the 10 per cent retained Is concerned, but
1t should be stated that I hold that you are
not thereby taking the amount from the
surplus fund.-. as they suggest, but are
merely correcting an erroneous deposit"