#### WILLIAM SCHEID v. THE UNITED STATES.

[No. 30479.

Decided February 26, 1917.]

*On the Proofs.*

*Marine Corps; extra-duty pay.*— This is a claim by an enlisted man of the Marine Corps for extra-duty pay for services performed as a clerk.

*Legislation.*— The appropriation in the act of March 3, 1885, 23 Stat., 359, for “ enlisted men on extra duty ” was limited in its provisions to the Quartermaster Corps, but the other language in the same section amendatory of section 1287, Revised Statutes, had no relation to the Quartermaster Corps and was permanent legislation.

*Extra duty; special duty; assignment to duty.*— The statute providing for details in writing was not intended to necessarily preclude a recovery of extra-duty pay to which a man might be entitled under the law where it appeared that he had been detailed to such extra duty by competent authority and that the extra duty had been actually performed. Whether the assignment was in fact *extra duty*or *special duty*is to be determined from the facts.

*248*The Reporter's*statement of tlie case:

*Mr. George A. King*for the plaintiff. *King <& King*were on the briefs.

The case is in all essential respects identical with *Eolthaus*v. *United*States, No. 28332, no opinion. Holthaus served by oral order as clerk to the commanding officer of the Marine Barracks, Washington, D. C., and this court held him entitled to extra-duty pay therefor. That case is discussed and was followed in *Narhle's*case, 14 Comp. Dec. 152. The comptroller appears to have overlooked those cases in rejecting this.

The comptroller relies upon paragraph 446 of a book entitled “System of Accountability, U. S. Marine Corps,” which says that “ enlisted men detailed for extra duty under the written authority of the commandant, Marine Corps, * * * are entitled to receive extra-duty pay.” This “ System of Accountability” is at most a set of regulations for the keeping of accounts in the Marine Corps, and it is elementary that a right to compensation given, as is the present, by a statute can neither be taken away nor abridged by a regulation.

In *Symonds*v. *United States,*21 C. Cls., 148, this court said:

“The dispute in this case does not refer to a matter affecting the mere regulation of the Navy — something which must be left to a discretion, a mere convenience, that tends to discipline, efficiency, and order of the public service — but it relates to the pay of an officer, a subject matter not falling within the necessity of an order, regulation, or instruction of the Secretary of the Navy.

“The pay or a public officer, whether civil or military, must be regarded as a subject on which Congress will necessarily legislate, unless, in the use of the power, they may impair the efficiency of a department in the exercise of functions peculiarly executive. The regulations of the Army and the regulations of the Navy are given the force of law when they apply to mere detail of service which has not been regulated by positive enactment.”

*249The Supreme Court, in affirming this decision, said, 120 U. S., 49:

“ But Congress certainly did not intend to confer authority upon the Secretary of the Navy to diminish an officer’s compensation, as established by law, by declaring that to be shore service, which was in fact sea service, or to increase his compensation by declaring that to be sea service, which was in fact shore service. The authority of the Secretary to issue orders, regulations, and instructions, with the approval of the President, in reference to matters connected with the naval establishment, is subject to the condition, necessarily implied, that they must be consistent with the statutes which have been enacted by Congress in reference to the Navy. He may, with the approval of the President, establish regulations in execution of, or supplementary to, but not in conflict with, the statutes defining his powers or conferring rights upon others.”

As long ago as the case of *Allstaedt*v. *United*States, 3 C. Cls., 284, the court said:

“The equity of this we can not consider, for we must administer the statute, and not the circulars of the War Department where they conflict with the statutes; and by the statutes the petitioner is assured his pay and allowances as a lieutenant of infantry until the term of his discharge.”

In *Romero*v. *United*States, 24 C. Cls., 331, the court said:

“The authority of the President to make regulations is subject to the condition, necessarily implied, that they must be consistent with the statutes which have been enacted by Congress, and must be in execution of, and supplementary to, but not in conflict with the statutes.” *United States*v. Symonds, 120 U. S., 49.

In *Wilson*v. *United States,*26 C. Cls., 186, the statutes changed the grade and increased the salary of postmasters, upon the receipts reaching a certain sum. The department made a regulation declaring that the change in classification of the office and in the salary of the postmaster did not take place until his commission by the President in the higher class. The court held this regulation inconsistent with the law. This decision was sustained by the Supreme Court, 144 U. S., 24, holding that the statute governed the salary notwithstanding the regulation.

*250In *Laurey*v. *United States,*32 C. Cls., 259, the court considered regulations promulgated by the Postmaster General defining the duties of letter carriers. The court said of these regulations:

“Kegulations thus promulgated have the force of law *(Gratiot*v. *United*States, 4 How., SO; *Ex parte*Reed, 100 IT. S., 13), but they are not the law itself. Hence where rights, duties, and obligations are defined by statute they can not be taken away or abridged by the regulations of an executive department *(Campbell*v. *United States,*107 U. S., 407, 410).

*“*The purpose of a regulation of an executive department is to carry into effect the law with respect to which it may be promulgated.

“And as the claims in the case at bar originated under a statute, free from ambiguity, the rights of the parties must be measured and fixed by the statute and not by the regulations.”

And finally, in the recent case of *Sherlock*v. *United*States, 43 C. Cls., 161, 165, the court refused to permit a deduction from claimant’s salary sanctioned by regulation but not by law, and made the emphatic statement that “a regulation contrary to law is no regulation at all.”

See also *Goldsborougk*v. *United*States, Taney 80, Fed. Case No. 5519; *Fowle*v. *United States,*30 C. Cls., 349, 356.

*Mr. George M. Anderson,*with whom was *Mr. Assistant Attorney General Huston Thompson,*for the defendants.

The act of March 3, 1885, 23 Stat., 359, is a repetition, so far as this case is concerned, of the act of July 5, 1884, 23 Stat., 108, the only practical difference being in the amount of the appropriation.

The act in question, under the heading “ Quartermaster’s Department,” contains this proviso:

* * * “ *Provided,*That two hundred and fifty thousand dollars of this sum, or so much of it as shall be necessary, shall be set aside for the payment of enlisted men on extra duty at constant labor of not less than ten days, and such extra-duty pay hereafter shall be at the rate of fifty cents per day for mechanics, artisans, school-teachers, and clerks at Army, division, and department headquarters and thirty-*251five cents per day for other clerks, teamsters, laborers, and others.”

In the proviso in question it will be observed that no provision has been made for extra-duty pay for services rendered by enlisted men in any other department of the Army, and this is more clearly shown by subsequent legislation of Congress.

It was not until the passage of the act of March 15, 1898, 80 Stat., 318, that Congress recognized the right of enlisted men in any other department of the Army to extra-duty pay, when it provided for the detail upon extra duty of enlisted men in the Commissary and Engineer Departments as well as those in the Quartermaster’s Department.

The court will notice that the proviso to the act of 1898, appropriating for extra-duty pay to enlisted men in the Qaartermaster’s Department for that year, limited the appropriation to enlisted men of the Quartermaster’s Department in terms, and may be considered as a legislative construction of the scope of the proviso to the acts of 1884 and 1885.

No provision has been made for the Medical or any of the other departments of the Army other than the Quartermaster, the Commissary, and the Engineer’s Departments.

The construction of the acts giving extra-duty pay to enlisted men of the Army by the War Department, the executive department carrying into effect those provisions, should be given great weight. Paragraph 185 of the Army Regulations, 1901, provides that—

“ Noncommissioned staff officers and enlisted men of the several staff departments will not be detailed on extra duty without authority from the Secretary of War. They are not entitled to extra-duty pay for services rendered in their respective departments.”

The above paragraph of the Army Regulations provided that the enlisted men of the staff department should not be detailed on extra duty in any of the departments where extra-duty pay was allowed without the authority of the Secretary of War, and concludes with the statement that “they are *not entitled to extra-duty pay*for services rendered in their respective departments.”

*252The office which a proviso performs in an act of Congress has been well stated in the case of the *Dollar Savings Bank*v. *United States,*19 Wall., 227:

“ It is argued, however, that savings institutions were relieved by the proviso to the section. That, of course, is to be construed in connection with the section of which it is a part, and it is substantially an exception. It takes out of the operation of the body of the enactment that which otherwise would be within it. It restrains the generality of the previous provision.”

In the recent case of *United States*v. *Vulte,*233 U. S., 509, the Government contended that the words used in two appropriation acts providing ten per cent increase for services in the Army beyond the limits of the United States and contiguous Territories for the years 1906 and 1907, “ except Porto Nico and Hawaii,” was permanent legislation. The court, however, took the opposite view and gave as one of its reasons that Congress had considered it necessary to repeat the exception, which would not have been the case if Congress had considered it permanent legislation. By parity of reasoning, if the proviso to the act of March 3, 1885, was intended as general legislation, why did Congress consider it necessary in terms thirteen years afterwards to grant extra-duty pay to the Commissary and Engineer Departments ?

The Supreme Court in another recent case, *Pennington*v. *United*States, 231 U. S., 631, discussed a proviso in its general terms very similar to the one in question in the case at bar. In fact, the proviso construed in that case had the appearance of general legislation to a much greater degree than in this case.

The court in concluding its opinion in the latter case uses this significant language:

“And this leads us finally to examine the contention that as in modern practice it has become common to adopt independent legislation on appropriation bills by what is called a ‘rider,’ therefore the provision here involved should be treated as having that character and be accordingly independently interpreted as claimed. But whatever be the new habit, it can in no respect serve to relieve the judiciary, when called upon to consider a statute, of the old duty of correctly interpreting it. Indeed, the very suggestion of the practice *253of ‘ riders ’ admonishes that things may not be so associated as one for the purpose of securing the enactment of legislation upon the theory that they are one and when enacted be disassociated for the purpose of judicial construction so as to cause them to be wholly independent one of the other.”

If the court, notwithstanding the arguments we have advanced against it, should hold that the act of March 3, 1885, is general legislation, applicable to the whole Army, the claimant is still not entitled to extra-duty pay by reason of the fact that the services performed was *special duty*and not within the purview of the act.

The claimant was detailed by verbal orders of the marine officer commanding the marines at the League Island Navy Yard to perform *special*duty, first, as clerk to the first sergeant of the detachment, then as clerk to the sergeant major, and finally, for a short period, as clerk in the office of the officer commanding the marines.

In the case of *Brady*v. *United States,*47 C. Cls., 286, where an enlisted man was detailed by verbal orders of the troop commander for special duty as troop clerk, the court said that it was not necessary to decide whether the acts of July 5, 1884, and March 3, 1885, *supra,*were independent legislation, nor to discuss again the distinctions drawn between special and extra duty, discussed by the Assistant Comptroller of the Treasury and the Judge Advocate General of the Army, but said:

“ We must hold that the claimant is not entitled to recover, his detail having been made for special duty in connection with the interior administration of the company or troop of which he was a member, for the mutual benefit of the members of said troop, and for the safety of public property as well as of private property belonging to the enlisted" men.”

In the case of *Phillips*v. *United States,*47 C. Cls., 288, an enlisted man in the Marine Corps claimed extra-duty pay for service as a member of a recruiting party, and the court said in dismissing his petition that he was not entitled to such pay because he was not assigned to extra duty by the written order of the commandant of the corps.

The regulations of the Marine Corps in force at the time the alleged extra duty was performed in the Phillips case *254(Begulations of the Marine Corps for 1914, par. 446) provided that enlisted men should be detailed for extra duty under the written authority of the commandant of the Marine Corps. In the reporter’s statement of the case (p. 291) it is said:

“ Under the above paragraphs, to entitle an enlisted man of the Marine Corps to extra-duty pay he must be detailed on extra duty under the *written authority of the commandant of the corps."*

In the *Holthaus case,*No. 28332 (no opinion), relied upon by claimant, the service of the claimant was performed prior to the regulations referred to in the Phillips case requiring the assignment to be in writing. In the Holthaus case the extra duty must have been performed (par. 182, Army Begu-lations of 1901) with the *sanction*of the department commander. Evidence was adduced to show that the commandant of the Marine Corps had personal knowledge of the claimant’s detail to the duty in question, and that this knowledge, without objection to the assignment, was equivalent to its sanction. The services in the Holthaus case were also performed at headquarters of the Marine Corps, analogous to the department headquarters of the Army, as required by the act of March 3, 1885, a requirement referred to in the Brady case, *supra.*

The case at bar is on all fours with the Brady and Phillips cases, and may be decided without passing upon the question of jurisdiction under the act of March 3,1885.

Congress itself drew the same distinction between special and extra duty in the appropriation act of March 2, 1903, 32 Stat., 940-941.

We would call the attention of the court to the fact that the services for which this claim has been made were not rendered *at*Army, *division, or department headquarters,*as required by the act of March 3,1885, and the Brady decision.

Downey, *Judge,*

reviewing the facts found to be established, delivered the opinion of the court:

The plaintiff in this case, during the period in question, was an enlisted man in the Marine Corps, and he seeks to recover extra-duty pay at the rate of 35 cents per day for services performed as clerk in the first sergeant’s office from *255July 16 to September 80,1904, and as sergeant major’s clerk from October 1, 1904, to January 31, 1905, and as clerk in the commanding officer’s office from February 2 to 28, 1905, all at the Marine Barracks, League Island, Pennsylvania. It appears that this service was performed pursuant to verbal orders of the commanding officer. The claim is predicated upon the act of March 3, 1885, and particularly upon the proviso contained in the paragraph of that act making appropriation for incidental expenses, under the subhead

Quartermaster’s Department,” as follows:

> *“Provided,*That two hundred and fifty thousand dollars of this sum, or so much of it as shall be necessary, shall be set aside for the payment of enlisted men on extra duty at constant labor of not less than ten days, and such extra-duty pay hereafter shall be at the rate of fifty cents per day for mechanics, artisans, school-teachers, and clerks at Army, division, and department headquarters and thirty-five cents per day for other clerks, teamsters, laborers, and others.”

This provision, except as to the amount, followed substantially a provision carried in the preceding act of July 5, 1884, 23 Stat., 108.

Section 1287 of the Revised Statutes had provided the rate of extra-duty pay for soldiers detailed for employment as artificers or laborers in the construction of permanent military works, public roads, or other constant labor of not less than 10 days’ duration. This court has construed this provision in the act of March 3, 1885, as amendatory of section 1287 *(Ross's case,*49 C. Cls., 55), and that construction was, at least for the purposes of that case, approved by the Supreme Court. *United States*v. *Ross,*239 U. S., 530.

It is contended by counsel for the defendant that this provision in the act of 1885 was not general legislation, and that it was applicable only to the Quartermaster’s Department. The contention as to applicability to the Quartermaster’s Department only would undoubtedly hold if it were with reference to the appropriation made by the paragraph from which the quotation is taken, since that appropriation, under every rule of construction, must be regarded as applicable only to the particular branch of the service for which made, and to this contention the citation of counsel, with reference *256to the subsequent incorporation in this proviso in the act of March 15, 1898, of the words “ Quartermaster’s Department ” would lend weight, but it is to be observed that those words when incorporated in the last-mentioned act, were clearly applicable to the use to be made of the particular sum appropriated by that act. But it can scarcely be concluded, because the particular appropriation must necessarily be limited to the uses of that particular branch of the service, that other language coupled therewith may not have a more general application. But for that language fixing the rate of extra-duty pay the provisions of section 1287 must necessarily have applied to payments to be made for extra duty out of that appropriation, and according to counsel’s theory it would necessarily result that the provisions of that act must amend section 1287 for the purposes of the Quartermaster’s Department. But section 1287 was not limited in its operation to the Quartermaster’s Department, and it is scarcely reasonable to conclude that Congress intended to amend section 1287 for the purposes of that particular branch of the service and leave it operative in its original form for the rest of the service. It is to be noted, also, that in fixing the rate of pay classes are included which are not within section 1287 and which bear no particular or exclusive relation to the Quartermaster’s Department. The word “ hereafter,” as used in that proviso, is the word commonly used by Congress when it is intended to make of the provision in which it is used permanent legislation, and we see no reason now for departing from the former holding that the language of that proviso was permanent in its character so far as the rate of extra-duty pay was concerned and amended section 1287.

In this connection there is for consideration, then, two other matters. The first is the fact that section 1612 of the statute gives to enlisted men of the Marine Corps the same pay as enlisted men of the Army, and the other is that for the same fiscal year for which the appropriation act, in which appears the proviso quoted, was made, there also appeared, in the Navy appropriation act, under the subhead “ Marine Corps,” and in the appropriation for contingencies therefor, *257the words “for * * * per diem to enlisted men employed on constant labor for periods of not less than ten days ** **It is also noticeable, in this connection, that for the fiscal year 1905, within which the services claimed for were rendered, the Army appropriation act, under the subhead “Incidental Expenses, Quartermaster’s Department,” makes the appropriation available for extra-duty pay to soldiers employed on extra duty for periods of not less than ten days, without any specific provision therein as to the rate of pay, and that the Navy appropriation act for that year, under the subhead “ Contingent, Marine Corps,” also makes an appropriation which, among other purposes, is available for “per diem of enlisted men employed on constant labor for a period of not less than ten days.”

It is also contended, on behalf of the defendant, that there can be no recovery in this case because the detail was not in writing. This question has been heretofore considered by this court as well as by the Supreme Court, and it has been held that the section of the statutes providing for details in writing was not intended to preclude a recovery of extra-duty pay to which a man might be entitled under the law where it appeared he had been detailed to such extra duty by competent authority and that the extra duty had been actually performed. *Ross’s case, supra; Holthaus’s case,*decided by this court May 6, 1907; *Nookle’s*case, 14 Comp. Dec., 151.

Finding IV sets out paragraph 446 of a System of Accountability, United States Marine Corps, approved by the Secretary of the Navy, in compliance with the request of counsel for the defendant. Its effect, if any, upon claimant’s rights in the present case, is for our consideration. It is, as stated, a paragraph in a “ System of Accountability.” Some light is thrown upon its purpose by the following paragraph :

> “ 447. Soldiers on extra duty will be paid the extra rates of pay allowed by law for the duty performed and for the exact number of days employed; and no greater number of men will be employed on extra duty at any time than can be paid the full legal rates for the time employed from the funds provided. Payments made in violation of the above *258rules will be charged against the officers who ordered the details.”

The concluding sentence of the last-quoted paragraph indicates that these provisions are administrative in their character and go largely to questions of accountability upon the part of officers charged with certain duties. While the first paragraph clearly contemplates that details to extra duty shall be under the written authority of the commandant of the corps, the paragraphs together are open to the construction that the department recognized the fact that a man might become entitled to pay for extra duty without this detail having been in writing, and intended, in the event that an officer’s conduct was responsible for that situation, to place the responsibility therefor upon him by making a charge against him. In any event, we can not adopt the view that the provision of the first-quoted paragraph, requiring details to extra duty to be in writing, could in any manner serve to abridge a right which a man might have under the law.

It follows that the questions for determination in the present case are whether the claimant performed extra duty, and whether he was detailed thereto by competent authority. Considering the questions in inverse order it may be said with reference to the second, that it appears and has been found that the claimant was detailed to clerical duty by the commanding officer of the post. It appears, also, that he was carried upon the muster rolls for the periods involved as upon this particular duty, and that the muster rolls were signed by the several officers who were, at the time, commanding the marines, and were transmitted through the usual channel to the headquarters of the Marine Corps. We think it sufficiently appears that the claimant was detailed to this duty by competent authority. The remaining question for consideration is as to the character of the duty. The details were, in terms, to “ special duty.” It has been held, and may now be said to be well settled, that the mere designation of the duty as special duty can not, of itself, determine the character of the duty and deprive the claimant of his rights to compensation therefor if, in fact, the duty was extra duty. *259Whether it was special duty or extra duty is to be determined from the facts themselves. In the opinion of this court in *Ross*v. *United*States, supra, quotation was made from an opinion of the Judge Advocate General of the Army, found in the decision of the Comptroller of the Treasury in *Brady's case,*15 Comp., 374. This opinion distinguishes very elaborately and quite clearly between extra duty and special duty, and we know of no better authority to follow upon that question. Unfortunately, in this case, we are not informed by the evidence as to the particular character of duty performed during these periods by claimant. We are left to apply, as best we can, the distinctions drawn in the opinion of the Judge Advocate General to the meager facts furnished with reference to the services in this case. In the Ross case it is said, “ But the question remains whether the claimant did perform extra duty. The term is obviously a relative one,” etc. We are of the opinion that this case should be remanded with leave to the plaintiff to furnish additional evidence, if he desires, calculated to enable the court to determine, from the facts themselves, in the light of this opinion, whether or not the services performed and claimed for in this case were, or were not, extra duty. It is so ordered.

Hat, Judge, BarNey, Judge, Booth, Judge, and Campbell, *Chief*Justice, concur.