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The character of the services referred to in Major Keller's letter, supra, and the circumstances under which they were performed, are shown by an indorsement, under date of April 3, 1909, by the Chief of Engineers to the Secretary of War, as follows:

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"2. The act of Congress approved June 29, 1906, For the control and regulation of the waters of Niagara River, for the preservation of Niagara Falls, and for other purposes,' authorizing the Secretary of War to grant permits for the diversion of water from that river for power production, specifies (among other limitations which he must observe) that action which may be taken under certain conditions 'shall not injure or interfere with * the scenic grandeur of Niagara Falls.' The act also provides that 'the Secretary of War shall make regulations preventing or limiting the diversion of water and the admission of electrical power as herein stated.'

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"3. In his opinion of January 18, 1907, President Taft, then Secretary of War, gave directions concerning the permits to be issued, and named a committee, designated within as the Niagara Falls committee of landscape architects.' The portion of the opinion which relates to the matter reads as follows:

"As the object of the act is to preserve the scenic beauty of Niagara Falls, I conceive it to be within my power to impose conditions upon the granting of these permits, compliance with which will remedy the unsightly appearance that is given the American side of the canyon just below the falls on the American side, where the tunnel of the Niagara Falls Power Company discharges and where the works of the Hydraulic Company are placed.

"The representative of the American Civic Association has properly described the effect upon the sight-seer of the view toward the side of the canyon to be that of looking into the back yard of a house negligently kept. For the purpose of aiding me in determining what ought to be done to remove this eyesore, including the appearance of the buildings at the top, I shall appoint a committee consisting of Charles F. McKim, Frank D. Millet, and F. L. Olmsted to advise me what changes, at an expense not out of proportion to the extent of the investment, can be made which will put the side of the canyon at this point from bottom to top in natural harmony with the falls and other surroundings, and will conceal, as far as possible, the raw commercial aspect that now offends the eye. This consideration has been kept in view in the construction of works on the Canadian side and in the buildings at the Niagara Falls Power

Company above the falls. There is no reason why similar care should not be enforced here.

"4. Three of the permits contain regulations pertaining to the preservation or restoration of scenic conditions by the grantees, and all of the permits include clauses providing for further action in that or in other directions, if found necessary, by reserving to the Secretary of War the right to make modifications at any time.

5. The committee referred to in paragraph 3 above was enlarged by the Secretary March 20, 1907, by the appointment of two officers of the Corps of Engineers, as additional members, one of whom has since resigned his commission in the army, but who continues as a civilian member. It is understood that the committee held a conference with the Secretary and received oral instructions from him, and the reports received in this office show that they have been actively engaged in the consideration and supervision of operations by the grantees under the permits, with special reference to the restoration of scenic conditions and the prevention of any action likely to injure or interfere with scenic conditions.

"6. The question now arises, as presented within, whether the traveling expenses incurred by civilian members of the committee can be legally paid from the appropriation made by the act of June 29, 1906, or whether such action is prevented by the terms of section 9 of the sundry civil act approved March 4, 1909, forbidding the payment of compensation or expenses of any commission, council, board, or other similar body, or any members thereof, or for expenses in connection with any work or the results of any work or action of any commission, council, board, or other similar body, unless the creation of the same shall be or shall have been authorized by law.' It is the understanding of this office that the so-called committee is not a commission, council, board, or other similar body' within the meaning of that section, but that it is a body of expert assistants whose services were and still are a necessity in administering the provisions of the act of June 29, 1906, and that their employment and the payment of their traveling expenses is in entire accord with the spirit and purpose of that act, justified both by its terms and by the provision appropriating $50,000 for accomplishing its purpose. It is suggested, however, that as the proceedings in the matter of the duties committed to them were, of necessity, in large part oral and not a matter of record, the question should be presented for the consideration of the President as the one most familiar with the circumstances. In this connection attention is invited to the fact that the civilian members of the committees

should be compensated not only for their traveling expenses but also for their services, both in justice and for the reason that the act of Congress approved May 1, 1884, forbids the acceptance of voluntary service for the Government. The matter was submitted to the Secretary of War by the Chief of Engineers in a memorandum dated March 21, 1907, to which the Secretary replied March 22, 1907, that the question of pay need not be considered until after the action of the commission.'

"7. It is recommended that, if in the opinion of the President such action is necessary, a decision be requested from the proper legal officer of the Government as to whether or not the payment of the expenses and compensation of the civilian members of the committee from the appropriation made by the act of June 29, 1906, would be legal under the provisions of existing laws."

The act of June 29, 1906 (34 Stat., 626), entitled "An act for the control and regulation of the waters of Niagara River, for the preservation of Niagara Falls, and for other purposes," imposed upon the Secretary of War certain duties in respect to the use of the waters of said river. Section 2 contains the following proviso:

*Provided, That the said Secretary, subject to the provisions of section 5 of this act, under the limitations relating to time above set forth is hereby authorized to grant revocable permits, from time to time, to such individuals, companies, or corporations, or their assigns, for the diversion of additional amounts of water from the said river or its tributaries to such amount, if any, as, in connection with the amount diverted on the Canadian side, shall not injure or interfere with the navigable capacity of said river, or its integrity and proper volume as a boundary stream, or the scenic grandeur of Niagara Falls;

Section 5 provides that the provisions of said act shall remain in force for three years from and after the date of its passage; which limit of time has, by the act of March 3, 1909 (35 Stat., 1169), been extended for two years from June 29, 1909.

Section 6 of the act of June 29, 1906 (34 Stat., 628), provides:

"That for accomplishing the purposes detailed in this act the sum of fifty thousand dollars, or so much thereof as may be necessary, is hereby appropriated from any moneys in the Treasury not otherwise appropriated."

It is from the appropriation provided by section 6, supra, that it is proposed to pay the vouchers submitted, and it is understood that the question as to the legality of payment therefrom is submitted in view of the provision in the sundry civil appropriation act of March 4, 1909 (35 Stat., 1027), as follows:

"SECTION 9. That hereafter no part of the public moneys, or of any appropriation heretofore or hereafter made by Congress, shall be used for the payment of compensation or expenses of any commission, council, board, or other similar body, or any members thereof, or for expenses in connection with any work or the results of any work or action of any commission, council, board, or other similar body, unless the creation of the same shall be or shall have been authorized by law; nor shall there be employed by detail, hereafter or heretofore made, or otherwise personal services from any executive department or other government establishment in connection with any such commission, council, board, or other similar body."

The Attorney-General, in considering the effect of this provision of the act of March 4, 1909 (35 Stat., 1027), in connection with the employment of Messrs. McKim, Millet, and Olmsted, has said (27 Op. Att. Gen., pp. 432, 435 et seq.):

"Under the circumstances stated, and in view of the duty. imposed upon you in issuing permits under the act of June 29, 1906, to avoid injuring the scenic grandeur of Niagara Falls, I think there can be no question as to your authority to employ the services of the gentlemen referred to, and to designate them as a committee for purposes of convenience or administration.

"It is well settled that public officers have not only the power expressly conferred upon them by law, but also possess, by necessary implication, such powers as are requisite to enable them to discharge the duties devolved upon them. (23 A. & E. Ency. Law, 2d ed., 364, 365, and authorities cited.)

"It is also the rule that a power given to an agent carries with it the authority to do whatever is usual and necessary to carry it into effect. (Le Roy v. Beard, 8 How., 451, 468.)

Referring to the provision of the Constitution giving Congress power to make all laws which shall be necessary and proper for carrying into execution the powers granted, etc., Judge Story says (2 Story on Const., sec. 1237):

"It is only declaratory of a truth, which would have resulted by necessity and unavoidable implication from the

very act of establishing the National Government, and vesting it with certain powers. What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? * * *In truth, the constitutional operation of the Government would be precisely the same, if the clause were obliterated, as if it were repeated in every article.'

"In construing the act of March 9, 1898, which appropriated $50,000,000 for the national defense, to be expended at the discretion of the President, and under which a retired officer of the navy was employed as a meteorologist, the Court of Claims said (Hayden v. The United States, 38 Ct. Cl., 39, 51):

"Taking into consideration the general purpose for which the law was enacted, the terms of the statute in the grant of power to the President, and the necessity of the exercise of the largest discretion by the President, the court decides that the employment of the claimant, with a salary at the rate of $2,000 per annum, came within the purview of the law and the discretion of the President, * **

"There would seem to be no doubt, in view of the principles and authorities referred to, that the appointment of the committee in question was authorized by law, and there is nothing in the legislative history of section 9 of the act of March 4, 1909, which militates against this view. It appears that that section, as first offered in the House in the form of an amendment and separate section to the sundry civil bill, forbade the use of the public money or of any appropriation made by Congress for the payment of the compensation or expenses of any commission, etc., unless the creation of the same shall have been authorized by Congress. Mr. Tawney, who offered this provision, subsequently, on the floor of the House, changed the language quoted so as to make it read unless the creation of the same shall have been in specific terms ** but later withdrew the words in specific terms.' Being asked as to what he meant by the words 'be authorized by Congress,' Mr. Tawney said that he meant authorized by law. His attention being called to the great difference between the two' that one might mean a statute and the other a resolution of the two Houses of Congress -he modified the provision so that it should read authorized by law,' which is the form in which it finally passed. (43 Cong. Record, 3118, 3119.)

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"If anything may properly be inferred from these incidents in the history of this provision, it is that Congress did not intend to require that the creation of the commissions,

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