39 Ct. Cl. 338 | Ct. Cl. | 1904
Lead Opinion
delivered the opinion of the court:
While the claimant herein was holding the office of disbursing clerk of the Treasury Department, for which he had given bond and taken the oath of, office required by law (Rev. Stat., sec. 176), the Secretary of the Treasury addressed to him a communication of which the following is a' copy:
“ Oeeice of tiie Secretary,
“Washington, D. O., November %7,1891.
“ George A. Bartlett,
“Disbursing Cleric, Treasury Department,
Washington, D. C.
“ Sir: You are hereby appointed disbursing agent for such funds as may be advanced to you from time to time, on account of the appropriation for post-office, Washington, D. C.
“ You will be entitled to such compensation for the services named as is provided by law, and the same rate of compensation will be allowed on all amounts disbursed by you since October. 15, 1891, on account of the appropriation named.
“ Disbursements will be made upon vouchers issued and properly certified by Thomas O. Steward, superintendent of construction, Post-Office, Washington, D. C.
“ Respectfully, yours,
“ O. L. SpatjldiNG,
“Acting Secretary.”
Under the several appropriation acts for the construction of the post-office building in the city of Washington it was made the duty of the Secretary of the Treasury to disburse the moneys appropriated therefor. (26 Stat. L., 413, 414; 27 Stat. L., 351, 573; 28 Stat. L., 373, 913; 29 Stat. L., 415; 30 Stat: L., 13.) And in the execution of the acts the Secretary appointed the claimant herein a disbursing agent to disburse the money appropriated therefor.
The claimant’s contention is that he was employed by the Secretary of the Treasury to do the specific thing named in the letter of appointment; that such appointment conferred no office upon him, it being a mere employment to disburse such funds as might be advanced to him on account of the Washington post-office; that the employment did not embrace the idea of duration or permanency, but began and ended with the construction of the building.
The question is, Under which of two statutes does the claimant’s appointment, employment, or designation as disbursing agent fall? By Revised Statutes, section 3657, collectors of customs are required to act as disbursing agents for-the payment of all moneys appropriated for the construction of public buildings within their respective districts, while by Revised Statutes, section 3658, the Secretary of the Treasury is authorized “ where there is no collector at the place of location of any public works specified in the pre-. ceding section ” to appoint a disbursing agent for the payment of all moneys appropriated for such purpose.
The letter of the Secretary is addressed to the claimant as “ disbursing clerk, Treasury Department,” and the language therein, “ You are hereby appointed disbursing agent,” would seem to indicate that the Secretary was intending to act under" section 3658, thereby entitling the claimant to such compensation as the Secretary “ may deem equitable and just,” limited, however, by the act of March 3, 1875 (18 Stat. L., 402, 415), to three-eighths of 1 per cent of the amount disbursed. But that section is modified by the act
The duties which the Secretary devolved upon the claimant Avex-e not only germane to his regular duties as disbursing clerk, but were identical therewith, and hence can not be considered as two distinct offices or employments having different duties to perform. At most the duties thus devolved upon the claimant were additional to those he was required to pcrfoi'm as disbursing clerk of the Treasury Department, for which his salary was fixed by the act of March 3, 1875 (18 Stat. L., 396), at $2,500 per annum.
It will be noted that under section 3658 the appointment of a disbursing agent can only be made “ where there is no collector at the place of location of any public work specified ” in section 3657, and such appointment, we think, implies that the agent so appointed shall give bond as an officer (United States v. Mouat, 124 U. S., 303, 307) and take the required oath of office before entering upon the discharge of his duties. (Rev. Stat., sec. 1756.)
Under Revised Statutes, section 255—
“ The Secretary of the Treasury may designate any officer of the United States, who has given boixd for the faithfxxl performance of his duties, to be a disbursing agent for the payment of all moneys appropriated for the construction of public buildings authorized by laxv within, the-district of such officer.”
In the case of Bartlett v. The United States (25 C. Cls. R., 389, 398), wherein this same claimant as disbursing clei’k was ordered by the Secretary of the Treasury to pay such vouchers presented, for public buildings throughout the country, as
“ The claimant was precluded from appointment under section 255, because, not being attached to any district, the buildings for which his disbursements were made were not within Ms district, and he could- not have been appointed under section 3658, by special designation in each case, to disburse part of the money appropriated, because there was a collector at the place of location of each of the several buildings, or a disbursing agent, other than the claimant, previously appointed ‘ for the payment of all moneys appropriated for the construction of any such public works.’ ”
If that ruling be correct, then it follows that in the present case the claimant could have been designated as disbursing agent under section 255, because the public building for the payment of which the appropriation was to be disbursed was located “ within the district of such officer,” i. e., within the city of Washington; and though the letter of the Secretary of the Treasury appears upon its face to be a letter of appointment, yet, as at the elate thereof the city of Washington was by Revised Statutes (sec. 2550) within the customs district of Georgetown, where a collector was provided for (sec. 2551), the claimant could not have been appointed'under section 3658; or if appointed thereunder, because at that time there was “ no collector at the place of location ” of the public building to be constructed, i. e., in the city of Washington, the claimant by virtue bf said act of August I, 1882 (supra), granting compensation to disbursing agents “ not located in the city of Washington,” would not be entitled to recover the compensation allowed by law to collectors. Hence the act of February 11, 1895 (28 Stat. L., 650), constituting Georgetown a part of the city of Washington, and continuing the port of entry there under the latter name, is immaterial in this case. That being so, the letter of appointment could only operate in effect to designate the claimant as a disbursing agent under section 255, for which no compensation, additional to that of his regular salary, is provided.
Again, as the claimant did not hold two distinct offices, places, or employments, each with its own duties and compensation, he does not bring himself within the ruling in the case of the United States v. Saunders (120 U. S., 126, 129), where
“No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.”
In commenting on those two sections the court in that case said:
“ We are of opinion that, taking these sections all together, the purpose of this legislation was to prevent a person holding an office or appointment, for which the law provides a definite compensation by way of salary or otherwise, which is intended to cover all the services which, as such officer, he may be called upon to render, from receiving extra compensation, additional allowances, or pay for other services which may be required of him, either by act of Congress or by order of the head of his Department, or in any other mode, added to or connected with the regular duties of the place- which he holds; but that they have no application to the case of two distinct offices, places, or employments, each of which has its own duties and its own compensation, which offices may both be held by one person at the same time. In'the latter case he is in the eye of the law two officers, or holds two places or appointments, the functions of which are separate and distinct, and, according to all the decisions, he is in such case entitled to recover the two compensations. In the former case he performs the added duties under his appointment to a single place, and the statute has provided that he shall receive no additional compensation for that class of duties unless it is so provided by special legislation.”
The latter clause of that quotation correctly describes the claimant’s services; that is, “he performs the added duties under his appointment to a single place, and the statute has provided that he shall receive no additional compensation for that class of duties unless it is so provided by special legislation,” and as there is no special legislation which authorizes additional compensation to the claimant for the services he performed as such disbursing agent; he is not entitled to recover, and his petition must therefore be dismissed.
Concurrence Opinion
concurring:
In 1891 the claimant was “ disbursing clerk in the Treasury Department.” On the 27th November, 1891, the Secretary of the Treasury appointed him “ disbursing agent ” on account of the appropriation for the Washington post-office, then about to be erected. There were two diverse statutory provisions then in force, one of which (Rev. Stat., § 255) authorized the Secretary of the Treasury to “ designate any officer of the United States who has given bonds for the faithful performance of his duties, to be disbursing agent for the payment of all moneys authorized for the construction of "public buildings;” the other (§ 3658) authorized the Secretary, in certain cases, to “ appoint a disbursing agent for the payment of all moneys appropriated for the construction of any such public work, with such compensation as he. may deem equitable and just.” The words of the Secretary were:
“ You are hereby appointed disbursing agent for such funds as may be advanced to you from time to time on account of the appropriation for post-office, Washington, D. C. You will be entitled to such compensation for the services named as is provided by law.”
It is therefore manifest that the Secretary did not “ designate ” the claimant, to act under the one section, and did “ appoint ” him, or intend to appoint him, under the other. The claimant not having been “ designated ” under section 255, it never became a part of his duty as a disbursing officer in the Treasury to disburse the moneys for the Washington post-office.
The Secretary of the Treasury is something more than an administrative officer. The Supreme Court has held again and again that the heads of the Executive- Departments are charged with the duty of construing the lawTs which affect the business of their Departments, and a clerk in a Department may well lean upon the construction given to the statutes by one of the chief officers of state charged with the duty of construing the laws which relate to the business of his Department.
Under this appointment the work of disbursing the funds
It is plain that the Secretary did not intend to cast this burden upon the claimant without remuneration, and conversely it may be supposed that if the Secretary had known that the service was to be a gratuity rendered to the Government, he would never haAre appointed him “ disbursing agent ” of this Washington post-office. Both parties understood that the work was to be in addition to the claimant’s ordinary duties; both parties believed that for this additional work he would be compensated.
If the responsible managing officer of a private corporation had employed an employee to work over hours under such an agreement, and the corporation had received the benefit of such work, no one could entertain a doubt as to the right of the employee to recover either in quantum meruit or for the compensation which the managing officer had agreed to give him.
Nevertheless, the merciless doctrine of ultra vires, coupled with the despotic rule that “ while individuals are liable to the extent of the power they have apparently given to their agents, the Government is liable only to the extent of the power it has actually given to its officers,” must, I regret to say, preclude the claimant from recovering.
To rightly construe section 255 of Revised Statutes we must go back to the Act 3d March, 1869 (15 Stat. L., 301, 306), from which it is taken verbatim. When that act was
In 1858 Congress instituted a new policy concerning the disbursements for public buildings, and enacted from time to time laws Avhich should govern them. By the Act 18th June, 1858 (11 Stat. L., 319, 327, sec. 17), it was provided:
' “And be it further enacted, That the collectors of the customs in the sexreral collection districts be, and they are hereby and hereafter, required to act as disbursing agents for the payment of all moneys that are or may hereafter be appropriated for the construction of custom-houses, court-houses, post-offices, and marine hospitals, with such compensation, not exceeding one-quarter of one per cent as the Secretary of the Treasury may deem equitable and just: And provided further, That where there is no collector at the place of location of any public work herein specified the superintendent of such public work shall act as disbursing agent without any additional compensation therefor, and all laAArs and parts of laAvs in conflict Avith the provisions of this section be, and the same are hereby, repealed.”
Congress amended this act by the Act 88th July, 1866 (14 Stat. L., 341), AAdiich struck out the proviso and substituted the f olloAA’ing:
“And pro aided further, That where there is no collector at the place of location of any public work herein specified the Secretary of the Treasury shall have poAver to appoint a*348 disbursing agent for the payment of all moneys that are, or may be hereafter, appropriated for the construction of any such public work, with such compensation as he may deem equitable and just, and all laws and parts of laws in conflict with the provisions of this section be, and the same are hereby, repealed.
These provisions became sections 3657 and 3658 of the Revised Statutes. The sum .and substance of them is that collectors of customs are required to act as disbursing agents for buildings erected in their districts, “ with such compensation, not exceeding one-quarter of 1 per cent, as the Secretary of the Treasury may deem equitable and j ust,” and that “ where there is no collector ” the Secretary may appoint a disbursing agent, with such compensation as he may deem equitable and just. It seems manifest, therefore, that the legislative intent is that where a building is to be erected in a district in which there is a collector of customs, he should be required to act, and he alone; and, conversely, where the building is to be erected in a district where there is no collector, and there alone, the Secretary is authorized to appoint a disbursing agent.
This legislative intent has not been changed by subsequent legislation. By the Act 3d March, 1869 (15 Stat. L., 311, 312), the compensation of officers and agents was cut down to one-eighth of 1 per cent. By the Act 3d March, 1875 (18 Stat. L., 415), the limit of compensation was raised to three-eighths of 1 per cent. By the Act 7th August, 1882 (22 Stat. L., 306), disbursing agents (doubtless referring to those in districts where there is no collector, provided they are “ not located in the city of Washington ”), were declared to be “ entitled to the compensation allowed by law to collectors of customs.” The words of the statute are as follows:
“ * * * And any disbursing agent who has been or may be appointed to disburse any appropriation for any United States court-house and post-office, or other building or grounds, not located within the city of Washington, shall be entitled to the compensation allowed by law to collectors of customs for such amounts as have been or may be disbursed.”
This manifestly relates to compensation and not to the
The words of this statute just quoted^-" not located within the city of Washington ” — seem to imply that, in the belief of Congress, there was no collector in the city, or rather that the city of Washington was not in the district of any collector. If that were the case, the effect of this statute would be simply that the agent appointed would not be entitled to the same compensation allowed by law to collectors of customs, but under previous legislation would be entitled to such compensation as the. Secretary of the Treasury might see fit to give him. In other words, the act of August 7, 1882, put disbursing agents in districts where there is no collector on the same footing as collectors of customs, excepting those' in the city of Washington.
The question in the suit then narrows down simply to this: Was there a collector whom the law intended should be the disbursing agent of the post-office building in the city of Washington? If there was not, the claimant is entitled to recover under section 3658 “ such compensation as he (the Secretary) may deem equitable and just.” If there was, the Secretary of the Treasury was without power to make tlie appointment, and should have designated the collector of customs to act as disbursing agent.
The Revised Statutes (§ 2546, 2548, 2550, -2551) provide that “ There shall be in the State of Delaware one collection district;” that “There shall be in the State of Maryland three collection districts;” that—
“ There shall be in the District of Columbia one collection district, as follows:
“ The district of Georgetown; to comprise all the waters- and shores of the Potomac River within the State of Maryland and the District of Columbia from Pomonkey Creek to the head of the navigable waters of that river, in which GeorgetoAvn shall be the port of entry.
“ There shall be in the district of Georgetown a collector.”
It seems, then, plain that the city of Washington is within the “ district of Georgetown ” and that the district of Georgetown has a collector. And it consequently seems
