
    SLEIGH’S CASE. Luther E. Sleigh v. The United States.
    
      On the Proofs.
    
    
      A regulation of the Treasury Department provides that when a olerle’s absence “ is caused by sickness, a certificate of the attending physician must he furnished.” The regulation does not authorize stoppage of pay for absence thus caused. A cleric is ill and applies for leave of absence, furnishing at the same time a sufficient certificate. The leave is refused, on the ground that the clerk has already been absent a great length of time. He continues absent without leave, and does not furnish an additional certificate, but proves to the court that the absence ivas caused by sickness.
    
    
      I. The incumbent of an office' is prima facie entitled to the lawful compensation thereof so long as he holds the office, though disabled by disease from performing its duties. If it he an office held at the will of the appointing power, the appointing power may remove for disability, but cannot, in the absence of express law or regulation, stop the compensation while the office continues to be held.
    II. Where the regulations of an Executive Department require the clerks therein to furnish a certificate of their attending physician in cases where absence is caused by sickness, and there is no provision authorizing a stoppage of pay, the Secretary of the Department cannot deprive a clerk of his pay whose absence was caused by sickness and who furnished his physician’s certificate as required by the regulations.
    
      The Reporters' statement of tlie case:
    In this case the court found the facts to be as follows :
    From the 17th of July, 1865, to the 1st of August, 1867, the claimant was a clerk of the third class in the Treasury Department.
    For one hundred and twenty-two days prior to June 1,1867, he was, mainly from sickness, absent from his desk and place of duty in the Department; for all of which time he was paid his salary in full. He was further absent from June 1, 1867, to and including July 31, 1867, for which time he received no pay.
    On the 27th of May, 1867, at Harmar, Ohio, he wrote to the Secretary of the Treasury, requesting an extension of his leave of absence on account of bis continued sickness, and inclosed in bis letter a physician’s certificate, in tbe following terms :
    “I hereby certify that I have this day carefully examined Luther Sleigh, employé Third Auditor’s Office, U. S. A., and find him suffering from pleuro-pneumonia and extreme prostration resulting therefrom. The attack seems to have been induced by slight exposure to cold after constant application to business and while in the line of duty. I further certify that in my opinion he will not be able for duty in a less period than sixty days.
    “SAM. HAET, M. I).,
    
    “ Late JBvt Lt.. Gol. and Surg. U. S. Vols.
    
    “Marietta, Ohio, May 28,1867.”
    On the 31st of May, 1867, the -Secretary of the Treasury directed that leave of absence should be granted to claimant for sixty days, without pay.
    On the 14th of the succeeding June the claimant addressed another letter from Beverly, Ohio, to the Secretary of the Treasury, requesting that his pay should be continued to him during the period of his absence, because he was suffering from pneumonia and extreme weakness caused thereby, and was incurring constant expense for medical treatment, and had no other income than his salary as clerk. He therein stated, also, that his health was improving, and that he expected to be able to resume his duties at the expiration of his leave of absence.
    Accompanying that letter was a physician’s certificate, in the following terms:
    “ This is to certify that I have been in constant attendance upon L. E. Sleigh since the 8th of June, (on his arrival at this place,) and find him suffering from the effects of an attack of pneumonia. He is unable to perform labor of any kind on account of weakness, but his condition is improving, and we think he will soon regain his health.
    “ JM>. BEYHOLDS, M. D.
    
    “Beverly, June 15, 1867.”
    The application contained in said second letter was disallowed by the Secretary of the Treasury, on the ground that the claimant, since the 1st of June, 1866, had been absent from the office one hundred and twenty-two days, for all of which time he had received pay, and therefore the request could not be granted.
    
      From the date of the aforesaid certificate of John Reynolds, M. D., until the 1st of August following, the claimant was continuously under the medical care and treatment of said Reynolds, and during that whole period he was not able to perform clerical duties or labor of any kind by reason of anemia and debility.
    On the 2d of February, 1867, the Secretary of the Treasury adopted and promulgated a series of regulations in regard to clerks in the Treasury Department, among which were the following, occurring in the order in which they are here stated:
    “Leave of absence will not be given except in case of absolute necessity; and such leave, for a period greater than one month in any fiscal year, will be granted, if at all, without pay.
    “When absence is caused by sickness, a certificate of the attending physician must be furnished, showing the nature of the disease, the daily attendance, and the amount and extent of the debility or disability caused by such sickness, with the date when first called in and that when the attendance ceased.
    “Every application for leave of absence should state the number of days the applicant has been absent from duty during the year previous; also the date of appointment in the Department.”
    Upon the foregoing facts the conclusions of law are — 1. That the claimant’s right to receive his salary for the time from the 1st of June till the 1st of August, 1867, was not lost through his disability, by reason of sickness, to perform the duties of his office; and, 2. That the regulations above set forth did not have the effect of depriving him of his right to salary during that period.
    
      Mr. J. G. Kimball for the claimant:
    The claimant was appointed to a third-class clerkship in the Treasury Department July 17,1865, with a salary of $1,600 per annum. This position he held until after August 1,1867. On the 27th day of May, 1867, being then absent on leave, claimant asked an extension of his leave on account of sickness, furnishing the physician’s certificate required by the regulations of the Treasury Department. This was granted without pay. Against this action Sleigh protested in a letter dated June 14,1867, furnishing an additional certificate as to his health. A reconsideration of this action was refused, and claimant never has been paid for June and July, 1867, and has not received the twenty per cent, on his pay for June, 1867. The appointment of Sleigh to a third-class clerkship was an agreement that, during its continuance, Sleigh should receive the salary due to a clerk of that class. The United States had no right, during the time Sleigh remained a clerk, to withhold any part of his salary from him without his consent. He did not consent, but protested against the action of the Secretary.
    Sleigh complied with the regulations and furnished the physician’s certificate, and the Secretary should have allowed his request or dismissed him from the Department; but had no right to allow him to be absent but not allow him the salary agreed upon. Joseph A. Ware v. The United States, (7 C. Cls. B., p. 565.)
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney-General) for the defendants.
    The claimant in this case seeks to recover $293.33, alleged to be due him on his salary as a clerk in the Third Auditor’s Office. On the 17th day of July, 1865, he was appointed to a clerkship of the third class. On the 27th of May, 1867, being then absent from his duties, he applied for an extension of his leave of absence on account of sickness, and transmitted with the application a physician’s certificate to the' effect that he would not be able for duty in a less period than sixty days. On the 31st of May, 1867, he was granted sixty days’ leave of absence, without pay. He now seeks to recover in this court pay for this period of absence.
    The regulations of the Treasury Department, established by the Secretary on the 2d day of February, 1867, and in force at the time the claimant’s application for leave was made and during the entire period of the leave, contained the following-provisions in relation to leaves of absence:
    “ Leave of absence will not be given except in case of absolute necessity; and such leave, for a period greater than one month in any fiscal year, will be granted, if at all, without pay.
    “ When absence is caused by sickness, a certificate of the attending physician must be furnished, showing the nature of the disease, the daily attendance, and the amount and extent of tbe debility or disability caused by sucb sickness, with the date when first called in and that when the attendance ceased.”
    We submit that, under these regulations, no clerk in the •Treasury Department could hope to receive, more than one month’s leave of absence in any fiscal year with pay. The regulations explicitly state,- first, that leave will not. be given save in cases of absolute necessity; and, secondly, that “ such leave ” — that is, leave granted in cases of absolute necessity— “for a period greater than one month in any fiscal year” will be without pay. Sickness would, no doubt, be deemed by the • Secretary such a case of “absolute necessity” as would entitle a clerk to leave; but, under the regulations, neither sickness nor anything else can entitle him to more than one month’s leave with pay.
    The clause in the regulations requiring the attending physician’s certificate in case of sickness does not in any way modify or alter the preceding clause. Manifestly the purpose of this clause is twofold: First, to excuse the absence of employés who are detained from the office for a short time by sudden illness ; and, secondly, to enable the Secretary to act understandingly in cases where parties apply for leave on account of sickness. If simply by furnishing a physician’s certificate, in conformity with this regulation, an employé becomes entitled to his salary for the period of absence, then the preceding regulation, which expressly fixes one month as the limit of absence with pay, is without meaning and of no effect.
    Such is our view of the meaning and scope of the regulations adopted by the Secretary of the Treasury for the government of his Department, and under this view it must be perfectly plain to every one that, in deducting the claimant’s salary, the Secretary acted strictly in accordance with the regulations established by himself. We now come to consider what we regard as the real question at issue in this cause. Had the Secretary of the Treasury authority under law to make and enforce the regulations to which reference has been made 7 In none of the statutes we have examined is such authority given in express terms; but, on the other hand, we have been unable to find in any of the statutes a single provision denying or withholding such authority, either in-express terms or by fair implication. We therefore submit that if, in the performance of the duties imposed on him by law, the Secretary found it necessary to make and enforce these regulations, he had a perfect right to do so. When a statute enjoins the performance of a specific duty, the officer charged with the performance must be permitted to make use of the necessary means : otherwise the statute would be a mere nullity. Without the adoption and enforcement of a system of thorough and exact discipline it would hardly be possible to secure the prompt and proper performance of tke'large quantity of work pertaining to the Treasury Department and at the same time allot to each of the several thousand employés Ms specific share. It is true that the Secretary can remove the employés of his Department, .and it may be urged that this power of removal is ample for the enforcement of discipline. It is ample beyond all question of doubt, but it is a remedy entirely too heroic to be applied in the correction of nine-tenths of the evils continually arising in the Department. If a clerk is absent from his desk on account of sickness for a period of several months the duties pertaining to his desk must be performed by some one, and it would clearly not be entirely just to pay him for services which another was performing, and yet to dismiss him under such circumstances would be a case of extreme hardship. Under the law the Secretary of the Treasury is charged with the performance of certain duties. By law he is empowered to employ a certain number of clerks, whose salaries are also fixed by law. In contemplation of law these clerks must render an equivalent in labor for the compensation received, and the duty of enforcing this labor-equivalent devolves upon the Secretary. In short, in theperformance of his duties, it is necessary that the Secretary of the Treasury should possess thepower to enforce the regulations hereinbefore referred to, and, being necessary, we submit that the statutes fixing his duties invested him with this authority. If, as we claim and think we have demonstrated, the Secretary had authority to make the regulations, it logically and necessarily follows that, as between him and the clerks in his Department, the regulations when made were in the nature of a contract, and alike binding upon both the contracting parties. The claimant in his petition states that he protested against the action of the Secretary in withholding his pay. What he denominates a protest is his letter of June 14,1867, to be found on page 7 of the record. A milder protest was certainly never framed. It is so mild, that if we had read it before reading the petition in this cause, we are quite sure we should have mistaken it for an appeal or a petition to the Secretary of the Treasury. But we are quite willing it should be called a protest, for as such it is utterly harmless. The claimant is estopped from protesting against the Secretary’s action, being himself a party to the regulations upon which the Secretary’s action was based. He assented to these regulations, became a party to them, by continuing to hold his position in the Department after they had been promulgated. Simply by way of showing that the claimant was generously dealt with during his illness, we desire respectfully to direct the attention of the court to two facts that appear in the record. One of these facts is that the claimant was absent from his desk one hundred and twenty-two days in one year, and received pay for the entire period, and the other is, that his place was kept for him during his absence, as is ■evidenced by his own admission that he remained a clerk till August 31, 1867.
   Drake, Ch. J.,

delivered the opinion of the court:

The incumbent of an office is, prima facie entitled to the lawful compensation thereof so long as he holds the office, though he may be disabled by disease or bodily injury from performing its duties. If it be an office held at the will of the appointing power, and that power does not see fit to-have the compensation go on while the incumbent is so disabled, the only remedy, in the absence of express law or regulation authorizing the stoppage of the compensation during the disability, is to remove the incumbent and so end his right to compensation. If the appointing power suffers him to continue in office, notwithstanding the disability, he is entitled to the compensation. This right may be cut off by law or regulation authorizing it 5 but not by the act of the appointing power without the authority of law or regulation.

On the part of the defendants it is contended that in this case the regulations adopted by the Secretary of the Treasury in February, 1867, furnished a warrant for the stoppage of the claimant’s pay during the months of June and July. Admitting for the purposes of this case the lawful-authority of the Secretary to make those regulations, it is our opinion that they did mot authorize the stoppage of the claimant’s pay.

The first and third paragraphs of those regulations refer to leave of absence to be given by the head of the Department, and do not relate to this case, which, as we conceive, is governed by the second paragraph, in these words:

“ When absence is caused by sickness, a certificate of tbe attendingphysicianmustbefurnisked,showingthe nature of the disease, the daily attendance, and the amount and extent of the debility or disability caused by such sickness, with the date when first called.in and that when attendance ceased.’7

Two things are here observable: 1. That the regulation does not-authorize the stoppage of the pay of a clerk on account of his “absence caused by sickness;” and 2. That it does not authorize such stoppage if the clerk fails to present the required certificate.

The effect of the regulation, then, is simply to require such a certificate as evidence that the party’s absence was “ caused by sickness.” If he disregarded the regulation, and failed to produce the required certificate when it was in his power to do so, that would be sufficient ground for removing him, but not for stopping his pay; for the latter is not prescribed as a consequence of such disobedience of the rule.

In this case the claimant sent to the Department two sufficient certificates of his attending physicians, covering the time till the 15th of June. With the second he sent a letter, requesting that his pay be continued to him. This request was refused, not because, under the regulation, he was debarred from pay while absent through sickness, nor because he had not furnished a proper certificate, but because he had, during the previous year, been absent one hundred and twenty-two days, for which time he had received pay; all of which absence was caused by sickness. The refusal, when put on that ground, had two effects: 1. To admit that up to hat time he had, so far as the certificate was concerned, complied with the regulation; and 2. To dispense with any further production by him of such certificate; for, in view of the Secretary’s decision, a subsequent certificate, complying with the regulation, would have been of no value in procuring a continuance of his pay.

The case, then, stripped of all question as to his com pliance with the regulation, is simply one of the claimant’s right to the pay of his office dui’ing the two months of June and July, in which it is found that he was disabled by sickness from performing duty. On this point our views have been above expressed. He is entitled to that pay, and the Secretary of the Treasury was not lawfully empowered to withhold it, either for the reason assigned by him or because of claimant’s sickness.

The claimant is entitled to recover his salary, at the rate of $133.33 per month, for the months of June and July, 1867, amounting to $266.66, and, under the joint resolution of February 28, 1867, (14 Stat. L., p. 569,) 20 per cent, in addition on the pay for the month of June, amounting to $26.67, making an aggregate of $293.33; for which sum judgment will be awarded him.  