
    Charles G. Thwing v. The United States. Edward D. Town v. The Same.
    
      On the Proofs.
    
    
      Privates on the Capitol police obtain leave of absence for one month. They remain absent without leave and without reasonable cause. , They are not dismissed, but substitutes are employed who receive their pay, and their names, for the time being, are stricken from the pay-roll. Being restored, they bring their actions to recover pay for this period upon the technical ground that they were not dismissed.
    
    I.The Capitol police are appointed hy tlie Sergeants-at-Arms of "both houses of Congress and the Architect of the Capitol, are subject to their control, and are paid such rates of compensation as may be appropriated by Congress.
    II.Where tenure of appointment is not fixed or limited by statute, the officer holds at the will of the appointing power; and the power to remove is incident to the power to appoint.
    III.Neither a commission nor other technical form of appointment is necessary for the appointment of the Capitol police, and their removal from office may be as informal as their appointment.
    IV. AVhere members of the Capitol police remained absent from duty with no notice that they intended to return, and their names were stricken from the pay-rolls, they must be regarded as having been removed, even though subsequently restored to duty.
    
      The Reporters’ statement of the case :
    The following are the facts as found by the court in Timing’s case:
    I. The claimant was appointed a member of tbe Capitol police, as a private, February 1, 1870, and, except as hereinafter set forth, he performed the duties of that position and received his compensation therefor up to the time of bringing' this action.
    II. He obtained leave of absence from duty for the month of July, 1875, and thereafter he remained absent without leave and without reasonable cause until October 1, 1875.
    III. From the 10th of August to the 1st of October, 1875, the claimant’s place was filled by a substitute, R. Mitchell, who was appointed by the Sergeants-at-Arms of the two houses and the Architect of the Capitol Extension, of which the claimant had express notice, and who received the compensation therefor which the claimant would have received had he performed the duties.
    IY. The Sergeants-at-Arms of the two houses made out and approved the pay-roll for the month of August, 1875, as follows, and payments were made in accordance therewith, and were receipted for by the claimant and his substitute as therein appears :
    We, the subscribers, acknowledge to have received from. Edward McPherson, Clerk House of ReiVs, the sums opposite our respective names, in full of our salaries as Capitol policemen and watchmen for the month of August, 1875.
    
      
    
    Approved.
    John R. French,
    
      Sergeant-ai-Arms U. S. Senate.
    
    N. G-. Orjdway,
    
      Ser geant-at-Arms Souse of Representatives, 43iZ Congress.
    
    From the pay-roll for the month of September, they omitted the claimant’s name and included that of his substitute, who was paid accordingly.
    Y. From August 10 to October 1, 1875, while the claimant was absent from duty without leave, he has nob been paid any compensation.
    In Town’s case the court found the following facts:
    I. The claimant was appointed a member of the Capitol police, as a private, April 1, 1867, and, except as hereinafter set forth, he performed the duties of that position and received his compensation therefor, until August 15, 1876, when he was discharged.
    
      II. He obtained leave of absence from, duty for the month of July, 1875, and thereafter he remained absent without leave and without reasonable cause until September 10,1875.
    III. The Sergeants-at-Arms of the two houses omitted the claimant’s name from the monthly pay-roll for August, 1875. And on the pay-roll for the month of September, 1875, they allowed him pay only from the 10th of the month, when he returned to duty, and he received the same and receipted therefor as follows:
    
      We, the subscribers, acknowledge to have received from Edward McPherson, Clerk of the House of Rep’s, the sums opposite our respective names, in full of our salaries as Capitol policemen and watchmen for the month of September, 1875.
    
      
    
    Approved.
    John R. French,
    
      Sergeant-at-Arms XI. S. Senate.
    
    N. G-. Ordway,
    
      Sergeant-at-Arms XI. S. House of Representatives, 43d Congress.
    
    IY. From August 1 to September 10, 1875, while the claimant was absent from duty without leave, he has not been paid any compensation.
    
      Mr Charles King for the claimant:
    It is conceived that this action comes within the law as laid down in Sleigh’s Case (9 C. Cls. E., 369), and in IiheinharcWs Case (10 C. Cls. B., 282), and upon these authorities claimant respectfully submits his case, claiming that he is entitled to judgment for one hundred and thirty-two dollars and twenty-one cents.
    
      Mr. F. J. Lippitt (with whom was the Assistant Attorney-General) for the defendants:
    Covenants that are mutual and dependent are conditions precedent; and plaintiff cannot recover without averring and proving full performance. (Grant’s Cases, 3 Pa.., 241; Stohes v. 
      Burrell). Employer not bound to pay for time lost by employé. (.McDonald v. Montague, 30 Yt., 357). Employé may recover for work done where his failure to do the whole was from sickness or inability not arising from his own fault. (Fahy v. Worth, 19 Barb., 341; Wolfv. Bowes, 24 Barb., 174; Clark v. Gilbert, 32 Barb., 576).
    Employer may recoup for loss by employe’s neglect. Omission to discharge employé no release of transgression. Em-ployé not entitled to claim to be either discharged or absolved. (Stoddard v. Treadwell, 26 Cal., 294.)
    In Ware's Case (7 O. Cls. B., 565) it was held only that a certain Treasury regulation meant that a clerk was entitled to pay during absence from sickness, if proved in the manner prescribed. Sleigh's Case (9 C. Cls. B., 369) only decides that whenever a clerk’s absence is caused by sickness he is entitled to his salary.
    In Bheinhard’s Case (10 O. Cls. B., 282) an' officer’s resignation was coupled with an application for a leave of absence to October 31, and the resignation was “ accepted accordingly.” It was properly decided that the leave was granted by necessary implication.
    In Slingsby’s Case (1680) (3 Swanston, 178) the master of the Mint had been suspended by letters patent from the king. He was held to be entitled to his salary during the suspension.
    
      People v. Tieman (8 Abb. Pr. B., 359); Same v. Same (30 Barb., 193); Dorsey v. Smith (28 Cal., 21); and Carroll v. Sieben-thaler (37 Cal., 193) only decide that where an office is usurped the salary must be paid to the pierson legally entitled to the office, and not to the usurper, though all the duties have been performed by the latter. It is obvious that not one of these decisions touches the case of willful absence.
    
      Bryan v. Cattell (15 Iowa, 538) appears to be the only case in which it has been held that the salary of an officer cannot be withheld during his absence from duty, though such absence was voluntary, and not owing to sickness or other inability. But the reasoning in that case is wholly unsatisfactory.
    It is true that in Sleigh’s Case (supra) it was intimated that the right to compensation cannot be cut off by the act of the appointing power without the authority of law; but this intimation is now overruled by the case of United States v. Murray 
      (100 U. S. R., 536), which holds that an employé of a department may be furloughed without pay when the exigencies of the service require.
   Richardson, J.,

delivered the opinion of the court:

These two cases were tried and submitted together, and they do not differ materially in the questions of law which arise upon the facts as found by the court.

The claimants were both members of the Capitol police as privates. Each obtained leave of absence from duty for the month of July, 1875, and thereafter each remained absent for some time without leave and without reasonable cause; and each now seeks to recover payment for the time he was thus absent without leave.

In the case of the claimant Thwing, the Sergeants-at-Arms of the two houses and the Architect of the Capitol placed on duty-a substitute during his absence without leave, and included the name of the- substitute in the pay-roll, and paid him the compensation which the claimant would have received had he performed the duties. Of this the claimant had notice. For the month of August, 1875, he was allowed pay for the first ten days, and he received the amount thus allowed and receipted on the pay-roll in- full for his salary for that month. For the next month the substitute was paid, and the claimant’s name was omitted altogether from the pay-roll.

In the case of the claimant Town, the Sergeants-at-Arms omitted the claimant’s name from the pay-rolls while he was absent without leave, for the month of August, 1875, entirely, and until the 10th of the following September, when he re‘turned to duty, and they then restored his name thereto. For the latter month they allowed him pay from the day of his return, and he received and receipted for it in full for his salary for that month.

The members of the Capitol police are appointed by the Sergeants-at-Arms of the two houses of Congress and the Architect of the Capitol Extension, are subject to their control, and are paid, on the order of the Sergeants-at-Arms, such rates of compensation as may be appropriated by Congress from year to year. (Rev. Stat., §§ 1821, 1822 5 Bradshaw's Case, 14 C. Cls. R., 78.)

The tenure of the. appointment or employment of the members of the Capitol police not being fixed or limited by statute, they hold at the will of the officials vested with the power of appointing them; and they may be removed by their superiors by, an authority which, in such case, is incident to the power of appointment. (Hennen's Case, 13 Pet., 231.)

Neither a commission nor other technical form of appointment is required by statute, and it is understood, as was conceded at the trial by counsel on both sides, that none such is adopted or used in practice.

A removal may be as informal as the appointment, and it only requires that the incumbent of the position shall have reasonable notice in some form, directly or indirectly, of the intention and will of the appointing power in that regard.

As the claimants remained away from their duty without leave and without reasonable cause, practically abandoning their positions with no notice that they ever intended to return, and the Sergeants-at-Arms struck their names from the payrolls during the'time of such absence, we are of the opinion that the claimants are to be considered as removed for the time being,'and, therefore, not entitled to the pay they claim.

Under the circumstances they must be held to have had due notice of at least a temporary removal; and that they so understood it is made more clear by the fact that for the fraction of a month during which they performed their duties, each received the compensation allowed him, and receipted for it in full for his salary for the whole month.

It was a favor to the claimants that they were restored to their former positions upon their return; but the granting of that favor does not give them the right to draw pay for the intervening time while their names were not upon the rolls. (Murry’s Case, 100 U. S. R., 536.)

The judgment of the court is that the claimant’s petition in each case be dismissed.  