LIBRARY OF THE UNIVERSITY OF CALIFORNIA, RECEIVED BY EXCHANGE Class CORNELL STUDIES IN HISTORY AND POLITICAL SCIENCE ISSUED BY THE PRESIDENT WHITE SCHOOL CORNELL UNIVERSITY VOLUME III THE JUDICIAL WORK OF THE COMPTROLLER OF THE TREASURY AS COMPARED WITH SIMILAR FUNCTIONS IN THE GOVERNMENTS OF FRANCE AND GERMANY A STUDY IN ADMINISTRATIVE LAW THESIS Presented to the faculty of the Graduate School of Cornell University in part fulfillment of the requirements for the degree of Doctor of Philosophy r / BY - _ ' WILLARD EUGENE HOTCHKISS \\ CORNELL UNIVERSITY ITHACA, N. Y. 1911 Copyright, 1911 BY CORNELL UNIVERSITY VITA. WILLARD EUGENE HOTCHKISS, born Amber, N. Y., June 20, 1874. Graduated from High School, Ithaca, N. Y., 1893; Cornell University, degree Ph.B. 1897; teacher and assistant superintendent at the George Junior Republic, Freeville, N. Y., 1897-1900; fellow in the University Settle- ment, New York City, and student in the New York Law School, 1900-1901 ; graduate student Cornell University, 1901-1904; President White Fellow in Political and Social Science, 1902-1903; President White Travelling Fellow. 1903-1904; degree A.M. 1903; Ph.D. 1905; instructor, Wharton School of Finance and Commerce, University of Pennsylvania, 1904-1905 ; Assistant Professor of Eco- nomics, Northwestern University, 1905-1907; Associate Professor of Economics, 1907-1909; Professor of Eco- nomics since 1909; Dean of School of Commerce, North- western University, since 1908; supervisor Thirteenth De- cennial Census, First District of Illinois, 1910. 227069 PREFACE With all the tendencies of our social and institutional development emphasizing the need of efficient and orderly administration, administrative law seems destined to de- mand constantly increasing attention from students of American institutions. Until we have demonstrated the possibility of combining democratic government with effi- cient administration, municipal, state and federal, the forces which regulate the course of administrative activity may well occupy a place of paramount importance in the atten- tion alike of students and administrators. It is in the hope of contributing something toward a better understanding of these forces that this study is undertaken. The author is deeply indebted to all those, both in this country and in Europe, who have rendered him such courte- ous assistance in the preparation of this work. Special acknowledgment should be made to Comptroller Tracewell for his helpful criticisms and suggestions. Through the courtesy of M. Benac, Director of the general movement of funds (directeur du movement general des fonds) in Paris it has been possible to observe at close range the treasury operations of France and to utilize freely the wealth of material available in the French Ministry of Finance. M. Victor Marce, Conseillier referendaire of the French Court of Accounts, and Dr. Hugo Preuss of the University of Berlin have kindly read and given able criti- cism of the portions of the work descriptive, respectively, of French and German institutions. M. Marce most gen- erously made available material contained in his unpub- VI JUDICIAL WORK OF COMPTROLLER OF TREASURY lished manuscript upon the control systems of various countries. Finally the author desires to express his great appreciation to friends and teachers in the President White School of History and Political Science at Cornell Univer- sity for patient and kindly aid during the whole progress of the work. TABLE OF CONTENTS INTRODUCTION American interest in administrative law of recent growth. Administrative law considered foreign to Anglo Saxon ideas of justice. Concepts of administrative law. Conti- nental administrative jurisdiction based on theory of sepa- ration of powers. American versus French concept of sepa- ration of powers. Historical explanation of difference. Establishment of administrative jurisdiction in France a legalizing force. Administrative law common to all con- stitutional states. Administrative jurisdiction of common law courts in England and America. Technicality and ex- penses of American judicial remedies. Jurisdiction of ad- ministrative officers. Development of administrative law in commonwealths. In municipalities. Conditions favor- able to development of federal administrative law. Ad- ministrative centralization. Growth of federal activity has increased power of executive. Influence of insular gov- ernment. Of regulative activities. Judicial functions in older activities of the administration. Judicial work con- nected with treasury regulation. Work centralized with Comptroller of the Treasury. Comptroller as court of appeals. Comptroller's jurisdiction over claims against the state. American compared with French system of pursuing claims. Resume of development of administrative activity. Administrative side of government developed by usage. Comptroller's jurisdiction with reference to its actual judi- cial and administrative significance PART ONE THE JUDICIAL WORK OF THE COMPTROLLER CHAPTER I ORIGIN AND HISTORY OF THE OFFICE OF COMPTROLLER Office of Comptroller established in 1778. The judicial work- dates from 1781. Provisions of resolution of 1781. Dis- X JUDICIAL WORK OF COMPTROLLER OF TREASURY pines under revenue act of 1898. Other cases arising under law of 1898. What constitutes a broker under the law. Mortgage tax. Disclosure of liability to taxation. Comp- troller's power to go behind findings of Commissioner of Internal Revenue. Interpretation of tax on fermented liquors 49~S8 CHAPTER V COMPTROLLER'S JURISDICTION OVER DISBURSEMENTS FOR SERVICES TO THE GOVERNMENT Cases of this nature too small individually to justify suit at law, but important in the aggregate. Classification of cases. Cases in Army and Navy decided according to letter of law. Principle illustrated under provision for extra pay for services in Spanish War. Mileage, general conditions upon which allowed. Travel to and from insular posses- sions. Construction favorable to officers. Bounties and pensions. Legislative removal of charge of desertion. Disabilities of deserters removed by private legislation. Questions of payment in civil service. Recess appoint- ments. Effect of failure of Senate to confirm. Fees, dis- tinguished from reimbursements such as mileage and ex- penses. Fees reported by clerks of courts. Clerks must account for all fees collected. Specific provisions of law concerning fees must be fulfilled. Fees not usually de- feated by technicalities. Action upon fee claims when no bona fide service has been performed. Clerk entitled to fee for everything done by order of court if not made in bad faith. Record of court only prima facie evidence. Mileage in case of civil officers. Contested seats in legis- lative bodies. Reimbursement for expenses. Actual ex- penses and per diem in lieu of subsistence. Questions re- garding expenses decided by strict adherence to rule. Expenses not allowed when lump sum is given for services and expenses. Expenses must be legitimate. Must not be included in per diem allowance to same officer. Line be- tween subsistence and traveling expenses. When Congress leaves both compensation and expense of an officer to be fixed by the head of a department he may draw the line at his own discretion 59-80 TABLE OF CONTENTS XI CHAPTER VI INTERPRETATION OF CONTRACTS Comptroller's decisions regarding contracts rest on regular con- tract law. Provisions for liquidated damages. Flat boat case. Provisions interpreted as far as possible, on grounds of equity. Reasonable agreements for liquidated damages will be enforced. Government oversight of Indian con- tracts. Effect of approval by Secretary of Interior and Commissioner of Indian Affairs. Interior Department may not waive statutory requirements 81-87 PART TWO COMPARISON OF THE COMPTROLLER'S WORK WITH SIMILAR FUNCTIONS IN FRANCE AND GERMANY INTRODUCTION Basis of comparison between Comptroller's work and similar functions in Europe. Comptroller's jurisdiction over claims the peculiarly judicial branch of this work. As chief audi- tor he performs work regarded on the Continent as judicial. Continental idea of budgetary control. Control function on the Continent culminates in Court of Account. List of organs with which comparison must be made. Broad scope of activities in Continental countries parallel to those of the Comptroller. Study will not seek exact parallels but will consider system of each country as a whole 88-90 CHAPTER VII THE REGULATION OF TREASURY OPERATIONS IN FRANCE AND GERMANY From continental viewpoint Comptroller is at the head of our control system. French control system model for Conti- nental countries. Elements of French control system. " Loi de reglement." French budget year. Ineffective con- trol over authorization combined with effective control over accounts. Constitutional reasons for present situation. Progress in regulation of disbursements. Restriction on transfers from one account to another. Relation of lack of power over authorization of expenditures to the power of the legislature. Historical explanation of the situation. xii JUDICIAL WORK OF COMPTROLLER OF TREASURY Centralization of accounts in Paris. Description of col- lecting and disbursing machinery. Local officers. Central organs. Three divisions of Treasury which control mat- ters of fact, of form and of budgetary regularity. Third division most important. Function of Director of move- ment of funds. Director subordinate to Finance Minister but still the most effective organ of control. General in- spection of finance. Commission for verifying ministerial accounts. Court of Accounts. Its history and jurisdiction. Appeal from decisions of Court of Accounts. Power of court over irregular transactions. Annual reports of Court of Accounts. Report to the President. Influence on budgetary infractions. Administrative control in Germany. Prussian system most important. Control of cash han- dled and of accounts. Control function of Finance Minis- ter. Of provincial and district governments. Prussian Chamber of Accounts. Status and procedure of Chamber of Accounts. Its power. Final report to the king. In- fluence of report. Imperial control organs. A modifica- tion of Prussian system. Control organs of smaller Ger- man states. Comparison of French and German systems. France and Germany offer no parallel to the Comptroller's functions. Comptroller's power greater than that of any of the European organs of control 91-118 CHAPTER VIII AMERICAN COMPARED WITH CONTINENTAL JURISDICTION OVER CLAIMS AGAINST THE STATE Similarity between Continental organs of control. Dissimilarity in their relation to other organs of government. Conflict between treasury operations and private rights. Conti- nental principle of administrative jurisdiction. Extension of administrative jurisdiction in France as compared with Prussia. Close connection of French courts with active administration. Inferior administrative courts in France and Prussia. Most important differences in two systems found in organization of courts of last resort. Organiza- tion of the French Council of State. Section for litigation. Judicial procedure of Council. Superior Administrative Court of Prussia. Qualification and tenure of members. Procedure of Prussian Court. Jurisdictional line between administrative and civil courts in neither France nor Ger- many strictly parallel to the division between public and TABLE OF CONTENTS Xlll private acts. Jurisdiction in France determined by Court of Conflicts. Analysis of jurisdiction of French adminis- trative courts. Nearly all claims pursued before admin- istrative courts. Analysis of jurisdiction of Prussian ad- ministrative courts. Broad field of jurisdiction for ordinary civil courts. Operations of the " Fiskus " within the realm of private law. German imperial law regarding conflicts between civil and administrative jurisdiction. Organization of Prussian Court of Conflicts. Courts of Conflicts in other states. Discussion of contrasting principles of ad- ministrative jurisdiction in France and Germany. Com- parison of Continental with Anglo Saxon systems. Ad- vantages of close connection between French courts and active administration. Judicial character of French courts improving. Increasing permanence of tenure for members of the Council of State. American administrative law con- strued by ordinary courts. Absence of special courts tends to encourage growth of judicial functions of administrative officers. Resume of judicial functions of the Comptroller in the light of French and German practice 119-142 THE JUDICIAL WORK OF THE COMP- TROLLER OF THE TREASURY AS COMPARED WITH SIMILAR FUNCTIONS IN THE GOVERNMENTS OF FRANCE AND GERMANY INTRODUCTION Political science in the United States during the nine- teenth century has been concerned almost exclusively with the constitutional side of public law. 1 The name admin- istrative law has been associated in our minds with institu- tions peculiar to Continental states. Anglo Saxon concepts of justice which demand that government prerogatives and the affairs of individuals be regulated by the same law and the same courts, have been thought to preclude the develop- ment of administrative law in English speaking countries. 2 1 Only within comparatively recent years has the term administrative law found a place in our political science vocabulary. Dr. Ernst Freund, writing in the Political Science Quarterly as late as 1894 (IX. p. 404), called particular attention to the "new term" used by Goodnow in his " Comparative Administrative Law/' and expressed the hope that it might become familiar to the public and the legal profession, and that the subject itself might become a recognized branch of our public law. a The neglect of this subject has not been confined to American students. In England it has been customary to assume that administra- tive law is unknown in those countries whose institutions are based on the English common law. Mr. Dicey in the sixth edition of his lectures on " The Law of the Constitution," has explained that what in Eng- land is sometimes called administrative law, is nothing more than "official law" or " governmental law" (London and New York, 1902, 2 I 2 JUDICIAL WORK OF COMPTROLLER OF TREASURY Acceptance of this term to designate collectively the body of rules and institutions under which the public services are organized and administered, does not imply that the principles of administrative law are the same in Anglo Saxon as in Continental states. Separate administrative courts in France find their historical explanation in Mon- tesquieu's doctrine of the separation of the powers. This doctrine received in France a practical interpretation dia- metrically opposite from that given to it in America. Here the essential part of the doctrine was contained in the idea that the judiciary should be removed from the influence of the other powers, that it might be left free and un- trammeled to apply one law to the relations of all citizens, whatever their personal or official status. According to the French interpretation, it was the executive power appendix, pp. 486-487). The former, being the law of the civil service, is composed of the rules which determine the position of the servants of the state ; the latter has arisen in connection with factory acts and other social legislation under which various boards have been organized to exercise regulative functions. " The term droit administratif ," says Dicey, " is one of which English legal phraseology supplies no proper equivalent. The words ' administrative law,' which are its most natural rendering are un- known to English judges and counsel, and are in themselves hardly intelligible without further explanation. This absence from our lan- guage of any satisfactory equivalent for the expression droit admin- istratif is significant ; the want of a name arises at bottom from our non-recognition of the thing itself" (p. 323). The difficulty of rendering comes chiefly from regarding the French term from an exclusively legal standpoint as involving the idea of an administrative jurisdiction in the peculiar French or Continental sense. This purely legal view reveals only a part of the idea contained in the phrase droit administratif. Administrative law may be regarded not only from the standpoint of law, but from that of political science, and in this light includes the ensemble of rules and principles governing the organization and operation of the public service. (For a further expres- sion of the same idea cf. Hauriou, Maurice, ''Precis de droit admin- istratif" 3 ed., 1897, p. 235, also 5 e ed., 1903, pp. 190, ff.) INTRODUCTION 3 which was to be placed in the foreground and made free from any interference from the judiciary in carrying out its policies. The historical reason for these different interpretations is sufficiently obvious. The American view is in harmony with the whole development of English legal notions. In France where different ideas had prevailed, experience prior to the development of separate administrative tribu- nals had shown, that when the judiciary possessed power to pass upon matters of administration, either the executive was unduly hampered in its policy by an unsympathetic interpretation of the law, or else it dominated the judiciary in such a way as to destroy its character as an organ of justice. The withdrawal from the courts of all cases involving questions of prerogative was a natural develop- ment under the old regime and with these cases already controlled by the administration, the subsequent creation of special courts for their trial was, in form, at least, a movement toward judicially regulated administration. 3 The "This change, which was effected in 1806 by the reconstitution of the Council of State and its endowment with judicial functions, was at first a change of form rather than of substance. In harmony with the French interpretation of Montesquieu's theory, the new jurisdiction belonged exclusively to the executive branch of the government and was constituted to take a broad view of questions of government policy. The fact that the primary functions of the Council of State were those of an advisory board, and that appointment and tenure were at the pleasure of the Emperor, naturally subjected its judicial work to im- perial dictation. The court was therefore practically the administration, specially organized for the purpose of judicially passing upon its own acts and of giving to arbitrary power a disguise of legal form. During the progress of the century the advisory functions of the Council have tended to become relatively to its judicial work, less important. Al- though the independence of the court has fluctuated under the several regimes, it has been establishing a body of legal precedents which are developing into an orderly system of jurisprudence. 4 JUDICIAL WORK OF COMPTROLLER OF TREASURY rais&n d'etre of Continental administrative jurisdiction is the need of an efficient but orderly executive.* Absence of administrative tribunals in English speaking countries does not imply absence of administrative preroga- tive. Although a government with monarchical traditions and a bureaucratic administration possesses a personality to which prerogatives more readily attach, there is in every state, whatever its history and constitutional form, a body of privileges without which administration could scarcely proceed. Moreover in all states it rests, largely with the administration, not only to exercise such privileges but to determine in the first instance their limits. The executive whether acting by his own authority, in the absence of special law, or proceeding under the direction of the legisla- ture, is subject to judicial process only when his authority is called in question. When a private individual on the Continent considers his rights infringed by an act of administration, his remedy is regularly an appeal to the appropriate administrative court. * In Germany where the doctrine of the separation of the powers has not been incorporated in public law, administrative jurisdictions, or- ganized more or less according to the French model, are justified on the ground that conflicts of public and private interests cannot be settled according to the principles of abstract justice as applied between man and man; therefore ordinary courts accustomed to purely judicial reasoning are not qualified to deal with questions in which the broader interests of the state are involved. While the Germans have not seen the need of withdrawing from the ordinary civil jurisdiction the great mass of cases in which the state, in some of its various relations, is a party, or of making the higher administrative tribunals dependent on the executive, the existence of separate courts, made up in part of persons trained for administrative duties, is a recognition of the fact that private right must give way before the broader considerations of public interest. The functions of German administrative courts no less than of French, is to exercise justice without curtailing essential prerog- atives of the government. INTRODUCTION 5 In England and America, analogous redress is granted by the ordinary judiciary, in form of such writs as quo war- ranto, mandamus, and habeas corpus issued more or less arbitrarily. Whether the court tends to favor private claims, or upholds official prerogative, the purpose of a jurisdiction which carries authority to address these several writs to public officers, is to harmonize private right with public interest, and the jurisdiction is within the realm of admin- istrative law. In America, expense and extreme technicality often make an application of the judicial remedy for grievances against the administration impracticable. Wherever the administration is hierarchically organized, an intermediate remedy is found in the appellate jurisdiction exercised by higher administrative officers. When no appeal is possible within the administration, the suitor may demand a recon- sideration of his case, but he usually accepts the final de- cision of the officer or public body involved. The juris- diction, original or appellate, lodged in the active admin- istration, is regularly recognized as an instrument of re- dress for private grievances. In American state governments the development of ad- ministrative jurisprudence was formerly precluded in large measure by the disconnected character of state administra- tion. In recent years the increased number of appointive officers and the creation of new departments has in many states been bringing a larger measure of executive power into the hands of the Governor. The wide powers given to boards created to exercise the regulative functions of the state has moreover greatly increased the relative im- portance of the executive branch of the government. 5 B Tne absolute futility of entrusting such functions .s the care of the public health, the supervision of charities, the inspection of factories, 6 JUDICIAL WORK OF COMPTROLLER OF TREASURY These changes together with the gradual substitution of a professional for a political civil service, are furnishing conditions which in the future are likely to be increasingly favorable to the development of commonwealth adminis- trative law. The administrative side of government has been develop- ing with particular rapidity in the local divisions of the commonwealth. Many of the boards which are exercising the regulative power of the state, have in the city admin- istration counterparts which operate with but slight super- vision from the central authority. The problems of urban life moreover give rise to entirely distinct and separate activities which are only found in the municipal administra- tion. Under the influence of expanding municipal func- tions, the executive branch of city government has every- where increased in relative importance and in many cities has developed into a strongly centralized power. 8 The the regulation of banking, of insurance, of railways, and even the over- sight of public works, to officers or boards with narrowly restricted powers, is slowly influencing our legislatures to endow the organs of social regulation with large jurisdiction over private activities. The courts have usually upheld such jurisdictions as legitimate instruments for exercising the police power. The powers recently granted to the New York Public Service Commissions and the Wisconsin Railway Com- mission are late illustrations of the tendency to emphasize the admin- istrative side of state governments. 8 With absolute power to appoint the heads of all city departments except the department of finance, with a veto power which can be over- ruled only by a two thirds vote for ordinary ordinances, and by a three fourths vote when the expenditure of money is involved, and which is final in the case of a franchise, the mayor of New York City exercises under the present charter a power over the institutions and the people under his jurisdiction, which is not approached by that of any common- wealth executive nor exceeded by the power of any local officer in the constitutional states of Europe. The French Prefect with his vast power occupies a place in the official hierarchy subordinate to the ministry, while the mayor is the chief of a separate hierarchy with an INTRODUCTION 7 tendency to replace the term " city government " with the expression " municipal administration " is indicative of the change. New organs under control of the city administra- tion, with their wide range of jurisdiction are shifting the burden of city government from the municipal legislature to the executive. 7 Organic conditions favorable to the development of a consistent body of administrative law, have been present to a large extent from the start in the federal government. Except for a short period, the President has always had the legal power effectively to control the federal administration. Though legislative regulation of detail reaches a minuteness unknown to European governments, the growing volume of administrative affairs has compelled Congress to leave more and more the internal affairs of departments to ex- ecutive regulation. Every extension of government activity authority of his own which can be modified or abridged only by legis- lative amendment of the city charter. T At the time this goes to press (January, 1910), a mayor is assuming office under political auspices different from those surrounding a ma- jority of the administrative officers who collectively control the budget; the question is raised whether in case of conflict, the mayor will be able to exercise substantial independent power. As concerns administration proper the question may be answered by recalling the measure of the mayor's power of appointment and removal. The New York situation does however raise the question how far it is profitable in municipal affairs to consider the executive and the legislative as something dis- tinct and separate. The same question is raised with greater emphasis by the introduction of the commission form of government in several cities. While these occurrences make the New York example less typical perhaps than it appeared when the preceding- note was written they indicate no tendency to diminish the emphasis on administration in city affairs. Both the commission form of government and the large power of the mayor and other administrative officers in cities like New York magnify the executive by placing a large part of the legislative power in a body which is merely the administration organized in col- legiate form. 3 JUDICIAL WORK OF COMPTROLLER OF TREASURY has augmented this tendency and increased the relative im- portance of the executive. 8 With the extension of federal activity a broad .admin- istrative jurisdiction is coming to be regarded as both in- evitable and desirable. The nice balance between executive, legislature and judiciary, which has nominally characterized the home government can scarcely apply in the same spirit 8 In connection with the administrative changes in city, state and nation it should be noted that the sum total of administrative develop- ment is a net loss for the state compared with the city and the federal government. While municipal and federal functions have multiplied, the volume of affairs under the direct administration of the common- wealth has remained relatively stationary. With every new concession to the demand for municipal home rule, functions formerly performed by the central administration for the commonwealth at large, are delegated as far as the urban areas are concerned, to the several munic- ipal governments. In the acquisition of new functions moreover, the commonwealth has by no means kept pace with the cities. The need of social and industrial regulation arises in many cases out of the con- ditions of urban life and is a direct result of the growing importance of cities. In spite of the minute detail with which legislatures regulate the exercise of local functions, the city possesses a social identity which the legislature in general respects. Notwithstanding legislative inter- ference so much deplored, the city charter is regarded in the light of a constitutional statute possessing a certain degree of permanence. The representation of the city as a whole in the person of the mayor re- moves in a large measure the occasion for minute and repeated direc- tion which the legislature exercises over the disconnected branches of the commonwealth administration. At the other end of the scale, federal functions are tending on the whole to increase at the expense of the commonwealth. In the larger affairs of our modern industrial and social life state boundaries are without significance. Commonwealth regulation of problems national in scope has proven hopelessly inadequate; and the federal government, under a liberal interpretation of its granted powers, is meeting the situation by a constant extension of its own jurisdiction. Under these circumstances the exigency of a thoroughly efficient administration, and consequently of a centralization of power, has not been felt with the same keenness in the commonwealth as in the federal and municipal governments. INTRODUCTION 9 to the government of the Philippines. The Philippine Commission as combined legislature and executive, has had to exercise extensive judicial functions and through its paramount influence and power of appointment has inevit- ably influenced to a certain extent the judiciary proper. Similar conditions obtain in other possessions, 9 while in the home government the exigencies of social and com- mercial regulation have endowed administrative boards with far-reaching judicial powers. In connection with more recently developed activities, whether in insular government or industrial regulation it has come to be recognized that effective administration inevitably involves a large measure of judicial activity. 10 Although the growth of executive power has doubtless been en- hanced by the administration of recently acquired territory, it cannot be assumed that confusion of administrative and judicial work is con- fined to the insular possessions. The administration of the Continental territories has always called for the executive exercise of a wide range of judicial power; indeed the whole system of territorial courts has been in a measure a part of the administration, since the judges, con- trary to the constitutional principles which control the federal judiciary, are appointed, not for life but for a term of years and are thus de- pendent upon the federal executive. The system of Congressional courts has been held by the Supreme Court not to violate the Constitu- tional provision that all federal judges shall hold office during good behavior. (American Insurance Co. v. Canter, i Peters 511.) 10 It is worthy of note that although under the old law the Interstate Commerce Commission was one of our most important administrative jurisdictions, it was frequently assumed in the discussions on the rate law of 1906 that the endowment of a branch of the administration with extensive judicial powers was a radical departure from established prac- tice. The most frequently reiterated arguments in the debates upon the rate making power, especially upon the subsidiary question of a court review, concerned the constitutionality of an attempt to confer judicial functions upon an administrative body. The same discussion arose in connection with federal meat inspection and has all tended to emphasize the impossibility of entirely separating administrative and judicial functions. IO JUDICIAL WORK OF COMPTROLLER OF TREASURY It is not so generally recognized that in the older and more fundamental branches of government activity, judicial powers of similar extent are not wanting. Such services as the pension bureau, the consular service, the customs and internal revenue service, the patent office, the currency, and many other services call for the exercise of a jurisdiction intimately connected with the private rights and interests of every citizen with whom they come in contact. Among the judicial activities which characterize in vary- ing degree divers branches of the federal administration, there are none more far-reaching in their effect upon the relation of private citizens to the state, than those per- formed in the administration of the treasury. While other organs hear and decide questions arising within their own peculiar spheres, the treasury administration, wherever fiscal operations are involved, holds jurisdiction over all departments of the government. The organs of treasury regulation are at the same time organs for weighing and determining the legality of claims against the state, and as such, although their decisions may be reviewed by the courts, exercise a most important judicial function. This function is centralized in the Comptroller of the Treasury who, as director of the machinery of treasury regulation, superintends all disbursements of public funds. The official subordination of the Comptroller to the Secre- tary of the Treasury in whose department his activities center, has always been to a large extent nominal. The Comptroller receives his appointment direct from the President and is regarded throughout the administration as final judge in matters of accounts. This position has been confirmed by legislation enacted in 1894, which specifically endows the Comptroller, within his sphere, with the attri- butes of a Court of Appeal for the whole administration. INTRODUCTION M Under this legislation the Comptroller undoubtedly exer- cises the most important judicial functions of any single officer in the administration. The Attorney General ad- vises and directs legal process ; the Comptroller is clothed with power to decide, and every organ of the administra- tion is bound by his decisions. From the point of view of the individual citizen the Comptroller's judicial powers are of the utmost importance as bearing upon the rights of persons who stand in the posi- tion of creditors of the state. Though the government by establishing the Court of Claims, and subsequently by ex- tending a practically concurrent jurisdiction to circuit and district courts, has furnished all claimants a legal remedy outside the administration, the practical remedy frequently lies in an appeal from the particular branch of the admin- istration, through the subordinate treasury officers to the Comptroller. Probably in no branch of our government's activity have the delays and the expense of judicial proceedings encour- aged the growth of administrative jurisdiction to a greater extent than in the office of the Comptroller. In France, where administrative courts possess a final appellate juris- diction over claims, comparatively simple and inexpensive process has made the ultimate legal remedy at the same time a practical remedy. Under our system with its com- plete provision for appeal to the courts, the absolutely in- formal and unrecognized jurisdiction of a political officer, has developed a practical significance out of all proportion to the constitutional position which it occupies among our organs of government. Administrative activity, following the constant growth of government functions, has in recent years undergone re- markable development. The centralized power of the fed- 12 JUDICIAL WORK OF COMPTROLLER OF TREASURY eral executive has always been essentially favorable to the growth of an orderly system of administrative law, and municipal governments with their rapidly increasing ac- tivities are in many cases beginning to exceed the federal administration in centralization. Even in the common- wealths where the assumption of new functions has been more or less neutralized by the encroachment of both munic- ipal and federal activity, executive power has been consid- erably increased by specific acquisitions, and the decentrali- zation which characterizes commonwealth administration is becoming in many cases less absolute. Many of the forces which tend to enhance the relative importance of the administrative side of government in America are found, not in the letter of constitutional or legal provisions, but only in the actual working of govern- ment machinery. Adequate understanding of institutions of government requires a knowledge of the functions which they perform. The following chapters therefore will aim, not only to show the historical development and present legal status of the Comptroller's jurisdiction, but will be primarily concerned with setting forth the actual judicial work which the comptroller performs. A comparison of that work with the methods of accomplishing similar ends in Continental states may be expected to throw some light upon an important branch of American administrative law. PART I THE JUDICIAL WORK OF THE COMPTROLLER CHAPTER I ORIGIN AND HISTORY OF THE COMPTROLLER'S OFFICE The office of Comptroller was first created by a resolution of the Continental Congress passed in I/78. 1 The judicial side of his work dates from 1 78 1 2 when in addition to the supervisory executive duties previously performed he was vested with appellate jurisdiction over accounts. The act of 1781 provided that any person with a grievance might appeal from the Auditor's judgment to the Comptroller who was directed to give public hearing and render final 1 ]. C. Sept. 26, 1778, v. 3, p. 70. The resolution provided also for an Auditor, a Treasurer and two Chambers of Accounts. Prior thereto the duties of these officers had devolved partly on an Auditor General and a Treasury office of Accounts (Res. Ap. i, 1776, J. C. v. i, p. 302), partly on the treasurers (sometimes one and sometimes two) and partly on a standing committee for supervising the treasury (Res. Feb. 17, 1776, J. C. v. i, p. 267). After April i, 1776, the standing committee was known as the Treasury Board. The organization of the Board was modified in 1779 (Res. July 30, J. C. v. 3, p. 330), by a provision that three of its five members should not be delegates to Congress. 3 The utter confusion of the finances under the various arrangements led in 1781 to the total reorganization of the Treasury under the Super- intendent of Finance (Res. Feb. 7, and Sept. n, 1781, J. C. v. 3, pp. 574 and 666). These acts placed the Comptroller at the head of the wfiole accounting service and next in rank to the Superintendent Un- Washington. Supreme Court of the United States, Reports. United States Statutes. Washington Law Reporter. Zustandigkeitsgesetz of August i, 1883, Berlin. TABLE OF AMERICAN CASES CITED TITLE PAGB American Insurance Company v. Canter, i Peters, 511 9 Bank of Greencastle v. U. S., 15 Ct. Cls., 225 35 Bean v. Patterson, no U. S., 401 71 Davis et al. v. U. S., 17 Ct. Cls., 215 83 DeLima v. Bidwell, 182 U. S., i 47, 50*1, 51, 55 Dooley v. U. S., 183 U. S., 151 50 Downes v. Bidwell, 182 U. S., 244 55 Ex parte Henry Ward, 173 U. S., 452 70 Foster etc., v. Neilson, 2 Peters, 253 141 Fourteen Diamond Rings Case, 183 U. S., 176 54, 55 Huntington v. Worthen, 120 U. S., 101 36 In Re Fassett, 142 U. S., 479 52 In Re Ross, 140 U. S., 475 39 Insular Cases 47, 50, 51, 55 Mann v. U. S., 3 Ct. Cls., 411 81 Marbury v. Madison, i Cranch, 180 36 Martin v. U. S., 26 Ct. Cls., 160 74 Nielson v. Read, 12 Fed. Rep., 441 83 Norton v. Shelby County, 1 1 8 U. S., 442 36 The People ex rel., v. Salomon, 54 111., 46 36 Emil J. Pepke v. U. S., 183 U. S., 176 54, 55 Realty Company v. U. S., 163 U. S., 427 36 Semple v. U. S., 24 Ct. Cls., 422 60, 61 Sessums v. Botts, 34 Tex., 335 36 Smythe et al. etc., v. Titcomb, 31 Me., 272 36 United States ex rel. Miles Planting and Manufacturing Company v. John G. Carlisle and Joseph S. Miller, 5 D. C. App., 138 34 United States v. Finnell, 185 U. S., 236 74 United States v. Hill, 120 U. S., 169 , 71 United States v. Jones, 18 Howard, 92 19 United States v. King, 147 U. S., 676 74 United States v. Payne, 147 U. S., 687 74 United States v. Van Duzee, 140 U. S., 169 74 147 INDEX Account, general state, in Prus- sia, 114; general, of treasury dis- bursements in France, 101 Accountant, in Navy and in War Departments created, 15; see also Accounting officers Accounting, " control " of in France, 91-108; as involving ju- dicial activities on Continent, 89; law of 1817, provisions of, 16, 17; "control" of in Prus- sia, 108-115; methods of, in French ministries compared, 99 ; officers, Comptroller as adviser to, 26, claims of, in France, 128, 131, in Prussia, 131, jurisdiction of, over fees, 71, Prussian, right of appeal of, 131 ; operation claims, French and German con- trasted, 131, 132; report on, 1816, 16; systems, as influenced by national characteristics, 90 Accounts, appellate jurisdiction of French Council o'f State over, 1 06 ; audit of by Congress, 92 n f ; bureaus of, in French ministries, 99-101 ; changes in . procedure on, 1894, I 9 > constitutional pro- vision for statement of, 92 n ; " control " of, by French Legis- lature, 9.1 ;, courts or chambers of, .in relation to "control," 89, 90; direction of public, in France,, ipp, 101 n; Director of public, in France, 101 ; duty of Comptroller to revise under law of 1817, 17; of local govern- ment units in France centered in Ministry of Interior, 100; ir- regularities in, in France, 106, in Prussia, 113 , in United States, 17 n, 20 ; French sys- tem of "control" over, 91-108; ministerial, commission for veri- fying in France, 101, 103, 104; provision for insuring prompt settlement of, 20 n ; revision of, by French Court of Accounts, 94, 100, 101, 105-108; of land office, settlement of, 16 n, 20 n ; postal, procedure on, 20 n ; of Prussian rural communes, 113 n ; of special services in Prussia, no n; treasury office of, 13 n; see also Court of Administration, and administrative courts, views of legal authori- ties on, 139 n f; bureaucratic, relation of, to administrative law, 4 ; control of, by courts in America, 140, 141 ; federal, posi- tion of President in, 7 ; German, influence of confidence in, 142 ; influences affecting judicial ac- tivities of, 5-12, 141 ; jurisdic- tion of, in America, 5 ; munic- ipal, separate activities of, 6 ; power of, in Germany, 116; pre- rogatives of, see Government prerogatives ; of local and pro- vincial revenue in Prussia, no; of taxes in France, 98 n, in Prussia, direct, no, 132, indi- rect, no; treasury, in Prussia, 109-111 Administrative, activities, vs. ju- dicial, Anglo-Saxon and Conti- nental concepts contrasted, 88- 90, 117, 118; changes in city, state and nation compared, 8 n, II, 12 Administrative court, Director, Prussian, 121 ; district, in Prus- sia, 121 ; organization of French Council of State as, 123 ; Superior Prussian, appeal from assessment before, 132 n, organi- zation of, 124, 125, procedure in, 125, representation of, in Court ox Conflicts, 135 Administrative courts, in Baden, 135 ; in Bavaria, 135 n; 148 INDEX I 49 French, establishment of, in re- lation to administration, 3, forms of recourse to, 127, inferior, ap- pellate jurisdiction of Council of State over, 128, influence of rapid procedure in, 142, judicial character of, 138, jurisdiction of, 119, 126, 127, lower, executive control over, 120 ; German, in- fluence of Imperial law on con- flicts with civil courts, 134, juris- diction of, 136, jurisdiction limited to statutory provisions, 134 n, raison d'etre of, 4 n, in relation to reforms of Stein and Hardenberg, 136; in Hesse, 135 n; jurisdiction of, in France and Prussia compared, 119, 126; Prussian, complaints before, 125, district, 121 n, lower, 120, as model for other states, 135, 136, procedure before, 125, 126 ; relation of, to administration, views of legal authorities, 139 n f; in Saxony, 135 n; in Wiir- temberg, 135 n Administrative, decentralization in Germany, effect of, on public ac- counts, 1 08; duties of first Comptroller, proposal to relieve, 1 8 ; duties of Comptroller trans- ferred to auditors, 1894, 19; functions of the Interstate Com- merce Commission, 9 n ; griev- ances, redress for, in England and America, 5 Administrative jurisdiction, over claims against the state, 119; on the Continent, raison d'etre of, 4; in France and Germany contrasted, 136, 137; as influ- enced by growth of federal ac- tivity, 8-1 o; Interstate Com- merce Commission as example, 9 n ; in Prussia, 136, 137 Administrative jurisprudence, in France, 2-4, 88, 89, 117-124, 126-131, 136-142; in Germany, 4 n, 88, .89, 117-122, 124-126? 131-138, 142 ; in France and Prussia compared, 122, 126; German, effect of Imperial law on, 135, 136; in Germany, French influence on, 135, 136 Administrative law, American, im- portance of, 12; relation of Comptroller to, 12; and civil service, 6 ; development of, in office of Comptroller, 37, 141, 142 ; federal conditions favor- ing, 7, 8; general, 141, 142; local, 6 ; under Philippine Com- mission, 9; in States, 5, 12 ; and Anglo-Saxon concepts, i, and principles of interpretation, 141 ; on the Continent, Lowell's dis- cussion of, 136 n f , as contrasted with equity, 137 n; Dicey's dis- cussion of , i n f ; English, i n f ; French experience before estab- lishment of administrative tri- bunals, 3 ; French, origin of, 2 ; German, civil jurisdiction over, 4n, 126, 131-138, 142; recency of interest in, in the United States, i n Administrative, prerogative, see Government prerogatives ; pro- cedure, on accounts, changes in, 1894, 19, in America, 5, on the Continent, 4, in England, 5 ; supremacy in France, 1 38 ; trib- unals, judicial character of, in France and Prussia, 138, views of De Tocqueville on estab- lishment of, in France, 139 n Advances to disbursing officers in excess of bond, 18 Anglo-Saxon, concepts of admin- istrative vs. judicial activities, contrasted with Continental, 88- 90, 117, 118; jurisprudence, practice of deciding particular cases, 30 ; justice and legal practice in relation to Continen- tal institutions, 1-5, 141 Annual appropriations, 41, 42 Appeal, from auditor's findings, 20 ; Prussian commission of, 132 n Appeals, before departmental Di- rector of direct taxes in France, 128 n; Circuit Court of, 32 ; from settlement of private claims on Continent, 89 ; in ISO INDEX France, 127-131 ; in Prussia, I3I-I35. < Appellate jurisdiction, of Comp- troller, 10, 20; of Council of State, French, 127, 128 Appointive officers in state govern- ments, increase in number of, 5 Appointment, influence of Presi- dent's power of, 7 ; effect of failure of Senate to confirm, 68- 70 ; see also, Comptroller, Re- cess appointment Appropriation, acts, Comptroller as interpreter of, 38-48 ; bills, power of Congressmen to intro- duce, 38, power of Senate to amend, 38 ; for education, etc., in Porto Rico, 47 ; laws, com- parison of in United States and France, 97, 98 Appropriations, annual, 41, 42; balances from, provisions for covering into treasury, 43 ; Comptroller as executor of, 142 ; constitutional provision on, 39 ; contingent, 44 ; cumulative, 46 ; Division of Warrants, Estimates and, 20 n ; deficiency, 45 n ; emergency, 46 ; equity as basis of, 36 ; executive discretion over, 46, 47 ; existence of, de- termined by Comptroller, 39 ; House committees charged with, 38 ; incidental, 44 ; items dupli- cated in different acts, 44-46 ; kinds of, 41-46 ; language by which constituted, 39, 40 ; let- ter of John Sherman regarding, 43 n ; limitation of departmental expenditures by, 43 n ; necessary incidents of, 40, 41, 44 ; neces- sity for expenditure as affecting availability of, 40 ; payments in advance of, in French colonies, 96 n; permanent annual, 41, 42 ; permanent specific, 41, 42, 43 ; for public works, 42 ; special Congressional committees in charge of, 38 n specific, mis- cellaneous items in, 44 ; strict interpretation of. 43, 44, 46 ; tinder unconstitutional acts, 34- 36 Army, collection of customs by, 50 ; disbursement cases, 59-67 Assistant Comptroller created, 19 Attorney General, French, duty of, concerning finance, 105 n; United States, Comptroller's re- lation to, n, 24-29; jurisdiction of in relation to that of Comp- troller under law of 1894, 2 6 ; opinion of, relating to treasury operations, 25 ; status of opin- ions of, on expenditure, 28 Audit, of accounts, by Congress, 92 n f; systems of in France and Germany compared, 116- 118 Auditor, abolition of office, 1787, 14 n; for postal revenues re- tained in treasury, 17 n Auditor General, prior to resolu- tion of 1778, 13 n Auditors, designations of changed, 1894, 19 ; for executive depart- ments created, 1894, 19 n; ap- peal from, 20 ; findings of, status under law of 1894, 19 ; juris- diction of, 29, 30 ; relation of to Comptroller, 20, 21 ; under reso- lution, 1778 and 1781, 13 n Avery, Chief Justice, opinion in bounty case, 35 n Baden, administrative courts in, 135 n; organs of "control" in, 116 Balances, from postal revenue, re- port of, to Postmaster General, 20 n ; provisions for carrying to surplus fund, 43 ; from spe- cific appropriations, provisions for covering into treasury, 43 ; see also checks and balances Bates, Attorney General, opinion regarding advice to accounting officers, 25 n Bavaria, administrative courts in, 135 J organs of "control" in, 115; Supreme Court of Ac- counts in, 115 n Board of General Appraisers, re- view of work of, by Supreme Court, 52 Boards,, as instruments for exer- INDEX cising regulative functions ; see Commissions Bonds, of disbursing officers, ad- vances in excess of, 18 Bookkeeping and Warrants, divis- ion of, 19 n f Bounties, decisions of Comp- troller concerning, 65-67 Bounty, on sugar, 34-37 Bowler, Comptroller, action in Sugar Bounty Case, 34-37 ; de- cision of, concerning permanent specific appropriations, 43, con- cerning recess appointments, 68, 70 ; opinion of, concerning lan- guage constituting an appropria- tion, 39, 40 Broker, definition of, by Comp- troller, 56 Brokers, tax on, 55, 56 Budget, Comptroller's relation to, as compared with French and Ger- man practice, 89 ; " control," on Continent compared with Amer- ican practice, 89-91, in France, 89, 91-108, in Germany, 108- ii 6, in Prussia, 108-115; pow- ers of Mayor of New York in re- lation to, 7 n ; French, in rela- tion to legislature, 91, 94, 95, 1 08, transfers in, 96 ; practice in the United States, Congress in relation to, 38, 92 n f, 97, con- stitutional provisions concern- ing, 92 n f, effect of, on Comp- troller's judicial work, 38; year, French, indemnity law in rela- tion to, 92, Prussian, 113 n; see also Exercice Bundesrat, German, consent of, to hearing of jurisdictional dis- pute by Imperial Court, 134; re- port of Court of Accounts to, 115; see also Legislature Bureau of Public Accounts, French, 101 n Bureaucratic administration, rela- tion of to administrative law, 4 Bureaus of accounts in French ministries, duties of, 99, 100 Cases, table of American, cited, 143 Cashier, central paying, French, 99 Census, Director of, power to authorize expenditure, 28 ; of executive departments by Dock- ery Commission, 18 Central, " control " of the public treasury, French, 100, 101 ; dis- trict treasury, Prussian, 1 1 1 n ; paying cashier, French, 99 Chamber of Accounts, French, as model for Court of Accounts, 104; Prussian, analogy to French Court of Accounts, in, 112 n; audits of, 113 n; author- ity of, over disbursing officials, 114, 115; as Court of Accounts for German Empire, 115; inde- pendence of, 113 n; influence of, compared with French Court of Accounts and Comptroller, 117, 118; jurisdiction of, in n, 113- 115; organization of, in, 112 n; origin of, 112 n; procedure in, H2, 113 n; relation of, to budget law, 113; reports of, 114 Chambers of Accounts, under reso- lutions Continental Congress, 1778 and 1781, 13 n; in relation to Continental control systems, 89, 90 ; in smaller German states, 115, 116 Chambers, French Legislative, see Legislature Chancellor, German Imperial, in- fluence of, over Prussian finance, no n Charrier, E., views on relation of French ministers to administra- tive courts, 140 n Checks, and balances, principle of, in the Federal Government, 23 n; on treasury operations, see Control Chinese exclusion act, 48 Circle, Prussian, 109 n Circle committee, Prussian, or- ganization of, 120-121 Circuit Court of Appeals, 32 Circuit Courts, federal, power to sue in, n, 31, 32 City, see Municipal Civil courts, French, jurisdiction of, 126, 127, limitations upon 152 INDEX jurisdiction of, 138; German, influence of Imperial law on re- lation of, to administrative courts, 134; jurisdiction of, over claims against the state, 119; jurisdiction of, in France and Germany contrasted, 136, 137; Prussian, influence of, on executive, 137, jurisdiction of, I 37, jurisdiction of, over ap- peals of accounting officers, 131, jurisdiction of, over claims against the state, 132, 133 Civil disbursement cases, 59, 67- 80 Civil law, in relation to adminis- trative law, 136 n f; see also Administrative law, and Ad- ministrative courts Civil service, and administrative law, in the United States, 6 ; Comptroller's decisions concern- ing, 59, 67-80 Claims, from accounting opera- tions, French and Prussian prac- tice contrasted, 131, 132; ad- ministrative and civil jurisdic- tion over, in Continental coun- tries, 119; adjudication of, in France, 127-131, in Prussia, 131-135 > appeals from settle- ment of, by administrative offi- cers, on Continent, 89 ; Court of, see Court of Claims ; against Fiskus in Prussia, 133, 134; against French Government, exe- cution of, 131 ; against French government officials, 131 n; jur- isdiction of French controller of public treasury over, 100 n f; kinds of in France, 128-131 ; against Prussian Government, execution of, 132; jurisdiction of civil courts over, 132, 133; pension, duties of French Fi- nance Minister concerning, 130, 131 ; simplicity of procedure on, in France, n, 142 Claims against the United States, in civil service, 67-80, for fees, 71-76, for mileage in contested elections, 76, 77, for salary under recess appointment, 68- 70, for travelling expenses, 77- 80 ; Comptroller's jurisdiction over, n, 31-37, 89, compared with Continental practice, 119- 142 ; under contracts, with gov- ernment, 81-83, with Indians, 84-87 ; court decisions concern- ing, uncertainty of, under laws of 1887 and 1891, 31, 32; for drawbacks, 54, 55 ; in military service, 59-67, for bounty, 65- 67, for extra pay, 59-61, for mileage of officers on travel, 62 65, for pensions, 65, 67 n', for refund of taxes, 50-58 ; under sugar bounty provisions, 34-37 Clerks of Courts, fees of, 71, 73- 76 Cleveland, President, approval of Dockery law by, 19 n Collector of customs, term denned, 50 Collectors, in France, 99 Colonies, French, appellate juris- diction of Council of State over administrative courts of, 128; payments in advance of appro- priations in, 96 n Columbian Exposition Act, 48 Commissary of the Government, in France, functions of, 124 Commission, Government in cities, 7 n ; of Appeal, Prussian, 132 n ; Interstate Commerce, 9 n ; New York Public Service, 6n ; for verifying ministerial accounts, in France, 101, 103, 104; Wis- consin Railway, 6n Commissions and boards as in- struments for exercising regula- tive functions, in relation to ad- ministrative law, zn, 5 Commissioner, of Customs, estab- lished, 1849, 1 8, abolished, 19; of Indian affairs, relation of Comptroller to, 86, 87 ; of In- ternal Revenue, Comptroller's jurisdiction over findings of, 35 n, 57; of general land office, land revenues reported to, 20 n, settlement of accounts of, 16 n Committee, on organization, con- duct and expenditure of the exe- INDEX 153 cutive departments, Senate, 93 n ; on retrenchment, recommen- dations of, 1842, 17; for super- vising treasury, 13 n ; on Ways and Means, finance power of, 23 Committees, charged with prepar- ing appropriation bills, House, 38 ; on public expenditure, Con- gressional, 92 n f Common law, judicial review of executive acts under, 4 ; com- pared with equity and admin- istrative law, 137 n Commonwealth, see State. Commune, French, councils of, 1 20 n, disbursements in, 98 n; Prussian, 109 n Complaints before Prussian ad- ministrative courts, 125 Comptroller, administrative ac- tivities of, compared to Conti- nental practice, 88, 89 ; admin- istrative duties of, transferred to auditors, 1894, 19 ; appoint- ment of, 10, 23, 24; argument of, in Porto Rican cases, 54 n ; Assistant, created, 19 ; authority of, as influenced by dignity of position, 24 ; decisions of, see comptroller's decisions ; director of treasury organization, 10, 89 ; duties of, James Madison's views on, 14 ; First, proposal to re- lieve of administrative duties, 1 8 ; First and Second, offices abolished 1894, 19; functions of, contrasted with Continental practice, n, 23, 88-91, 97, 102., 117, 118, 141, 142; independence of, 24, 37 Comptroller, judicial functions of, recognized prior to 1789, 14, sanctioned 1894, 10, 19; judi- cial work of, as influenced by American budget practice, 38, as influenced by Dockery Act, 21, 24. as influenced by ex- penses of judicial procedure, n, 141, Insular cases as example, 50-55, origin, 13, as promoting development of administrative law, it, 12, 37, 87, 141, 142, since 1789, 15; jurisdiction of, ad- visory, 21, 26-30, appellate, 10, 20, general, 20-37, limited to statutory provision, 30, over appropriation acts, 38-48, over claims against the state, n, 31, 89, 142, see also Claims against the United States, over con- tracts with Government, 81-83, over contracts with the Indians, 84-87, over disbursements for services to the Government, 59- 80, over fees, 71-76, over pay- ments to government officers, significance of, 80, over revenue cases, 49-58, significance of, 49, 58, views of Attorney General Olney, 25, 26, 27 n ; see also Comptroller's decisions Comptroller, office, abolished 1787, 14 n; created, 13; origin and history of, 13-21 ; reorganized by Dockery Act, 1894, 19-21 ; position of, under Act of 1781, 13 n; power of, to question con- stitutionality of acts, 34-37 ; prerogatives of, prior to law of July 1894, 26; relation of, to Attorney General, n, 24-29, to auditors, 20, 21, to budget as compared with French and Ger- man practice, 89, to Commis- sioner of Indian Affairs, 86, 87, to Commissioner of Internal Revenue, 35 n, 57, to Congress, 97, to courts, n, 30-37, 47, 59, 80, 142, to Secretary of the Treasury, 10, 22-24, 2 7 views of Senator Davis on, 23 n ; re- ports of, 24 ; revision of all ac- counts by, prior to 1894, 17, 18 ; tenure of, proposal to limit exe- cutive control over, 1789, 14 Comptroller's decisions, binding on executive branch of Govern- ment, 21, 22; nullifying object of a law, 39, 40 ; in relation to decisions of courts, n, 30-37, 47, 59, 80, 142 ; on appropria- tions, 38-48 ; on army and navy disbursements, 5967 ; on boun- ties, 65-67 ; on civil service dis- bursements, 67-80 } on Cuban expedition appropriation, 48 ; on 54 INDEX damages for delay in completing contracts, 82 ; on drawbacks, 55 ; on fees, 70-76 ; on fiscal serv- ice contracts, 83 n f; on lan- guage constituting appropria- tion, 39, 40 ; on laws removing desertion charges, 65-67 ; on mileage, 62-65, 76, 77 ; on pen- sions, 65, 67 n ; on public reve- nues, 49-58 ; on recess appoint- ments, 68-70 ; on per diem sub- sistence allowances, 77-80 ; on sugar bounty law, 34-37 ; on tenure of federal judges, 70 ; on transportation contracts, 83 n ; on travelling expenses, 77-80 Conflicts, between civil and ad- ministrative courts in Germany, influence of Imperial law on, 134; see also Court of Con- flicts Congress, audit of accounts by, 92 n f; committees of, charged with preparing appropriation bills, 38, on public expendi- ture, 92 n f ; desertion charges removed by, 65-67 ; power of, to make appropriations based on equity, 36 ; relation of to budget, 38, 92 n f , 97 ; relation of Comp- troller to, 97, 142 Congressional Courts; see Terri- torial Courts Constitution, organization of treas- ury under, 14; provision of, on appropriations, 39, for state- ment of accounts, 92 n, on ten- ure of judges, exemption of ter- ritorial courts, 9 n ; relation of, to recess appointments, 70 Constutionality, right of Comp- troller to question, 34-37 ; see Unconstitutional Consular, fees, 71, 73 ; Service, judicial functions in, 10 Continental, concepts of adminis- trative vs. judicial activities, contrasted with Anglo-Saxon, 88-90, 117-118; institutions in relation to Anglo-Saxon justice and legal practice, 1-5, 141 ; see also particular countries and topics Contingent appropriations, 44 Contracts, claims under, in France, 128, 129 ; damages for delays in, 82 ; of departments and com- munes in France, jurisdiction of civil courts over, 129 n; with French Government, enforceable for cash indemnity, 129 ; with Indians, 84-87; with Prussian Fiskus, claims under, 133, 134; for transportation, 83 n; with the United States Government, 81-83 " Control," of budget, difficulty of comparison between American and Continental systems, 90 ; in France, 89, 91-108 ; in Germany, 108-116; in Prussia, 108-115; central, of the public treasury, in France, 100, 101 ; Continental meaning of term, 89 n ; of ex- penditure in French Ministry of Interior, difficulty of, 96 ; or- gans in smaller German states, 115, 116; systems, Continental, courts or chambers of accounts in relation to, 89, 90 ; systems of France and Germany com- pared with Comptroller, 117, 118 Controller, of expenditures incur- red, French, 97 n; of public treasury, French, jurisdiction of, over claims, 100 n f Council of Public Instruction, ju- risdiction of Council of State over, 127 n Council of State, French, advisory function of, 122 n; appeals to, from other administrative courts, 127, 128, from Finance Minister and Court of Accounts, 131 ; de- cisions of, provisions for recall, 128 n; governmental interfer- ence with, 138 ; judicial status of, 139, 140; jurisdiction of, 127-131, over elections, 127, in case of excess of power, 127, over pension claims, 130, over police matters, 127; organiza- tion of, 122, 123 ; power of, to revise accounts, 106 ; procedure before, 123, 124; reconstruction INDEX 155 of, 1806, 3 n; relation of, to jurisdictional disputes, 126, 128; review of acts of special com- missions by, 127 n f ; status of, under different regimes, 3 n Councillors of State, French, ap- pointment of, 122, 138; assign- ment of, to sections, 122; ten- ure of, 138 Court of Accounts, French, anal- ogy to Prussian Chamber of Ac- counts, in, 112 n; annual re- ports of, 107; appeal from de- cisions of, 128, 131 ; " control " functions of, 91, 104-108; "con- trol " of, over incurring of ex- penditures, 107-108 ; decrees of, 1 06; creation of, by Napoleon I, 104; influence of, compared with Prussian Chamber of Ac- counts and Comptroller, 117, 118; jurisdiction of, 104-108; judicial status of, 117, 118; or- ganization of, 104 n; procedure in, 104 n, 105, 106; revision of accounts by, 94, 100, 101, 105- 108 ; German Imperial, 115 ; Su- preme, in Bavaria, 115 n; see also Courts of Accounts Court of Cassation, French, rep- resentation of, in Court of Con- flicts, 126; see also Courts of Cassation Court of Claims, circuit and dis- trict courts given parallel juris- diction with, 31 ; decrees of, made executory in its own name, 31 ; decisions concerning extra pay, 60, in Realty Company Case, 36 ; origin and history of, 30, 31 ; Comptroller's jurisdic- tion in relation to, n, 33; juris- diction of, over Porto Rican customs cases, 51 Court of Conflicts, French, juris- diction of, over competency of courts, 126 ; organization of, 126 ; regulation of, concerning injury claims, 129 n; relation of, to ad- ministrative justice, 139 n; in Hesse, 135 n; Prussian, reor- ganization of, 1879, 135 ; see also Courts of Conflict Courts, American, attitude of toward political branches of Government, 141 ; powers of commissions upheld by, 6 n ; Comptroller's jurisdiction in re- lation to, n, 30-37, 47, 59, 80, 142 ; control of administration by, 140, 141 Courts of Accounts, Continental, Comptroller's work contrasted with, 90, 91, 117, 118, 141, 142; in relation to " control " sys- tems, 89, 90 Courts of Cassation, French, ad- ministrative courts as, 127 n Courts of Conflict, in German states, 134, 135; German, Im- perial law concerning, 135 Courts, see also Administrative, Circuit, Civil, District, Imperial, Supreme, Territorial Credits, overrunning of, in France, 91-97 Cuban, expedition appropriation, 48 Cumulative appropriations, 46 Currency, judicial functions per- taining to, 10 Customs, appropriations for col- lecting, 42 ; collector of, defined, 50 ; duties, Porto Rican, collec- tion of, 50-53 ; service, judi- cial functions in, 10 Damages, liquidated, principle of interpreting, 82, 83 Davis, Senator Jefferson, views on Comptroller's relation to Sec- retary of the Treasury, 23 n Decisions of Comptroller ; see Comptroller's decisions Defalcations, 17 Deficiency appropriations, 45 n Deficits, accounting, provisions for recovering in Prussia, 109 n Departmental expenditures ; see Expenditures Desertion charges, Comptroller's interpretation of laws removing, 65-67 DeTocqueville, views of, on estab- lishment of administrative trib- unals in France, 139 n 1 5 6 INDEX Dicey, A. V., explanation of Eng- lish use of term administrative law, i n Direction, general, of public ac- counts in France, duties of, 100, 101 Director, of direct taxes, depart- mental in France, appeals be- fore, 128 n; of the general movement of funds in France, duties of, 100-102; of public ac- counts, French, 101 Direct taxes, administration of, in France, 98, in Prussia, no, 132; appeals concerning, in France, 128 n Disbursement cases, army and navy, 59-67 ; civil, 59, 67-80 Disbursements, in France, general account of treasury, 101 ; pro- cedure on, in ministries, 99-101 ; progress in regulation of, 95-98 Disbursing officers, in France, 98, 99 ; in United States, advances to, in excess of bonds, 18; sys- tem of paying through, estab- lished, 17; Comptroller as ad- viser to, 21, 26 District, administrative court, Prussian, 121 n\ of Columbia, interpretation of appropriations far, 41 ; committees, Prussian, organization of, 121 ; courts, federal, power to sue in, n, 31, 32 ; President, Prussian, 121 ; treasuries in Prussia, inn Dockery, Commission, 18 ; Law, 1894, 19-21, effect of reorgani- zation of Comptroller's office by, 24 Drawbacks, legal nature of, 54, 55 Droit administratif, content of term discussed, 2n Elections, jurisdiction of French Council of State over, 127 Emergency appropriations, 46 Eminent domain proceedings, in Prussia, 133 n Emperor, German, report of Court of Accounts to, 115 Employees, government, nature of legal questions concerning, 67 n England, concept of administra- tive law in, i n ; redress for ad- ministrative grievances in, 5 ; see also Anglo-Saxon English legal ideas ; see Anglo- Saxon Equity, as contrasted with ad- ministrative law, 137 n ', power of Congress to make appropria- tions based on, 36 Estimates, Division of Warrants, estimates and appropriations, 20 n Ewart, Hamilton G., recess ap- pointment of, 69, 70 Excess of power, recourse to French Council of State for, 127 Executive, acts, limits to judicial review of, under common law, 4 ; branch of government, Comp- troller's decisions binding on, 21, 22; departments, auditors for created, 1894, 19 n, census of, by Dockery Commission, 18, Comptroller as adviser to, 21. 26-30, Congressional Commit- tees on expenditures of, 92 n f ; supremacy in France, in- fluence of, on relation of civil to administrative courts, 138 Exercice, meaning of term, 91 n; see also Budget Year Expenditures, departmental limited to appropriations, 43 n ; power of director of census to author- ize, 28 ; in French Ministry of Interior, difficulty of controlling, 96; regulation of, in France, 93-99 Expense allowance, decisions of Comptroller concerning, 77-80 " Exporter Case," 55 Federal, activity, influence of growth of, on administrative law, 8-10 ; administrative law, see Administrative Law, Amer- ican ; Government, administra- tive activities of, compared with city and state, 8 n Fee, definition of, 71 Fees, Clerk of Court, 71, 73-76 ; INDEX 157 Consular, 71, 73; decisions of Comptroller concerning, 70-76 ; difficulty in securing proper ac- counting of, 71 ; elimination of, as method of payment, 71 ; juris- diction of accounting officers over, 71 ; illegal appropriation of, 71, 72; improper claims for> 73-76 ; legal principles concern- ing, 72 ; provisions of law of June 28, 1902, concerning, 71 Fermented liquors, tax on, Law of June 13, 1898, 57 Finance, administration, collapse of during War of 1812, 16; Prussian, influence of Imperial Chancellor over, no n; see also Inspection, Inspector, Minister of Finance, Ministry of Finance, Superintendent of Finance Financial Controversies, see Claims First Comptroller, see Comptroller, First Fiscal service contracts, 83 n f Fiskus, Prussian, 133, 134 Foraker Act, 51 Foreign Affairs, appropriations for, 38 n ; French Ministry of, super- vision of Accounts in, 100 Forest service, Prussian, accounts of, no n Foster, Charles, Secretary of Treasury, 18 France, administrative jurispru- dence in, 2-4, 88, 89, 117-124, 126-131, 136-142; treasury op- erations in, 91-108; see also particular topics. French spoliation claims, 48 Freund, Ernst, i n General Inspection of Finance ; see Inspection German Emperor, report of Court of Accounts to, 115; see also Imperial Germany, administrative jurispru- dence in, 4 n, 88, 89, 117-122, 124-126, 131-138, 142; treasury operations in, 108-116; see also particular topics Goodnow, F. W., i n Government, district, Prussian, 109 n; officers, payments to, significance of Comptroller's jurisdiction over, 80 ; preroga- tive, 3, 4, 5, "9, 129, 137, 138, 140, 141 Governmental law, Dicey's refer- ence to, i n Governor, powers of, in relation to State administrative law, 5 Governors, French colonial, open- ing of credits by, 96 Habeas Corpus, as remedy for ad- ministrative grievance, 5 Hardenberg, influence of, on Prus- sian administrative court sys- tem, 136 Hauriou, M., discussion of juris- diction of administrative courts, 136 n, 140 n Hesse, administrative court in, 135 n Imperial, Chancellor, German, in- fluence of over Prussian finance, no n; Court of Accounts, Ger- man, 115; Court at Leipzig, jurisdiction of over conflicts in German state courts, 134; law, effect of, on administrative just- ice in Prussia, 1 35-136, influence of, on conflicts in German state courts, 134 Incidental appropriations, 44 Indemnity, claims in France, for injuries, 128, 129, for military requisition, 129, under purchas- ing contracts, 129 ; law in France, 91, 92, 108, in Prussia, 114 n; for uncollected taxes in France, 98 n ; for violation of contracts by French Govern- ment, 129 Indian Affairs, appropriations for, 38 n ; commissioner of, in rela- tion to Comptroller, 86, 87 Indians, Comptroller's jurisdiction over contracts with, 84-87 Indirect Taxes, administration of, in France, 98 n, in Prussia, no ; jurisdiction of French civil courts over, 126 n INDEX Individual rights, in relation to prerogative in United States, 141 Industrial regulation, influence of, on judicial work of administra- tion, 9, 10 Injunction, recourse to French Council of State for, 127 Injuries, indemnity claims for, in France, 128, 129 Inspection, duties of German Finance Minister concerning, 1 08 n; of Finance, general, in France, organization and work of, 1 02, 103, Prussian analogy to, 112 n, Stourm's views on, 103 n\ of treasuries in Prussia, 1 08 n Inspector General of Finance in France, duties of, 102, 103 n Insular, Cases, 50-55 ; Govern- ment, influence of, on judicial work of administration, 9, 10 ; possessions, mileage for sea travel to and from, 63, 64 Interest on public debt, status of appropriations for, 42 Interior, Department, action of, relative to Indian contracts, 86; auditor for, created, 1894, 19 n; see also Minister, Ministry and Secretary Internal Revenue, Service, judicial functions in, 10; Commissioner, in relation to Comptroller, 35 n, 57 Interstate Commerce Commission, administrative and judicial functions of, 9 n Irregularities in accounts, see Ac- counts Island possessions, see Insular Judges, constitutional provisions on tenure of, exemption of ter- ritorial courts, 9 n, in relation to recess appointments, 70 ; sta- tus of appropriations for salaries of, 42 Judicial, activities vs. adminis- trative, Anglo-Saxon and Conti- nental concepts contrasted, 88- 90, 117, 118; activity of admin- istration, influences affecting, 5- 12, 141 ; functions of Comp- troller, see Comptroller ; func- tions of the Interstate Com- merce Commission, gn; review of executive acts, limits to, under common law, 4 Judiciary, American, independence of, 2 Jurisdiction, of Comptroller, see Comptroller ; administrative, see Administrative Jurisdictional disputes, relation of French Council of State to, 126, 128 ; see also Court of Conflicts Jurisprudence, see Administrative Jurisprudence Justice, Anglo-Saxon concepts of, in relation to Continental insti- tutions, 1-3 ; Minister of, see Minister of Justice King of Prussia, see Prussia, King of Laferriere, E., views of, on rela- tion of French ministers to ad- ministrative courts, 140 n Land Grant Railroads, 83 n Land Office, accounts of, 16 n, son Landrat, appointment of, 121 Law, see Administrative, Civil, Common, Governmental, Im- perial, Official, Public Lawrence, First Comptroller, de- cision of, in " Exporter " case, 55 ; on jursdiction of the courts in relation to Comptroller, 32 Lebon, views of, on relation of French administration to courts, 139 n Legal, practice, Anglo-Saxon in re- lation to Continental institu- tions, 1-5, 141 ; technicality, in- fluence of, on judicial work of administration, 5 Legislature in relation to budget, in France, 91, 94-97, 108 ; in Germany, 116, 117; in Prussia, 114 n; in the United States, 38, 92 n f, 97 Legislatures, territorial, mileage of members in, 76, 77 INDEX 159 Leipzig, Imperial court at, 134 Lighting, concessions for, in France, 130 Local administrative law in the United States, 6 Local Government, organs of in Prussia, 109 n; see also Circle, Commune, District, Municipal, Province Local treasuries in Prussia, in Loi de reglement, see Indemnity law Lottery, Prussian, accounts of, no n Louisiana Purchase Exposition Law, expense cases arising under, 77, 78 Lowell, A. L., 126 n, 137 n Madison, James, views of, on Comptroller's duties, 14 Mandamus, as remedy for admin- istrative grievance, 5 Marbury, recess appointment of, 68, 69 Marine, French Ministry of, un- authorized expenditure in, 95 n Marshall, Chief Justice, 36 Mayor of New York City, in rela- tion to budget, 7 n ; powers of, compared with French Prefect, 6 n Mayors, French, modification of taxes by, 128 n McKinley Tariff Act, constitution- ality of bounty provision of, 34- Mileage claims, legal status of, 62 ; deductions from, 63 ; de- cisions of Comptroller concern- ing, 62-65, 76, 77 Military, affairs, appropriations for, 38 n ; requisitions, indem- nity claims for, in France, 129 ; disburement cases, 59-67 Mines, Prussian, accounts of, no n f Mining, concessions for, in France, 130 Minister of Finance, French, du- ties of concerning pension claims, 130, 131 ; general finance account of, 103 n; nomination of members of Court of Ac- counts by, 104 n ; relation of, to budget, 94, 97 n, 102, 103 n, 104, to controller of expendi- tures to be incurred, 97 n, to director of general movement of funds, 102; reports to, by gen- eral inspector of finance, 103 n, by commission on ministerial accounts, 104, by court of ac- counts, 1 06, 107 Minister of Finance, Prussian, in- spection duties of, 1 08 n; rela- tion of, to Minister-President, no n, to revisory committee, 132 n Minister-President, Prussian, in- fluence of, over finance, no n Minister of Interior, French, as Premier, influence of, on budget " control," 96 Minister of Justice, French, as president of Council of State, 122; as president of Court of Conflicts, 126 Ministers, French, as judges, 139 n f, jurisdiction of Council of State over acts of, 128, pecuni- ary responsibility of, 95 ; Ger- man, parliamentary irresponsi- bility of, 114 Ministry, of Finance, French, "control" functions of, 93-103, former separation of ministry of treasury from, 23 ; in smaller German States, subordination of "control" organs to, 115, "6; Prussian, " control " function of, 108-111, divisions of, 109, no Ministry of Foreign Affairs, French, supervision of accounts of, 100 Ministry of Interior, French, de- partmental and communal ac- counts centered in, 100; diffi- culty of controlling expenditures in, 96 Ministry of Marine, French, unau- thorized expenditures of, 95 n Ministry, public, see Public Min- istry Ministry of Public Instruction, i6o INDEX French, supervision of accounts in, 100 Ministry of Treasury, French, former separation of, from Min- istry of Finance, 23 Ministry of War, French, super- vision of accounts in, 100 Mint, Prussian, accounts of, non Mitchell, Assistant Comptroller, decision of, 60, 61, 62 n, 64 Montesquieu, theory of separation of the powers, American and French interpretation of, 2, 3 n Morris, Robert, Superintendent of Finance, 14 n Mortgages, decisions of Comp- troller concerning tax on, 56, 57 Municipal, council, French, 120 n', government, administrative ac- tivities of, 6, 7, compared with state and Federal government, 8 n, administrative law in, 12, commission form of, as com- bining executive and legisla- ture, 7 n Napoleon, creation of French Court of Accounts by, 104 National Administration, see Fed- eral Naval Affairs, appropriations for, 38 n Navy, Department, accountant cre- ated in, 15, auditor for, created, 1894, 19 n; disbursement cases, 59-67 New York Public Service Com- mission, as illustrating expan- sion of state administration, 6 n New York City, mayor of, in rela- tion to budget, 7 n ; powers of, compared with French Prefect, 6 n Oberverwaltungsgericht, see Ad- ministrative Court, Superior, Prussian Official, law, Dicey's reference to/ i n ; prerogative, see Govern- ment prerogative Officials, public, claims of, in France and Germany, -see Claims, adjudication of ; Prussian, prop- erty rights of, against state, 133 Olney, Attorney General, views on jurisdiction of Comptroller, 25, 26, 27 n Ordonnateurs, nature of " control " over in France, 93-98, 107, 108; in Prussia, 115, 116 Oxnard Beet Sugar Company Case, 35-37 Patent Office, judicial functions . in, 10 Paymaster-treasurers, French, 99 Payments, to government officers, significance of Comptroller's jurisdiction over, 80 ; in advance of appropriations in French colonies, 96 n ; power of Secre- tary of Treasury to suspend, 20 Pension, Bureau, judicial func- tions in, 10 ; claims, duties of French Finance Minister and Council of State concerning, 130, 131 Pensions, decisions of Comptroller concerning, 65, 67 n ; in France, legal status of, 130 n Permanent Apropriations, annual, 41, 42 ; specific, 41, 42, 43 Philippine Commission, adminis- trative law under, 9 Police, matters, jurisdiction of French Council of State over, 127 ; power, 6 n, 133 Political Science in United States, concern of, with constitutional side of public law, i Porto Rican customs duties, col- lection of, 50-53 Porto Rico, apropriation for edu- cation, etc., in, 475 import rev- enues, expenditure of, 47, 4 ; refund of duties collected in, 50-54 Postal accounts, procedure on, 20 n Postmaster General, postal bal- ances reported to, 20 n Post Office Department, auditor for, 17 n, 19 n; policy of hold- ing funds distinct, 20 n ; reor- ganization act. of, 1836, 17 n INDEX 161 Post offices and post roads, ap- propriations for, 38 n Prasidium, of Prussian Superior Administrative Court, 125 Prefect, French, jurisdiction of Council of State over acts of, 128 ; powers of, compared with mayor of New York City, 6 n ; as president of council, 120 n Prefectural, councils, French, as administrative courts, 120; ap- pellate jurisdiction of Council of State over, 127, 128; indem- nity process before, 98 n Premier, French Minister of In- terior as, 96 Prerogative, Government, see Gov- ernment President, of France, annual re- port of Court of Accounts to, 107, relation of, to Council of State, 122, 123; of French Court of Accounts, see Court of Ac- counts, organization of ; of Prus- sian Chamber of Accounts, see Chamber of Accounts, Prussian, organization of ; of Prussian dis- trict in relation to district com- mittee, 121 ; of Prussian prov- ince, jurisdiction of, over ac- counting service, no; of the United States, appointment of Comptroller by, 10, 23, 24, ap- pointments by, status when un- confirmed by Senate, 68-70, po- sition of, in federal administra- tion, 7, relation of Secretary of Treasury to, as bearing on Comptroller, 22 n Presidents of Senate in Oberver- waltungsgericht, see Administra- tive Court, Superior, Prussian, organization of Private Domain, in France, 129 Procedure, on accounts, changes in 1894, 19; administrative, in America and England, 5 ; in French Council of State, 123, 124; in French Court of Ac- counts, 104 n, 105, 106; in Prussian administrative courts, 125, 126; in Prussian Chamber of Accounts, 112, 113 n; expense of, in relation to administrative law, s, ii> 141 ; on requisitions, 20 n Province, Prussian, 109 n Prussia, administrative jurispru- dence in, 119-122, 131-138; King of, appointment of Supe- rior Administrative Court by, 125, appointment of Landrat by, 121, appointment of members of dis- trict council by, 121, report to, 114, subordination of Chamber of Accounts to, 113 n; treasury operations in, 108-115; see also particular topics Public, expenditure, Congressional committees on, 92 n ; instruc- tion, supervision of accounts in French Ministry of, 100; land accounts, 16 n, 20 n; law, con- cern with constitutional side of, in United States, i ; ministry of French Council of State, 123, of French Court of Accounts, 104 n f; revenues, decisions of Comptroller concerning, 49-58 ; Service Commission, New York, 6 n ; utilities in France, conces- sions for, 130; works, contro- versies concerning prosecution of, in France, 129 ; status of ap- propriations for, 42 Purchasing contracts with French Government, enforceable for cash indemnity, 129 Quo Warranto Writ, as remedy for administrative grievance, 5 Railway Commission, Wisconsin, 6 n Railways, concessions for in France, 130; Prussian, accounts of, no n Receivers of taxes, French, 99 Recess appointments, decisions of Comptroller concerning, 68-70 ; salary under, as affected by time vacancy occurred, 68 Refund of taxes, illegally collected, 50-58 ; see also Reimbursement Register of Treasury, duties pre- 1 62 INDEX scribed by secretary, 20 ; under resolutions of 1781, 13 n Regulative functions of State, in- fluence of, on administrative law, 5 Reichstag, German, report of Court of Accounts to, 115; see also Legislature. Reimbursement, for traveling ex- penses, 77-80 ; see also Refund Reinhart, J. W., 18 Report of 1816, on accounting, 16 Reports of Comptroller, influence of publication of, 24 Requisitions, procedure concern- ing, 20 n Retrenchment, committee on, 1842, 17 Revenue, cases, Comptroller's juris- diction over, significance of, 49, 58, as influenced by court de- cisions, 49, influence of new forms of taxation on, 49, 50, resulting from Spanish War, 50- 58 ; public, decisions of Comp- troller concurring, 49, 58 ; serv- ice in Prussia, no; see also In- ternal revenue Rivers and Harbors, appropriations for, 38 n Salaries of Judges, status of ap- propriations for, 42 Salary, claims in France, 128, 130; under recess appointment, in re- lation to time vacancy occurred, 68 ; see also Services Saxony, organs of control in, n6 r ; administrative courts in, 135 n Second Comptroller, see Comp- troller Secretary, of the Interior, rela- tion of Comptroller to, concern- ing Indian contracts, 86, 87 ; of the Treasury, duties of, as Fi- nance Minister, 23, power to re- fund taxes, 51-54, functions of, distinguished from those of Comptroller, 22, power of, to suspend payment, 20, relation of Comptroller to, 10, 22-24, 2 7> status of reports to Congress, 92 n Senate, French, report of Court of Accounts to, 107; see also Leg- islature, French Senate, United States, amendment of appropriation bills by, 38 n ; appointments as affected by failure of, to confirm, 68-70 ; committee on organization, con- duct and expenditure of execu- tive departments, 93 n ; mem- bers of Dockery Commission, 18; resolutions of 1816, on ac- counting reform, 16 Senates of Prussian Superior Ad- ministrative Court, 125 Separation of Powers, Theory of, 2 ; American vs. French inter- pretation, 3 n, 136 Service, in Spanish War, extra pay for, 60 Services, Comptroller's jurisdic- tion over disbursements for, 59- 80 ; of indefinite duration, status of appropriations for, 42 Settlements, of disbursing officers, delays in, 18 Sherman, John, letter concerning availability of appropriations, 43 n Shortages, see Accounts, irregu- larities in Sinking Fund, dues to, status of appropriation for, 42 Smithsonian Institution, status of appropriations for, 42 Soldiers, bounty and pension claims of, 65, removal of de- sertion charges in relation to, 65-67; extra pay of, for serv- ices in Spanish War, 60 Solicitor, office of, created, 1830, 17 n Spanish War, availability of ap- propriation for, 48; extra pay for service in, 60; revenue cases arising from territorial acqui- sitions of, 50-55, under revenue measure of 1898, 55~57 State, administrative law, influence of regulative functions on, 5, development of, 5, 6, 12, in re- lation to powers of governor, 5 ; and other departments, auditor INDEX lor, created, 1894, 19 n ; govern- ment, administrative activities of, 6, 7, compared with munic- ipal and Federal governments, 8 n Stein, influence of, on Prussian ad- ministrative court system, 136 Sternberg, Surgeon General George M., case of, concerning mileage, 63, 64 Stourm, Rene, views of, on gen- eral inspection of finance, 103 n Subsistence, decision of Comp- troller on per diem allowance for, 77-80 ; and traveling ex- penses, distinction between, 78, 79 Sugar Bounty Case, 34~37, 47, 49 n Superintendent of Finance, 13 n, 14 n Superior Administrative Court, Prussian, see Administrative court Supreme Court, United States, ap- pellate jurisdiction of, over claims, 31 ; decision on clerk of court fees, 71, Insular Cases, 50, powers of Board of General Appraisers, 52, Sugar Bounty Case, 36 ; decisions of, binding on Comptroller, 33, 37 Surplus Fund, provision for car- rying balances to, 43 n Swartwout Defalcations, 17 n Taxation, influence of new forms of, on revenue cases, 49, 50 Taxes, administration of, in France, 98 n, in Prussia, no, 132; claims on account of, in France, 128, in Prussia, 132, for refund of, 50-58 ; collection of, by army in Porto Rico, 50, in France, 98, 99, in Prussia, 1 08 n, 132 ; controversies con- cerning, in France, 128; direct, appeals before departmental di- rector of, in France, 128 n; in- direct, jurisdiction of Prussian civil courts over, 126 n ; modifi- cation of by mayors, in France, 128 n ; new forms of, in Spanish War revenue measure of 1898, 55-57 5 power of Secretary of Treasury to refund, 51-54; re- ceiver of, in France, 99 Tenure, of Comptroller, 14; of federal Judges, constitutional provisions concerning, 9 n, 70 ; in French Council of State, 138; in French Court of Accounts, 104 n ; in Prussian Chamber ot Accounts, in, 112 Territorial, courts, tenure of, 9 n ; legislatures, mileage of members in, 76, 77 Tracewell, Comptroller, decision of, concerning brokers, 56 ; con- tracts, 82 ; fees, 72, 73 ; lan- guage constituting an appro- priation, 40 ; recess appoint- ments, 69, 70 Tramways, concessions for, in France, 130 Transportation contracts, 83 n Travelling expenses, and subsist- ence, distinction between, 78, 79 ; decision of Comptroller con- cerning reimbursement of, 77- 79 Treasurer, under resolutions of 1778 and 1781, 13 n; -Paymaster, general, in France, 99 ; prior to resolution of 1778, 13 n Treasuries, inspection of, in Prus- sia, 1 08 n ; local and district, in Prussia, in Treasury, Act of 1781, 13, of 1789, 14, of 1817, 16, of 1894, 19 ; administration in Prussia, 109-111; board, 13 n, 14 n; committee for supervising, 1 3 n ; department, auditor for, created, 1894, 19 n; inspection in Prus- sia, 1 08 n; judicial functions in, 10, n ; ministry of, see Minis- try, of Treasury; office of ac- counts prior to resolution of 1778. 13 w ; operations, opinions of Attorney General on, 25, in France, 91-108, in Germany, 108-117, in Prussia, 108-115; Secretary of, see Secretary : or- ganization, Comptroller as direc- tor of, 10, 89 Treaty, claims, Indian, against the 164 INDEX United States, 84; of Paris, 51 Tunis expedition, 96 n Unconstitutional Acts, status of, 36 n Vacancies, time of occurring in relation to salary under recess appointment, 68 Virements, see Budget, French War, Department, accountant cre- ated in, 15, auditor for, created 1894, 19 n ; of 1812, collapse of finance administration during, 16: Ministry of, see Ministry, of War ; Spanish, see Spanish War Warrants, power to sign, 1817, 1822, 1 6 n f ; Estimates and Ap- propriations, Division of, 20 n ; urgency, in France. 96 Ways and Means, committee, fi- nance powers of, 23 Wilson Act, effect on bounty pro- vision, 34 Wisconsin Railway Commission, as illustrating expansion of state administration, 6 n W T rits, quo warranto, mandamus and habeas corpus as remedies for administrative grievance, 5 Wiirtemberg, administrative courts in, 135 n ; organs of control in, 115, n6 THXS D ATB AN INITIAL FINE OF 25 CENTS OVERDUE. 8 193? LD 21-100m-8,'34 YC 23143 f. 227069