#### PETER C. HAINS v. THE UNITED STATES.

[No. 27441.

Decided May 11, 1908.]

*On the Proofs.*

The President is authorized by the act 3d March, 1899, “ *to employ any of the engineers of the United States Army at his dis*cretion,” and other persons, to investigate the Panama Canal route. The Secretary of State informs the claimant, an officer in the Army, that he has been “ *appointed*” one of the Isthmian Canal Commission provided for in the act, with compensation fixed at $1,000 per month, etc. Subsequently he is again employed by the President to visit the Isthmus “ *to ascertain the present condition of the worJc on the canal.”*The claim before the court relates to the period of this employment.

I.The *Act Sd March, 1899*(30 Stat. L., pp. 1121, 1150), empowered the President “ *to employ*” engineers of the Army and engineers in civil life, and other persons, *to*investigate the practicable routes for a canal across the Isthmus of Panama. The act did not thereby create an office. The members of the Isthmian Canal Commission appointed by the President under the act, though “ *appointed ”*and styled members of a commission, were not officers.

II.The letter of the Secretary of State informing the claimant that the President had appointed him a member of the commission was simply a method adopted to inform him that he with others was employed by the President to investigate a practicable route for the canal.

III. An employment by the President to visit the Isthmus to ascertain the present condition of the work covers time occupied in the preparation for the trip and for assisting in the preparation of the report to the President, and entitles an army officer to the compensation provided for such employment.

IV. But such employment ended when the work of the officer was done. It did not continue until he was informed that the work was completed and the commission was dissolved.

*451*The Reporters'*statement of the case:

The following are the facts of the case as found by the court:

I. The claimant herein, Peter C. Hains, while a colonel in the Corps of Engineers, United States Army, received on June 10,1899, a letter, of which the following is a copy:

“ Department oe State,

“ 'Washington, *June 10,1899.*

“ Colonel Peter C. Hains, U. S. A.,

*’‘'‘Member of the Interoceanic Canal Commission*“ *appointed under sections 3 and Ip of the act*“ *of Congress approved March*3, *1899.*

“ Sir : The Congress of the United States passed at its recent session, and the President, on the third of March, 1899, approved, ‘An act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes,’ the 3rd, 4th, and 6th sections of which read as follows:

“ ‘ Sec. 3. That the President of the United States of America be, and he is hereby, authorized and empowered to make full and complete investigation of the Isthmus of Panama with a view to the construction of a canal by the United States across the same to connect the Atlantic and Pacific oceans; that the President 'is authorized to make investigations of any and all practicable routes for a canal across said Isthmus of Panama, and particularly to investigate the two routes known, respectively, as the Nicaragua route and the Panama route, with a view to determining the most practicable and feasible route for such canal, together with the proximate and probable cost of constructing a canal at each of two or more said routes. And the President is further authorized to investigate and ascertain what rights, privileges, and franchises, if any, may be held and owned by any ■ corporations, associations, or individuals, and what work, , if any, has been done by such corporations, associations, or individuals in the construction of a canal at either or any of said routes, and particularly at the so-called Nicaraguan and Panama routes, respectively; and likewise to ascertain the cost of purchasing all of the rights, privileges, and franchises held and owned by such corporations, associations, and individuals in any and all of such routes, particularly the said Nicaraguan route and the said Panama route; and likewise to ascertain the probable or proximate cost of construc-ing a suitable harbor at each of the termini of said canal, with the probable annual cost of maintenance of said harbors, respectively. And generally the President is authorized to *452make such full and complete investigation as to determine the most feasible and practicable route across said Isthmus for a canal, together with the cost of constructing the same and placing the same under the control, management, and ownership of the United States.

“ ‘ Sec. 4. To enable the President to make the investigations and ascertainments herein provided for, he is hereby authorized to employ in said service any of the engineers of the United States Army at his discretion, and likewise to employ any engineers in civil life at his discretion, and any other persons necessary to make such investigation, and to fix the compensation of any and all such engineers and other persons.

“ £ Sec. 6. That the President is hereby requested to report to Congress the results of such investigations, together with his recommendations in the premises.’

“ The President, in pursuance of the provisions of this act, has appointed you one of the members of the Isthmian Canal Commission provided for in it. You will be guided in the execution of the trust thus confided in you by the provisions of the act of Congress which I have quoted above, and your eminence in your profession is a sufficient guarantee of the energy and ability which the President is sure you will bring to the accomplishment of this task. At the same time your duties will not be limited by the terms of this act, but if any line of inquiry should suggest itself to you in the course of your work as being of interest or'benefit, I am confident you will not fail to give it whatever attention it may seem to deserve. The President trusts that the commission will fulfill the important duties confided to them in such a manner that when their report is prepared it will embrace all the elements required for his own guidance and for the final action of Congress upon the subject of the location and construction of the interoceanic canal.

“ I am, sir, with great respect, your obedient servant,

“ John Hay.”

Thereafter the following instructions were issued to the members of said commission:

“ Department oe State,

“ *Washington, June 21,1899.*

“ Pear-Admiral John G. Walker, U. S. N., *President, li*Honorable Samuel Pasco,

“ Alered Noble, C. E.,

“ Mr. George S. Morrison,

“ Colonel Peter C. Hains, U. S. A.,

“ Mr. William H. Burr,

“ Lieutenant-Colonel Oswald H. Ernst, U. S. A.,

*453“Lewis M. Haupt, C. E.,

“ Professor Emoey R. Johnson,

*“Members Isthmian Canal Commission.*

“ Gentlemen : Pursuant to that portion of the ‘ act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes,’ approved March 3,1899, authorizing and empowering the President of the United States to make full and complete investigation of the Isthmus of Panama with a view to constructing a canal by the United States across the same to connect the Atlantic and Pacific oceans, you have been appointed by the President members of a commission for the purpose of making the investigations called for in the act above referred to, and it is incumbent upon me as Secretary of State to communicate to you the following instructions, which have been approved by the' President, for the guidance of the commission.

“ The commission is authorized to make such journeys and to do such work as may be necessary to carry into effect the instructions contained in the act. To facilitate its work, the commission is authorized to purchase in open markets such materials, including instruments, field outfit, supplies, etc., as in its judgment are necessary, and to employ such skilled and other assistance as it may deem essential, and to pay such rates of compensation as may be deemed proper.

“ The approval of the president of the commission shall be final authority for all expenditures.

“An itemized account of all disbursements, with proper vouchers, will be submitted through the Department of State for audit.

“ The commission is authorized to rent such rooms for office purposes as it may from time to time find necessary for the efficient conduct of its work.

“By direction of the President, the compensation of the members of the commission is fixed at one thousand ($1,000) dollars per month and the usual traveling expenses as now authorized by law; if, however, their work shall be completed in less than ten months they shall receive ten thousand dollars each as compensation for the period of their employment. During the time the commission is actually employed in its work outside of the United States the department will allow each member thereof, in addition to his actual and necessary traveling expenses, the sum of five dollars per day to defray his personal expenses while actually engaged in the work of the commission; this to be an absolute per diem allowance. All vouchers and certificates must bear the approval of the president of the commission.

*454“ Upon the completion of the necessary investigations you will render a full and complete report to the President.

“ I am, gentlemen, your obedient servant,

“(Signed) John Hat.”

The compensation of $1,000 a month fixed by said last-mentioned letter was in practice treated as subject to a deduction of pay received as an officer of the army, and only the difference between the rate of compensation of $1,000 a month and the pay received by claimant as an officer of the army is claimed in this case.

II. The following letter was addressed to claimant:

“ Department oe State,

“Isthmian Canal Commission,

“ Boom 79, Cokcokan Building,

“ Washington, *D. G., August 29th, 1901.*“General Petek C. Hains, U. S. A.,

“ *812 St. Paul st.,*Baltimore, *Md.*

“ Sik: On July 10th I received the following instructions from the Secretary of State:

“ ‘ When the report of the Isthmian Canal Commission shall have been practically completed, you are authorized to place the members of the commission on furlough, without pay, until they are called together by the president of the commission, should such meeting be thought necessary or advisable at a later date.’

“ Complying with the above, I have to inform you that you will be furloughed as a member of this commission, without pay, from the 31st inst.

“ Very respectfully,

“(Signed) John G. Walhek,

*“President of*Commission.”

From the date of said letter until November 12, 1901, claimant received no compensation as a member of the canal commission.

On November 12, 1901, the commission was called together and claimant received compensation as a member thereof until November 18, 1901, when he was again placed on furlough, without pay, and thereafter he received no compensation as a member of the commission until January 16, 1902. On said last-named date the commission was called together and claimant received compensation as a member thereof until January 18, 1902, when he was again placed on furlough, without pay, by the president of said commission, and *455since January 18, 1902, claimant has received no pay as a member of said commission, except as hereinafter stated.

III. The President issued the following order on the date thereof, sending an original thereof to each of the persons to whom the same was addressed:

“ White House,

“ 'Washington, *March*26, *1903.*

“ Rear-Admiral John G. Walker, U. S. N.,

“ *President Isthmian Canal*Commission,

“ Colonel Peter C. Hains,

*“ Corps of*Engineers, *U. 8. A.,*

“Mr. William H. Burr, *Civil*Engineer,

“ *Members of the Isthmian Canal Commission:*

“ I do appoint you to visit the Isthmus of Panama without unnecessary delay to ascertain the present condition of the work on the canal there, to arrange for.its continuance, and to determine the amount of work done, after some date to be agreed upon, for which the French Panama Canal Company shall be reimbursed, with fair and reasonable compensation therefor; in other words, to make the necessary inspections and calculations so as to be able to certify to the correctness of any bills to be paid for work done by the canal company.

“ You are hereby given authority to employ such assistants as may be found necessary.

“ Theodore Roosevelt.

“P. S. — Before going, please consult in full with the Attorney-General as to the kind of work to be done.”

And on the same date the president of the canal eommis-' sion wrote claimant as follows:

[Rear-Admiral John G. Walker, United States Nayy, president; Honorable Samuel Pasco, Alfred Noble, C. E.; Mr. George S. Morison; Colonel Peter C. Hains, Corps of Engineers, united States Army; William H. Burr, C. E.: Lieut. Colonel Oswald H. Ernst, Corps of Engineers, united States Army; Professor Emory R. Johnson.]

“ Department oe State,

“ Isthmian Canal Commission,

“ Room 79, Corcoran Building,

“ Washington, *D. C., March 26,1903.*

“ Colonel P. C. Hains,

“ *U. 8. Engineer’s*Office,

“ *812 8t. Paul*street, Baltimore, *Md.*

“ Mx Dear Hains : Burr, you, and myself are to go to the Isthmus. We shall probably sail April 9th from New York. I have written to Burr, trying to get him over here day after *456to-morrow (Saturday), so that we can have Saturday to talk things over and determine upon what we want to do.

“ I must go to Boston on business before sailing and the best arrangement I can make is to leave here next Sunday at 5.50, reaching Boston Monday morning at 7 o’clock, spend Monday, Tuesday, and Wednesday in Boston, Thursday and half of Friday in New York, coming home by the Congressional Express Friday afternoon. That will give me Saturday, the 4th of April, here and the first part of the following week to get ready for our start south.

“ If I hear from Burr that he can be here Saturday morning, I will telegraph you at once, asking you to be on hand at the same time.

“ Very truly, yours,

“ J. *G.*WALKER.”

At this time the claimant was on duty at Baltimore. He came to Washington, met the other members of the committee and from March 28 to April 9, 1908, he was actually engaged in organizing and arranging for the parties, their outfit, instruments, and supplies to be taken on the trip to the Isthmus.

By Special Orders, No. 74, dated March 30,1903, claimant was relieved by the War Department of the duties in his charge and ordered to take station in Washington, which he did June 1, 1903, for the performance of such duties as might be assigned to him by competent authority.

On the 9th of April, 1903, the claimant, with the other two members of the commission named in the President’s order, sailed from New York for the Isthmus and returned to New York on May 8, 1903. Maj. William M. Black and Second Lieut. Mark Brooke, of the Corps of Engineers, who had been detailed by the War Department for duty under orders of the commission, and two others, accompanied him to the Isthmus and remained there for the purpose of observing and reporting on the work, amount and cost of the work done, and the expenses incurred by the French Canal Company after November 16, 1901.

During claimant’s absence in Panama as aforesaid he was on April 21, 1903, appointed and commissioned a brigadier-general in the army.

IV. Upon the return of said claimant with others from the trip to Panama, May 8, 1903, up to May 22, 1903, and *457thereafter, the claimant at intervals up to as late as February, 1904, reported himself (as required by Army Regulations, paragraphs 895, 896, and 897) to the War Department as on duty under the employment of the President of March 26, 1903. Also from said May 8 to May 22, 1903, said claimant made frequent visits to the office of the Canal Commission, examined reports made by Major Black, who had remained on the Isthmus for further investigation in regard to the work that was being done or had been done by the French Canal Company at Panama; and he took part in the preparation of the report of May 22, 1903, to the President, as follows:

“ [Rear-Admiral John G. Walker, united States Navy, president; Honorable Samuel Pasco; Alfred Noble, C. E.; Mr. George S. Morison; Colonel Peter C. Hains, Corps of Engineers, united States Army; William H. Bui-r, C. E.; Lieut. Colonel Oswald H. Ernst, Corps of Engineers, united States Army; Professor Emory R. Johnson.]

“ Department oe State,

“ Isthmian Canal Commission, •

“Room 79, Corcoran Building,

“ Washington, *D.*0., *May 22, 1903.*

“ The President.

“Sir: In obedience to the directions contained in your letter of March 26th last, we sailed from New York for the Isthmus of Panama on the 9th of April, arriving at Colon on the 16th of that month.

“ We were pleasantly received by the officers of the French Canal Company, who placed their books, records, accounts, etc., at our disposition for examination. Fifteen days were devoted to an inspection of the canal line, particularly of those portions upon which work has been done since the last visit of the commission to the Isthmus, and to an examination of the records, books, and accounts. Correct copies of such of their papers, records, and accounts as were desired were made and furnished to us, enabling us to study the whole matter deliberately and leisurely. There was no appearance of concealment; our questions were promptly answered, records and papers produced at once, and copies of such as were desired freely given us.

“ From the information now in our possession it will be a comparatively simple matter to determine the correctness of bills presented for payment, should it be decided that some compensation, in the nature of reimbursement for expenses incurred, is due the French company upon the taking over of their rights and property by the United States.

*458“ While we bad no authority for closing an arrangement for the continuance of work on the Isthmus after the property passes into the possession of the United States, consultation with the director of works of the company enables us to state that there will be no difficulty in continuing the work and increasing its volume if thought advisable.

“As soon as possible after arriving at Colon a visit of ceremony was made to the governor of the Department of Panama and the reason for the visit of the committee to the Isthmus was fully explained to him, that there should be no misunderstanding as to our presence there.

“ Having completed the duty assigned us in your instructions, we sailed from Colon on our return on the 1st of May, arriving at New York on the 8th.

“ Major Black, of the U. S. Corps of Engineers, with a clerk and two assistants, was left on the Isthmus, with station at Culebra, for the purpose of observing the work now in process of execution and of reporting to the commission from time to time its progress and the expense incurred by the French company.

“ We have the honor to be, with great respect, your obedient servants.

“(Signed) J. O. Walkek,

*“President Isthmian Canal Commission.*

“(Signed) Petek C. Hains,

*“Member Isthmian Canal Commission.*

“(Signed) # Wm. H. Biter,

# *“Member Isthmian Canal Commission.”*

It also appears that between June 1, 1903, and March 10, 1904, the claimant, upon his own motion, made visits at irregular intervals to the office of Admiral Walker, who had been designated as president of the so-called Isthmian Canal Commission, and examined reports made by said Major Black, which reports were generally in technical language of engineering; and at such visits claimant talked over matters pertaining to such reports with the president of the Canal Commission in an informal manner. It does not appear that he was required or asked so to do.

During said period the claimant received his regular pay as an officer of the army and also his pay from April 9 to' May 8, 1903, inclusive, at the rate of $1,000 per month, less his pay so received as an officer of the army.

It does not appear that from May 22, 1903, to March 10, 1904, he claimed to be or reported to Admiral Walker, presi*459dent of said so-called commission, as being on duty under said employment, nor does it appear that the claimant, subsequent to his appointment March 26, 1903, up to March 10, 1904, was assigned to military duty.

On said March 10, 1904, claimant received a communication of which the following is a copy:

“DEPARTMENT OP STATE,

“ Isthmian Canal Commission,

“ Room T9, Corcoran Building,

“ Washington, *D.*(7., *March 10,190*

“Peter C. Hains,

“ Brigadier-General, Z7. *S. A., Stoneleigh*Court, *Washing-,*ton, *D. C.*

“ Sir : By direction of the President, I have to inform you that the work of the Isthmian Canal' Commission (1899-1904) having been completed, the commission is hereby dissolved from this date.

“ Very truly, yours,

“ J. G. Walker,

“ *President of*Commission.”

Y. If claimant is entitled to be paid for his services at $1,000 per month, less the amount received by him as an officer in the army for the period from March 28 to April 8, 1903, there will be due $207.16. And if entitled to be paid from May 9 to May 22, 1903, inclusive, there will be due $224.78.

YI. If claimant is entitled to recover for the period from May 22, 1903, to March 10,1904, there will be due $4,624.

*Mr. George A. King*for the claimant. *Messrs. George A. <& William B. King*were on the brief.

The claimant was appointed a member of the Isthmian Canal Commission at a compensation of $1,000 a month with power on the part of the president of the commission to furlough him when the work of the commission had been practically completed. He was directed by the President of the United States, addressing him officially, as a “member of the Isthmian Canal Commission,” in company with two other members of whom the president of the commission was one, “ to visit the Isthmus of Panama ” and arrange for the continuance of work on the canal, “to determine the amount *460of work done,” “ to make the necessary inspections and calculations so as to be able to certify as to the correctness of any bills to be paid for work done by the canal company.”

He visited the Isthmus, returned therefrom and joined in the report as to the work accomplished, took station in Washington, visited the office of the commission almost daily, examined the reports of the engineers left on the Isthmus, discussed the business of the commission with its president, and reported himself monthly to the War Department as on special duty at the office of the commission in accordance with the order of the President, not only without any intimation from the department that his view of this duty was not correct, but with the same brought to the personal attention of the Chief of Staff of the Army and the Secretary of War, and a decision on their part that the circumstances rendered his assignment to the command of a military department an impropriety on account of his being engaged by direct order of the President upon other duty inconsistent therewith.

The service having been performed and the claimant having been subjected to a disability to perform other service inconsistent therewith, it ill becomes the Government to object to now paying him for the service.

The general requirements of the order of June 21, 1899, for the approval of the president of the commission for all expenditures and that all vouchers and certificates must bear his approval, was a mere administrative provision for the guidance of the accounting officers. It is not nearly as stringent a provision as that made by the act considered by this court and the Supreme Court in *Know*v. *United States*(23 C. Cls., 367; 128 U. S., 230), requiring accounts of court officers to be approved by the circuit or district court as a prerequisite to payment. It was held by both courts that the action of the circuit or district court was merely advisory, and that a suit would lie in this court without the approval of the account by the court.

Such, also, in substance, was the ruling of the Supreme Court in *Medbury*v. *United States*(173 U. S., 492, 497).

- A number of decisions of this court and other courts sustain this claim. In *Knight*v. *United States*(35 C. Cls., *461139) an officer transmitted weekly reports in accordance with department regulations showing the work done by him, and these reports were received and filed without protest or objection and without notice of any kind that the work must cease. It was held that the Government w.as estopped from denying that the services were legally performed, and judgment was given for the claimant.

In *'Whiting*v. *United States*(35 C. Cls., 291) an officer of the Coast and Geodetic Survey was appointed to perform additional duty as a member of the Mississippi River Commission with the compensation “ now allowed by law.” A reduced compensation having afterwards been paid to and received by him, he sued for the difference and it was held that he was entitled to recover.

In *Wertz*v. *United States*(40 C. Cls. 391) a special agent of the Indian Office was informed (p. 399) :

“ By direction of the Secretary you are directed to immediately return to your home at Omaha, Nebr. You will be allowed pay up to and including the day of your arrival, with actual necessary traveling expenses en route exclusive of subsistence. Your pay will cease from and after the date of your arrival at home. Report to this office the date of your arrival.”

After this date he made monthly and quarterly reports as well as weekly reports, and on all such reports placed the memorandum:

“At Omaha, Nebr., under telegraphic orders of July 3 from the Hon. W. A. Jones, Commissioner of Indian Affairs.”

It was held that not having been explicitly informed of removal from office, having made the reports, and the officers to whom the reports were sent having allowed him to believe that he was on duty, he was entitled to be paid.

The present case is much stronger than the *Wertz case*because in that case the claimant had been explicitly informed that his pay would cease from the date of his arrival at his home, and yet, having been allowed to perform duty after that date, he was held entitled to recover, while in the present case the claimant was never informed that he was relieved from duty or that his pay would cease.

*462The *Wertz case*was followed in *Steele*v. *United States*(40 C. Cls., 403) and *Stilling*v. *United States*(41 C. Uls., 61).

All these decisions are in substance approved by the Supreme Court of the United States in *United States*v. *WieJeer-sham*(201 U. S., 390).

*Mr. Malcolm A. Coles*(with whom was *Mr. Assistant Attorney-General John Q.*Thompson) for the defendants:

Although an office is an “ employment,” it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act or perform a service without becoming an officer.

The claim was justly disallowed on the ground that it had been disapproved by the president of the commission and the Secretary of State, and through them by the President, the act of March 3,1899, providing that the money thus appropriated “ be disbursed by order of the President.”

The members of the commission of 1899 were not w officers ” but “ employees.”

The *employment*of March 26, 1903, could not have been under the act of March 3, 1899, which was in effect repealed by the act of June 28, 1902; nor was it as a member of the commission of 1899; nor was it as a member of the commission created under the act of June 28, 1902.

The committee was employed by the instructions of the President dated March 26, 1903, to do certain specified things, and in their report said: “ Having completed the duty assigned us in your instructions, etc.; ” hence, the work having been accomplished, no order was necessary relieving them from duty.

If it is held that General Hains is entitled to pay as a member of said committee until relieved from duty by special order or notice, then he has not yet been relieved, for the order of March 10,1904, formally dissolving the commission of 1899, could not have affected the claimant, because said order was superfluous, and he was not employed as a member of said committee under the act creating the commission of 1899, said act having been in effect repealed before the date of his employment on March 26, 1903.

*463The claimant is only entitled to pay for the time he was-actually employed and that time was fixed at one month and payment made accordingly. He might possibly be entitled to pay from March 26, 1903, to May 22,1903, if the evidence established the fact that he was employed during the whole of that time, but the claim for compensation between March 26, 1903, and April 9, 1903, and between May 8, 1903, and May 22, 1903, is supported merely by the declarations of the claimant, while it is substantially contradicted by the evidence of Admiral Walker, the president of the commission,, who insists that the only time that the claimant was actually on duty was the time for which he was paid, namely, between April 9, 1903, and May 8, 1903.

In addition to what has already been said, it is only necessary to add that the authorities cited in the brief of claimant’s counsel do not relate to a state of facts, as to the nature of the position held or the terms of employment, which furnish any analogy to the facts or the law as to the employment of the claimant in the case at bar; consequently they are not in point, which will be more fully explained at the-oral argument.

Peelle, Ch. J.,

delivered the opinion of the court:

By section 3 of the act of March 3, 1899, making appropriation for the construction, repair, and preservation of certain public work on rivers and harbors (30 Stat. L., 1121, 1150), the President of the United States was given authority to make full and complete investigation of any and all practical routes for a canal across the Isthmus of Panama with a view to the construction of a canal by the United States across the same to connect the Atlantic and Pacific oceans; and to enable him to make the investigation so authorized he was empowered “ to employ in said service any of the engineers of the United States Army at his discretion, and likewise to employ any engineers in civil life, at his discretion, and any other persons necessary to make such investigation, and to fix the compensation of any and all of such engineers and other persons.”

To defray the expenses necessary to be incurred in making the investigation so authorized there was appropriated out *464of any money in tbe Treasury not otherwise appropriated the rsum of $1,000,000, “ to be disbursed by order of the President.”

Under and by virtue of the authority of said act the claimant was, on June 10, 1899, informed by John Hay, Secretary of State, that the President had *appointed*him one of the members of the Isthmian Canal Commission therein provided for, and that he was to be guided in the execution of the trust by the provisions of said act and any line of inquiry which should suggest itself to him in the course of his work as being of interest or benefit.

Later, June 21,1899, the Secretary of State communicated to the claimant the instructions which had been approved by the President for the guidance of those so appointed, and the compensation of the members of said commission was fixed at $1,000 per month, and the usual traveling expenses authorized by law, with a provision that if the work should be completed in less than ten months they should receive each $10,000 as compensation for the period of their employment; and while so employed outside of the United States they were to be allowed in addition to their necessary and actual traveling expenses $5 per day as personal expenses while engaged in the work to which they were assigned. Said instructions also provided that “the approval of the president of the commission shall be final authority for all expenditures.”

The act did not purport to create an office, nor can it be held to have so operated. The President was thereby authorized to *employ*at his discretion engineers from the United States Army or from civil life, and any other person necessary to make such investigation. The employment authorized by the act was for services to be rendered in connection with the investigation to ascertain the most practical and economical route for a canal across the Isthmus of Panama, and hence the basis of pay under the act was for duties performed in connection therewith.

The letter of the Secretary of State advising the claimant that the President had *appointed*him one of the members of the Isthmian Canal Commission was simply the method adopted to inform the claimant that he, with others, had *465been *employed*by the President to make an investigation of the most practical route for a canal across the Isthmus of Panama, and that in such investigation he, with others likewise employed, was to be guided in the execution of the trust by the provisions of said act. The instructions issued by the Secretary of State, and which were approved by the' President, were in conformity with the purpose of the act. The duties performed by the claimant were not as an officer of the army, but as an employee under the act authorizing his employment. Had the duties been performed by him as an officer of the army he would have no claim under the act of March 3, 1899. The authority to employ engineers in the army, as well as engineers from civil life, was to secure competent men. Appointments were authorized from these two classes evidently because Congress considered that men appointed therefrom possessed the requisite qualifications for the investigation so authorized to be made.

Under the act the whole power of employment, as well as the means and method of making the investigation, and the compensation for the service rendered were lodged in the President.

Under said employment the claimant was on duty at different times prior to March 26,1903, for which he was paid, the last of such duties being performed from January 16 to 18, 1902.

The purpose of the act as indicated by Secretary Hay in his letter of employment — set forth in Finding I — was that the claimant and his associates would so fulfill the important duties confided to them that when their report was prepared it would embrace all the elements required for the guidance of the President, as well as for the final action of Congress upon the subject of the location and construction of the inter-oceanic canal.

The investigation thus authorized by the act of March 3, 1899, appears to have been sufficient both for the guidance of the President and the final action of Congress, as, by the act of June 28, 1902 (32 Stat. L., 481), Congress provided “ for the construction of a canal connecting the waters of the Atlantic and Pacific oceans,” and therein, by section, 7, created *466“ the Isthmian Canal Commission,” to be composed of seven members, to be nominated and appointed by the President, by and with the consent of the Senate, to serve until the completion of said canal, unless sooner removed by the President.

It would therefore seem that any further action on the part of the President under the act of March 3, 1899, was at an end, and that any future work in and about the canal was to be under the direction of the commission created by the act of June 28, 1902; but for the purposes of this case it is not necessary to determine whether the latter act repealed or superseded the former, and we will therefore determine the case without reference to that question.

On March 26, 1903, the claimant and two others were employed by the President “ to visit the Isthmus of Panama without unnecessary delay to ascertain the present condition of the work on the canal, * * * to arrange for its continuance, and to determine the amount of work done, after some date to be agreed upon, for which the French Panama Canal Company should be reimbursed with fair and reasonable compensation therefor; in other words, to make the necessary inspection and calculations so as to be able to certify to the correctness of any bills to be paid for work done by the canal company.”

The claim before the court is for the period from the date of his employment, March 26, 1903, to March 10, 1904, less the time occupied in going to and returning from the Isthmus from April 9 to May 8, 1903, both inclusive, for which he was paid.

The claimant contends, and Finding III shows, that from March 28 to April 8,1903 he was actually engaged in organizing and arranging the outfit, instruments, and supplies to be taken to the Isthmus for use in the investigation they were employed to make. Finding IV also shows that after the claimant’s return from the Isthmus May 8, 1903, he assisted in the preparation of the report which was made to the President May 22, 1903.

For the time occupied in the preparation for the trip, as aforesaid, as well as for the time assisting in the preparation of the report to the President, the claimant was denied com*467pensation on the theory that the services under his employment did not begin until he started on the trip to the Isthmus and ended on his return. But the findings show that the claimant was engaged in making preparation for the trip as well as assisting in the preparation of the report to the President, and we think it fairly comes within the purpose of his employment. It was certainly necessary that the result of the trip should be made known, and to that end the report to the President was necessary. Hence we hold that while so engaged the claimant was on duty under his employment and is entitled to be paid therefor at the rate of $1,000 per month, less any sum received by him as an officer of the army.

True, the time consumed both in the preparation for the trip as well as in the preparation of the report seems disproportionate to the time consumed in going to and returning from the Isthmus. But we can not assume that the gentlemen so employed for the important commission acted otherwise than in good faith, nor is there any contention to the contrary.

However, when the report was made and the claimant was not assigned to further duty by the President in connection with the investigation or work on the canal, he was bound to know that he had thereby ceased to be on duty under said employment, especially as in said report it is stated that they had “ completed the duty assigned.” Nor did he thereafter by authority of the President perform any duty whatever in connection with said employment.

The act of March 3,1899, did not create, as the act of June 28, 1902, did, a commission to perform the work, but left it with the President to employ; and the mere designation by the President of those so employed as constituting the Isthmian Canal Commission did not operate to create said commission or to give those so employed any official character, except to acquaint the President with the most practical and economical route for a canal across the Isthmus. The claimant’s employment under the act was for a special purpose; and when he and his associates had made a report to the President the purpose of their employment therewith ended, and hence no compensation can be allowed for any time subsequent to the making of the report to the President.

*468True, on March 10, 1904, the claimant was informed by-direction of the President that the work of the Isthmian Canal Commission had been completed and the commission was dissolved, but the court can not construe that as operating to give the claimant a prior duty status in connection with the canal. Prior thereto the claimant was informed by the Secretary of State, through Admiral Walker, president of the so-called commission, under date of August 29, 1901, that “ when the report of the Isthmian Canal Commission shall have been practically completed ” he was authorized to place the members of said commission on furlough without pay, and thereafter when the report was made to the President on May 22, 1903, it was the duty of said Walker at that time to have furloughed the claimant without pay, but his failure to carry out the instructions of the Secretary of State can not be construed as detrimental to the United States, and of this the claimant was bound to take notice and be governed accordingly.

The claimant’s report to the War Department from time to time that he was on duty under the employment of the President in connection with the Canal Commission was simply in conformity with the regulations of the War Department, and treating the so-called commission as continuing until dissolved March 10, 1904, no duties were performed by the claimant, and without the performance of some service compensation can'not be awarded under the act. Therefore the claimant is not entitled to recover for the time between the making of the report to the President and March 10. 1904.

The distinction between this and the cases cited by the claimant, in support of his contention that the claimant is entitled to compensation while waiting assignment to duty, is that here the claimant was not an officer under the act, and could not have been, as the act did not create an ofB.ce, while the cases cited by the claimant are applicable only to officers. Those cases can have no application here if we are correct in our view that the claimant, under the act of his employment, was - not an officer. If we were to accept the claimant’s view that the claimant was an officer of the army in the performance of the duties and for the period of time *469for which he claims pay, when no duties were performed, then as such officer has he not been paid? But considering him as entitled to compensation under the act authorizing his employment we must hold that such compensation was authorized only for the period of time actually employed. And this was the view of the President in declining to pay the claimant for the period during which he performed no service.

Our conclusion is that the claimant is entitled to recover for the period of service rendered from March 28 to April 8, 1903, and from May 9 to May 22, 1903, as set forth in Finding V, the sum of $431.94, being at the rate of $1,000 per month less the amount received by him as an officer of the Army during the same period, for which judgment is ordered to be entered. For the residue of the claim no allowance can be made.