52 Ct. Cl. 32 | Ct. Cl. | 1917
reviewing the facts found to be established, delivered the opinion of the court:
This is an action by a paymaster’s clerk for mileage.
The plaintiff was appointed paymaster’s clerk on August 9, 1913, by the Secretary of the Navy, whose order, addressed to plaintiff at Vallejo, Cal., was as follows:
“ 1. Having been nominated by Paymaster David Potter for duty as paymaster’s clerk on board the Minnesota, you are authorized to report to the commandant, navy yard, Mare Island, Cal., for the necessary physical examination as required by Article 3318, U. S. Navy Regulations, 1913.
“2. If found qualified, the examining officer will endorse such fact upon this order; you will execute the enclosed acceptance, oath of office, and beneficiary slip; and will proceed at your own expense to Newport, R. I., reporting to the commanding officer of the Minnesota for the above-mentioned duty.
“3. Upon the completion of the examination forward to the Bureau of Navigation a true copy of this order with all endorsements, together with your acceptance, oath of office, and beneficiary slip.”
There was sent to plaintiff on said date by the Acting Secretary of the Navy a telegram, as follows:
“ Nomination by Paymaster Potter, duty Minnesota. Authorized report Mare Island, Cal., necessary physical examination. If qualified, authorized proceed at own expense to Newport, R. I., and report Minnesota as paymaster’s clerk.”
Plaintiff reported to the commandant of the Mare Island Navy Yard and was found qualified by the board of medical examiners on August 11,1913, and on that day accepted the appointment and executed the oath of office. On the 13th day of August, 1913, he left Vallejo for Newport and duly reported for service. There was a few days’ delay in getting aboard
The expense of his travel to Newport at 8 cents per mile amounts to $266.48. The question is whether plaintiff is entitled to recover said expense of travel.
The act of June 24, 1910, 36 Stats., 606, reads as follows:
“ All paymaster’s clerks shall, while holding appointment in accordance with law, receive the same pay and allowances and have the same rights of retirement as warrant officers of like length of service in the Navy.”
The act of March 3, 1901, 31 Stats., 1029, provides:
“That in lieu of traveling expenses and' all allowances whatsoever connected therewith, including transportation .of baggage, officers of the Navy traveling from point to point within the United States under orders shall hereafter receive mileage at the rate of eight cents per mile, distance to be computed by the shortest usually traveled route.”
The plaintiff’s said claim for mileage and for two days’ pay from August 11. to August 13, designated as “ waiting-orders pay,” was presented to the Auditor for the Navy Department, who allowed the “ waiting-orders pay ” for two days and disallowed the mileage, and the auditor’s decision was upon appeal to the comptroller affirmed.
It was thus in effect held that plaintiff was “ holding appointment in accordance with law ” within the meaning of said act of 1910 on August 11, 1913, and we think that conclusion can not be questioned under the facts. He was allowed his salary from the date of execution of his oath of office.
It is unnecessary to enter upon a discussion as to whether plaintiff was an officer in the Navy or an officer of the United States. The fact is he was appointed by the head of a department under lawful authority. But in our view the rights of a duly appointed paymaster’s clerk under said act of 1910 are not dependent upon the character of his position. That act prescribes what the pay and allowances and certain other privileges or emoluments of paymasters’ clerks shall be. If an act provided that clerks in the office of the Auditor for the War Department should receive the same pay and allowances as warrant officers in the Navy,
The Government insists that the telegram mentioned notified plaintiff of his appointment and “ authorized ” him to proceed at his own expense to Newport and that the order of the Secretary of the Navy also notified him that he should proceed at his own expense to Newport, and that therefore his appointment was conditioned upon his reporting at Newport at his own expense. In other words, the argument for the Government is that the plaintiff was appointed paymaster’s clerk upon condition that he would travel to his post of duty without expense to the Government, and that when he accepted the position he did so with said condition attached, and hence that he can not afterwards claim the statutory mileage.
It may be admitted for argument’s sake that if we look to the telegram alone there might be room for contention that it did not authorize plaintiff to “ execute the inclosed acceptance, oath of office, and beneficiary slip ” referred to in the Secretary’s order, but merely authorized him to report at Mare Island for physical examination and if found qualified merely “authorized” him to proceed at his own expense to Newport, where presumably he would take the oath of office. But, as has been said, the auditing department has found that there was ample authority for his
There can be but one answer to the question under the decisions. The right of an officer of the Navy, and that includes a paymaster’s clerk, to the emoluments and allowances pertaining to his office and prescribed by the statute is fixed, and the appointing power can not attach conditions to the appointment which have the effect of depriving the officer of what the law authorizes him to receive. The Secretary would have had no more right to require the plaintiff to waive his statutory travel pay than he would have had to require a waiver of part of his salary as a condition precedent to his acceptance or enjoyment of his office.
In Glavey's case, 182 U. S., 595, the Supreme Court refused to uphold a stipulation whereby Glavey, who was local inspector, had agreed to exercise the functions <3f special inspector “without additional compensation.” The stipulation was declared to be invalid, against public policy, and one that imposed no legal obligation upon the appointee. It was declared by the court that “it was not competent for the Secretary of the Treasury, having the power of appointment, to defeat that purpose by what was, in effect, a bargain or agreement between him and his appointee that the latter should not demand the compensation fixed by statute.” The court quoted with approval the language of Judge Lacombe in Miller’s case, 103 Fed., 413, 415, where he said: “Any bargain whereby in advance of his appointment to an office with a salary fixed by legislative authority the appointee attempts to agree with the individual making the appointment that he will waive all salary or accept something less than the statutory sum is contrary to public policy and should not be tolerated by the courts. * * * And if public policy prohibit such a bargain in advance, it would seem that a court should be astute not to give effect to such illegal contract by indirection, as by spelling out a waiver or estoppel.” The Glavey case was reviewed and followed in Andrews case, 240 U. S., 90; 49 C. Cls., 391.
It is plain that the contention can not be maintained that the plaintiff by accepting his appointment waived the statutory allowance prescribed by the act of March 3, 1901, or that he estopped himself to claim the mileage authorized by
It follows that plaintiff is entitled to the two days’ “ waiting-orders pay ” allowed him by the auditor and to his mileage allowance, amounting in the aggregate to $274.81. And it is so ordered.