
    CHARLES E. STEELE v. THE UNITED STATES.
    [No. 23258.
    Decided May 1, 1905.]
    
      On the Proofs.
    
    A letter carrier is suspended by tlie Postmaster-General because o£ his having killed a man and being under arrest or on bail awaiting trial. After his acquittal he is restored to duty.
    I. TVhere a letter carrier entitled to an annual salary is not suspended without pay and is not restored to duty with loss of pay he is entitled to he paid during the period of suspension.
    II. As held in Corcoran’s Case (38 C. Cls. R., 341) a letter carrier can not be deprived of his statutory compensation unless the power to deprive him of it is actually exercised, expressly, and not indirectly or by implication.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Charles E. Steele, was, on and prior to the 7th day of December, 1901, a letter carrier in the post-office at Houston, in the State of Texas, of the class entitled by the act of January 3,1887, section 3 (1 Supp. R. S., 519), to a salary of $850 a year.
    II. On Saturday, the 7th of December, 1901, he shot and killed a man, as was claimed by him, in self-defense. He was arrested and brought before a committing magistrate, who, after hearing evidence, prdered that he be admitted to bail in the penalty of $5,000. On the 21st of December, 1901, the grand jury of Harris County, Tex., found a true bill against him for murder, and his bail was renewed on the indictment on the 27th. On the 16th day of October, 1902, his trial came on and a jury impaneled, who, after hearing the evidence, found a verdict of not guilty.
    III. The claimant upon being admitted to bail by the committing magistrate, on Monday, the 9th of December, 1901, appeared at the post-office and offered to go to work. The postmaster assigned him to duty, and on the same day, December 9, made the following report to the First Assistant Postmaster-General:
    
      “ Houston, Harris County, Texas,
    
      “December 9,1901.
    
    
      “ Hon. First Ass’t Postmaster-General,
    
      “Free Delivery Division,
    “ Washington, D. G.
    
    “ Sir': I have to report that on Saturday night, December 7, Letter Carrier Chas. E. Steele shot and killed one Thomas Fleming. Mr. Steele was off duty at the time. He was taken into custody, and this morning as soon as a hearing could be had the magistrate promptly released him on $5,000.00 bond for appearance before grand jury, preliminary examinations being'waived.
    “ The extenuating circumstances being such as to warrant the magistrate to admit him to bail with little delay, I have considered it proper and at the request of the carrier to permit him to return to duty to-morrow morning. .Mr. Steele is an exceptionally" orderly, good man, and one who without great provocation would not have committed such an act. I enclose a section of the Houston Daily Post of Dec. 8 with an account of the killing marked. I report the facts and would be glad to have any suggestion or instructions you may be pleased to favor me with.
    “ Very respectfully, S. B. Strong,
    “Postmaster.”
    O.Y. Pie continued to work until the 13th day of December, 1901,. when the postmaster suspended, him by virtue of the following telegraphic instructions:
    “ December 13, 1901.
    “The Postmaster,Houston, Tex.:
    
    “ Suspend Carrier Charles E. Steele pending result of his trial.
    “ First Assistant Postmaster-General.”
    Notwithstanding the carrier expressed himself as ready and willing to continue at work he was not allowed to return to work until the 16th of December, 1902, when the First Assistant Postmaster-General, after repeated recommendations by the postmaster for the restoration of the claimant to duty, based upon the ground that the homicide was justifiable, and a favorable report made by the assistant superintendent of free delivery, who investigated the case, restored him to duty by telegraphic order. He accordingly returned to duty on the 17th of December, 1902.
    V. He received no salary during the period of suspension, from December 13, 1901, to December 17, 1902, and now sues for the legal salary of the office during the term of suspension, which would amount to $858.24. ■
    
      Mr. George A. King for the claimant. Messrs Geo. A. da William, B. King were on the brief.
    
      Mr. E. O. Brandenburg (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court:

The distinction between this case and that of Wertz, just decided, is this: In the Wertz case the claimant was suspended from duty with pay until he could return to his home, and without pay after his arrival there. He was paid up to the time designated, and suit was brought to recover pay for the time subsequent to his arrival at home. His pay, moreover, Avas per diem, to which he Avas entitled only when actually employed. In this case the claimant Avas entitled to an annual salary, and the Postmastér-General did not suspend him Avithout pay and did not restore him to duty Avith the loss of pay. His suspension was an official precaution for the public welfare and; as the result showed, not because of an official dereliction on the part of the claimant. The case, therefore, comes Avithin the decision in 0or coran (38 C. Cls. K.., 341), where it Avas held that a letter carrier could not be deprived of his statutory compensation unless the power to deprive Avas actually exercised, expressly and not indirectly or by implication.

The judgment of the court is that the claimant recover $858.24.  