41 Ct. Cl. 61 | Ct. Cl. | 1906
delivered the opinion of the court:
By an act making appropriations for the support of the Army for the fiscal year ending June 30, 1898, approved March 2, 1897 (29 Stat. L., 609), an appropriation was made for a gross sum for the transportation of the Army and its supplies. Among the items included in the appropriation was an amount for “ the expenses of sailing public transports on the various rivers, the Gulf of Mexico, and the Atlantic and Pacific oceans.” Subsequent annual appropriation acts for the support of the Army contained similar
He performed the duties pertaining to his appointment until March 4, 1901, when he was suspended from duty, Avithout pay, ’on the order of a quartermaster, for alleged dereliction of duty Avhile in charge of the steamer General Thayer. Given three days in which to submit written defense, the charges were investigated by the Secretary of War, aaúlo, on May 23, 1901, decided that the charges Avere not sustained, and directed that plaintiff be notified that he would be restored to duty when his services Avere required, but that in the meantime he Avould be considered as being on furlough, Avithout pay, from March 4, 1901, to the date of his suspension from duty under the charges of the quartermaster. Another person Avas within a few days after this order appointed temporary pilot and assigned to the same duty theretofore performed by plaintiff.
After the charges against plaintiff had been investigated and disposed of the Quartermaster-General on June 7, 1901, informed plaintiff that Avhen his services Avere required on any of the Government vessels he would be notified, but that in the meantime he would be considered on furlough Avithout pay from the day he ceased to perform duty under the original order of suspension. The Secretary of War presumably instructed this order of the Quartermaster-General, for Avhen plaintiff claimed his pay the Secretary under date of August 3, 1901, refused the same, stating that quite apart from the question of discharge from the serAÚce upon charges the Department had the right to furlough Avithout pay any of.its employees. Subsequent to this (March 6, 1902) the Civil SerAÚce Commission undertook to indicate the practice
The action'is for salary from the 2)eriod of suspension to the time of the reassignment to duty.
It is unnecssary to stop to consider the formalities of plaintiff’s entry into the public service to determine whether tuider section 3744, Devised Statutes, known as the act of 1882, plaintiff should have signed a formal written contract of service. That question is not in this case probably for more reasons than one. It is enough to say on this point that the Government could not accept the original service shown ivithout objection and then deprive plaintiff of his time by refusing to him his pay. Liability to pay arose as upon an implied contract when the defendants took plaintiff into their employment, and this liability continued until proper authority discontinued his services. In Clark v. United States (95 U. S., 539) the court held that recovery as for a Y/uavtvvh meruit would follotv, although there be no count in the petition as upon an implied contract. Here the contract of service for a time Avas executed and there ivas readiness to perform on one side, and under the authority cited plaintiff is. entitled to recover regardless of the form and manner of his entry into the service, if he has 'otherwise made out his case. ^
In United States v. Murray (100 U. S. R., 536) it was held by the Supreme Court that there was nothing to prevent the Secretary of the Treasury from putting an employee on furlough without pay at any time where the exigencies of the service required it; that if an employee might be dismissed absolutely it was difficult to see why such employee might not be furloughed without pay, that being in effect a partial dismissal. Applying this rule as if no exigencies of the service required action (a rule based upon the theory that the Government does not contract to keep its employees in the service) because of the right of the appointing power to dismiss at discretion, with no general supervising power in the courts to review the exercise of executive authority as declared in Keim v. United States (33 C. Cls. R., 174; 177 U. S. R., 290), it must be held that the plaintiff can not recover from the time the Secretary of War furloughed without pay to the time the employee was restored to duty. But the order of the Secretary of War was not retroactive. It did not affect plaintiff’s right to recover during the period of his suspension on the order of a mere subordinate. The army quartermaster could neither dismiss from the service nor suspend without compensation for alleged dereliction of duty.
In Lellmann's case (37 C. Cls. R., 135) we have said: “ It is not necessary to cite authorities to establish the proposition that where a person is unjustly suspended in the exercise of official duty, and the power having jurisdiction of him as an employee annuls such suspension, that the party is entitled to whatever emoluments there might be clue him during the time of such suspension.” The acquittal of this plaintiff to all intents and purposes annulled the suspension
. The injustice of permitting every employee to be so controlled by some other employee or official higher up in the scale of public employment is too apparent to need discussion.
Judgment will be entered for plaintiff in the sum of $266.67, being for the time covered from the date of plaintiff’s suspension from duty by the order of the quartermaster, March 4, 1901, to the time the Secretary of War took action in the premises, May 23, 1901, directing furlough Avithout pay, as that order is made by the court to relate to future pay-