#### CHARLES L. CHARLEBOIS v. THE UNITED STATES.

[No. 33881.

Decided October 27, 1919.]

*Allowances, Army; cleric, Quartermaster Corps.*— The act oí August 29, 1916, 39 Stat., 625, changed the designation of clerk, Quartermaster Corps, to field clerk. No new office was created by the act, and Executive action was unnecessary to determine the status of its beneficiaries. It was intended that the clerks named should receive the allowances from the date of the approval of the act.

*The Reporter's*statement of the case:

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

*Mr. Richard P.*WMteley, with whom was *Mr. Assistant Attorney General Frank*Dabis, *jr.,*for the defendants.

The question is whether the plaintiff is entitled to the allowances of a field clerk from the date of the passage of the act of August 29, 1916, or from the date of his acceptance of his appointment as field clerk. Under the decision of the Judge Advocate General, approved by the Secretary of War, it was held that pay and allowances should accrue from the date of the passage of the act, but under the decision of the Comptroller of the Treasury plaintiff was permitted to retain his allowances only from the date of acceptance and execution of the oath of office.

The reasoning of the Comptroller is clearly convincing. In the first place, the act of Congress of August 29, 1916, *184provided for 200 clerks only, and the report of tbe Assistant Secretary of War filed March 13,1919, shows that on August 29, 1916, there were 205 clerks in the Quartermaster Corps who possessed the necessary qualifications for appointment as.-field clerks. All of the 205 could not immediately become entitled to the increased pay and allowances, but only the 200 who were designated, and they were not designated until appointed by the Secretary of War on December 28, 1916.

An appointment to office is absolutely void if it be in excess of the number limited by law; and an appointee can not recover for services rendered. *Weeks*v. *United States,*21 C. Cls., 124.

Even more decisive, however, is the fact stated by the Comptroller in his opinion that clerks in the Quartermaster Corps are in a civil status, while field clerks have a military status. It could hardly be contended that a clerk with a civil status would be subjected to any rules or regulations applicable to persons holding a military status until he accepted appointment and executed the oath of office. In other words, he could not make himself retroactively subject to punishment. Conversely, he would not be entitled to the pay and allowances of the office for the period during which he was not subjected to the rules and articles of war and laws and regulations governing the Army, to which field clerks were necessarily subjected.

It is a well-settled principle that an officer upon his original entry into the service of the Government is not entitled to the emoluments of the office until he has executed the oath of office, and in cases where a bond is required, until he has given said bond-. *Williams*v. *United States,*23 C. Cls., 46. While an officer already in the service may be promoted from one office to another and, after he has qualified in the higher office receive the pay of the same for the period between the date of eligibility and date of execution of the oath of office, this is only upon the express authority of Congress and does not apply to cases where the officer is making his original entry into the service. *Toulon*v. *United . States,*52 C. Cls., 333.

*185Per Curium:

The plaintiff in this case, a field clerk in the Quartermaster Corps, claims that under the provisions of the act of August 29,1916, he is entitled to receive the allowances provided for field clerks in that act from the date of the approval of the act. The act provides:

> “Hereafter headquarters clerks shall be known as Army field clerks and shall receive pay at the rates herein provided, and after twelve years of service, at least three years of which shall have been on detached duty away from a permanent station, or on duty beyond the continental limits of the United States, or both, shall receive the same allowances, except retirement, as heretofore allowed by law to pay clerks, Quartermaster Corps, and shall be subject to the Pules and Articles of War.

> “ Hereafter not to exceed two hundred clerks, Quartermaster Corps, who shall have had twelve years of service, at least three years of which shall have been on detached duty away from permanent station, or on duty beyond the continental limits of the United States, or both, shall be known as field clerks, Quartermaster Corps, and shall receive the same allowances, except retirement, as heretofore allowed by law to pay clerks, Quartermaster Corps, and shall be subject to the Rules and Articles of War.” 39 Stat. 625, 626.

It seems to the court that Congress intended and plainly said that these clerks should receive the allowances which it was providing for them from the date of the approval of' the act. No new office was created by the act. No Executive action had to be taken in order to determine the status of the beneficiaries of the act. The language of the statute is plain, and it confers upon certain designated persons the-right to receive certain allowances immediately upon the passage of the act. Such was the construction given to the act by the Judge Advocate General of the Army and acted upon by the Secretary of War. The Judge Advocate General says in his opinion:

> “ Reading the two provisions together, I think it is clear that it was the intent of Congress to fix the status, pay, and allowances of the said clerks from the date of the approval of the act. Indeed, if Congress has not so intended, I think that instead of providing that ‘ hereafter ’ the clerks *‘*shall be known,’ etc., it would have made the usual provision that *186the Secretary of War may appoint them to the positions prescribed. The provisions merely change the designation and compensation of the offices held by the clerks, and no new appointments are necessary to give effect to the statute. It is, therefore, the opinion of this office that the 200 field clerks, Quartermaster Corps, and the Army field clerks are entitled to the prescribed pay and allowances from the date of the approval of the statute authorizing the same.”

We think this reasoning conclusive, and that the plaintiff is entitled to recover the sum of $138.11.

*187CABES DECIDED IN THE SUPREME COURT ON APPEAL *October Term, 1918.*