On the 4th of February, 1880, in answer to an inquiry from the President, whether he had authority to direct payment of the $10,000, which ought to be paid to Wood, the then First Comptroller reported to the President

"1. The appropriations out of which Mr. Wood might have been paid, even if not exhausted in the year for which they were made, have long since been covered into the Treasury. If the claim were now legally established it could not be paid without first being reported to Congress and an appropriation being made for its payment.

"2. To establish the claim in such manner as to allow it to be presented by the Secretary of the Treasury to Congress, under the provissions of section 4 of the deficiency act of June 14, 1878, it would first have to be approved by the Secretary, then submitted for settlement to the First Auditor, then certified for examination by him to the First Comptroller and approved by him.

"3. It is not likely, I suspect, that the Secretary of the Treasury would approve the claim, as it has been twice rejected by him.

"4. I have always had doubt whether the promise made by Mr. McCulloch [Secretary of the Treasury] to Mr. Wood was such a one as could be enforced at law. When it was made, Mr. Wood was Chief of the Secret-Service Division, receiving a stated salary, previously fixed by the Secretary, for his services. That salary could probably have been increased, at the discretion of the Secretary of the Treasury, but it is very doubtful whether the Secretary, the salary not having been increased, could engage to pay an additional sum for a specific service. Section 1765 of the Revised Statutes is applicable to the question."

It does not distinctly appear from the report when the services of Mr. Wood commenced or terminated. His services were actively rendered in 1867 and 1868, and, in a letter to the Solicitor of the Treasury, of December 22, 1870, Mr. Wood refers to a claim for reimbursement for expenses for attending suits in New York to recover the money paid for the spurious notes, and says: "On a former occasion I incorporated a claim for payment per diem during the time necessarily expended in the business," and on the 23d of December, 1870, his per diem was paid by the Treasury Department, so that his services under the arrangement made in 1867, would seem at least to have terminated as early as December, 1870.

On the 20th of July, 1880, the President requested the now First Comptroller to "make a final disposition of the case."

Hon. T. W. Bartley, for Mr. Wood, before the First Comptroller, argued:

I. The claim having been adjudicated January 22, 1880, by the First Comptroller, can be paid out of the appropriation for the Secret Service for 1880. The adjudication was during the fiscal year 1880, and

makes a liability, fixed and accruing therein. The contract was continu ous, and could not mature until adjudicated.

The practice of this Department in disbursing funds appropriated for detecting counterfeiting has been to pay such sums as may be found due at the time of the adjudication.

Detectives Dickson, Reynolds, Perkins, and Reed (two of whom were in the Secret-Service Division) were paid a reward for the arrest of Thomas Ballard, offered in 1871. The capture was made some years after. The award was paid from the detective fund of 1875.

II. The payment is authorized by act June 20, 1874, sec. 5, (18 Stats., 111,) which was not repealed by act June 14, 1878. (20 Stats., 130.)

III.-The act of June 14, 1878, requires payment. It has been decided that an appropriation for a continuous contract may be applied to the same service during a subsequent year, and does not lapse into the surplus fund. (Brightly's Dig. Laws U. S., 43, note a, 7 Op., 1–14.)

OPINION BY WM. LAWRENCE, First Comptroller:

The services of Mr. Wood were rendered to the Government commencing in 1867, and ending prior to the fiscal year 1880.

I.-If it be admitted that his claim for compensation was duly audited and allowed (as it was not) in the fiscal year 1880, with an allow ance of $10,000, it cannot be paid out of any appropriation for that year. The only appropriation applicable is that made by act of March 3, 1879, "making appropriations for sundry civil expenses for the fiscal year ending June 30, 1880," including an appropriation for "expenses of detecting and bringing to trial persons engaged in counterfeiting." (20 Stats., 384.)

The act, by its title, shows that it was designed to pay for services rendered during that year, and the uniform usage has been to regard appropriations for ordinary purposes for a designated fiscal year as applicable to services for that year. (Rev. Stats., 3679, 3680.)

It is true, an act making annual appropriations may make a permanent "specific appropriation" for an object continuous in its nature, and, until expended, a claim may be paid out of it without regard to the year in which it accrued or is audited and allowed. Thus, an appropriation for the construction of a ship under a continuous contract, would be a permanent specific appropriation, and, until its object be accomplished, no unexpended balance could be carried to the surplus fund. (Act June 20, 1874, sec. 5, 18 Stats., 110; act March 3, 1875, sec. 5, 18 Stats.. 418

Rev. Stats., 3679, 3732, 3733, 5503; 4 Op. Attorney-General, 600; 7 Op., 1-14; 9 Op., 18; Op. April 27, 1876; Rev. Stats., 3618, 3688, 3690, 3691, 3692.)

A permanent specific appropriation is very different from an annual appropriation.

Under an annual appropriation, like that of March 3, 1879, for ordinary expenses, the right to compensation depends on the time of service, and not on the date of the allowance, which latter may be made so as to secure payment at any time within the two fiscal years mentioned in the 5th section of the act of June 20, 1874, at the end of which, unexpended balances of appropriations must be covered into the Treasury. The practice of the Department, in disbursing funds appropriated for detecting counterfeiting, has not been to pay for services rendered in a given year, out of an appropriation for a subsequent year, upon an allowance in the latter year.

A reward was paid to Perkins, Dickson, Reynolds, Henderson, and Reed, in August, 1875, from the appropriation for the fiscal year ending June 30, 1875, in consequence of the arrest of Ballard, effected by them, October 9, 1874, during the fiscal year 1875.

II. No payment can be made by virtue of the act of June 20, 1874. This act requires appropriations, unexpended for two fiscal years, to be carried to the surplus fund, except in five enumerated classes of cases, the last of which is provided for by declaring that "this section shall not operate to prevent the fulfilment of contracts existing at the date of the passage of the act" approved June 20, 1874. (Rev. Stats., 3688, 3691, 3692.)

This means that unexpended appropriations, for fulfilling contracts then existing, shall not be carried to the surplus fund, but shall remain to fulfil such contracts.

This provision only applies (1) when there is, or has been, an unexpended appropriation, (act June 20, 1874, 18 Stats, 110; act March 3, 1875, 18 Stats., 418, sec. 5;) and (2) as I am required to hold, by reason of prior decisions, in cases of existing contracts in the course of execution, and not contracts matured into liabilities. There must be an unexpended appropriation, because the act of 1878, in terms, so requires, and contracts in excess of appropriations are prohibited. (Rev. Stats., 3679.)

This was decided by the First Comptroller, July 15, 1874, who said that Congress, in using the word "contracts," "meant valid, written contracts existing, and in the course of execution, and unfulfilled June 20, 1874."

Whether it be correct to say it applies only to written contracts or not, it has been held only applicable to existing contracts in the course of execution.

The Secretary of the Treasury, in his decision of April 20, 1877, as to the payment of "accrued claims," approves this construction, and says:

"If the phrase 'existing contract' means a contract violated and ended long before, it would authorize the payment of the French spoliation claims, or claims growing out of contracts during the Mexican war, or the war of the rebellion. The act was passed expressly to protect the Treasury from old claims presented after the appropriation had terminated, and to correct alleged abuses by officers in paying accrued claims upon ex parte showing. The exception must not be so construed as to defeat the manifest purpose of the act. The contracts excepted are continuous and subsisting contracts, requiring acts to be performed, and not contracts broken and ended, or matured into accrued liabilities."

The claim now made cannot be paid even if regularly allowed, because it was matured prior to June 20, 1874. But if it had matured even later, it cannot be paid for reasons which appear herein. There is an insuperable difficulty in the way of now paying this claim, as determined by my predecessor, in the fact that the appropriations applicable to it, "even if not exhausted in the years for which they were made, have long since been covered into the Treasury."

In Stansbury vs. U. S., 8 Wallace, 36, it was said, in a similar case, "the Secretary could not pay the claim because there was no appropri ation to pay it."

III.-The act of June 14, 1878, (20 Stats., 130,) as applied to this claim. The 4th section of this act declares that "It shall be the duty of the several accounting officers of the Treasury to continue to receive, examine, and consider the justice and validity of all claims under appropriations, the balances of which have been exhausted or carried to the surplus fund under the provisions of said section, [sec. 5, act June 20, 1874,] that may be brought before them within a period of five years. And the Secretary of the Treasury shall report the amount due each claimant, at the commencement of each session, to the Speaker of the House of Representatives, who shall lay the same before Congress for consideration: Provided, That nothing in this act shall be construed to authorize the re-examination and payment of any claim or account which has been once examined and rejected, unless reopened in accordance with existing law." (See R. S., 191, 236, 269, 270.)

I have not been asked, as my predecessor was, to examine this claim de novo. I am not asked to decide what ought to be allowed, as if the question were res integer. There must, of necessity, be some end to

such examinations. I have been asked to "make a final disposition of the case"-the case as it is.

It is well settled, as a general rule at common law, that "the detection, arrest, and conviction of a felon, or the discovery and seizure, or return of stolen property, is a good consideration to sustain a promise made on such condition. But a promise to pay public officers,

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on whom the law casts this duty, cannot be enforced at common law." (Gilmore vs. Lewis, 12 Ohio, 289; 2 Burr., 924; 15 Wend., 46; Cro. Jac., 103; 1 Caines, N. Y., 103; 2 Sandf., 318; 1 Hill, 362; 8 Wall., 33; Rev. Stats. U. S., 1765.)

In the absence of a prohibitory statute, it may be doubted if the Government is precluded, on grounds of public policy, from making such contract. (U. S. vs. Broadhead, 3 Law Rep., 95; U. S. vs. Duvall, 3 Gilp., 356.) In war and in peace great powers may be exercised, and rules applicable to citizens do not always impose barriers to defeat what is required for the common good.

The prohibition of such contracts generally, by section 1765 of the Revised Statutes, seems to recognize this view, or that section would have been unnecessary. It prohibits extra compensation to any officer or to any person whose salary, pay, or emoluments are "fixed by law or regulation." (21 How., 463; 7 Wall., 338; 8 Wall., 33; 9 How., 487; 2 Story, 202; 4 Cr. C. C., 203; 16 Pet., 291; Davies, 38; Dev. C. C., 34, 151; 5 Am. Law Reg., 268.) It is, perhaps, not certain that the pay of Mr. Wood was so "fixed," or that he was an officer. (Brown vs. U. S., 1 Curtis, 15; 2 Brock., 96; 3 Wall., 93; 6 Wall., 385; 4 Wall., 333; U. S. vs. Permaine, 99 U. S., 508.)

The Secret-Service Division is not technically and directly organized by express statute, but rests, as it may lawfully do, on the execution. of Executive power, (Revised Statutes, 161,) based on annual appropriations for "detecting and bringing to trial persons engaged in counterfeiting," &c. (Act July 2, 1864.)

The Secretary of the Treasury may fix such pay or compensation as he deems proper, and increase it in his discretion, because the law prescribes no limit to his authority. I do not perceive any legal difficulty in the way of the Secretary agreeing to give increased compensation to Mr. Wood for extraordinary, or, indeed, for any services.

But, under the ordinary annual appropriations for detecting counterfeiting, the Secretary of the Treasury has no authority to make a contract like that alleged in this case specifically, to run through more than a current fiscal year. (Rev. Stats., secs. 3679, 3732, 3733, 5503.)

If such contract be made, services rendered under it may be paid