AND EXPOUNDING THE CONSTITUTION, TREATIES WITH FOREIGN GOVERNMENTS
AND WITH INDIAN TRIBES, AND THE PUBLIC LAWS

OF THE COUNTRY.

EDITED

BY C. C. ANDREWS,

COUNSELLOR AT LAW.

VOLUME VII.

WASHINGTON:

PUBLISHED BY W. H. & O. H. MORRISON.

1871.

Entered, according to Act of Congress, in the year 1856, by

ROBERT FARNHAM,

In the Clerk's Office of the District Court of the District of Columbia.

358 .415 V.17 1871

OPINIONS

OF

HON. CALEB CUSHING, OF MASSACHUSETTS:

APPOINTED MARCH 5, 1853.

UNEXPENDED BALANCES OF APPROPRIATIONS.

Under the acts of March 3d, 1795, May 1st, 1820, and August 31st, 1852, in general, a balance of appropriation remaining unexpended at the expiration of two years is carried to the "Surplus Fund," and can be withdrawn therefrom only by new appropriation,-except in the case of appropriations for objects to which a duration longer than two years is assigned by law; as to which, and especially expenditures in the War and Navy Departments, the specific appropriations remain in charge of the latter, until, on report therefrom of the object being consummated, the money is credited to the "Surplus Fund" at the Treasury Department.

In general, an appropriation or a balance thereof, made in any year for any
continuous contract or other service of the Government, may be applied to
the same service during the succeeding or any subsequent year, and does
not lapse into the "Surplus Fund" until the particular object be consum-
mated.
Conversely, whenever, in any given year, the appropriation for a particular
service proves deficient, a balance, remaining of the appropriation for the
same service in a previous year, may be drawn upon to supply the deficit;
or rather the balance of the preceding year commences the service of the
new year, and is expended before any question arises of the new appropria-
tion;
and thus, at the end of each year, the true unexpended balance is only
what remains unexpended of that single year's appropriation.

ATTORNEY GENERAL'S OFFICE,
October 9, 1854.

SIR: I have received your communication of this date, and have duly considered the several questions which it presents. It appears that under the act of March 3d, 1847, entitled "An act providing for the building and equipment of four naval

(1)

Unexpended Balances of Appropriations.

steamships," (ix Stat. at Large, p. 187,) the Secretary of the Navy was authorized to make, and did make, certain contracts for the transportation of the mail of the United States, to and from certain points by sea, according to sundry prescribed conditions and rates of compensation.

By a subsequent act, (September 28th, 1850,) it was prescribed that no payment shall be made for the said service, except in proportion to the service performed, and the Secretary of the Navy was directed to make payment therefor in said proportion only. (ix Stat. at Large, p. 514.)

Meanwhile, by the act of August 3d, 1848, (ix Stat. at Large, p. 267,) the Secretary of the Navy was directed to advance to the contractors for said service, for the purpose of enabling them to finish the steamships contracted for under their respective contracts, a specific sum per annum on each contract, but not to exceed in the whole the amount of one year's compensation stipulated for in such contract; and by the act of March 3d, 1851 (ix Stat. at Large, p. 623), the advances, made under the act last above named, are required to be repaid by the parties by annual deductions, at the rate of ten per cent. per annum, from the compensations falling due to them, and the said parties are constrained to pay, thereafter, interest on the balances of said advances remaining due at successive periods of the contract and service.

It further appears that by successive acts of Congress, from the year 1848 to that of 1853 inclusive, successive appropriations for the above service have been made, amounting in all to $6,727,400; that out of this sum, $874,000 have been expended by the Secretary of the Navy for the advances above described, and $5,501,761 for the mail service, and that in consequence of the deductions as above required to be made, and in fact made, the sum of $351,638, to the credit of the "steam mail service," is now standing on the books of the Navy Department.

It further appears that Congress, at its late session, failed to make any appropriation for the performance of this mail service; but, nevertheless, the parties have continued to perform