#### JAMES I. McCALLUM v. THE UNITED STATES.

[No. 22748.

Decided February 1, 1909.]

*On the Proofs.*

• The claimant is employed by tbe Secretary of State to edit tbe laws of Congress. 1-Iis compensation is fixed at $2,500 for eacb session and “ *such expenses as may he necessarily incident to the performance of your duties."*Before tbe completion of tbe work be is appointed law clerk in tbe department. To *195expedite Ms work as editor lie employs a lawyer to assist in editing tlie statutes, the purpose being to satisfy the public demand for the earliest possible publication.

X. A person appointed to edit the laws of the United States at a fixed compensation and “ *such expenses as shall he necessarily incident to the performance of your*[his] *duties*” can not employ a lawyer to assist him in his work and recover for it as an expense necessarily incident.

II.The employment of a typewriter in such a case is a proper expense.

III. The salary paid to the editor of the statutes for his services as law clerk to the Department of State can not be pleaded by the defendants as a set-off.

IV. Where tie Secretary of State agreed to pay $1,500 extra compensation for editing the laws of an extraordinary session of Congress and Congress appropriated the money it can pot be recovered back upon the ground that it exceeded the compensation fixed by the original contract or that it comes within the rule that money paid in mistake of fact can be recovered back.

*The Reporters'*statement of tbe ease:

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

I. The claimant is a citizen of the United States.

II. The claimant, on April 9, 1897, was appointed by the Secretary of State (Hon. John Sherman) to edit the laws of the United States Congress, by the following letter:

“ DEPARTMENT OF STATE,

*“Washington, April 9, 1897.*

“ James I. McCallum, Esq.,

“ *Washington, D. G.*

*“*Sir : In pursuance of the requirements of section 5 of the act of June 20, 1874 (18 Stat. L., 113), I hereby designate you to edit the laws of each session of Congress and the laws of each Congress.

“ Your duties as editor of the laws will commence with the editing of the laws of the extraordinary session of the Fifty-fifth Congress.

“ Your compensation will be two thousand five hundred dollars for the edition of the laws of each session of Congress, and one thousand dollars for the edition of the laws of each Congress, known as the Statutes at Large, not to exceed, however, the sum of six thousand dollars ($6,000) for the entire editing of the laws of each Congress.

*196“ You will be allowed to charge the Department of State with such expenses as may be necessarily incident to the performance of your duties.

“ Respectfully, yours, “ JohN Si-iermaN.”

III. The claimant edited the laws enacted at each of the three sessions of the Fifty-fifth Congress, receiving therefor the sum of $9,181.10, of which amount $1,500 was for editing the laws of the extra session, $5,000 for editing the laws of the two regular sessions, $1,000 for editing the laws of the term (30 Stat. L.), $1,000 for reimbursement of money paid to Edwin C. Brandenburg for work in indexing and proof reading, $387.70 to W. McNeir also for indexing and proof reading, and $300 paid to E. C. Brandenburg and expended by him for typewriting.

TV. Appropriations for editorial purposes in the Fifty-fifth Congress amounted to $9,500, as follows:

(1) “Laws enacted during tlie first session of the Fifty-fifth Congress * * * to be immediately available.” (Deficiency bill, July 39, 1897, 30 Stat., 1st sess., p. 100)_$1, 500

(2) “Laws enacted during the second session” and the Statutes at Large, “to be immediately available.” (Legislative appropriation bill, Mar. 15, 1S99, 30 Stat., 2d sess., p. 285)_ 4, 000

(3) “Laws enacted during the third session ” and Statutes at 'Large, “to be immediately available.” (Legislative appropriation bill, Feb. 24, 1899, 30 Stat., 3d sess., p. 856) _ 4, 000

V. The Secretary of State agreed orally with the claimant to pay to him’ $1,500 extra compensation for editing the laws of the first or extraordinary session of the Fifty-fifth Congress, and applied to Congress for a special appropriation of the same, which was appropriated as set out in finding 4, and paid to the claimant upon approval of his account by the Secretary of State, who personally signed the voucher therefor.

VI. Owing to the public demand and necessity for the prompt distribution of the Statutes, it is a requirement of the editing of the laws of Congress that the pamphlet session edition be published as nearly as possible at the close of each session, and the term edition, or Statutes at Large, as soon as possible after the close of each Congress, and it was the duty of the editor to perform his work in such way *197as to accomplish this purpose, regard being had to the practice of Congress to pass the great mass of its enactments in the last few days of each session, it is necessary for the editor, in order to advance the work during the session and complete the editing within the time required a£ter adjournment, to employ assistance in indexing, proof reading, and typewriting. In this manner the claimant incurred and paid, at the three sessions of the Fifty-fifth Congress, as above stated, $300, $1,000, and $887.70, which respective amounts were allowed by the Secretary of State as necessary expenses incident to the discharge of the editor’s duties, and the same were repaid to him on vouchers approved and signed by the Secretary of State.

VTI. The claimant edited in full, according to directions and the requirements, the pamphlet session edition of the laws enacted at the first session of the Fifty-sixth Congress, which convened December 4, 1899, and ended June 7, 1900. Following the methods previously pursued and approved, namely, by anticipating legislation in prospect and keeping the current work up to date (as far as practicable) during the progress of the session, the claimant performed four-fifths of the services required to edit the second session edi-. tion of the laws, commencing December 3, 1900, and three-fourths of the services necessary to complete the term edition of the Statutes at Large (vol. 31), before the adjournment of Congress on March 4, 1901. On said date his duties as law editor under the terms of his appointment were terminated by operation of the act of Congress passed March 3, 1901, which provided for the appointment by the Secretary of State of a law clerk after March 4, 1901, to edit the laws of Congress and perform other duties required at an annual salary. The claimant 'was appointed to the said .clerkship and completed the work remaining to be done at the close of Congress on the editions under preparation. The said editions, as well as the first session pamphlet laws, were accepted as satisfactory and constitute, as edited by the claimant, the official and authorized editions of the public laws for the period covered thereby. The claimant, prior to March 4, 1901, in the discharge of his duties, employed clerical assistance for indexing and proof reading to the *198extent of $500 at each session of the Fifty-sixth Congress, which he paid. Claimant was paid on October 10, 1900, for editing the first session laws, $2,500, and no other or further payment has been made to him as editor in the Fifty-sixth Congress for services rendered up to the time of adjournment of the said Congress.

VIII. Claimant is the sole owner of the claim herein sued upon, no assignment or transfer of any part thereof having been made.

*Mr. Ellwood O. Wagenhorst*for the claimant.

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

Barney, J.,

delivered the opinion of the court:

This is a suit to recover a balance of $3,750, alleged to be due to the claimant for services in editing the laws of the Fifty-sixth Congress, which convened December 4, 1899, and adjourned March 4, 1901, and for reimbursement of expenses alleged to have been incurred by him in such service.

April 9, 1897, pursuant to the provisions of section 5 of the act of June 20, 1874 (18 Stat. L., 113), the claimant was appointed by the Secretary of State to edit the laws of Congress thereafter to be enacted, beginning with the Fifty-fifth Congress. The following is the letter making such appointment:

> “ DEPARTMENT OE STATE,

> *“Washington, April 9, 1897.*

> *“*James I. McCallum, Esq.,

> “Washington, *D. O.*

> *“*Sir : In pursuance of the requirements of section 5 of the act of June 20, 1874 (18 Stat. L., 113), I hereby designate you to edit the laws of each session of Congress and the laws of each Congress.

> “ Your duties as editor of the laws will commence with the editing of the laws of the extraordinary session of the Fifty-fifth Congress.

> “ Your compensation will be two thousand five hundred dollars for the edition of the laws of each session of Congress, and one thousand dollars for the edition of the laws of each Congress, known as the Statutes at Large, not to exceed, however, the sum of six thousand dollars ($6,000) for the entire editing of the laws of each Congress.

> *199“ You will be allowed to charge the Department of State ■with such expenses as may be necessarily incident to the performance of your duties.

> “ Respectfully, yours, . “ JohN SheémaN.”

It appears that the statute cited and the foregoing appointment contemplated two separate duties — (1) the preparation in pamphlet form of the laws of each regular session, and (2) the preparation of an edition of the laws of Congress known as the Statutes at Large.

At the time of claimant’s appointment the Fifty-fifth Congress was in extraordinary session, having been convened March 15 preceding, thus making three sessions of that Congress.- For his services in editing the laws of the Fifty-fifth Congress the claimant received $9,187.70, made up as follows: Two thousand five hundred dollars for the preparation of the pamphlets for each of the two regular session, $1,000 for the Statutes at Large, $1,687 for expenses, and $1,500 for editing the laws of the extraordinary session.

The claimant edited the pamphlet edition of the laws of the first sesión of the Fifty-sixth Congress and continued in the service under his appointment doing the preliminary work in the preparation of the pamphlet edition of the second session of that Congress and the Statutes at Large for the. whole Congress, until March 4, 1901, when he was appointed and entered upon the duties of law clerk to the Secretary of State pursuant to an act which provided, “ For a law clerk, to be selected and appointed by the Secretary of State, to edit the laws of Congress and perform such other duties as he may require of him, at two thousand five hundred dollars per annum.” (31 Stat. L., 972.) The claimant continued in office as such law clerk until June 30, 1901. and received as compensation for his services $812.50.

It appears by the^findings that the claimant before his appointment as law clerk March 4, 1901, had performed four-fifths of the services required to edit the laws of the second session of the Fifty-sixth Congress, beginning December 3, 1900, and three-fourths of the services necessary to complete the term edition of the Statutes at Large for that Congress. It appears further from the findings that the claimant paid $1,000 to Mr. Brandenburg and $387.70 to Mr. McNeir for *200proof reading and indexing the laws of the Fifty-fifth Congress, and also paid to Mr. Brandenburg $1,000 for the same service in editing the laws of the Fifty-sixth Congress. Mr. Brandenburg was also paid $300, which appears to have been expended for typewriter services in editing the laws of the Fifty-fifth Congress. The claimant has been paid $2,500 for his services in editing the laws of the Fifty-fifth Congress, and no more.

The claim in this suit is made up by the following statement :

For editing laws, in full, first session Fifty-sixth. Congress— $2, 500

Expenses first session Fifty-sixth Congress- 500

For editing laws in four-fifths part, second session Fifty-sixth Congress_ 2, 000

Expenses second session Fifty-sixth Congress-:- 500

For editing in three-fourths part Statutes at Large of Fifty-sixth Congress, volume 31- 750

Total_ 6,250

Total amount paid to date- 2, 500

Balance_ 3, 750

The Government contends that the $1,000 in the above ■account paid to Mr. Brandenburg (being the two $500 items charged as “ expenses ”) should be disallowed, and that there should be allowed as set-offs against this account, $1,500 paid as compensation for editing the laws of the extraordinary session of the Fifty-fifth Congress, $1,300 paid to Mr. Brandenburg, and $387.70 paid to Mr. McNeir for the purposes above stated (the $1,300 paid to Mr., Brandenburg-included the $300 for typewriter services), also the sum of $812.50 received by the claimant as law clerk from March 4 to June 30,1901, which would leave the claimant indebted to the Government in a considerable sum. ^

As to the item of $1,000 paid to Mr. Brandenburg for his assistance in editing the laws of the Fifty-sixth Congress, we do not think it is a proper charge against the Government. It appears from the findings that Mr. Brandenburg is a lawyer who was employed by the claimant to assist him in doing the identical work which under his contract he was required to do himself. Payment for such services can not *201be charged as “ expenses ” within the claimant’s contract. The same comment can be made as to the payment made by the claimant for similar services rendered by Mr. Brandenburg and Mr. McNeir in editing the laws of the Fifty-fifth Congress, amounting to $1,387.70; and we think the first item of $1,000 should be disallowed, and the $1,387.70 paid to Mr. Brandenburg and Mr. McNeir should be charged as an offset against the claimant in this case. The $300 found to have been paid by claimant through Mr. Brandenburg for typewriter services wg think was properly chargeable as expenses.

It appears from the findings that the Secretary of State agreed to pay claimant $1,500 extra compensation for editing the laws of the first or extraordinary session of the Fifty-fifth Congress and asked Congress for a special appropriation for that sum, and Congress appropriated that sum in the following language: “For expenses of editing and distributing the laws enacted during the first session of the Fifty-fifth Congress, one thousand five hundred dollars.” (30 Stat. L., 106.) This sum was paid to the claimant upon approval of his account by the Secretary of State. Afterwards specific appropriations were made for the same purpose for the two regular sessions of the same Congress. (30 Stat. L., 285, 856.)

We do not think this payment in excess of the original contract comes within the rule that money paid in mistake of fact by public officers can be recovered back. *(Barnes*v. *District of Columbia,*22 C. Cls. R., 366; 164 U. S., 212.) Here there was no mistake of fact by any public officer. It was an express agreement by an officer having' plenary power to pay a sum as extra compensation, and Congress, which holds the purse strings of the Government, directed it to be paid, and it was paid. We do not think this sum is a proper offset against the claimant’s demand.

We see no reason for charging back to the claimant $812.50 received by him as salary for services as law clerk from March 4 to June 30, 1901. True, he may have spent a part of that time in finishing up the labor of editing the laws of the Fifty-sixth Congress, but he only charges for a part of that *202labor before his appointment; and, besides, his office called for the performance of other duties. (31 Stat. L., 972.)

We have made the account of the claimant as follows:

Creditor:

For editing laws, in full, first session Fifty-sixth Congress - $2, 500.00

For editing laws in four-fifths part, second session Fifty-sixth Congress_ 2, 000.00

For editing in three-fourths part Statutes at Large of Fifty-sixth Congress, volume 31_ 750. 00

Total- 5, 250. 00

Debtor:

To salary received_ 2, 500. 00

To amount received by claimant for payment made to Brandenburg and McNeir_ 1, 387. 70

Total_ 3, 887. 70

Balance due- 1, 362. 30

Judgment, therefore, is ordered for the claimant in the sum of $1,362.30.