#### JAMES A. RING v. THE UNITED STATES.

[No. 29527.

Decided March 29, 1909.]

*On the Proofs.*

A pay director in the Navy on assuming duty as general storekeeper in a navy-yard finds a man employed in the storekeeper's quarters who has been detailed to look out for the quarters of officers. The practice of having laborers detailed to look out for the quarters of officers is a common one. Five-sixths of the man’s time is given to the officer in such services as cleaning sidewalks and windows, watering plants, removing snow from the walks, etc. One-sixth of the time he is employed in services for the Government.

I.Where a man is carried on the rolls and paid as a laborer in the storehouse of a navy-yard, he can not be detailed to render personal service to an officer in cleaning sidewalks, watering plants, etc., although the house within the navy-yard is the officer’s quarters.

II.A custom in navy-yards does not have the force of law and does not authorize the diversion of a public laborer from public service to the personal service of an officer, though the service be rendered within the navy-yard.

III.Where an officer has received such service, which the Navy Department disapproves of, the accounting officers may deduct its value from the officer’s pay or require him to pay the money into the Treasury.

*516
      *The Reporters’*statement of the case:

The following are the facts as found in the case:

I. The claimant, James A. Ring, entered the naval service as an assistant paymaster on January 24, 1870, and since that date has served continuously as an officer in the Pay Corps of the navy, reaching on December 10,1902, the grade of pay director with the rank of captain, which rank he held during the period covered by the claim upon which this suit is based. Between June 1, 1903, and August 31, 1905, he was on duty as general storekeeper at the navy-yard, Boston, Mass.

II. When the claimant entered on duty at said Boston Navy-Yard as general storekeeper he found among others a laborer employed there by the name of Martin Gallagher, who was in receipt of wages as an employee in and about the storehouse in said yard. Said Gallagher during the period of the claimant’s service performed no. duty at the storehouse except he frequently carried packages of government property delivered at the quarters of the claimant after office hours to the receiving clerk at the storehouse the following morning. He acted as caretaker of a house in said navy-yard, the property of the United States, assigned to the claimant as his official quarters. He was employed in the summer in cleaning the sidewalks, watering plants, cleaning-windows on the outside, and sprinkling the lavrn, and in the winter in removing snow from the walks. He also brought into said house the -wood and coal supplied to the claimant as his government allowance. He had supervision of the plumbing in said building and in general had charge of said building and the grounds and yard in connection therewith, under the direction and control of the claimant, the same as though he had been under his personal employ.

III. For the services so rendered from June 1, 1903, to August 31, 1905, during the time of the claimant’s said service as general storekeeper, said Gallagher was paid by the paymaster of the navy-yard on a pay roll certified to by the claimant the sum of $1,310.36. Shortly after the close of the term of the claimant’s service as such general storekeeper a court of inquiry was held for the purpose of inquiring into the administration of the office of general storekeeper at the *517Boston Navy-Yard during the time of the claimant’s said service; and said board found, among other things, *“*that in the matter of Martin Gallagher, a laborer employed at the general storekeeper’s quarters, Pay Director Ring found this man so employed on his reporting for duty and made no change, as the practice of having laborers detailed to look out for the quarters of officers is a common one.” The department disapproved the concluding clause of this finding, i. e., that “ the practice of having laborers detailed to look out for the quarters of officers is a common one.” With the sanction of the Comptroller of the Treasury the claimant was required to pay into the Treasury five-sixths of the amount of wages which had been paid to said Gallagher during his said term as general storekeeper at the Boston Navy-Yard, to wit, $1,091.97, which he did under protest, stating that he should make every effort to recover the amount. The claimant was relieved from paying the residue of said sum of $1,310.36 into the Treasury because the accounting officers, after some investigation, found that said Gallagher was employed in behalf of the United States one-sixth of the time during said period, said residue amounting to $218.39.

*ilIt. George A. King*for the claimant. *Messrs. Geo. A.*c6 TFro. *B. King*were on the brief.

*Mr. Frederick De O. Faust*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

Per Ctjeiam :

While the claimant, as pay director, with the rank of captain in the United States Navy, was on duty as general storekeeper at the navy-yard, Boston, there was carried on the rolls, as employed at the storehouse and paid by the paymaster of the yard on rolls certified by the claimant, among others, a laborer by the name of Martin Gallagher. Said Gallagher, however, had performed no service in said storehouse except to carry packages of government property, delivered to the claimant after office hours, to the storehouse the next morning.

*518. Said Gallagher, though carried on the rolls and paid as a laborer at the storehouse, was the caretaker of the dwelling, property of the United States, in which the claimant resided. The services performed by said Gallagher were personal to the claimant in this, that he cleaned the sidewalks, watered plants, cleaned windows, sjminkled the lawns, removed snow from the walks, carried into the house for the claimant’s use his wood and coal, and, in general, had charge of said dwelling and yard and grounds in connection therewith under the control and direction of the claimant the same as though he had been in his personal employ.

The claimant seeks to justify the payment of said Gallagher, as a laborer on the rolls of the storehouse, on the ground that it was the common practice or custom at navy-yards for laborers in the employ of the Government to be “ detailed to look out for the. quarters of officers.” Such practice or custom, however, does not have the sanction or approval of the Navy Department, and for the reason that there is no law authorizing it. Therefore such custom, if prevailing at the navy-yards, would not have the force of law, especially where the service of one lawfully employed is diverted, as in the present case, to the personal service of the officer.

But if we should assume that Gallagher knew his services in caring for the house and grounds were personal to the claimant and not for the Government, still as the claimant and not the Government received the benefit of such service he should pay for it, especially as the payment by the Government was made through his fault. It was doubtless for this reason that the Navy Department and the accounting officers both decided that the claimant should reimburse the Government for the money so paid out. True, the money was paid into the Treasury by the claimant under protest, but with knowledge that he and not the Government had received, to that extent, the benefit of Gallagher’s service. Wo are therefore not inclined to disturb the action of the accounting officers in their settlement of the matter.

Petition dismissed.