35 Ct. Cl. 242 | Ct. Cl. | 1900
Lead Opinion
delivered the opinion of the court:
This is an action to recover salary amounting to $6,010.90, which, under the act of August 7, 1882 (22 Stat. L., 346), was provided for the payment of a special inspector of foreign steam vessels. The time for which salary is claimed covers three years and two days.
While the claimant was holding the office and performing the duties of local inspector of hulls of steam vessels at the port of New Orleans, and receiving the salary thereof, $2,250 per annum, the Secretary of the Treasury sent the claimant a letter, as follows:
“Treasury Department,
“Ofeice of the Secretary,
Washington, D. G., May 15, 1891.
“Mr. John Glavey,
“New Orleans, La.
“Sir: Under the provisions of an act of -Congress approved August 7, 1882, entitled ‘ An act to amend section 4400 of title 52 of the Revised Statutes of the United States, concerning the regulation of steam vessels, you are hereby appointed to serve in connection withyour appointment as local inspector of hulls of steam vessels as a special inspector of foreign steam vessels, without additional compensation, for the port of New Orleans, La., the appointment to take effect from date of oath.
“Respectfully, yours,
Charles Foster, Secretary.”
December 15, 1893, the Acting Secretary of the Treasury, as set forth in the findings, requested the claimant to tender his resignation as “inspector of hulls of steam vessels for the district of Louisiana, also as special inspector of foreign steam vessels for the port of New Orleans, La., to take effect upon the appointment and qualification of your successor;” and thereafter, May 28, 1894, his duly appointed and qualified successor as local inspector of hulls of steam vessels entered upon the discharge of the duties of said office, after which the claimant also ceased to perform the duties of special inspector of foreign steam vessels.
The claimant proceeds upon the theory that by that act of the Secretary of the Treasury he was duly appointed to the office of special inspector of foreign steam vessels, and that having taken the oath in the usual form and entered upon and discharged the duties pertaining to the office, he is entitled to the salary provided therefor by section 2 of the act, notwithstanding the conditions stated in the letter of the Secretary, and notwithstanding, also, that he was not required to nor did he give the official bond provided for as aforesaid.
Whether the claimant’s right to receive the salary sued for be measured by the terms of the letter of the Secretary of the Treasury or by his conduct in assuming to act, in connection with his other duties, as a special inspector of foreign steam vessels without additional compensation, in either event it does not seem proper to hold that this claim has any merit.
- The Supervising Inspector-General is an officer of the Treasury, and his report to the Secretary became a part of the official archives relating- to the business of the Department. By that report it was further made to appear that a saving could be made of all salaries paid inspectors of foreign steam vessels (except as to the port of New York) by uniting these with those of local inspectors of hulls of steam vessels. It is true that the recommendation of the Secretary of the Treasury for the repeal -of the law suggested by the report of his subordinate was not immediately acted upon by Congress, but the fact remains that at certain ports, including New Orleans, the duty of inspectors of foreign steam vessels had practically ceased. Thus, for the fiscal year ended June 30, 1890, the services of special inspectors of foreign steam vessels at the ports where no necessity existed for regular appointments were discontinued and local inspectors were assigned to inspect the foreign vessels without extra pay. An incumbent at New Orleans by regular appointment under the amendment to section 4400 of the Revised Statutes was removed during that fiscal year because tire duties were nominal.
In that part of his finance report to Congress relating to the foreign inspection service Secretary Windom, in 1889, expressly stated that the offices involved in the inspection of foreign steam vessels were virtually sinecures, and that the services of three of these officers had been dispensed with. (Rep. Sec. Tr., 1st sess. 51st Cong.) One of these officers so
In the transaction of the businéss of the Government judicial notice can be taken of the official reports and acts of the Executive Departments unless. for reasons of public interest and policy secrecy is maintained as to them by the heads of departments. With knowledge of the facts which these reports and acts of the Treasury Department afford to us, the question then arises whether in the matter before us the Secretary of the Treasury had the power to devolve the duties of special inspectors of foreign steam vessels without additional compensation upon local inspectors of hulls of steam vessels at the ports of entry where the necessity for regular separate officers no longer existed.
That the Secretary had no power to compel the local inspectoi-s to serve without extra compensation is a matter not necessary to discuss, because no such attempt was made. Compulsory service does not enter into the case at all. And it may even be conceded, for the purposes of the argument, that the incumbent of any one office can not be required to perform duties, however slight, belonging to another office without the corresponding right to claim whatever salary there may be attached to the second office. But it is not uncommon in the business of executive administration for the incumbent of an office to be requested to discharge the duties of another office in connection with the duties of his own. Nor is it uncommon for these dual duties to be performed without any thought of claiming or supposed right to claim the salary attached to both. Instances are not wanting — in fact, they are numerous — where in the exigencies of the public service double duties are assigned to particular officials (above • the grade of clerks) without the corresponding right on the part of the official thus assigned to claim compensation for the second office. There is nothing dangerous in this practice, since an official may ordinarily decline to take upon himself
It is a matter of no consequence in determining the rights of the claimant what action, if any, the Secretary of the Treasury would have taken for the inspection of steam vessels had claimant not rendered the special service. Whether the Secretary would have omitted to have a few vessels inspected at so high a price by neglecting to fill the offices, or would have hastened the repeal of the law giving such large salaries for services which time had made so insignificant by urging the matter upon the attention of Congress more persistently, we do not certainly know. It is reasonable, however, to suppose that measures in the interest of an economical administration of the affairs of the Department would have been taken but for the conduct of the claimant. In an}r event local inspectors of hulls of steam vessels would probably not have
If this were a transaction between individuals it could not stand the test which the claimant seeks to have applied in his behalf. His silence operated as a fraud in fact. Had he informed the Secretary that he could not accept the special service indicated upon the terms placed before him by the Secretary’s letter, other means, doubtless, would have been used to obviate the needless expense involved in a regular appointment. But claimant made no protest, gave out no intimation that he expected compensation, led the Secretary to believe that the conditions imposed by the letter assigning him to duty had been accepted, thus misleading his superior officer for a period of several years. The claim, then, is the result of a studied silence, apparently, by means of. which claimant seems to have thought he might thereafter more successfully claim for a longer period of salary. In this view what else can such a fraud in fact be considered unless it be deemed a fraud in law? If it was an afterthought, there can be no recovery under the well-settled principle of law that if a person renders a service without intent to charge for the same, and this is so understood by the other party, no recovery can be had for such services. (Goode v. United States, 25 C. Cls. R., 267.) If there was a reserved intention on the part of the claimant to claim the salary, he is upon every principle of law and equity estopped from the assertion of the demand. Acquiescence and waiver are always questions of fact. (Pence v. Langdon, 99 U. S. R., 578-581.) The cases where acquiescence and waiver operate in analogy to estoppel are too numerous to cite. Mr. Justice Shiras declares the rule aptly expressed (citing 2 Pom. Eq. Jur., par. 965), as follows:
“ When a party with full knowledge, or at least with sufficient notice or means of knowledge, of his rights and of all the material facts freely does what amounts to a recognition of the transaction as existing, or acts in a manner inconsistent with its repudiation, or lies by for a considerable time, and knowingly permits the other party to deal with the«subject-mattér under the belief that the transaction has been recognized, or freely abstains for a considerable length of time from impeaching it, so that the other party is thereby rea
That the Government can, in proper cases, invoke the doctrine of acquiescence and waiver is too plain to argue. That it can do so on a claim for salary to an office with insignificant duties undertaken and performed by another officer detailed to their temporary discharge under the facts here is equally clear. Salary is not such a sacred thing that a person should be permitted to impose upon his Government under the circumstances shown here in order to obtain its payment. Estop-pel had no application in People ex rel. Satterlee v. Board of Police (75 N. Y., 38), because in that case there was no question of the full and complete regularity of the appointment and of the performance of every undiminished duty under it, and the court held that an agreement to take less than the salary fixed by law did not establish a binding contract. Both elements appearing in that case are wanting here — the appointment of the claimant having conditions which rendered it a mere detail to service incident to analogous duties then being performed by him on the ground at the time in another office, and the service under the detail being nominal and perfunctory.
The proposition that under a provision of the act of May 1, 1881 (23 Stat. L., 17), claimant could not accept voluntary service for the Government is not applicable, because that act relates to employees in the Indian Office. Claimant could not render voluntary service and now be heard to say he is entitled to pay for service so renderd in his own violation of the law, even if that act related to other branches of the public service.
The petition is dismissed.
Dissenting Opinion
dissenting:
Tbe claimant in this action seeks to recover the salary of special inspector of foreign steam vessels provided for by the act August 7, 1882 (22 Stat. L., 346), under the following-appointment:
‘‘Teeasuey Department, Oepice oe the Secretary,
“ Washington, D. G., May 15, 1891.
“Mr. John Glavey,
iiJYew Orleans, Louisicma.
“ Sir: Under the provisions of an act of Congress approved August 7th, 1882, entitled ‘An act to amend section 4400 of title 52 of the Revised Statutes of the United States, concerning the regulation of steam vessels,’ you are hereby appointed to serve, in connection with your appointment as local inspector of bulls of steam vessels, as a special inspector of foreign steam vessels, without additional compensation, for the port of New Orleans, Louisiana, the appointment to take effect from date of oath.
“Respectfully, yours,
“Charles Foster, Secretary.”
On the part of the defendants it is contended (1) that the claimant was not appointed to the office; (2) that if appointed, he never qualified by giving bond, and was not, therefore, an officer de jure, and (3) that if appointed he is estopped from receiving the salary by reason of his silent acquiescence in the action of the Secretary, and by making no demand therefor during his period of service.
It is manifest from the language of the letter that what the Secretary intended was that, inasmuch as the claimant was then holding the office of local inspector of hulls of steam vessels, for which he was being paid the salary of $2,250 per annum, he could, in connection with the duties of that office, also perform, without additional compensation, the duties of special inspector of foreign steam vessels.
The language in the letter of the Secretary, “the appointment- to take effect from date of oath,” may fairly be considered as a direction to the claimant to take the oath prescribed by law before entering upon the discharge of the duties of the office to which he had been appointed; though if he had omitted that language, such oath, under Revised Statutes,
The Secretar}'' of the Treasury had no authority to require of the claimant the performance of the duties pertaining to the office of inspector of foreign steam vessels, except pursuant to the statute requiring the same, section 2 of which reads:
“ That for the purpose of carrying into effect the provisions of this act the Secretary of the Treasury shall appoint officers to be designated as special inspectors of foreign steam vessels, at a salary of two thousand dollars per annum each, and there shall be appointed of such officers, at the port of New York, six; at the port of Boston, two; at the port of Baltimore, two; at the port of Philadelphia, two; at the port of New Orleans, two, and at the port of San Francisco, two.”
It will thus be seen “that for the purpose of carrying into effect the provisions of the act the Secretary of the Treasury shall appoint officers to be designated as special inspectors of foreign steam vessels” * * * “at a salary of $2,000 per annum,” two of which were to be appointed at the port of New Orleans. They were not to be appointed at the discretion of the Secretary, nor was he to be the judge, even, as to the number to be appointed. The services were to be performed as provided in section 3, “under such regulations as shall be prescribed by the Secretary of the Treasury,” but manifestly that did not clothe him with authority to annul the statute or to provide that the services therein provided for might be performed by some one by assignment or designation, or by some qualified appointment without compensation.
And although the Supervising Inspector-General, in his report to the Secretary of the Treasury, recommended the repeal of the law as set forth in finding 2, and the Secretary so recommended to the Congress, still the law was not repealed until March 1, 1895. (28 Stat. L., 699.)
The Secretary of the Treasury had but two alternatives— either to appoint to office, upon the terms of the statute, if there were duties to be performed, or'to leave the office vacant if there were none.
By the urgent deficiency appropriation act of May 1, 1895 (23 Stat. L., 15, 17), under the head of “Indian Office,” it is provided: * * * “ and hereafter no Department or officer
That language, though seemingly applicable only to the Indian service, is quite broad enough to apply to the heads of the several Executive Departments; but whether so or not, the law but emphasizes the principle that where the law provides for the doing of certain things by means of officers to be ■ appointed, and the compensation is fixed therefor, that becomes the rule by which the appointing power and the officer appointed is to be guided.
The salary attached to a public office belongs to the incumbent not by force of any contract, but because the law attaches it to the office. {Fitzsimmons v. Brooklyn, 102 N. Y., 536.)
Even assuming that the Secretary might have refrained, in the interest of public economy, from exercising his authority of appointment under the act, notwithstanding the seeming-mandatory provision of the statute, still he did not do that; and it is clear' from his letter that he intended to clothe the claimant with authority to perform the duties of the office. The only way he could do that was in the manner set forth in the statute, and in his letter he cites the act — authority—■ under which he appointed the claimant, and advised him that the appointment would take effect from the date of oath.
The claimant would not have been permitted, after assuming the duties of the office, to have disputed the validity of his appointment as a justification or defense in a criminal prosecution.
It is plain, therefore, that the Secretary intended to, and did, appoint the claimant as special inspector of foreign steam vessels, which appointment took effect from the date of subscribing the oath.
The defendants contend, however, that because the claimant did not give the bond provided for in section 4 of the act under which he was appointed that therefore his tenure was that of a defacto and not a dejure officer, and for that reason he had no legal title to the salary of the office. Some authorities are cited in support of the contention stated, among
In the Williams case the claimant was appointed minister resident and consul-general of the United States to Hayti, and his commission therefor was signed and was in the hands of the State Department, where the claimant had taken the oath of office, but by the provision of the Revised Statutes, section 1697, he was inhibited from receiving his commission or entering upon the discharge of the duties of his office until he had given a bond, and hence by his failure to give such bond he was not entitled to his commission, and the court held that he was not therefore entitled to the emoluments of the office.
The defendants also cite the case of the United States v. Delaney (164 U.S. R., 282), affirming the decision of this court (31 C. Cls. R., 44). But the only question in that case was as to whether the register and receiver of a newly created land-office was entitled to compensation from the time he was engaged, under the verbal direction of the Commissioner of the General Land Office, in the necessary preliminary preparation for opening the office for public business, or from the date of such opening only; and the court held that having previously qualified by taking the oath of office and giving bond, he was entitled to be paid during the period of such preliminary preparations.
In the case of the United States v. Eaton (169 U. S. R., 331), affirming the decision of this court (31 C. Cls. R., 158), it was ruled, among other things, that the claimant, who had been appointed vice consul-general by the minister resident and counsul-general at Siam, to perform the duties of the latter during his absence, was entitled to compensation during the time he performed such duties, though no bond was given and approved until thereafter.
In that same case the court, at page 346, in speaking of the contention of the Government that under Revised Statutes, section 1698, it was error to allow the claimant compensation before his bond was approved, the court said:
“It is settled that statutory provisions of the character of those referred to are directory and not mandatory.”
And so in the case of United States v. Linn (15 Pet., 290, 313), wherein the statute required the claimant, as receiver of public moneys, to execute a bond before entering upon the duties of the office, the court held that “these emoluments were the consideration allowed him for the execution of the duties of the office, and his appointment and commission entitled him to receive this compensation whether he gave any security or not; ” and furthermore, in referring to the case of United States v. Bradley (supra), the court said: “According to this doctrine, which is undoubtedly sound, Linn was a receiver de jtire as well as de facto when the instrument in question was made.”
In the case of the United States v. Flanders (112 U. S. R., 88) a collector of internal revenue was required, before entering upon the duties of his office, to give bond, and before being entitled to the salary was also required to take the oath of office, both of which he failed to do for two months, but in the meantime performed the duties of the office. The court in relation thereto held in substance that while his title to receive the compensation did not arise until he.had taken the oath, still when he did so he was entitled thereto from the date he commenced to perform the duties of the office.
In the present case section 4 of the act under which the claimant was appointed provides—
“That each special inspector of foreign steam vessels shall execute a proper bond, to be approved by the Secretary of the Treasury, in such form and upon such conditions as the Secretary may prescribe, for the faithful performance of the duties of his office.”
Therefore when the Secretary, in pursuance of the act referred to, in his letter said “you are hereby appointed to serve in connection with your appointment as local inspector of hulls of steam vessels as a special inspector of foreign steam vessels, without additional compensation, for the port of New Orleans, La., the appointment to take effect from date of oath,” he thereby appointed the claimant to the office, and upon taking the oath prescribed by law, as he did, he became fuliy invested therewith as an officer de jure, though no bond was required or given, and consequently he was entitled to the emoluments thereof unless his acceptance of the appointment without protest and without making any demand for such compensation during his continuance in office operates as a waiver or an estoppel.
It is undoubtedly settled law that where an office is created and the salary fixed by law that “the appointing power has no control beyond the limits of the statutes over the compensation, either to increase or diminish it.” Adams’s Case (20 C. Cls. R., 115, ill), and many other cases there cited to the same effect.
The vital question is, Does the doctrine of waiver or estoppel apply in cases of this kind ?
The claimant by accepting the office and performing the duties thereof without protest and without making any demand for compensation during his continuance in office may in fact have led the Secretary to believe that the conditions he sought to impose in his letter of appointment had been accepted by him.
But manifestly the Secretary of the Treasury had no right to impose such conditions, and in doing so he exceeded his authority, even though he acted from motives of public economy. Hence the claimant’s silence must be considered only in reference to the conditions sought to be imposed by
When the Congress have enacted a law providing for the doing of certain things by means of officers to be appointed therefor at fixed salaries, that becomes the only rule by which such services are to be performed. The question of public economy in respect thereof has been settled by the law, and by that the officer who performs such service is entitled to have his rights measured.
The statute under which the claimant was appointed fixed the salary of his office at $2,000 per anmim, and that he was entitled to, notwithstanding the salary he received as local inspector, as the two offices were not incompatible and they were distinct, each having its own duties and compensation defined by statute. (United States v. Saunders, 120 U. S. R., 126, 129.) Hence the defendants could not have been misled to their injury by the claimant’s silence in respect of the compensation to which he was entitled by law, and over which the appointing power had no control. (United States v. McLean, 95 U. S. R., 750.)
In the interest of the public service.the weight of authority undoudtedly is against the validity of waiving and, perhaps, of pledging official compensation to accrue for services to be rendered, or to satisfy the same by a less amount even though a receipt be given therefor in full. {Fisher’s Case, 15 C. Cls. R., 323.)
If that be true, can it be held that the claimant by his silence waived his right to that which was due him by law, and about which no one had any authority to deprive him of, even by contract? He accepted the office and qualified by taking the oath. He performed the service and the defendants received the benefits thereof.
In the case of Railroad Company v. Dulois (12 Wall., 47, 64) it yas said “ no principle is better settled than that a party is not estopped by his silence, unless it has misled another to his hurt.”
In the Alvord Case (8 C. Cls. R., 364, 369) the authorities
The defendants can not be said to have been misled to their injury by reason of the failure of the claimant to say that he would not accept the office and perform the duties thereof without additional compensation, for the law under which he was appointed, and under which the Secretary acted, also fixed the compensation, and that the claimant was bound to know could not be increased or diminished by the appointing power.
The Secretary having no authority to increase or diminish the salary, he of course had none to take it away altogether, and, therefore, when he appointed the claimant as special inspector to serve without compensation he exceeded his authority, and the claimant was not bound to speak, especially when by declining to serve without compensation his resignation of the office of local inspector might have been called for and the compensation of that office lost to him. In this respect the Secretary and the claimant were not on equal terms. (Swift Company United States, 111 U. S. R., 22, 28; Robertson v. Frank Bros. Co., 132 U. S., 17, 23.)
The Secretary’s letter of appointment should not be construed as an order assigning to duty a man who was not an inspector in law or in fact to examine the vessels of private owners and subject them to the uvisitation” and penalties prescribed by the Revised Statutes, sections 4407,4418, 4421, 4423, and 4424.
The claimant grounds his right to recover on the statute, a law of the Congress, and our duty is simply to give effect to that statute by the application of the facts, and this we have endeavored to do, and in our view of the case the claimant should recover.
