
    LINCOLN C. ANDREWS v. THE UNITED STATES.
    [No. 30785.
    Decided December 4, 1911.]
    
      On the Proofs.
    
    To enable Mm to procure employment in civil life, a captain in the Army is granted leave of absence for 6 months; afterwards extended to 10. At the expiration of 7 months, by direction of the President, his leave is not revoked, but thereafter is to be without pay. He does not protest or relinquish Ms leave or return to duty.
    I. The salary of a Government officer is by law attached to the office and can not be increased, diminished, or withheld by executive officers; but as the President may revoke a leave of absence, he may make the continuance of it conditional upon the officer relinquishing the pay.
    II. If an officer then continues to absent himself from duty, he must be held to have acceded to the condition imposed and to have waived all right to pay for the period of his absence.
    III. This case is to be distinguished from Rush's (35 C. Gis. R., 223), where letter carriers were required by a postmaster to waive all right to overpay under the eight-hour law. The voluntary waiver by an Army officer for the time when he is performing no service for the Government, and voluntarily remains out of service after notice that if he does so it will be without pay, is different from the ease of an officer who renders full service and is required to forego a part of his lawful compensation.
    
      The Reporters'1 statement of the case:
    The following are.the facts of the case as found by the court:
    I. During the period for which this claim has been made the claimant was a captain in the Fifteenth Regiment of United States Cavalry, with a record of over 15 years’ service.
    II. The claimant having accepted employment with a commercial company was 'granted six months’ leave of absence, to take effect January 1, 1907, by paragraph 2, Special Orders, No. 305, War Department, dated December 28, 1906, which leave was extended for four months, to take effect July 1, 1907, and to expire October 31, 1907, by paragraph 26, Special Orders, War Department, dated June 17, 1907.
    III. While the claimant was enjoying the extension of his leave of absence, the Adjutant General of the United States Army, on July 31,1907, sent him the following telegram:
    
      “ By direction of the President, although your leave is not revoked, your absence from this date will be without pay.”
    His leave without pay from August 1,1907, to October 31, 1907, was not requested by the claimant, but he did not file a protest against such action nor relinquish his leave and return to duty.
    IV. The claimant was absent from duty from January 1, 1907, to October 31, 1907. From August 1, 1907, to October. 31,1907, he received no pay.
    
      Mr. ArcMbcUd Kmg for the claimant; Messrs. George A. and 'William B. King were on the brief.
    
      Mr. George M. Anderson (with whom was Mr. Assistant Attorney General Thompson) for the defendants.
   BaRney, J.,

delivered the opinion of the court:

This is the suit of a captain of Cavalry, with over 15 years’ service to his credit, to recover for 3 month’s half pay, amounting to $325, alleged to have accrued to him while on leave of absence without pay.

In order to enable him to enter the employment of a commercial company, he was granted a leave of absence for six months from January 1, 1907, to June 30, 1907. This leave was afterwards extended for four months, from July 1, 1907, to October 31, 1907. After he had served one month of the extension of his leave, on July 31, 1907, The Adjutant General of the Army sent a telegram to him, which stated that “by direction of the President, although your leave is not revoked, your absence from this date will be without pay.” At the time of the reception of this telegram he had three months’ unexpired leave. This action of the President was not at his request, but he made no protest thereto and did not report for duty. Pie reported, however, at the expiration of his leave, on October 31, 1907. Several years after-wards he filed a claim with the Auditor for the War Department, which was disallowed by him on August 3, 1910, upon the ground that the claimant had waived his right of pay for the period claimed. The decision of the auditor was affirmed by the Comptroller of the Treasury upon the same ground on November 17,1910.

The practical effect of the order of August 1,1907, quoted in Finding III, was to change the previous order granting the claimant leave of absence with incident half pay, which he was then enjoying, so as to give him leave of absence without pay for the remaining period of leave allowed in such previous order.

The claim in this case is based upon section 1265 of the Kevised Statutes, which is as follows:

“ Officers when absent on account of sickness or wounds, or lawfully absent from duty and waiting orders, shall receive full pay; when absent with leave, for other causes, full pay during such absence not exceeding in the aggregate thirty days in one year and half pay during such absence exceeding thirty days in one year. When absent without leave, they shall forfeit all pay during- such absence, unless the absence is excused as unavoidable.”

It is contended by the claimant that the salary of a Government officer is by law attached to the office, and can not be increased, diminished, or withheld by executive officers. As a general proposition of law there is no question but that this contention is correct, and has been so often so decided by the Federal courts as to need no citation of authority. It is also contended by the claimant that the President had no power of his own motion to dismiss him, and hence could not suspend him without pay, if it should be claimed that the order of August 1,1907, was a partial and qualified dismissal, and cites in support of this contention a provision of section 1229, Kevised Statutes, which is as follows:

“And no officer in the military or naval service shall in time of peace be dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof.”

We think, however, the question involved in this case is to be decided- upon matters entirely outside of the statutes quoted. By the order of August 1 the President did not grant the claimant a leave of absence under section 1265; on the contrary, he was in effect therein told that so far as his rights under that statute were concerned his leave of absence was revoked; that seven months was long enough to remain away from his official duties and attend to his private business on half pay; but that if he still preferred to do so he could go on for the balance of three months doing his own work, with the understanding that during such time he would receive no pay from the Government. Upon the receipt of such instructions he saw fit to absent himself from duty for the full time of his previous leave of absence, and the • question is whether he did not thereby accede to the conditions imposed by such instructions and waive any right to pay for the period claimed. That his conduct constituted a waiver there can be no question, unless, as contended by him in this suit, he could not lawfully waive any part of his statutory compensation, and the case of Rush v. United States (35 C. Cls. R., 223), is cited to sustain that contention. That was a case where the letter carriers in San Francisco had signed a paper waiving all right to overpay under the eight-hour law, and this court decided that under the circumstances of that case such waiver was void, and they were allowed to recover for such overtime.

The opinion in that case was rendered by the present Chief Justice, and he said that the question decided in that case was, “ Had the postmaster any right to require of the carriers a waiver of the compensation fixed by statute for services to be thereafter rendered?” (Id., 240.) It needs no argument to show that a waiver required of a letter carrier by the postmaster for pay for services actually rendered is somewhat different, to say the least, from the voluntary waiver by an Army officer of pay for the time when he was performing no services for the Government, but by preference was attending to his own business.

It is decided that the claimant by voluntarily remaining out of the service for the time claimed for, under instructions from the President that by so doing he would receive no pay, thereby waived all right to such pay, and hence the petition is dismissed.

HowRY, Judge,

concurring:

If the only question here involved was the moral right of this officer to take pay from the Government whilst availing himself of opportunity for business and pleasure of his own by an agreement to waive his Government pay, the officer would have no case appealing to the sense of right of any fair-minded man. In the legal phase of the matter the courts have gone so far in excluding defenses involving ■ waiver of compensation it must be conceded there is doubt as to the validity of the waiver. The result is so evidently just, however, it is a case where the doubt should be resolved against a person who preferred attention to his own affairs rather than resume his official duties. For this reason I concur.

There was no requirement put upon the officer by the President to waive compensation except as such waiver gave the officer a full, higher, and better consideration from the officer’s point of view. The circumstances do not make for the officer a different case than was made by the letter carriers of San Francisco for themselves.

It appears from the present opinion that the letter carriers of San Francisco were required to sign a paper waiving all right to overpay under the eight-hour law. The record shows that the letter carriers over their signature requested the postmaster not to put the eight hours of continuous service in force because they would lose time if he did on account of the “ swings ” they had to make in distributing and collecting mail. Properly enough the postmaster, for his protection, required waiver of compensation where the letter carriers were receiving compensation in time and a higher and better consideration by their own request. This court ¡ unanimously thought that the letter carriers could properly 1 waive and were not entitled to public compensation because the old schedule was continued in force for their exclusive benefit. Rush et al v. United States, 33 C. Cls. R., 417. Subsequently the majority of the court reversed the first decision. 35 C. Cls. K., 223. I did not join in the reversal' of the court’s first action for reasons which appear in the appendix in one of the volumes of our reports. 45 C. Cls. R., 604. This action of the court in the cases of the letter carriers mentioned is adverted to only for the purpose of saying that where common fair dealing is at stake and Government officers are misled a waiver of compensation should be enforced, except where there is a positive command by some statute forbidding the enforcement. There was no requirement put upon the letter carriers any more than there was a “ requirement ” put upon this officer.  