#### FRANK LEE v. THE UNITED STATES.

[No. 30302.

Decided January 10, 1910.]

*On the Proofs.*

The claimant is employed by the Attorney-General as special assistant to the United States attorney in the Indian Territory. The employment is by letter, dated August 23, 1906, and is for six months from September 1, 1906. The claimant, who has pre*58viously been employed in tbe same capacity, represents to tbe Attorney-General that be rendered service during July and August after bis previous appointment bad expired. Tbe Attorney-General accordingly amends his appointment of August 23 “ *so as to include the two months named.'’*The claimant’s account therefor is approved by tbe Attorney-General but is disallowed by tbe accounting officers.

I. Tbe position of a “ *special assistant*” to a United States attorney is not an office but an employment. Such an employee is not an officer, and bis compensation must be confined to tbe terms of bis appointment.

II.The Attorney-General is empowered by the Revised Statutes (§ 363) to employ and retain attorneys and to stipulate tbe amount of their compensation; but be has not authority to make an appointment retroactive so that it shall embrace a period prior to the date of tbe appointment.

III.The *Act %7th February; 1906*(30 Stat. L., p. 49), prohibits every department and officer from accepting “ *voluntary service for the Government; ”*and where a special assistant attorney rendered service prior to receiving an appointment tbe service must be considered voluntary.

*The Reporters’*statement of tbe case:

Tbe following are tbe facts of tbe case as found by the court:

' I. The claimant was employed as special assistant to the United States attorney for the central district of tbe Indian Territory by a letter of appointment dated August 23, 1906, and signed by the Attorney-General, for six months commencing September 1, 1906, to be compensated at $150 a month. Thereafter the Attorney-General addressed to the claimant a letter in the language following:

“In view of the statements made in a letter addressed to me under the date of the 24th ultimo by United States Attorney Latham to the effect that you rendered services during the months of July and August, 1906, although your appointment was not then in effect, your present appointment is hereby amended so as to include the two months named, .and you will be paid salary for that period accordingly.

“ Respectfully,

“(Signed) Chas. J. BoNAPaRte,

*“Attorney-GeneralT '*

II. Claimant was first employed as a special assistant to said district attorney August 10, 1904, by appointment of *59the Attorney-General. lie was again appointed to the same position October 7, 1904, which employment was renewed December 7, 1904, to continue until December 31, 1904. On January 10, 1905, the Attorney-General amended the appointment of December 7, 1904, so that it would cover the period subsequent to January 1, 1905. Additional appointments were thereafter made, the last being dated February 21,1907.

III. The character of services performed by the claimant from July 1, 1906, to September 1,1906, is shown, by^ a letter from the district attorney to the Attorney-General, to be the preparation of cases for trial, advising deputy marshals, attending examining trials before United States commissioners, framing indictments, and doing generally the work necessary for prosecuting officers during the interims between the courts, no courts being in session during that period.

IV. For the services performed by the claimant from July 1,1906, to February 28, 1907, he presented his accounts properly approved by the United States attorney for the central district of Indian Territory to the Department of Justice, where said accounts were duly approved by the Attorney-General entered for payment in the sum of $1,451.75, to which accounts the Attorney-General attached the following certificate :

“ I hereby certify that such services were actually rendered and that the same could not be performed by the Attorney-General, or Solicitor-General, or the officers of the Department of Justice, or by the district attorneys, and the account is approved for $1,451.75.”

From thence the accounts were sent to the accounting officers of the Treasury, where they were finally acted upon and the item of $150 per month for the months of July and August was disallowed and payment refused.

*Messrs. Grosthwaite*and *OoTlaclay*for the claimant.

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

Atkinson, J.,

delivered the opinion of the court:

There is but one question involved in this suit, and tha,t is whether or not the plaintiff is entitled to pay for services *60alleged to have been, rendered by him as a special assistant United States attorney for the central district of the Indian Territory during the months of July and August, 1906. The findings show that he was first appointed to said office on the 10th day of August, 1904, which appointment was renewed from time to time by the Attorney-General, at the request of the district attorney for said district. It appears that the term for which plaintiff had been appointed expired June 30, 1906, and although his services were desired by the district attorney to be continued as his special assistant in the trial of important criminal cases then pending, the reappointment was not made by the Attorney-General until August 23 to take effect September 1 of that year. Plaintiff’s compensation was fixed at $150 per month, and in addition thereto he was to be reimbursed for his actual and necessary expenses of travel and subsistence while engaged under said employment. His employment was for the period of six months, and he took the required oath of office September 1, 1906. Having been previously employed as such special assistant, to the district attorney, he continued to discharge the duties of said office during the months of July and August of said year, and the Attorney-General, in order to entitle him to receive pay, as he supposed, for said months of July and August, issued the letter set out in Finding I.

Plaintiff presented a claim for services at $150 per month for eight months, from July 1, 1906, to February 28, 1907, and expenses amounting to $251.75, which account was approved by the Attorney-General. The claim was allowed by the Treasury Department, and a warrant was issued in favor of plaintiff for six months’ salary from September 1, 1906, to February 28, 1907, and expenses, but payment of salary allowance was refused for the months of July and August, for the reason that the appointment did not become effective until September 1, 1906, and that the services rendered by plaintiff during the months of July and August were voluntary, consequently for such services the United States were not liable. Furthermore, the act of February 27, 1906 (30 Stats. L., 49), prohibits any department or any officer of the Government from the acceptance of voluntary service for the United States.

*61Plaintiff was appointed under section 363 of the Revised Statutes, which provides that—

> “The Attorney-General shall, whenever, in his opinion, the public interest requires it, employ and retain, in the name of the United States, such attorneys and counselors at law as he may think necessary to assist the district attorneys in the discharge of their duties, and shall stipulate with such assistant attorneys and counsel the amount of compensation, and shall have supervision of their conduct and proceedings.”

And section 366 further provides that—

> “Every attorney or counselor who is specially retained, under authority of the Department of Justice, to assist in the trial of any case in which the Government is interested shall receive a commission from the head of such department as a special assistant to the Attorney-General, or to some one of the district attorneys, as the nature of the appointment may require; and shall take the oath required by law to be taken by the district attorneys, and shall be subject to all the liabilities imposed upon them by law.”

The position of a special United States assistant attorney is not an office. It is only an employment, and the amount to be paid for such service is for work done by the individual so employed. Such employee, therefore, is not entitled to, nor is he paid, a salary. His compensation is confined to the terms of his appointment. In this case plaintiff was employed September 1, 1906, for the period of six months by appointment of the Attorney-General, dated August 23, 1906, and he was paid in full for that term of service.

It is not questioned that the Attorney-General has the legal right to appoint special attorneys under the sections of the Revised Statutes above quoted and to fix their compensation, but his right to make an appointment to take effect at a prior date than the actual date of the appointment was denied by the Treasury Department, and we think justly so. In making the contract with plaintiff the Attorney-General acted as the agent of the United States under the authority contained in sections 363 and 366 of the Revised Statutes, and the Government is therefore bound by his action in so far as he was acting within the scope of his *62lawful authority. When an attorney is specially retained he can perform service only after he is so retained, and not prior thereto, nor,can he receive compensation for his services prior to the date of his appointment, nor can an appointment be made retroactive so as to cover a period of service not embraced in the original appointment.

If plaintiff rendered service during the months of July and August, 1906, for which he sues, he would not be entitled to compensation, because such service must be regarded as voluntary, and the payment therefor is prohibited by the act of February 27, 1906, *supra,*which explicitly provides that no officer of the Government shall accept voluntary service for the Government. Section 3 of said act provides, *inter alia:*

> “ Nor shall any department or any officer of the Government accept voluntary service for the Government or employ personal service in excess of that authorized by law, except in cases of sudden emergency involving the loss of human life or the destruction of property.”

An appointment to an office is an act done, a direct exercise of power in some particular direction, not necessarily evidenced in writing, but none the less completed at some particular period of time, and until the act is done it necessarily remains undone. Something more than the act of appointment also is necessary to invest the person appointed with the office designated in order to give the appointee the right to compensation. It must be accepted, and we can not understand how an appointment can be accepted, either formally or impliedly, before it has been made.

In the case at bar, the appointment was made August 28, 1906, to take effect September 1 following; hence we decide that any subsequent appointment or order made to cover the two preceding months must be held as not authorized by law, and the petition is accordingly dismissed.

Booth, J., was not present when this case was tried and took no part in the decision thereof.