#### GEORGE W. EVANS v. THE UNITED STATES.

[ No. 29957.

Decided June 10, 1909.]

*On the Proofs.*

The Secretary of the Interior appoints the disbursing officer of that department “ *a special disbursing agent to disburse the .appropriation for the construction of additional buildings in the extension of the Government Hospital for the Insane,’’*and allows “ *the maximum compensation prescribed by the act March 3, 1875, not exceeding three-eighths of one per cent."*The officer is required to give an additional distinct bond and is again required to increase, his bond from $75,000 to $100,000. The appointment of a special agent to malse these disbursements was, in the judgment of the Secretary of *550the Interior, a necessity. The officer was treated by the accounting officers of the Treasury as a special disbursing agent, and his accounts were adjusted under his special . bonds without reference to his bond given as the disbursing clerk of the department.

I.The Revised Statutes, .§§ 1763, 1704, 1705, relating to the additional compensation of public officers have been repeatedly construed both by this and the Supreme Court. The cases reviewed.

II.The duties of the superintendent of the Government Hospital for the Insane are prescribed by the Revised Statutes (§ 4839), and by them it is provided that “ *he ¡shall he the responsible disbursing agent of the institution;*” but those sections refer only to disbursements for the support of administrative expenses of the hospital and not to disbursements for new buildings.

III.Where the disbursing officer of the Interior Department was required of the Secretary to act as “ *special disbursing agent to disburse appropriations for the construction of buildings in the extension of the Government Hospital for the Insane,"*and to give bonds as such special disbursing agent, he is not, under the decision of the Supreme Court in *WoodioelVs Case*(214 17. S. R., 82), entitled to recover the compensation fixed by the Secretary at the time of his appointment.

*The Reporters'1*statement of the case:

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

I. On August *10,1901,*the claimant, who was an employee of the United States and was receiving a salary of $3,000 per annum, while under such employment was appointed a special disbursing agent by the Secretary of the Interior, the appointment being in the following words:

“ DEPARTMENT OE THE INTERIOR,

“ *Washington, August 10, 1901.*

“ Mr. George W. Evans,

“ *Disbursing Officer.*

“ Sir: You are hereby appointed a special disbursing agent to disburse the appropriation of $925,000 authorized and provided by the acts of June 6, 1900, and March 3, 1901 (U. S. Stats., vol. 31, p_p. 619 and 1163) _, for the construction of additional buildings in the extension of the Government Hospital for the Insane.

*551“ For this service you will be allowed the maximum compensation prescribed by the act of March 3, 1875 (U. S. Stats., vol. 18, p. 415, and the Supplement- of the Revised Statutes, vol. 1, second edition, 1874-1891, p. 78), not ex-, ceeding three-eighths of 1 per cent.

“ Very respectfully,

“ Thos. Ryan,

*“Acting*Secretary.”

On January 5, 1903, and May 16, 1904, the two following-supplemental apointments were issued to the claimant

“ DEPARTMENT OE THE INTERIOR,

“ Washington, *January 5,1903.*

Mr. George W. Evans,

“ *Sfecial Disbursing*Agent,

“ *Government Hospital for the Insane.*

“ Sir : Under your original appointment of August 10, 1901, as special disbursing agent of the Government Hospital for the Insane, you are hereby authorized and directed to disburse the appropriations for an office and administration building, $145,000, and for a central heating and lighting-plant for the entire hospital, $260,000, provided in the sundry civil act of June 28, 1902, both sums being additional appropriations to the original amount of $953,000 appropriated in the deficiency act of March 3, 1901, for the extension of the Government Hospital for the Insane.

*“*For this service you -Will be allowed the same rate of compensation, under- the law, as provided in your original appointment. In connection • with this matter you are advised that the Auditor of the Treasury for the Interior Department, under date of the 5th instant, returns the request of the Secretary of the Interior that $50,000 be placed to your credit, with the information that this advance is in excess of the penalty of your bond of $25,000 as said special disbursing agent, and can not therefore be made, as such action would be in violation of Treasury Department Circular No. 126 of July 31, 1900.

“ You are therefore directed to increase your bond $75,000 as said special disbursing agent, making a total bond given by you for this purpose of $100,000, which will probably be the limit hereafter of your monthly disbursement of the appropriations for the extension of the Government Hospital for the Insane.

“ Respectfully,

“Thos. Ryan,

*“Acting*Secretary.”

*552“ DEPARTMENT OE THE INTERIOR,

“ *Washington, May 16, 1901}.;*

“ Mr. George W. Evans,

“ *Special Disbursing Officer,*

“ *Government Hospital for the Insane.*

*“ Sir :*Under your original appointment of August 10, 1901, as a special disbursing officer of the Government Hospital for the Insane, you are hereby authorized and directed to disburse the appropriation ‘ For painting new buildings, $15,000,’ in the act to supply deficiencies, approved April 27, 1904.

“ For this service you will be allowed the same rate of compensation under the law as provided in your original appointment.

“ Very respectfully,

“ E. A. Hitchcock,

“ Secretary.”

II. Claimant accepted these appointments, and qualified by giving bond, with the National Surety Company of New York as surety, in the sum of $25,000, which bond was approved by the Secretary of the Interior on October 19, 1900, and filed in the Treasury Department.

On January 5, 1903, the department required an additional bond, increasing the total bond to $100,000, which was given, with the same surety, and on January 6, 1903, duly approved and filed.

III. Claimant entered upon the duties defined in said appointments and faithfully discharged the same, and as such' special disbursing agent he disbursed during the period from August 10, 1901, to June 30. 1905, the sum of $1,410,761.87.

The commission thereon fixed by said appointments at three-eighths of 1 per cent, if the claimant is entitled to compensation, is the sum of $5,290.36.

IY. Prior to the appointment of claimant as special disbursing agent, as stated in Finding I, the superintendent.of said hospital for the insane had disbursed a part, to wit, $32,312.13 of the moneys appropriated by Congress for the construction of additional buildings in the extension of the Government Hospital for the Insane; and after the appointment of claimant as disbursing agent as aforesaid, the super*553intendent of said institution continued to disburse the funds appropriated for the support and maintenance of the same, as well as the funds for certain minor additions and improvements.

V. At the time of the making of said appointments, and during the time the claimant acted as such special disbursing agent, he held the office of disbursing clerk of the Department of the Interior and received the annual salary of $2,000 provided by law and appropriated for that office, and also acted as disbursing clerk of the Architect of the Capitol, and received an annual compensation of $1,000 provided by law and appropriated therefor.

VI. The appointment of a special agent to make such disbursements was, in the judgment of the Secretary of the Interior, a necessity. Claimant was treated by the accounting officers of the Treasury as a special disbursing agent, and his accounts as such, and all advances made to him, were adjusted under his special bonds and without reference to his bonds as disbursing clerk of the Department of the Interior, but no payments were made to him for such service by the Treasury Department.

*'Messrs. Ralston cii Siddons*and *Mr. William E. Richardson*for the claimants.

*Mr. Philip M. Ashford*(with whom was *Mr. Assistant Attorney -General John Q. Thompson)*for the defendants.

AtKINSON, J.,

delivered the opinion of the court:

Claimant, who was chief of a division and disbursing clerk of the Interior Department, receiving a salary of $2,000. per year, and was also disbursing agent for the Architect of the Capitol, for which he received $1,000 per year, was appointed by the Secretary of the Interior as a special disbursing agent to disburse an appropriation made by the Congress for the enlargement of the Hospital for the Insane, in the District of Columbia, and for such special service he presented a claim against the United States for $5,290.36. Payment was refused by the accounting officers of the Treasury Department for the reason that claimant at the time said special servieé was rendered was holding two offices under the United States, the emoluments of which were greater than *554$2,500 per year, and that such charge for such special services, therefore, was a violation of sections 1763 and 1765 of the Eevised Statutes, because such special service was not provided for by law — i. e., the act under which the appropriation was made did not provide for a special allowance to an agent to disburse said appropriation.

The principal contention of the claimant in this case is that at the time he rendered the services for which he brings this suit he was receiving a salary of $2,000 per annum as disbursing clerk for the Interior Department, and $1,000 per annum for like services to the Architect of the Capitol building, aggregating the sum of $3,000 as an annual salary which he was then receiving from the Government, and although his salary from said two positions aggregated more than $2,500 per year, he was not barred from receiving additional compensation by sections 1763 and 1765, Eevised Statutes, because the two positions held by him are separate and distinct appointments, the salary of each being separately appropriated for by the Congress and attached to each respective office. Consequently, he insists that the $1,000 salary allowed him as disbursing agent for the Architect of the Capitol building was not an increase of or addition to the $2,000 salary he was regularly receiving as disbursing clerk of the Interior Department, but, on the contrary, it was only a distinct salary compensation allowed him for the performance of the duties of a different office, both of which offices the Congress had decided should be held by the same person; and, furthermore, as Congress had legislated with respect to the office and not to the individual, a single individual might properly be appointed to and hold any number of offices regardless of the aggregate salary he receives, provided that no one of the salaries amounts to $2,500 per year.

Additional and double compensation to employees of the Government are prohibited by the following provisions of the Eevised Statutes:

> “ Sec. 1763. No person who holds an office, the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars, shall receive compensation for discharging the duties of any other office, unless expressly authorized by law.”

> *555“ Sec. 1764. No allowance or compensation shall be made to any officer or clerk by reason of the discharge of duties which belong to any other officer or clerk in the same or any other department; and no allowance or compensation shall be made for any extra services whatever, which any officer or clerk may be required to perform, unless expressly authorized by law.”

> “ Sec. 1765. No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that' it is for such additional pay, extra allowance, or compensation.”

, We do not deem it necessary to consider the above question as to the intent and meaning of section 1763, Revised Statutes *(supra),*for the reason that we do not regard it .as controlling. It matters not, so far as the merits of this case are concerned, whether claimant’s two salaries, which he was receiving regularly, are considered separately or as one. The question at issue involves far more than the particular amount of claimant’s salary as an employee of the Government. The real issue in the case is whether the Congress in- - tended him to be paid more than his regular salary for the performance of the same or similar duties, in the absence of some statute authorizing the same and fixing the compensation therefor, within the meaning of the several sections of the Revised Statutes as construed by the Supreme Court in the cases referred to below.

The sections of the Revised Statutes above quoted have been repeatedly construed both by this court and the Supreme Court. In respect of sections 1763 and 1765, the Supreme Court, in the case of *Converse*v. *United States*(21 How., 463, 473), said:

> “ The just and fair inference from these acts of Congress, taken together, is that no discretion is left- to the head of a .department to allow an officer who has a fixed compensation any credit beyond his salary, unless the service he has performed is required by existing laws and the remuneration of them is fixed by law.” (See also *United States*v. *Shoe*maker, 7 Wall., 338.)

*556And referring to section 1765, the same court, in the case of *Hoyt*v. *United States*(10 How., 109, 141), said:

> “ It is impossible to misunderstand this language or the purpose and intent of the enactment. It cuts up by the roots these claims by jrablic officers for extra compensation on the ground of extra services. There is no discretion left in any officer or tribunal to make the allowance unless it is authorized by some law of Congress. The prohibition is general and applies to all public officers or quasi public officers who have a fixed compensation.” (See also *Pack*v. *United*States, 41 C. Cls. R., 423; *Woodwell*v. *United*States, 214 U. S. R., 82).

Section 1764 in express terms prohibits any allowance or compensation to any officer for “ the discharge of duties which belong to any other officer,” in any department, or “ for any extra services whatever which any officer or clerk may be required to perform, unless expressly authorized by law.”

Section 1765 is even more stringent, as it applies to “ any officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations; ” and as to such officer it is provided that he shall not receive — •

> “ any additional pay, extra allowance, or compensation, in any form whatever, * * * for any service or duty whatever, unless the same is authorized by. law and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.”

It has been held in several cases that these statutes are not applicable to cases where two distinct offices, places, or employments, each of which has its own compensation, are held by one person at the same time. *(United States*v. Saunders, 120 U. S. R., 126, and cases there cited.) The rule in cases like the one at bar was clearly and concisely settled by the Supreme Court in *Hall*v. *United States*(91 U. S. R., 559), wherein it was decided:

> “ Nor can any compensation for extra services be allowed * * * unless it appear that the head of the department was authorized by an act of Congress to appoint an agent to perform the extra service; that the compensation to be *557paid for the services was fixed by law; that the services to be performed had respect to matters wholly outside of the duties appertaining to the office held by the agent, and that the money to pay for the extra services had been appropriated by Congress.”

In the case of the *United States*v. *King*(147 U. S. R., 676), it was still more explicitly decided that—

> “ When a statute increases the duties of an officer by the addition of other duties germane to the office, he must perform them without extra compensation, but if he is employed to render services in an independent employment, not incidental to his official duties, he may recover for such services.”

Section 4839, after providing for the necessary qualifications of the superintendent of the Government Hospital for the Insane, and fixing his duties generally, provides that *ahe shall he the responsible disbursing agent of the institution,*etc.” And section 4858 reads:

> “All appropriations of money by Congress for the support of the Hospital for the Insane shall be drawn from the Treasury on the requisition of the Secretary of the Interior and shall be disbursed and accounted for in all respects according to the laws regulating ordinary disbursements of public money.”

Those sections, however, as we construe them, have reference only to disbursements for the support or administrative expenses' of the hospital, and not to disbursements for the constructions of new buildings, although the Secretary of the Interior might, under Eevised Statutes, section 255 (if the superintendent of the hospital were a bonded officer), have designated him to disburse the money therefor as part of his duties. The Secretary of the Interior, however, saw fit to designate the disbursing officer of the Interior Department for this special service, and fixed his compensation therefor, under Eevised Statutes,- section 3634, at one-eighth of one per cent; but as the claimant was already in the employment of the Government at a fixed salary, he is precluded, under Eevised Statutes, section 1765, from receiving “ any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor ex*558plicitly states that it is for such additional pay, extra allowance, or compensation.” And as there is no law authorizing such additional compensation and no explicit appropriation therefor, the claimant, under the recent decision in the *Wood-well case*(214 U. S. R., 82), is not entitled to recover and his petition is accordingly dismissed.

HowRY, J:, was not present when this case was tried and took no part in its decision.