ASIA DS 685 J79 CORNELL UNT/HHSnY LIBRARY riHACA, N. Y. 14B5S ../ John M. Edr„_. Cc!!«cfeii on Sc^ji:^: Am KBOCHOmMCt CORNELL UNIVERSITY LIBRARY 3 1924 067 040 398 THE TRUTH AS TO CONDITIONS IN THE PHILIPPINES SPEECH OJ' HON. WILLIAM A. JONES HOUSE OF HEPEESENTATIVES FEBRUARY 13, 1913 ^^ I would not, of course, be understood as saying that the Filipinos will be able, if given their independence, to defend that independence against some strong naval power. If they are not to be free until that day arrives theywill never realize the independence which -has been so solemnly promised them. Few of the free and independent countries of the world could long maintain their independence against foreign aggression. But the present position of the gentleman from New York is even more at variance with that expressed by him in the ar- ticle from which I have quoted than with the declarations of 70077—11789 14 the Democratic Party to whlcli he professes to belong. In tliat article tie states Ills position in these words : Wlien a majority of them (the Filipinos) shall be able to cast a ballot which they can read in any language, it will then be for them to decide what they wish their future relation to the United States to be. What the gentleman doubtless meant to say was " which they can read In some," not "in aiiy," language; for I can not be- lieve he would be understood as desiring to withhold from th6 Filipinos their independence until a majority of all the adult males could read a ballot printed in any language which might be prescribed. It would be bad enough to withhold it until a majority of all Filipinos, iiicludinig the uncivilized Moros and ^Igorots as well as the civilized Tagalogs, could read a ballot printed in either English or Spanish as the law now requires of all persons who do not possess' property or certain other prescribed qualifications. The postponement of their independ- ence until a majority of all of them could read some one lan- guage would be a more drastic provision than can be fovmd ujhdu the statute Boolfs of any 'State of tlie American Union, and one which would forever disfranchise many a voter who contributed toward sending to Congress the gentleman from New York. Can any Democrat truthfully say that he is In accord with his party's position as to the Philippines who holds that the Fili- pinos should not be granted their independence until a ma- jority of every male adult in the archiioelago, including all the savages ^and wild men of the mountains, are able to read their ballots? This is going a bowshot farther than anything that has ever been written in a Republican platform. It is fixing a date more distant than that proposed by President Taft. It is equivalenj; to saying that the Filipinos shall remain in bondage to the United States until the end of time. There may be other professing Democrats who agree with the gen- tleman from New York, but, if so, none has been bold enough so far to publish that fact to the world. This, Mr. Chairman, Is all I care to say in reply to the care- fully prepared speeches of the gentleman from New York [Mr. Kedfield] and the gentleman from Pennsylvania [Mr. Olmsted]. 79077—11789 15 The striking similarity of these two speeches suggests a common source of inspiration — they both bear the indubitable hall marks of the War Department, which, as all of us know, is the real governing power of the Philippines. Neither of these astute gentleman has answered a single one of the serious charges made by me against the Philippine Government, and no attempt has been made by either to answer most of them. If., as has been recklessly and falsely asserted by others, I have made charges of maladministration against certain Government offi- cials in the Philippines which I could not sustain, the able • gentlemen who have just addressed the House ought certainly to have been able to have shown wherein I have sinned. They have taken ample time in which to prepare their speeches, and they have obviously had the benefit of such information as the War Department could supply, and yet they have not so much as attempted to answer the serious charges for making which I have been most severely criticized by persons who have only succeeded in demonstrating their own ignorance of all things touching the Philippines. s^iK**i1sSs''ll-?sf '■»».«•■' ^ -J ;&'-i"n;i3'!^*-* , i i I asserted in the speech which I delivered on the 28th of January last that three prominent American officials had been charged with graft, had been found guilty by a board appointed to investigate the charges, and yet had been shielded from pun-' ishment. Has any denial of this serious charge been made, by anybody, here or elsewhere? tij-i' ■ a '• ?• '"f f.!^>;- r; ■ ( 'a. I charged that a considerable part of the congressional relief fund of $3,000,000 had been expended in the construction of an automobile road to a mountain summer resort, the exact sum being $649,420.52, as I have shown.- Has the correctness of this statement been challenged? /">i,i;^p»''>--~H#4'..i- -„.. ., ! '.. I charged that in order to avert a deficit in 1912 the sum of $1,698,513.82 ^was transferred from the gold-standard fund, a fund created to maintain the parity between the silver currency of the Philippines and the gold dollar, to the general funds of the insular treasury, and this serious charge has neither been denied nor explained by anybody. . ; I charged that Governor General Forbes had, without warrant of law, created 123 new offices ; but this, it seems, was so trivial 79077—11789 16 ■a matter as compared witli the exact length of the Benguet Eoad and the authorship of the Malolos constitution that no one has even noticed the charge. I charged that our military occupation of the Philippines was costing the United States approximately $40,000,000 a year, and I specified many of the items which go to make up that grand total, not one of which has been disputed. The American people will not always be fooled by or be satisfied with the re- ply that civil government in the Philippines is costing the United States nothing. Some day they wiU come to realize that our military and naval expenditures on account of the Philippines, which are a charge upon the Treasury of the United States, are one thing and the cost of the civil government of the Philip- pines, which is paid out of the revenues of the islands, is quite another thing. I charged that the administration of civil government in the Philippines was most extravagant and wasteful, and I called particular attention to the damaging fact that the expenditures on account of bureaus and offices for the fiscal year 1912 ex- ceeded those of the previous year by $1,320,318.24, and that this increase was without any warrant in law; but this was too trifling a matter to call for any explanation or denial. I think, Mr. Ohaii'man, I have now made it quite plain that nothing I have said in regard to the civil government which we have imposed upon the Filipino people was either inaccurate or without justification. I have neither misrepresented nor slan- dered anybody. I have presented a few unvarnished facts, and if they constitute a " vicious attack " upon any member or members of the Philippine Commission I am not to be blamed therefor. I now ask to be permitted to publish in connection with my remarks a portion of an interview given out by Dr. John B. McDill, of Milwaukee, which appeared in the Milwaukee Jour- nal some time since. Dr. McDill enjoys the highest reputation SLS a man, and he has attained great renown as a surgeon. He is one of the leading physicians of Milwaukee, and the Journal describes him as one of the world's greatest authorities on tropical diseases. He returned to Milwaukee in July last, after 79077—11789 17 a residence of 12-years in the Philippines. He is a disinterested as well as a qualified witness, and therefore anything which he has to say with regard to the Philippines must carry with it great weight. I shall also publish a letter written by the Hon. Charles B. Elliott, of the Philippine Commission, to Auditor Phipps, of the Philippine insular government. As I have before had occasion to say, Judge Elliott was formerly a member of the Supreme Court of Minnesota, was appointed to the Supreme Bench of the Philippines by President Taft, and afterwards promoted to the commission. In this letter it is clearly shown that the action of Governor General Forbes in the disbursement of the public revenues of the. islands, which I have been criticized for ques- tioning the legality of, was absolutely unwarranted in law. The CHAIRMAN. The time of the gentleman has expired. Mr. KEDFIELD. Mr. Chairman, I ask unanimous consent that the gentleman from Virginia [Mr. Jones] may extend his j-emarks in the Recobd. The CHAIRMAN. The gentleman from New York [Mr. Red- field] asks unanimous consent that the gentleman from Vir- ginia [Mr. Jones] may extend -Ihs remarks in the Record. Mr. MANN. Reserving the right to object, I aslc unanimous consent that the gentleman from Virginia [Mr. Jones] and the gentleman from New York [Mr. Redpield] and the gentleman from the Philippines [Mr. Quezon] be allowed to extend their remarks in the Recobd on this subject. Mr. JONES. Does that carry with it, Mr. Chairman, the right to publish anything we wish to publish? Mr. MANN. I assume the gentleman would not abuse the privilege by publishing books or long documents. Mr. JONES. I do not know. If gentlemen will indicate what they wish to publish, I shall not object. This is what I pro- pose to do. DB. M'DILL'S INTERVIEW. From February 15 to June 15 the entire Government personnel moves to Baguio, the summer capital in the mountains, where thS time is pleasantly spent, enough oflScial duties being done in the mornings only to comply with civil-service regulations. Transportation is given all employees, together with allowance to cover living expenses. Baguio is 79077—11789 2 18 5,000 feet higU and cool and beautiful, but the Filipinos objected to these vacations as an unnecessary extravagance. ******* Politically the Filipinos are justifying the confidence placed in them in extending to them the higher legislative functions in their elective lower house or assembly. Their work in provincial municipal govern- ment has not been so successful. The commission or upper house, the majority of which is composed of Americans, and the lower house do not pull together so well. There is a lack of confidence and trust be- tween them, the causes of which are not entirely racial. They could be avoided by a different attitude and a change in personnel on the side of the Americans. Until a definite policy is proclaimed by the United States there will continue to be dissatisfaction and distrust of us. The present relations between the two races are as bad or worse than ever before. One reason is because the Filipinos are a sensitive and courteous people and we are not. The only real trouble, however, we shall ever have with the Philip- pines will be to let go of them. Two reasons they have not Ijeen the subject of more controversy or more interest politically in this country are the skillfully written reports of the administration there and the undoubted enthusiasm and patriotism with which the army of well-paid Philippine Government officials advocate our holding on to that country. They all say we can not back out with honor. tJKITED STATES SHOdLD DECLAEE POLICY. ' If the coming national administration takes up the Philippine prob- lem from another standpoint than that which has obtained to date; namely, whatever you do over there, do not do anything to disturb us here in Washington, the long past due declaration of our future policy will be announced. judge elliott's letteil. Depaeiment of Commebcb and Police, Manila^ May 25, 1912, The SECEETAnT. i My Dear Mk. Phipps : At the recent meeting in the office of the Act- ing Governor General you asked for a copy of the memorandum, a por- tion of which 1 then read, in which I state my view as to the proper construction of section 7 of the act of Congress of July 1, 1902, re- enacted February 27, 1909. There has been considerable discussion with reference to this matter, and, as you well know, I have not be-en. able to accept as proper the course which has been construed. When the question first arose I sent to the Governor General a. memorandum which was hastily prepared, and did not assume to argue the qxiestlon with any degree of fullness. Just before the Governor General left I wrote him a letter designed merely to put on record the fact of my disagreement. In what I write I do not wish to be considered as criticizing anyone, nor as suggesting that there has been other than the most earnest effort on the part of all concerned to reach a just and proper con- clusion. I have 1)0 desire to convey the impression that there is a serious disagreement among the members of the government. It Is true that we have disagreed as to certain legal propositions and pro- cedure, but that Is inevitable where men are able to form opinions and willing to express them. I have not asked to have my memorandum 79077—11789 19 from which I read at the meeting sent to Washington, because I fear It would give the impression that I was trying to embarrass the Governor General's administration. I do wish, however, to state to you fuily the reasons for my position, more particularly because I Itnow you do not agree with some of them. In the act creating the Philippine Legislature, Congress provided a method by which the government could be supported in the event of the two houses of the legislature for any reason failing to agree upon a current expense appropriation bill. It was understood, of course, that the proposed assembly would be an experiment in government. The con- ditions were still unsettled, and it was very possible that at some time an attempt might be made by the assembly to seriously embarrass the government by withholding the supplies necessary for its maintenance. Now, the failure to pass an appropriation bill might result either from an honest difference of opinion between the two houses or from a willful refusal by either house to agree to any appropriation bill, whether good or bad. Whatever the motives the result would be the same. The United States was trying to establish an orderly and systematic government for the' Philippines, which should be conducted on estab- lished principles. The Philippine Legislature which was to be created in the future would succeed in certain territory only to the legislative powers of the Philippine Commission. At the time of the creation of the legislature the Government would, of course, be running under the provisions of a regularly enacted appropriation bill. That bill if con- tinued in force would provide for all the reasonable requirements of the Government and keep the machinery in operation until the legisla- ture acted, or Congress saw tit to take more drastic action. Therefore it was provided in the act of Congress of July 4, 1902, that : " If at the termination of any session the approjjriations necessary for the support of the Government shall not have been made, an amount equal to the sums appropriated in the last appropriation bills for such purposes shall be deemed to be appropriated ; and until the legislature shall act in such behalf the treasurer may, with the advice of the governor, make the payments necessary for the purposes aforesaid." This provision on its face contemplates nothing revolutionary ; nothing radical. It is a remedial, not a punitive, measure. It provides for the contingency of an honest difterenee of opinion between the two houses, as well as for unreasonable or factious attemjpts on the part of either house to embarrass the Government by withholding the supplies neces- sary for its existence. The Philippine Legislature failed to pass a current appropriation bill for the fiscal year of 1912, and at once the question of the proper construction of the above provision of the act of Congress arose. It was contended on one hand : (a) That upon the failure of the legislature to pass an appropriation bill providing for the support of the Government, the existing appropri- ation bills for that purpose continued in force with all their conditions, limitations, and restrictions until the legislature acted ; that the pur- pose of the provision was not to change the character of the Govern- ment, but with as little inconvenience as possible to provide for an Interregnum, which in the ordinary course of things would be of limited duration. On the other hand it was contended : (b) That upon the failure of the legislature to so act an amount equal to the total of the sums appropriated in the previous existing appropriation bills was deemed to be appropriated by the act of Con- 79077—11789 20 gress out of the Philippine treasury for the support of the Government until the legislature acted, with the power in the Governor General to distribute the same for the support of the Government as its necessi- ties required, according to existing law. A precedent for this was thought to exist in the case of Navarro v. Post, decided by the flistrict court for Porto Eico In 1909 under a statute similar to that in force in the Philippines. In a letter to the Governor General under date of October 25, 1911, you as auditor of the Philippine Island.? adopted the principle of this precedent with some modifications designed, as I understand it, to restrict the executive power of action. Soon after the adjournment of the legislature the learned assistant executive secretary rendered a legal opinion to the Governor General which I find referred to in the files, but have not had the pleasure of reading. The Bureau of Insular Affairs advised that the situation was controlled by the case of Navarro v. Post, and your opinion above referred to was to the same general etEect. It does not appear that the legal and constitutional questions involved were considered by the law officer of the Bureau ol: Insular Affairs, or by the Secretary of War. As the conditions were somewhat similar, it was easy and natural to assume that the Porto Eico case should be followed. I earnestly urged upon the Governor General the importance of obtaining the formal opin- ion of the Attorney General, who is his constitutional adviser. Thi.3 was not done, nor was my suggestion that the opinion of the Attorney General of the United States be obtained given much consideration. To my mind the question involved was of the greatest legal and constitu- tional importance involving principles of far-reaching effect. For some time the question drifted, the Governor General, as I am informed, hav- ing advised the treasurer to continue making payments under the old appropriation bill. This was done until December 18, 1911 ; that is, during almost half of the fiscal year. At that time a " letter of advice " was issued which made very material changes. This letter was dated back to the beginning of the fiscal year. Subsequently on March 29, 1912, a new " letter of advice " was issued which modified that of December 16, 1911, for which it became a substitute. All of these " advices " on their face date from July 1, 1911, and as they all differ, and yet cover the same period, I can imagine some resulting con- fusion. Before stating my view of the proper construction of the act of Con- gress I wish to comment upon the Porto Eico case. That decision is worth in the Philippines exactly what It will assay in principle and reasoning. It was the decision of a single nisi prius judge, sitting in another jurisdiction. The reasoning is far from conclusive, and the language conveys the impression that the judge was much " peeved " that anyone should assume to question the propriety of the efforts of a good governor to handle the situation all by himself. The opinion Itself is devoted to the question of the right of the plaintiffs to maintain the action ; that Is, the right of taxpayers " to enjoin high State officials for the alleged diversion of public funds simply because in the opinion of such taxpayers a particular law ought to be differently construed than such officers are construing it." The judge Is firmly of the opinion that " these officials deserve the support and commendation of all the people of Porto Eico for their faithful devotion to duty under trying circumstances." The decision upon the only question decided was un- doubtedly correct, and possibly the bouquets thrown to the officials were deserved. As to the main question, however, the only one in which we are interested, the court said : " We have only gone into the 79077—11789 21 question thus far with u. view, in so far as may he, to end this useless and annoying interference with the conduct of the Government of the Island of Porto Elco." The court held that plaintifts' had no right to maintain the action and dismissed the case. Then, there being no longer any question before the court for judicial determination, the judge decided to settle matters by doing some talking from the bench, a prac- tice which you as a lawyer know Is a daugeroue one and one which generally leads to trouble; In support of the conclusion " on the main question " It is said that th^ Hawaiian organic act, which was passed before the Porto Rico provision, provided that If the legislature failed to pass an appropriation bill the sums appropriated in the last appropria- tion bill should be deemed to have been reappropriated ; that the provi- sion in the Philippine organic act differed from that in the Porto Rico act ; that the Porto Rico act was copied substantially from the Philippine act; that Mr. Taft in a letter to Mr. CoorEit, dated May 13, 1902, in an article In the Outlook of May 31, 1902, and again in a message to Congress of July 10, 1909, expressed the view that the provision of the Porto Rico act was Intended to prevent the lower house from starving the Government ; and finally that Congress " must have Intended " to put the sum total in the bands of the governor for expenditure, because '' it Is well known that at best one year's appropriations can not he made to exactly fit the requirements of another year, and therefore it thought best to appropriate a lump sum equal to the total of the pre- vious year for the support of the Government, leaving it to the discre- tion of the governor to reallot or subdivide this money from time to time for the support of the Government untU the legislature acts." I find nothing in the history of the legislation or in the statements of Mr. Taft to suggest the conclusions reached by the Porto Eico court in its conversation with the community. It appears merely that the intention was to provide a method which would prevent the Government from being deprived of the money necessary for its continuance. That the Hawaiian act contained a different provision proves nothing to my mind other than the fact that it does contain a dlEEerent provision. There is nothing, so far as I know, to show that the Hawaiian act was before the draftsman of the legislation under consideration, nor does it appear that the Hawaiian act had proven insufficient or inadequate under any emergency which arose. Mr. Taft, in his letter to Mr. Cooper, merely says that the provisions of the proposed law will prevent the popular chamber from choking the Government. In the Outlook arti- cle he says that should the appropriation bill not be passed by the legislature, " appropriations equal to those of the year before will be- come available without legislation." In the message to Congress trans- mitting the report on the Porto Rico situation he merely states In sub- stance the language of the proposed law. I find nothing In this to aid materially in determining the proper construction of the statute. Mr. Taft was thinking of the object of the law, and merely stated the fact that it would prevent the choking of the Government by withholding the necessary supplies. The only argument which, to my mind, has any force arises out of the statement that the requirements of the Government for one year may differ from those of another year. It may be noted in passing that in almost all the States of the Union the legislatures meet but once in two years, and no particular difficulties result from the fact that the exact requirements of one year may differ from those of another year. It may be conceded that from the viewpoint of the Executive it Is 79077—11780 22 very satisfactory to be able to distribute the money according to the requirements Of present conditions. It Is equally true that from that point of view It would be much simpler and perhaps more de- sirable in the interests of efficiency to adjourn the legislature perma- nently and permit the Executive to handle the entire subject of appro- priations. But It is safe to assume that Congress had other views, and that it realized the fact that any method which might be devised to esqape from the difficulty would result in some Inconvenience. Con- gress was providing for a condition which it fairly assumed would be temporary only. But it is said that if Congress had intended to reenact the previous appropriation bill it would have said so clearly and distinctly. This begs the question. It may be replied with even greater force that if Congress had intended that the chief executive should have the power to allot and distribute the funds in his discretion It would have said so clearly and distinctly* It is probable that the draftsman of the Porto Rico provision was familiar with the provision of the Philippine law, which had been in force for a number of years, and that when the diffi- culty arose in Porto Kico the language was copied substantially and reenacted without any particular consideration being given to the matter of its construction. * * * Let us see what it means — this placing of the power of distributing this money in the hands of the chief executive. In the first place, it takes the legislative power away from the local legislature, contrary to the general purpose and theory of all other applicable congressional legislation. Under the Porto Rico case Congress itself makes the ap- propriation out of the local treasury. The executive may then re-create and reorganize the Government by creating new offices and readjusting salaries as may suit his judgment, desire, or convenience, so long as he does not repeal or violate any law which existed outside of the old ap- propriation bills. In considering a matter of this kind individuals must be ignored. Statutes, we all know, are generally prohibitive, anil governments are largely devised and designed to protect the public against abuses of power by the occasional untrastworthy oificial. Now, the failure to pass an appropriation bill by the Philippine Legislature may not always be due to the desire of the assembly to choke the Gov- ernment. There is another important factor which in any large view of the situation must not be overlooked. The commission, in which it may be assumed that the influence of the chief executive is probably great, has only to refuse to agree to any appropriation bill passed by the assembly, and the power of allotment for the future, passes to the governor general. He and the heads of the various executive depart- ments who spend the money and are primarily interested in the allot- ment of the fund can then arrange the distribution as they desire. The assembly can be eliminated from the situation and must take what the governor general chooses to give it for its own support. This is the Inevitable and logical conclusion from the decision in the Porto Rico case, which we have been informed governs the present situation. The executive may spend during the succeeding period — a period which is indefinite and not measured by fiscal years — approximately P20,000,000 for the support of the Government, according to his own discretion, free from any substantial restraints. This turns the country into the gov- ernor general's personal domain and renders possible all manner of mis- takes and abuses. Every official's salary is subject to his judgment. To me this seems disorganizing and in a way revolutionary, and I can not believe that it is what Congress intended to bring about. 70077—11789 23 I am aware that In the opinion which you rendered to the GoTernov General certain limitations are said to he imposed upon the action of the chief executive, but I am considering the situation as it must necessarily he. In my judgment, if the principle stated in the Porto Kico case is to goTern, and we have heen informed from JVashington that It controls. This Porto Rico case sustained the right of the governor to fix the salaries of . all officials who had not been appointed hy the President. Why this exception, it is difficult to understand unless it was based on policy. In the Philippines the salaries of all the officials are supposed to be fixed by the legislature, regardless of whether they are appointed by the President and confirmed by the Senate or by the Governor General and confirmed by the commission. I learned recently that instructions have come from Washington to the ^ftect that the old schedule of salaries must be followed. If this l^ true, it amounts to that extent to a repudiation of the doctrine of the Porto Rico, case, unless it be meant to apply only to sal^iries which are fixed by existing acts other than the appropriation bill. I Now, let us see how the theory adopted has worked in actual prac- tice. It seems to me that the result has beeU very confusing and given rise to a number of difficulties. The results which follow a certain construction of an ambiguous law are always proper to be considered in determining whether the construction is proper and reasonable. Acting under the authority of the Porto Rico case, the Governor Gen- eral in his " advice " of December 18, 1911, created many new posi- , tions and changed many salaries. This he may have had a right to do if the doctrines of that case are controlling. He created, for instance, the new position of secretary to the Governor General, at a salary of P8,000 per annum, and the Incumbent now holds the position, and draws the pay without having been confirmed by the commission. This Buggrats infinite possibilities. By reducing the salaries of some officials and dropping other positions, ample funds may be found to pay the salary of a lord high chamberlain or a groom of the stole or any other position which the chief executive might believe the public service required. The condition may be continued Indefinitely, as long as the Governor General and a majority of the commission are in accord. The assembly can not by Its own will end It, because the majority of the commission may, it they choose, refuse to agree to any appropria- tion bill which the assembly passes, without giving reasons for their refusal. Under act 1698 new positions may be created in the service by the director of a bureau, with the approval of the secretary of the department, and in no other manner. During the past year numerous changes were made under this authority, and the Governor General's " advice " properly included the same. But, assuming to act under the authority of the act of Congress, the Governor General, in addition thereto, created approximately 170 new positions, with salaries aggre- gating more than P218,000 per annum. The " advice " to the Treasurer, which tools the form of an appro- priation hill for the fiscal year 1912, bore date December 18, 1911. Certain provisions of the old appropriation bill relating to the assembly having been omitted, particularly that under which many of the mem- bers of that body were enabled to draw P30 per day each during the recess, the assembly passed a violent resolution of censure on the Gov- ernor General, and cabled the same to Washington. It appeared that the omission had been unintentional, and the " advice " was imme- diately amended, and the assembly promptly subsided. 79077—11789 24 Thus matters stood until March 12, 1912, when the Governor General thought it advisable to recast his " advice." The rearranged document was antedated, and on March 29, 1912, was filed as a substitute for the previous document. It therefore was made to date in legal effect from the beginning of the fiscal year. In this document certain changes were made, as I understand, in accordance with instructions from Washington, which I have not seen. At present, then, we have an " adyice " which after numerous vicissitudes has been licked into a very fair copy of the last current appropriation bill, with some changes in oflSces and salaries. As it stands there is probably nothing objec- tionable in the bill. It is certainly such a one as might very properly have been passed by the legislature. But one who attempts to follow the course of its history will be strengthened in his belief that in mat- ters of government it is better to be controlled by a definite law than by the discretionary will of even a wise man. After the original letter of " advice " was filed the Governor Gen- eral sent to' the commission the name of his private secretary to be secretary to the Governor General, at a salary of P8,000 per annum, to date from July 1, 1911 ; that is, over a period during which he had been filling another position as private secretary to the Governor Gen- eral. Upon the suggestion that no such office as secretary to the Governor General could be created without the action of the legislature, the nomination or motion was withdrawn. Thereupon a committee was appointed, with instructions to furnish a " memorandum as to who may be classed as Government officials and who as employees In the service." This committee reported that " after exhaustive inves- tigation of the decisions of the supreme courts of the various States and of the Supreme Court of the United States, we conclude that only those persons are public officials who occupy positions in the public service created by statute, the duties of which are defined thereby. All persons in the Government service who do not come within the fore- going definition are hold to be employees." However this may be, the conclusion of the committee opened an inviting way for the Governor General to create any number of posi- tions, with such titles, duties, and salaries as to him seemed best. Should the question whether the occupant was a public officer be raised, and the assertion made that his appointment should be subject to confirmation by the commission, it would be necessary only to reply that the position teas not created T>y statute, and that therefore the occupant was an employee only. The situation was thus left wide open in one direction at least. There is another matter to which I would invite your attention. Under the doctrine of the Porto Rico case, the temptation to enter upon the field of general legislation is almost irresistible. When the former appropriation bill expired it carried with it all its provisions regulating the manner of expending the appropriated funds, and also all provisions of a general nature which had been inserted in previous bills. I do not construe any of those provisions as permanent legisla- tion, and my view is strengthened by the fact that the legislature'has thought fit to repeat them in each successive appropriation bill. Under the system which has grown up it was difficult to operate without these provisions, and we find that although by the terms of the act of Congress the money can only be used for the support of the govern- ment, it is provided in the Governor General's letter of " advice " that, " subject to the approval of the head of the proper department, chiefs of bureaus or offices may expend on permanent improvements funds 79077—11789 25 herein allotted for current expenses." This seems to require no comment. 1 think the whole procedure has been a mistake. After careful con- sideration of the language of the act of Congress in the light of the history of its enactment, and the general principles which under the American system are supposed to control the action of the executive and legislative bodies, I am forced to the conclusion that the effect of the failure to provide for the support of the government Is merely to continue the existing appropriation bills in force until such time as the legislature passes a new one. No other construction Is consistent with the nature and form of the government which Congress was creating in the Philippines, or the object which it was seeking to accomplish. I realize and concede that the language of the act is ambiguous, other- wise we would not be engaged In this discussion, and that much can be said ■ In favor of the other view. I realize also that some incon- venience may result from changed conditions, 6ut I think this Is easily exaggerated. It is very improbable that during such an iAter- regnum any real necessity will arise for abolishing, changing, or con- solidating any of the bureaus of the government, nor is it probable that any great emergency will arise. If such should be the fact, it Is always possible and proper for the Governor General to convene an extra ses- , sion of the legislature to act upon the new conditions. The mere desirt to make changes in the organization of the govern- ment will not create the necessity for so doing. Very seldom, in fact, would the extension of the current appropriation bills for even a year produce any particular confusion. In the United States, as already ob- served, the legislatures meet ordinarily but once in two years, and no difficulties seem to arise In making appropriations applicable during that period. To me the language of the act of Congress seSms rather casual. It is such language as might have been used in providing for a brief interregnum, during which existing conditions were as far as possible to be contlriued. The procedure is not carefully worked out. It is provided that the treasurer may, with' the advice of the governor, out of the total sum which shall be deemed to be appropriated — that is, appropriated by the Philippine Legislature — make the payments neces- sary for the support of the government. The primary responsibility seems to be thrown on the treasurer, as advice is one of the things which need not be and generally is not accepted. It Implies discretion in the person advised. The provision with reference to the action of the treasurer follows the language commonly used in the United States, where the auditors and comptrollers are subordinates of the Treasurer. As here used, it undoubtedly implies that before the treasurer makes the payments the accounts shall have passed through the auditor's office in the ordinary routine of business. To strike out the word " advice " and substitute therefor the word " direction " appears to me a mere tour de force. If Congress had intended to place the matter entirely in the hands of the governor, it would have used the word or words natu- rally appropriate for that purpose. It is true that Congress did not say in so many words that the exist- ing appropriation bill should remain in force. Neither did it say that it should not remain in force. It is inconceivable that Congress when it Used this language intended to confer upon the chief executive the leg- islative power to apportion and disburse the total fund available for the support of the government. An appropriation " is the formal act of the people through their representatives whereby public funds are T9077— 11789 26 set aside to be used for certain specified purposes." In 1902, when tlie act in question was passed, matters of great Importance in the Philip- pine Government were generally referred to the United States Philip- pine Commission either for action, advice, or confirmation. Numerous illustrations of this will be found in the statute. As late as 1909 Con- gress provided that, until action by the Philippine Legislature approved by Congress, the internal revenue paid into the Insular treasury should be allotted and paid out by the Philippine Commission. When Congress was thus careful to keep this legislative power In a legislative body, is it conceivable that by ambiguous language it intended to place in the hands of the chief executive, without even the advice of the commission, the great power of falsing a large sum of money and operating the government? The treasurer at the end of a session of the legislature would always be engaged in paying out the money under existing appropriation bills. In my judgment, he was by this act of Congress authorized, in pursuance of the established routine, to continue doing the same during a period which it was naturally inferred would be comparatively brief. As difB- cultles might be expected to arise under the new conditions, It was provided that the treasurer should have the advice of the chief ex- ecutive. Inferentially, of course, it may be assumed that he would follow such advice. There is no reference in the act of Congress to another fiscal year, and in my judgment there is not a shadow of authority for the executive to fix up a complete new bill for the entire fiscal year. The Philippine act authorizes the treasurer to malse the payments only during the time which may elapse from the termination of any session until the legislature shall act. The Porto Eico act, which we are assuming was modeled on the Philippine act, provided for a new conditon by authorizing the use of the gross amount appropriated for the support of the Government during the next fiscal year. But the Philippine act malies no reference to fiscal years. It is impossMe to malie a netc allotment or advice "from the termination of any ses- sion until the legislature shall act." This is indefinite and indetermi- nable in advance of the action of the legislature. Again, the Governor General's " advice " is dated December 18, 1011, and was made retroactive to the beginning of the fiscal year. If the old appropriation bill was not continued in force by the operation of the law, under what authority were payments being made for the support of the Government between June 30 and December 18, 1911? I have recently been informed that this was done under the authority of a letter from the Governor General, directing payment of money in accord- ance with the previous appropriation bill. If so, this is another illus- tration of the casual way in which, under the theory adopted, matters of such immense Importance may be handled by the chief executive. If such a letter was sent, we have then the old appropriation bill being, in substance, in force by virtue of the Governor General's letter to the treasurer from July 1, 1911, to December 18. 1911. On that date the first letter of " advice " was issued, and dated baclj to the beginning of the fiscal year. In March another letter of " advice " was prepared, differing in terms from either of the former, that, too, taking elfect from the first of the fiscal year, the period thus being covered by three legal layers, the last in each case covering and pre- sumably obliterating the former. The point has been made that if the old appropriation bill remains in force the executive is required to expend all the money appropriated for the particular items designated in the bill. If so, it would be a 79077—11789 27 mere continuance of the conditions created l)y tlie legislature, but I know of no law which maltes it absolutely incumbent upon the execu- tive to actually spend during any particular time money apcropriated for a specific purpose. If such is the law, it is generally disregarded, here as well as elsewhere, as evidenced by the innuiperable unexpended appropriations and balances of appropriations constantly appearing upon the boolts of the government. Again, in closing let me say that it is quite clear to me that Con- gress intended that the existing appropriation bills for the support o£ the government should be continued in force from the end of the ses- sion until action by the legislature. The inconveniences which this would produce are slight and insignificant compared with those which would result from the application of any other theory. Most of the inconveniences are purely imaginary, and arise only out of the desire to make changes which have not been authorized by the legislature. It is not probable that during the time such a condition would exist there will be any great changes in the relative importance of the dif- ferent bureaus or that it will be necessary to transfer bodily the work of one bureau to another. Such radical changes would require legisla- tive action, and it may be assumed that if the legislature took such action it would provide the money necessary to make it effective. Very sincerely, yours, Chaelbs B. Elliott, Secretarjj of Commerce and Police. Mr. W. H. Phipps, Insular Auditor. 70077—11789 o