38 Ct. Cl. 428 | Ct. Cl. | 1903
Lead Opinion
delivered the opinion of the court:
The claimant brings this action to recover his pay as a captain of infantry upon the retired list. It is conceded that he
The first ground of defense rests upon what is termed a renunciation of the pay given by the claimant to the Paymaster-General as a condition to his receiving the salary of chief clerk of the Department of Agriculture. The so-called renunciation contains these words:
“ But this renunciation shall not operate to prevent me from testing in the proper courts or in any other legitimate way my right under the law to receive compensation from the appropriations of the Department of Agriculture while receiving-pay as an officer of the Army on the retired list, or my right, to receive pay as an army officer on the retired list while receiving compensation as chief clerk or employee of the Department of Agriculture. ”
There is nothing, therefore, in this defense. Where the salary or compensation of an officer or employee of the Government is by statute fixed and certain, other officers of the Government can neither increase it nor diminish it nor take it away.
Furthermore, the so-called renunciation can not possibly operate as an equitable estoppel. The claimant expressly' made his renunciation, by the same instrument, conditional upon his legal rights, and avowed his intention to assert them, and it is manifest that the officers of the Government intended to do nothing more than they propei’ly might do — reserve the question of legal right for the determination of the judiciary.
Here the case might technically stop.' The claimant is entitled to the pay of a captain of infantry on the retired list, he has not been paid, and the renunciation does not renounce the legal right to it. The counterclaim of the defendants, however, presents the real question in controversy. It is whether the claimant can receive the pay of an officer on the retired list and also the salary of the chief clerk of the Department of Agriculture.
The Comptroller of the Treasury decided that the claimant might receive the one but not the other — that he might forego the pay of a retired officer and receive the pay of chief clerk of the Department. The defendants’ counsel goes much fur
The adverse decision of the Comptroller of the Treasury stands exclusively on the Act 3d of March, 1885 (23 Stat. L., pp. 353, 356, sec. 2), which contains the following provision:
“That no part of the money herein or hereafter appropriated for the Department of Agriculture shall be paid to any person, as additional salaiy or compensation, receiving- at the same time other compensation as an officer or employee of the Government.”
But the subsequent Act 31st of July, 18,94- (28 Stat. Ii., pp. 162, 205, sec. 2), contains this provision:
“No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand live hundred dollars shall be appointed to or hold' any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate. ”
It was correctly held by the Comptroller of the Treasury that—
“The act of July 31,1894 (supra), when read in connection with that of June 6,1900 (supra), does not forbid the appointment of Mr. Geddes as a retired officer of the Army, and hence, in the absence of any contrary provision of law, does not make the payment of his salary in both places illegal. ”
That is to say, while the claimant was holding the office of chief clerk of the Department of Agriculture, with a salary attached thereto of $2,500 per annum, he was appointed an officer on the retired list by the President and confirmed by the Senate; and that appointment was specially authorized by the Act 6th June, 1900. (31 Stat. L., 551.) Hence the Comptroller, as before stated, grounded his decision exclusively upon the earlier statute of 1885.
That limitation upon the power of the Secretary does not constitute a defense. An appropriation is the setting aside by Congress of a designated amount of public money for a designated purpose.
“ No money shall be drawn from the Treasury but in consequence of appropriations made by law.” (Const., Art. 1. sec. 9.)
The accounting officers are the guardians of the appropriations. It is their business to see that no money is paid out of the Treasury unless the payment is authorized by an appropriation act. It is not their business to adjudicate abstract questions of legal right beyond the legal right of a person to be paid out of a specific appropriation. An appropriation constitutes the means for discharging the legal clebtsAf the Government.
The judgment of a court has nothing to do with the means— with the remedy for satisfying a judgment. It is the business of courts to render judgments, leaving to Congress and the executive officers the duty of satisfying them. Neither is a-public officer’s right to his legal salary dependent upon an appropriation to pay it. Whether it is to be paid out of one appropriation or out of another; whether Congress appropriate an insufficient amount, or a sufficient amount, or nothing .at all, are questions which are vital for the accounting officers, but which do not enter into the consideration of a case in the courts. This lias been repeatedly held by the Supreme Court and this court, beginning with Graham's Case, in the first vol-
To bring a retired officer of the Army within the inhibition of the statute it is plain that he must be an “officer or emplo3ree of the Government” within its intent; that his unofficial life after retirement must be regarded, within the intent of the statute, as service; that his three-fourths retired pay must be “salary or compensation” for such service, it is well settled that an officer on the retired list owes no service to the Government in time of peace; that if called into service in time of war he returns thereby to the active list and receives full pay; that there is but one military office which he can hold — that of Superintendent of the Soldiers’ Home; and that his reduced retiied pay is but an honorary form of pension to be paid him when, having reached a certain age, it is presumed that he is no longer well fitted to render active service to the Government. (Hayden’s Case, ante, p. 39; Act 2d March, 1899, 30 Stat. L., p. 977, sec. 7.) If this officer on the retired list had been rendering service to the Government, and if his retired pay was intended as “compensation” for that service, and if the Secretary of Agriculture had intended to give to this retired officer “additional compensation,” to be paid out of the funds of his Department, the case would come within the purview of the statute. But there must be “^compensation ” received before there can be “ additional compensation” prohibited. As a matter of fact, the. pay of a retired officer is not compensation; and it follows as a matter of law that the salary of the chief clerk of the
The Supremo Court has said that a statute prohibiting an officer from receiving more than one salary can not" “by fair interpretation be held to embrace an employment which has no affinity or connection, either in its character or by law or usage, with the line of his official duty, and where the service to be performed is of a different character and for a different place, and the amount of compensation regulated by law."’ Converse v. United States (21 How., 463); United States v. Brindle (110 U. S., 688, 694); and this court has held ever since Collins’s Case (15 C. Cls. R., 22, 40) that the pajr of a retired officer “is not given as compensation for discharging the duties of anj^ office during the period for which it is to be paid, but rather as a bounty and in the nature of a pension for services to his country previously performed.” Under these decisions the claimant might legally hold both offices, and if he held them, receive the salaries of both. The duties or nonduties of a retired officer are not incompatible with the duties of a chief clerk in an executive department. The duties of an officer beyond seas would be incompatible with those of a retired officer liable to be called at any time into-active service. Congress have recognized the distinction by providing that a retired officer shall not receive his pay as s.uch while holding a diplomatic or consular office beyond seas, but have left the right of a retired officer to hold a civil office within the country unimpaired. Congress have prohibited onty officers “on the active list” from holding “any civil office” (Act 15th July, 1870, 16 Stat. L., 319; Rev. Stat., sec. 1222), and retired officers only from holding appointments in the diplomatic or consular service {Act 80th March, 1868; Rev. Stat., sec. 1223.) “Congress,”says the Supreme Court, “distinguished, and adhered to the distinction, between officers on both lists and officers on the active list only, and between ordinary civil appointments and appointments in the diplomatic or consular service. No officer, whether on the active or retired list, could accept appointment in the latter and remain an officer, but that rule was not applied to retired officers in the matter of holding a civil office. ” (Badeau v. United States, 130 U. S., 439, 449.)
Dissenting Opinion
dissenting.
The claimant was appointed October 1,1897, to the office of chief clerk of the Agricultural Department, and by authority of an act of Congress for that purpose was, January 14,1901, by the President, by and with the advice and consent of the Senate, appointed captain of infantry in the United States Army, which appointment the claimant accepted, and on January 26, 1901, he was duly placed upon the retired list of the Army to date from the time of his appointment. After this he applied to the disbursing officer of the Agricultural Department for his salary for the month of January, 1901, as chief clerk, and on the same day the disbursing clerk submitted to the Comptroller of the Treasuiy for his decision the question as to the legal right of the claimant to receive the salary of chief clerk, and for the same time receive his pay as a retired officer of the United States Armjr. The Comptroller gave his decision adversely to claimant’s right to receive the salaries of both offices for the same period of time. After this decision, March 18, 1901, the claimant filed a renunciation of his pay as captain of infantry, retired, while drawing the salary of his office as chief clerk of the Agricultural Department, and he has not, therefore, drawn any pay as a retired officer of the Army, which latter he seeks to recover in this suit.
Waiving the question whether the claimant has, by disclaiming the pay of a retired officer to enable him to accept the higher pay of chief clerk, surrendered'whatever rights he possessed to the pay of a retired officer, the more important, and, it seems to me, the vital question is whether section 2 of the act of March 3, 1885, is not a prohibition of the payment of any part of the money therebj^ authorized or appropriated by that act to the claimant as a person receiving at the same time other compensation as an officer or employee of the Government. The language of that section is:
“That no part of the money herein or hereafter appropriated for the Department of Agriculture shall be paid to*448 O o $0 o ■Jl c3 a o s ►o CD D O & i-i £ CD S É CD P ® P O co o §
The argument of the majority of the court, as I understand and construe it, proceeds upon the theory that the pay of a retired officer is not “additional salary or compensation” to claimant’s salaiy or compensation as chief clerk and therefore not within the prohibition of that section, and generally that a retired army officer is not an officer within the meaning of the act, and that his pay as such is but a gratuity or pension, as distinguished from salary or compensation. I do not concur in either the reasoning or conclusion of the majority of the court in this regard. It seems clear to me that the provision of the statute, to which reference has been made, is a plain and positive prohibition of the payment of any money authorized by that act to the claimant while he at the same time was receiving other compensation as an officer or emploj^ee of the Government. To argue that the pa}' of the chief clerk would not be as additional salary or compensation, when at the same time he was also receiving pay as a retired officer, is simply to deny the plain import of the language used, and it would seem mere pedantry to produce argument to refute such reasoning. It is a sufficient statement for this purpose to say that if while a person is receiving one compensation another, is added the latter would be additional compensation. Any argument to produce a different result must necessarily be specious and reductio ad absurdmn.
Neither can it be reasonably supposed that Congress intended by retiring officers of the Army at a given age with specified pay'that such is a mere gratuity or pension, for all know that many of these officers, eligible to retirement, are in the vigor of manhood, both in bod}' and mind, and therefore the inference is reasonable that by such legislation it was intended to provide a continuous compensation for services already performed and for waiting for orders to active service when the contingency may arise. (30 Stat. L., 979.) These officers, although retired, constitute part of the Army; are borne on its register; are subject to the rules and articles of war and trial by general court-martial for any breach thereof. They all retain their commissions and rank without resignation,
Also, by section 1760, Revised Statutes, no officer in any branch of the public service, or any other person whose salaiy, pay, or emoluments are fixed by law or regulation, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, allowance, or compensation. Here the claimant was receiving a salaiy of $2,500, fixed byr law, as chief clerk of the Agricultural Department, and was, by the statute referred to, expressly inhibited from receiving any additional salaiy, allowance, pay, or compensation for discharging the duties of any other office unless expressly authorized bjr law, of which there is no pretense in this case. That the case of this claimant falls within the exception pointed out in Badeau v. The United States (130 U. S., 439), of offices not incompatible, is not seen, and that exception not having been expressly stated in the statute itself, resulting by judicial construction merefy, should not be further extended without a plain necessity, to the end that the words of the statute may not be wholly nullified. The ease presented is otherwise controlled by the decision cited, which is but declaratoiy of the explicit principles of the section considered, applied to facts which, in legal effect, are not different than those here delineated.
In my opinion it was necessary for claimant to disclaim the pay of a retired officer, as he did, before he could gain the right to the higher salaiy of chief clerk provided by the act in question, and without such disclaimer he could not receive it without a clear violation of the will of Congress. By accepting the higher compensation he is now estopped from claiming or receiving the lesser without first refunding the former. It is the plain spirit and intent of the legislation under consideration that no person should receive two salaries, and, in my opinion, the conclusion and judgment of the majority of the court does violence to the will of Congress.
Dissenting Opinion
dissenting:
We are all agreed that the Comptroller rightly decided that the act of 1894 does not by necessary implication repeal the act of 1885. The latter act was directed against the practice which obtained elsewhere of carrying on the work of the Government by persons holding düal appointments; and in creating the Department of Agriculture the use of the appropriations then and thereafter to be made as additional compensation to persons already receiving pay as officers or employees of the Government was prohibited regardless of the character, quality, or amount of service performed elsewhere. The use of any part of the money appropriated for the Department in payment to officers or employees receiving-other compensation was the thing forbidden. If the lawmakers had in mind any one class of people whom it was deemed best to exclude from the work of carrying on the Department of Agriculture the class specially excluded would seem to be militaiy and naval officers, who are supposed to be less familiar with agriculture and its interests than most any others.- But the intent was clearly expressed to restrict the use of the appropriations generally to a class not otherwise in the pay or employ of the Government as officers.
Payment of any part of the money appropriated for the Department of Agriculture as salary to an officer or employee while receiving other compensation is, to the extent of the salary paid, “additional” compensation. I-f the pay of a retired officer is not compensation of an officer of the Government, what is it? ¡Retired pay is not a gratuity, but is compensation in the same sense that pay for other service is compensation.
Immediate and present service is not the inhibition of the statute, but official compensation elsewhere is the sole prohibition. If active duty in the military or naval service continuously measured the obligation to compensate the officer, his pay would cease as much while on waiting orders or leave of absence as during the period of retirement. In either case the compensation is given because the person receiving it is yet a naval or military officer subject to orders of the Government.
(Tyler's case, 16 C. Cls. R., 224.) If they are not required to labor while so retired — in consequence of which their compensation is diminished — no reason exists why the accounting officer should add a further limitation of pay not found in any statute. (United States v. Tyler, affirming this court, 105 U. S., 224.) On the other hand no reason exists why by construction predicated upon want of active duties for the time being retired officers should be permitted to claim advantages which Congress intended should not be claimed. The allowance of the claimant’s contention in this case seems to me to be a clear innovation upon the salutary rule expressly meant to exclude the use of appropriations made to carry on the Department of Agriculture where officers retired, as well as those in the active service, are receiving the compensation which follows from their office as such.
It is true the judgment in this case will not be paid out of the money appropriated for the Department of Agriculture. But can the claimant with knowledge that he could not at the same time lawfully receive both salaries receive the one and defer collecting the other and thus recover the additional compensation forbidden by the statute? I think not. Want of knowledge of the terms of the statute while performing duty as chief clerk would not strengthen the right to claim the compensation as clerk and retired officer afterwards for the same time. But with knowledge that the statute prohibited the payment of the double compensation the claimant’s contention here is entitled to even less consideration.
The real question is whether the claimant can receive the compensation as a military officer and as chief clerk of the Agricultural Department for the same period of time. The act of 1885 says he shall not. That act is controlling and makes the application of the counterclaim necessary to give the act its proper effect.