
    EDWARD EVERETT HAYDEN v. THE UNITED STATES.
    [No. 22832.
    Decided December 8, 1903.]
    
      On the Proofs.
    
    At the beginning of the war with Spain an officer on the retired list is assigned to duty on the active list. While serving and receiving pay on the active list, the Secretary of the Navy appoints him meteorologist at the Mare Island Navy-Yard at a salary of §2,000 per annum, payable from the appropriation of §50,000,000, entitled “National defense.” The accounting officers refuse to allow him pay as meteorologist on the ground that he was an officer in active service.
    I.The Act 9th March, 1898 (30 Stat. L., 274), which appropriates §50,000,000 “to be expended at the discretion of the President,” evinces the utmost confidence of Congress in the President in the proper distribution of the fund, and was intended to be adequate and comprehensive and to extend to each and every purpose connected with the war.
    II.The order of the Secretary of the Navy appointing a meteorologist at the navy-yard to perform the work ordinarily performed by officers of the Navy and making the employment a charge upon the national defense emergency fund must be regarded as the order of the President.
    III.A retired naval officer serving in time of war upon the active list and appointed meteorologist by the Secretary of the Navy under the statute providing an emergency fund for the war is entitled to his salary as meteorologist, notwithstanding the fact that he is an officer on the retired list; and he is entitled to the pay of an officer on the retired list, but not to the pay of an officer on the active list.
    
      The Reporters' statement of the case:
    The following are the facts of the- case as found by the court:
    I. The claimant, Edward Everett Hayden, was, at the time of the occurrence of the matters hereinafter set forth, an ensign on the retired list of the Navy, but now a lieutenant-commander on the active list under the provisions of the special act approved January 12, 1901, entitled “An act for the relief of Edward Everett Haj^den, an ensign on the retired list of the'Navy.” (31 Stat.'L., 735.)
    II. On September 17,1898, the Department issued an order to this officer assigning him to duty at the naval observatory, navy-yard, Mare Island, Cal., and he reported in obedience to such order on September 29, 1898.
    Under date of October 3, 1898, the Secretary of the Navy appointed the claimant marine meterologist, for duty at the Mare Island Navy-Yard, at a salary of §2,000 per annum, payable from the appropriation of §50,000,000, entitled “ National defense,” made by act of March 9, 1898. (30
    Stat. L., 274.)
    The following correspondence then took place:
    “Observatory,
    
      “Wavy- Ya/rd, Ma/re Island, Gal., Nov. 11/,, 1898.
    
    “Geni. J. J. REYNOLDS, U. S. A.
    “Dear General: I fear that Secretary Long’s kind wish to have me here and to give me that appointment as marine meteorologist, with pay from the‘emergency fund,’ may have caused some question as to legality, the war not having ended. I beg to suggest that, if so, my civil appointment be canceled for the present, as I have drawn no pay under it, and am unwilling to do so if it in any way embarrasses the Department. To make up for the loss to me to some extent, the Department might order me at once to the IN aval Observatory in Washingion for a short tour of duty, when I could try the examination on Dec. 6th before the Civil Service Commission, and if successful be appointed after the treaty of peace is signed, thereby securing perfect legality.
    “This observatory is nowin good running order, and current routine work can be kept up for a few weeks easily enough by Ens. Standley, whom 1 relieved (now on the Pensacola here).
    “Very sincerely, yours,
    (Signed) “Everett Hayden,
    “Ensign, U. S. N, Rationed.
    
    “If ordered home, please telegraph orders Nov. 19, if possible. “E. H.”
    “True copy from the records of the Navy Department.
    “B. E. Peters, Chief OlerlN
    
    
      “Navy Department,
    “ Washington, November %1, 1898.
    
    “Sir: General Reynolds has referred to me your letter of November 14th, in which you suggest that the legality of your appointment with paj^ from the emergency fund may be questioned. The Department is of the opinion that there is no question as to the legality of your appointment, nor is there a question as to the matter of drawing pay from the emergency fund, out of which appropriation you will be paid until January 1,1899. As to the further suggestion that j'ou be ordered to the Naval Observatory in Washington for a short tour of duty in order that you may enter the examination for marine meteorologist December 6 before the Civil Service Commission, the Department will request the Commission to hold an examination at Mare Island or San Fran cisco, and, in case of favorable action by the Commission, it would not necessitate your coming east.
    ‘ ‘ Yery respectfully,
    (Signed) “John D. Long,
    “ Secretary.
    
    “Ensign E. ITaydeN, U. S. N. (retired),
    “ Observatory, Nmy-Yarcl, Mare Island, (1al.
    
    “The Department is informed by telephone that the U. S. Civil Service Commission has made provision for holding an examination for marine meteorologist in San Francisco, Cal. ”
    “True copy from the records of the Navy Department.
    “B. F. Peters, Chief Clerl'I
    
    “Treasury Department,
    “Oeeioe oe Comptroller oe the Treasury,
    “ September 5, 1900.
    
    “Everett E. Hayden, ensign, U. S. Navy (retired), appeals from settlement No. 10724, dated May 28,1900, of the Auditor for the Navy Department, adjusting his claim for pay as marine meteorologist at the naval observatory, navyyard, Mare Island, Cal.
    “By order of September 17, 1898, Ensign Hayden ivas detached from duty at the Navy Department in Washington, D. C., and directed to proceed to Mare Island, Cal., and report to the commandant of the navy-yard at that place, for duty at the U. S. naval observatoiy there situated. The endorsement on this order shows that ho did so report September 29, 1898.
    
      “On October 3, 1898, the Secretary of the Navy issued to him an appointment in the following form, he then being on duty under his orders of September 17, 1898:
    “ ‘There being no eligible marine meteorologist on the register of the U. S. Civil Service Commission, you are hereb}' temporarily appointed as marine meteorologist in the department of equipment, navy-yard, Mare Island, Cal., with pa}' at tire rate of $2,000 per annum, emergency fund, to take effect when you have executed the required oath of office and entered upon duty.’
    
    “On October 27, 1898, he executed the required oath of office. On April 11, 1899, he received the following order, dated January 27, 1899:
    “ ‘You are hereby detached from dutjr at the U. S. naval observatory, Mare Island, Cal., and from such other dutj^ as may have baeen assigned you, and will proceed to your home.
    “ ‘ Immediately upon your arrival home report your local address, in full, to the Bureau of Navigation, Navy Department, Washington, D. C. See article 224, U. S. Navy Regulations, 1896.
    “ ‘ Upon the receipt of these orders you will notifj7- the ■pay officer in' charge of your accounts of the date of your detachment.’
    “ On April 12,1899, the following telegram was sent to him:
    “ ‘Navy Department, Bureau oe Navigation,
    “ ‘ Washington, April 1%, 1899.
    
    “ ‘Navy-Yare, Mare Island, Gal.:
    
    “ ‘Authorize Ensign Hayden delajr proceeding homo throe months, and direct keep Department advised address.
    “ ‘ Long.’ ”
    June 6, 1899, the following communication was sent to him:
    “Navy Department,
    “ Washington, June 6, 1899.
    
    “ Sir: Congress having failed to appropriate for the position of marine meteorologist at the Mare Island Navy-Yard, your pay and services as marine meteorologist, at $2,000 per annum, department of equipment, navy-yard, Mare Island, Cal., are hereby discontinued, to take effect June 30, 1899.
    “Very respectfully,
    “John D. Long, Secretary.
    
    “Mr. Everett Hayden,
    
      “Department of Equipment,
    
    “ Nmy- Yard, Mare Island, Gall
    
    
      On June 21, 1899, the following communication was sent to him:
    “DEPARTMENT OP THE NAVY,
    “ Bureau op Navigation,
    “ Washington, D. (7., June%l, 1899.
    
    “Sir: The commanding- officer of the Solace has been informed that, if he has no objection, you and your son will be permitted to take passage on board that vessel to Manila.
    “ Very respectfully,
    “A. S. Crowninshield,
    “ Chief of Burean.
    
    “Ensign Everett Hayden, U. S. N, Retired,
    
      “Navy-Yard, Mare Island, Gal.”
    
    He was discharged as marine meteorologist June 30.
    ITT. He was paid by the paymaster, as marine meteorologist at $2,000 per annum from October 28, 1898, to June 30, 1899, inclusive, and also during the same period he received from the paymaster pay as a navy officer on active duty until April 11, 1899, after which he received pay as a navy officer on the retired list.
    Upon the question later being raised by the accounting-officers of the Treasury, he was held by- the Auditor for the Navy Department and the Comptroller of the Treasury to have been rightly paid as marine meteorologist from the 12th day of April to the 30th day- of June, 1899, but. to have been wrongly- paid as such from the 28th day of October, 1898, to the 11th day of April, 1899, amounting to $909.51. That amount was therefore from time to time checked against and deducted from his current pay. (Comptroller’s decision, pp. 7 to 11.)
    
      Mr. George A. King 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 Pradt) for the defendants:
    The duties imposed upon claimant as marine meteorologist while he was employed on active duty^ were within the scope of his duties as an officer in the Navy- and were such as the Secretary had the right to impose upon him as such officer. The duties performed by claimant as marine meteorologist while he was so on active duty were not foreign and beyond the limits of the official duties of an officer in the Navy, and had previously been performed by line officers of the Navy detailed from time to time for that purpose.
    Section 1765, Revised Statutes, provides:
    “No officer in airy branch of the public service, or anjr other person whose salary, pay,.or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.”
    The case of Naval Constructor Stocker, U. S. Navy (5 Comp. Dec., 344), is in point. In that case Mr. Stocker, while an officer in the Navy, on active duty, had rendered services to the War Department, under orders from the Secretaiy of the Navy, in ascertaining- the damages to the steamship La Grande Duchesse while in use bjr the War Department. The Secretaiy of the Navy having approved as reasonable his charge of $1,000 in ascertaining the damages to said steamship, to be paid to him in addition to his salary as such naval officer, it was proposed to pay the same from the appropriation for “national defense” — act of March 9, 1898 (30 Stat. L., 274) — out of which appropriation and its extension to June 30, 1899, by the act of January 5, 1899 (30 Stat. L., 781), it would appear that this claimant was paid as marine meteorologist. In the Stocker case, after a review of the law and the decisions bearing upon the question- of extra compensation to officers of the Government, it was stated in said decision (p. 349) that—
    “At the time said services were rendered for which extra pay is claimed the claimant was an officer in the public service, and as such was paid pay or salary as fixed by law. The appropriation out of which it is proposed to pay this claim is a lump appropriation for expenses connected with the ‘ national defense.’ No office or position of inspectoi was created by the act making said appropriation, and there is no law authorizing compensation for said services as such inspector. There is no appropriation which ‘explicitly states that it is for such additional pay, extra allowance, or compensation.’”
    
      See also Converse v. United States, 21 How., 463; United States v. Sounders, 120 U. S., 126;' Stansbury v. United States, 1 C. Cls. R., 123; WMtalcer v. United States, 27 C. Cls. R., 524; Mullet?8 Ad/nxinistrator v. United States, 150 U. S., 566; Hinsdale’s case, 3 Comp. Dec., 241; DvmwrxgtorHs case, 3 Comp. Dec., 318; Staoxsbury v. Uoxitecl States, 8 Wall., 37.
    The claimant, in order to overcome the force of the Comptroller’s conclusions of law, has cited two cases decided by this court: Matthews and Gurnx v. United States (32 C. Cls. R., 123), which was afterwards affirmed by the Supreme Court in Zhuted States v. Matthews (173 U. S., 381), and the case of George L. Dyer v. The Uovited States, No. 21180, decided March 24, 1902.
    That the cases relied upon do not sustain the position taken by the claimant is very clear upon a comparison of those cases with the case at bar.
    The position, of the-claimant is not sustained by either of the cases upon which he relies. In those two cases the statutes, under and by virtue of which the claims were allowed, were special statutes, and in the one case specifically provided for the payment of rewards, for the detection and prosecution of crimes, and in the other case for the maintenance of attaches. The item in the appropriation act for national defense, above quoted,"on the contraiy, is more general in its terms than either section 1765 of the Revised Statutes or section 3 of .the act of June 20, 1874, for it deals with the whole scheme of national defense. It adds nothing to and excepts nothing from the prior statutes. It simply authorizes the President, in his discretion, to expend $50,000,000 for the national defense, but does not grant to him, either in terms or by implication, the right to expend the whole or any part of the appropriation therein provided for in such a manner as to contravene the positive prohibition of any prior statute. It does not, either in terms or bjr implication, create the office of marine meteorologist at the Mare Island Navy-Yard, nor does it provide for the payment of the salary of such an officer. In -this the statute differs widely from the two statutes under which the Matthews and Dyer cases were decided.
    The President is authorized in his discretion to expend $50,000,000 in a lawful manner, but the act does not vest him with the functions of a court to decide what is lawful or what is unlawful, but vests him with authority to do that which the law does not prohibit, and which he may consider advisable for the purposes of national defense.
    There is no such position created bj7 law as marine meteorologist at the Mare Island Navy-Yard, and previous to the appointment of the claimant to that position the duties had been performed by line officers of the Navy detailed for that purpose, and were within the scope of the duties of those officers. The fact, as has been stated bj7 the Comptroller, of the claimant having been appointed to this alleged office did not thereby take, the place of a statute and create the office by virtue of his action. The claimant during his occupancy of this alleged office from October 28,1898, to April 11,1899, was on active duty, and was not entitled to any extra or additional pay, as he was already receiving his full compensation allowed by law.
   WeldoN, J.,

delivered the opinion of the court:

The claimant was, at the time of the occurrence of the matters hereinafter stated, an ensign on the retired list of the Navy, but was, by the act of January 12, 1901 (31 Stat. L., 215), placed on the active list as lieutenant-commander.

On September 17, 1898, the Department issued an order to the claimant assigning him to duty at the naval observatory, navy-yard, Mare Island, Cal., and he reported in obedience to that order Qn September 29, 1898.

On October 3, 1898, the Secretary of the Navy appointed the claimant marine meteorologist for duty at said navy-yard at a salary of $2,000 per annum, payable from the appropriation of $50,000,000, entitled “National defense,” made by act of March 9, 1898. ’ (30 Stat. L., 274.)

In accordance with that appointment the claimant entered upon the discharge of his duties. On November 14, 1898, the claimant addressed a letter to Gen. J. J. Reynolds, U. S. Army, in which it is said:

“I fear that Secretary Long’s kind wi to have me here and to give me that appointment as marine meteorologist, with pay from the ‘ emergency fund,’ may have caused some question as to legality, the war not having ended. I beg to suggest that, if so, my civil appointment be canceled for die present, as I have drawn'uo pay under it and am unwilling to do so if it in any wajr embarrasses the Department. To make up for the loss to me to some extent, the Department might order me at once to the Naval Observatory in Washington for a short tour of dutjr, when I could try the exami- • nation on December 6 before the Civil Service Commission, and if successful be appointed after the treaty of peace is signed, thereby securing perfect legality. ”

To that letter, so addressed, the Secretary of the Nav}", on the 21st of November, 1898, replied as follows:

‘ ‘ The Department is of the opinion that there is no question as to the legality of your appointment, nor is there a question as to the matter of drawing pay from the emergency fund, out of which appropriation you will be paid until January 1, 1899. As to the further suggestion that you be ordered to the Naval Observatory in Washington for a short tour of duty in order that you may enter the examination for marine meteorologist, December 6, before the Civil Service Commission, the Department will request the Commission to hold an examination at Mare Island or San Francisco, and in case of favorable action by the Commission it would not necessitate your coming East.”

On June 6, 1899, the Secretary of the Navy addressed claimant as follows:

“Congress having failed to appropriate for the position of marine meteorologist at the Mare Island Navy-Yard, your pay and services as marine meteorologist, at $2,000 per annum, department of equipment, navy-yard, Mare Island, Cal., are hereby discontinued, to take effect June 30, 1899.”

Claimant was paid as marine meteorologist at $2,000 per annum from October 28, 1898, to June 30, 1899, and also during the same period he received from the paymaster pay as a navy officer on active duty until April 11, 1899, after which he received pay as a navy officer on the retired list.

Upon the question of his right to pay being raised by the accounting officers, it was held by the Auditor for the Navy Department and the Comptroller of the Treasury that he was lightly paid as marine meteorologist from the 12th of April to the 30th of June, 1899, but to have been erroneously paid as such from the 28th of October, 1898, to the 11th of April, 1899, amounting to $909.57, and that amount was therefore from time to time checked against Mm and deducted from his current pay. This suit is brought to recover that sum.

The question in this case is the claimant’s right to recover as compensation, while an officer on the retired list of the Navy, a salaiy at the rate of $2,000 per year as marine meteorologist in the Navy, under appointment by the Secretary of the Navy, with a promise to be paid such salaiy. The salary was to be paid from the emergency fund created by the act of March 9, 1898 (30 Stat. L., 273, 274), which provided as follows:

“Eor the national defense, and for each and every purpose connected therewith, to be expended at the discretion of the President, and to remain available until January first, eighteen hundred and ninety-nine, fifty million dollars.”

On the 5th of January, 1899, the unexpended balance of the fund was reappropriated and made continuing for six months (31 Stat. L., 772, 781). The claimant, not being satisfied with his status, wrote a letter as shown in the findings, which was called to the attention of the Secretary of the Navy, and in reply to that letter the Secretaiy of the Navy, on the 21st of November, 1898, wrote claimant as heretofore stated, assuring him that he would be paid the salaiy of $2,000 per year.

It is insisted by the counsel for the claimant that the statute appropriating $50,000,000 gives absolute discretion to the President in the use of the money placed at his disposal, and that the exercise of, such discretion can not be questioned in any form of judicial investigation.

It is insisted by the defendants that while the claimant received pay as on the active list he was not entitled to the allowance of $2,000 per annum; but that after April 11, 1899, when he was reduced to the pay of a retired officer, he was entitled to the pay under his appointment as marine meteorologist. To maintain the theory of the defense, the counsel for the United States calls the court’s attention to section 1765 of the Revised Statutes and the act of June 20, 1874, which, as it is contended, circumscribe and limit the discretion of the President in the use and appropriation of the “ emergency fund.” To maintain the theory of limited and circumscribed discretion, the defendant’s counsel cites many cases in which the Supreme Court and this court have held, that an officer whose salary and emoluments are fixed by law or reg-ulations, shall not receive additional pay or compensation unless the same is authorized by law stating that such officer is entitled to such extra pay or allowance.

The statute under which the appointment of the claimant was made, and upon which he bases his claim, is most peculiar in the histoiy of American legislation, and evinces the utmost confidence of Congress in the President in the proper distribution of the enormous sum of §50,000,000, to meet the exigencies of the danger which then threatened the United States in their relations with Spain, and from which in a short time thereafter originated what is now known in history as the Spanish war.

If the discretion of the President was by the terms of the statute absolute, it eliminates from this controversy all the elements of doubt, and no inquiiy can be made into the legality of the appointment of the claimant with the stipulated salary. It is, however, not necessaiy for us to go to the length of inquiring whether the discretion contemplated by the statute was absolute or qualified.

It must be conceded, in any view of the case, that the power granted by the law was intended to be the most adequate and comprehensive, covering as it does ‘ ‘ the national defense and for each and every purpose connected therewith.” The President, speaking through the medium of the Secretary, says, as an indication of the best of faith in the execution of the great public trust, “The Department is of the opinion that there is no question as to the legality of your appointment, nor is there any question as to the matter of drawing pay from the ‘ emergencj’’ fund.’ ” We cite this expression of the Secretary as an indication of the confidence with which the appointment was made and the salary assured.

The appropriation of the $50,000,000 and the large power granted to the President are clear indications of the legislative recognition of the almost endless task of providing in detail as to the mode and manner of the expenditure of the money appropriated by the statute, and discloses by the phraseology of the law the multifarious necessities which existed on the part of the United States in a military point of view.

In the case of Wilcox v. Jackson (Pet., 513) the Supreme Court said:

“The President speaks and acts through the heads of the several departments relative to subjects which appertain to their respective duties.”

Also, in the case of The United States v. Alliason (16 Pet., 291), it is said—

“that the Secretary of War is the constitutional organ of the President for the administration of the military establishment of the nation and orders promulgated through him must be received as the acts of the Executive, and so in regard to the action of the Secretary of the Navy, it must from analogy be said that his acts are presumed to be the acts of the President. ”

In the case of the United States v. Matthews (173 U. S., 381) the question was the allowance of additional compensation promised by the authority of the head of a Department, under an appropriation for “The detection and prosecution of crhnes against the United States, to be expended under the direction of the Attornej^-General. ”

The Supreme Court, in affirming the judgment of this court (32 C. Cls. R., 123), said on this point (supra, 386, 387):

“The fact that the statute vested a discretion in the Attorne3’’-General to include or not to include, when he exercised the power to offer a reward, particular persons within the offer by him made, and that in the instant case the discretion was so availed of as not to include deputy marshals from taking the offered reward, renders it unnecessary to determine whether a deputy marshal is an officer of the United States within the meaning of section 1765 of the Revised Statutes and section 3' of the act of June 20, 1874, to which reference has already been made. As the reward was sanctioned by the statute making the appropriation and was embraced within the offer of the Attorney-General, it clearly, under any view of the case, •was removed from the provision of the statute in question. The appropriation act, being a special and later enactment, operated necessarily to engraft upon the prior and general statute an exception to the extent of the power conferred on the Attorney-General and necessary for the exercise of the discretion lodged in him for the purpose of carrying out the provisions of the later and special act.”

In the case of The United States v. Jones (18 How., 92) it is said:

“ The Secretary of the Navy represents the President and exercises his power on the subjects confided to his Department. He is responsible to the people and the law for any abuse of the power intrusted to him. His acts and decisions on subjects submitted to his jurisdiction and controlled by the Constitution and laws do not require the approval of the officer of any Department, correcting the supposed mistakes or annulling orders of the heads of Departments.”

The case of Dyer v. The United, States (37 C. Cls. R.) arose under the naval appropriation act of March 3, 1897 (29 Stat. L., 618), under the heading “Pay miscellaneous,” among other things appropriated for maintenance of students and attaches, and information from abroad.” * * *

It was held in that case that the appropriation, so far as it relates to the maintenance of attaches, is in the nature of a contingent fund, and comes within the spirit if not the letter of the decision of the Supreme Court in the case of United States v. Jones (supra). It was also held in substance in that case that the form of the allowance was not a matter for judicial review.

Taking into consideration the general purpose for which the law was enacted, the terms of the statute in the grant of power to the President, and the necessity of the exercise of the largest discretion by the President, the court decides that the employment of the claimant, with a salary at the rate of $2,000 per annum, came within the purview of the law and the discretion of the President, and therefore the plaintiff is entitled to recover, subject to the deduction hereafter stated.

The payment to the claimant from the 28th of October, 1898, to April 11, 1899, as on the active list, in the opinion of the court, it having no necessary connection with the salary pay of $2,000- for the same period, was illegal, and for su'ch payment the defendants are entitled to reimbursement. • Accordingly, a judgment is ordered for the sum of $810.42, being the amount due claimant under his employment as shown in the findings, after deducting the overpayment of $68.75 which was paid him as on the active list, from the 28th day of October, 1898, to the 11th day of April, 1899.  