#### JACKSON’S CASE. Daniel Jackson *v.*The United States.

*On the Proofs.*

*A cleric in the New York custom-house is appointed deputy collector ad interim. The appointment expressly states that it is made “*without increase of his compensation as clerk.” *Ne acts as deputy collector, hutreceives only his pay as clerk.*

Where the temporary appointment of a .clerk in a custom-house to act as deputy collector expressly states that it is made *“without increase of his compensation as clerk,”*and he receives his pay as clerk for the period during which he acts as deputy collector, he cannot subsequently recover the difference between his own salary and that of deputy collector. No official can receive compensation for two offices at the same time, and his acceptance of the one precludes him from seeking a recovery of the other.

*The Reporters'*statement of the case:

The Court found the following facts:

That before August 9, 1864, to April 1,1867, the petitioner was a clerk in the custom-house in New York, and received and receipted for his full compensation as such.

That on the 9th of August, 1864, he was appointed to be a deputy collector *ad*interim, *“*without increase of his compensation as a clerk,” and served as sued deputy collector under .said appointment until September 8,1864.

That on the 8th of September, 1868, there having been a .change of collectors, he was re-appointed a deputy collector *ad*interim, and served in that capacity until September 1, 1865.

That on the 1st October, 1866, he was appointed a deputy collector *ad interim*during the absence of a deputy collector on his annual vacation of two weeks, and served as deputy-collector under said appointment until April 1, 1867.

That the appointments of the petitioner above stated were made to supply the temporary absences of other deputy collectors of the permanent staff of the custom-house, who retained their offices and received their legal compensation.

That the number of deputy collectors fixed by the rule and practice of the custom-house at New York for its permanent staff was eight from April 1,1864, to March 31, 1867, and nine from April 1 to December 31, 1867, and the same numbers, respectively, were paid as deputy collectors.

*355
      *Messrs. Chase, Hartley, & Coleman*for the claimant:

The *Act March*3, 1817, ch. 109, sec. 7, (3 Stat. L., 396,) provides that “every collector *cff*the customs shall have authority, with the approbation, of the Secretary of the Treasury, to employ within his district such number of proper persons, as *deputy collectors*of the customs, as he shall judge necessary.” The number of deputies at any port is therefore unlimited, except by the discretion of the collector and Secretary. The *Act March*3, 1851, eh. 32, sec. 5, (9 Stat. L., 618,) provided that “there shall be paid hereafter to each of the * * deputy-collectors at * * New York * * $2,500 per annum.” The *Act July*28, 1866, ch. 293, sec. 4, (14 Stat. L., 308,) provides, that after that date “ there shall be paid to each of the deputy collectors at the port of New York ** **$3,000 per annum.” The claimant, at other times a clerk in the customhouse, was employed as deputy collector at New York from August *9,*1864, to August 31, 1865, both inclusive, a period of one year and twenty-two days. He was further employed, in like manner, from October 3, 1866, to March 31, 1867, a period of five months and twenty-eight days. He was thus employed with the approbation of the Secretary of the' Treasury, and took the oaths required by law.

For the first period he was entitled to compensation at $2,500 per annum, while he received but at the rate of $1,500 for twenty-eight days, and at the rate of $1,800 for the remainder of the time. For the second period he was entitled to $3,000 per annum, and received but at the rate of $2,000. He now claims the difference, amounting in all to $1,258 38.

The words *uad interimv*amount to nothing more than an indication of the temporary nature of the appointment. There have been from eight to ten deputies constantly and regularly employed at New York, and when business presses others are temporarily employed. The phrase *“ad interim”*has no relation to the *nature*of the office, but to the *tenure*of it. The claimant had, for the time, all the powers of a deputy collector; he was regularly appointed, with the same formalities, and duly sworn as a deputy, in the form prescribed by the act of 1817. The words uad interim” served but to apprise him that his appointment was temporary only. Being, therefore, a “ deputy collector,” he became entitled to the emoluments of the office. *356There is no authority for depriving Mm of them. The law is explicit that *“every deputy shall*receive” the compensation attached to his office, (see *ante,)*and neither the collector nor the Secretary had power to curtail*it. “ Where an act of Congress declares that an officer of the Government, or public agent, shall receive a certain compensation for his services, which is specified in the law, undoubtedly that compensation can neither be enlarged nor diminished by any regulation or order of the President, or of a Department, unless the power to do so is given by act of *Congress.”*— Qoldsborough v. *The United States,*(Campbell, Taney’s Decisions, 80, 88.) This principle was recognized and enforced by this court in the case of Ware at the last term. It is analogous to that established by the Supreme Court in *Tingey’s Case,*(5 Peters, 115,129,) where a bond not prescribed by law, required of a paymaster “as a condition of holding his office,” was held illegal and void.

The office of deputy was conferred upon him unsolicited; in short, he was virtually *required*to discharge its duties without further compensation, at the peril of losing his clerkship if he refused or if he objected to the conditions imposed. It is not probable that he would *voluntarily*assume the burdensome and confining duties of a deputy in place of those of his clerkship, (or) as was the fact, in addition to them,) on any such conditions. There could be no motive for him to do so. See *United States*v. *Tingey,*5 Peters, 115,129; also *Flliott*v. *Sicartwout,*10 Peters, 137, 157, (where the subject of duress *colore officii*is elaborately considered.) It is further urged in defense, that the claimant is concluded and barred by his acceptance of the payments made him. This amounts to a plea of *accord and satisfaction.*

That the receipts produced by the Government are in themselves conclusive, will hardly, we suppose, be contended. (2 Mason, 541,561; 2 Greenleaf’s Ev., § 517; Ohitty’s Contracts,-854, and notes.) Payment of a part of a debt is no valid satisfaction of the whole debt, unless coupled with some concessions by the debtor, amounting to a new and valuable consideration. Accord and satisfaction is an independent contract, which can no more than any other be sustained without a consideration. *—Finney’s Case,*(5 Coke’s Bep., .117;) *Fitch*v. *Sutton,*(5 East, 230;) Chitty on Contracts, pp. 821, 841,842, and notes; 2 Green-leaf’s Ev., § 25; *Warren*v. *SJcinner,*(20 Conn., 559, 561.)

The right to hold both offices, and to receive the pay in both *357capacities, is nowhere denied by law. It is expressly recognized and regulated by the *Act July*7,1838, ch. 169, § 3, first proviso, (5 Stat. L., 264.) The limit of aggregate compensation there fixed is of course modified by the subsequent statutes hereinbe-fore cited. The claimant, for his services *as cleric,*was entitled to receive (as he did) the amount of the salary belonging to that office. He was further entitled, as *deputy,*to receive the legal salary of that office, subject only to the limitation, fixed by the act of 1838, that his whole compensation should not exceed the legal salary of a deputy collector at New York.

At all events, being entitled to the salary given by law to a deputy collector, he cannot be deprived of his right to it (except *pro tanto)*by taking compensation of less amount for other services performed by him, especially when his salary as deputy is wholly withheld by his superior officers *colore officii.*

*Mr. Assistant Attorney-General McMichael*for the defendants:

Where a salary has once been paid to the legal incumbent, it cannot again be drawn from the Treasury and paid to another acting under a temporary or *ad interim*appointment, and performing the duties for which that incumbent has been legally paid. If the duties of an office belong to an incumbent, who receives the salary affixed to the office which he fills, then any officer who performs those duties is, by law, prohibited from receiving therefor any compensation. *(Act August*23,1842, sec. 2,' 5 Stat. L., 510; *Act August*26, 1842, sec. 12, *ibid.,*525; *Act September*30, 1850, sec. 1, 9 Stat. L., 542; 5 Opiu., p. 74; *United States*v. *Smith,*6 Amer. Law ltegister, 269, 272.)

The appointment of the claimant as deputy collector *ad interim,*in August, 1864, was made and approved, conditioned that there would be no increase in compensation as chief clerk of the seventh division. Claimant must have understood, first, the condition of the appointment as to compensation when he accepted the *ad interim*position, and, secondly, that he was still to be chief clerk of the seventh division. He is bound by the conditions of the appointment, therefore, and so considered himself, as the filing in of his own voucher for pay as “clerk” further instances. If he served longer than during McLeod’s vacation, it was contrary to the Secretary’s letter of approval.

*358Loring, J.,

delivered the opinion of tbe court:

The facts stated show that while the petitioner held the office of clerk in the custom-house at New York, and was paid as such, he was several times appointed and served as deputy-collector *ad*interim, and for such service he claims $1,258.38, which, with what has been paid to and received by him, will make the legal compensation of a deputy surveyor.

Where a public officer performs the duties of two offices he may elect the higher compensation of the two, but he cannot receive the compensation of both, and the petitioner was paid and receipted for his salary as clerk, and he cannot now change the nature or effect of that transaction, and claim that what was paid to and received by him as his full compensation as clerk was in fact or in law a part payment of his compensation as deputy surveyor. And his claim, wo think, is barred by the proviso of the *Act September*30, 1850, (9 Stat. L., p. 542, § 1,) which is as follows: “That hereafter the proper accounting officers of the Treasury, or other pay officers of the United States, shall in no case allow any pay to one individual (of) the salaries of two different offices, on account of having performed the duties thereof at the same time.”

In this case, moreover, the petitioner's first appointment was on the express terms stated in the appointment, that it was made “without increase of his compensation as clerk,” and he was at liberty to receive the appointment on those terms if he pleased, and it might be for his advantage to do so, for it was promotion for the time, and might lead to permanent promotion, or keep him in the line of that 5 and there is no evidence in the case that he was influenced by anything but his own will and pleasure at the time. Besides, it may be that the appointment would not have been made except on the terms stated in it.

Then his second appointment of September 8, 1804, was made on a change of collectors, and within a month of the first appointment, and expressly as a re-appointment. It was thus a mere continuance of his first appointment, and so carried with it a presumption of a continuance of the same terms.

Then, as to third appointment, that -was made October 1,1866, to supply the absence of a permanent deputy collector during his annual vacation of two.weeks. And where the appointment was so temporary in its purpose, and has for precedents the two previous appointments “without increase of compensation as *359clerk,” we think the presumption is that all were made and accepted on the same terms.

The record shows that under his appointment of October 1, 1866, for two weeks, he acted as deputy collector till March 31, 1867. But it also shows that during all that time he received his compensation as clerk, and receipted for it as such.

Nott, J.,

concurring:

I have considerable doubt as to the power of the Secretary of the Treasury to make an appointment on terms of compensation differing from the salary expressly established by law; but I agree that the claimant could not receive compensation for two offices at the same time, and that his acceptance of the one precludes him from seeking a recovery for the other.