
    IN THE MATTER OF MAJOR WILLIAM SMITH.
    [Departmental 32.
    Decided February 18, 1889.]
    
      On the Proofs.
    
    At the Whittaker court-martial both sides employ experts, the judge-advocate being expressly authorized by the Secretary of War to employ them at agreed rates of compensation. After the trial a paymaster acting under orders pays them. The accounting officers refuse to pass his account and request the Secretary of War to order a stoppage of his pay. The Secretary transmits the matter to this court for its opinion.
    I.The power given to the Secretary of War to order a stoppage of pay against a delinquent officer is exclusive and discretionary, but is not to be asserted against an officer acting under an order which he was bound to obey. (Rev. Stat., $ 1766; Army Reg. 1881, par. 2445.)
    II.Payments made by military officers under orders are obligatory, and the responsibility rests with the officer commanding the payment. (Army Reg. 1881, par. 1653.)
    III. The refusal of the Secretary of War to stop an officer’s pay is not a decision upon the merits; nor does it preclude the Comptroller from causing a suit to be brought.
    IV. The Army Regulations, relating to the compensation of witnesses, are for the direction and government of officers, and do not bind the Commander-in-Chief nor the Secretary of War.
    V.A witness is one who may be compelled to testify concerning a transaction which he has fortuitously beheld; an expert is one who testifies as to his own self-acquired knowledge, which he can not be compelled to impart by the expedient of calling him as a witness.
    VI.The Government oan not acquire the services, skill, or knowledge of an expert without his consent and without just compensation.
    VII.The employment of experts before a court-martial is within the legal and proper discretion of the Secretary of War; and his order to employ and pay them is official authority to an officer who in the ordinary discharge of his duty makes such payments, and protects him from the summary remedy of having his pay stopped.
    
      The Reporters' statement of the case:
    This matter was transmitted to the court by the Secretary of War on tbe 25th October, 1887. The following are the facts as found by the court:
    
      I. On December 31,1880, the President of the United States, in Special Orders No. 278, extract 6, of that date, promulgated from Army Headquarters, Adjutant-General’s Office, Washington, convened a general court-martial in the city of New York forthe trial of Cadet Johnson C. Whittaker, United States Military Academy. Some of the members of the court were under the military necessity of speedily rejoin ing their proper stations, and, under an intimation to proceed as rapidly as justice would admit, the court (the prisoner, through his counsel, assenting) was authorized by the President of the United States, “to sit without regard to hours.” The court was, accordingly, not restricted to the limitation of hours of session imposed by the ninety-fourth Article of War, and was enabled to hear a great deal more evidence in a day than would have been possible had it been restricted to ordinary sessions.
    II. The judge-advocate of the court appointed as stenographer of the court one Albert E. OochraD, who acted as such, and the employment was authorized and approved by the Secretary of War, at the same rate of compensation as was allowed to stenographic reporters by courts of the United States in the city of New York. The stenographer was accordingly paid at that rate by Maj. William Smith, a paymaster in the Army, in the ordinary course of his official duty. The payment by Major Smith was, nevertheless, disallowed by the Second Comptroller of the Treasury, under the apparent misapprehension that the trial of Cadet Whittaker took place at West Point, which is situated within the second judicial district of the State of New York, and upon the ground that the compensation of the stenographer exceeded the rate allowed to stenographers by the courts in that district; and the Second Comptroller also reported the disallowance to the Paymaster-General of the Army, in order that he should cause the excess of such payment to be stopped from the pay of Major Smith.
    III. At the same trial of Cadet Whittaker it became necessary to determine as a matter of evidence whether certain written matter was in the handwriting of the prisoner, and whether certain wounds upon his person were inflicted by himself. Accordingly, both the prosecution and the defense employed experts as witnesses; and the employment of such experts on the part of the prosecution was authorized by the Secretary of War. The judge-advocate of the court accordingly employed, at agreed rates of compensation, Dr. William B. Hagan and Daniel T. Ames, who rendered service in pursuance of their agreements, both in assisting in the preparation of the case and in testifying as experts. The accounts for their services were made out in pursuance of the agreements with them, respectively, and at the stipulated rates of compensation, and were approved and ordered to be paid by the Secretary of War, and were paid by Maj. William Smith, a paymaster in the Army, in the ordinary course of his duty. The payment by Major Smith, nevertheless, was disallowed by the Secoud Comptroller of the Treasury, upon the ground that the compensation was in excess of that fixed by the Army Regulations as the compensation to be paid to civilian witnesses, and because no appropriation had been made by Congress for the employment cf experts ; and the Second Comptroller reported the disallowance to the Paymaster-General of the Army, in order that the excess of such payments should be stopped from the pay of Major Smith.
    IY. Major Smith appealed to Secretary of War, who, without having ordered the stoppage of pay requested by the Second Comptroller, transmitted the foregoing matters to this court, under the Act March 3d, 1883 (22 Stat. L., 485, § 2) and has requested the opinion of the court upon the following questions:
    “ 1st. Had the Secretary of War authority to arrange for the compensation of the (stenographic) reporter at usual current rates at the place where the court sat and order the payment therefor ?
    “2d. Had the Secretary of War authority to authorize the employment of material and necessary witnesses who are not within reach of the process of the court at agreed rates of compensation and direct their payment?”
    And with the foregoing findings of fact the court certified the following as its conclusions of law:
    ’ (1) The Secretary of War has authority to order or sanction the employment of a stenographer to assist in a trial before a court-martial whenever in his judgment such employment is necessary for the prompt and efficient administration of justice or to facilitate and aid the proceedings of the court; and the established compensation allowed to stenographers for like services in the place where the trial is held constitutes a proper and legal rule for estimating or determining the compensation of a stenographer so employed, and a paymaster making a payment in pursuance of an order of the Secretary of War to a stenographer so employed is not liable to have his pay stopped under the itevised Statutes, section 1766, or the Army Regulations, 1881, paragraph 2445.
    (2) The Secretary of War has authority to order or sanction the employment of medical and other experts to assist the judge-advocate in a trial before a court-martial, and to testify therein in cases where the employment of similar experts is customary in civil courts ; and he has authority to determine the rate of compensation at which the judge-advocate may employ them; and in the employment of experts he is not limited to the rate of compensation jirescribed by the Army Regulations (pars. 1427, 1428,1435) for civilian witnesses who can be compelled to testify as to matters within their ordinary knowledge and observation; and a paymaster making a payment in pursuance of an order of the Secretary of War to an expert so employed is not liable to have his pay stopped under the Revised Statutes, section 1766, or the Army Regulations, 1881, paragraph 2445.
    
      Maj. Asa Bird Gardiner, assistant judge-advocate-general for the Secretary of War and the claimant:
    The accounting officers of the Treasury Department can not interfere with the discretion vested in the head of an Executive Department.
    The Executive Departments must necessarily do many things essential to the proper action of the Government for which there is no statutory provision, and it is necessary that they should construe such laws as they are required to execute. (United States v. MacDaniel, 7 Peters, 2; United States v. Lytle, McLane, 9 ; United States v. Mliason, 16 Peters, 291.)
    When the late Second Comptroller assumed to revise the judgment and correct the supposed mistake of the Secretary of War, and annul his order in this matter, he went beyond his jurisdiction and brought himself within the criticism of the United States Supreme Court in United States v. Jones (18 Howard, 95), to the effect that the acts and decisions of the head of an Executive Department on subjects submitted to his jurisdiction and control by the Constitution and the laws do not require the approval of any officer of another Department to make them valid and conclusive; nor have the accounting officers the burden of responsibility cast upon them of revising the judgments, correcting the supposed mistakes, or annulling the orders of the heads of Departments. . '
    The orders of the Secretary of War were conclusive upon Major Smith, the paymaster who was called upon to pay the account, aqd as these orders were not manifestly and clearly illegal, but on the contrary wholly within the discretionary authority vested in the Secretary of War, Major Smith is entitled to be credited with the payment. (Biggs v. State, 3d Caldwell, 85.)
    The accounting officers of the Treasury can not annul the contracts made by the Secretary of War for extra compensation to witnesses who may be without the reach of the process of a general court-martial. It may be, and seems quite.likely from the context of his dictum of disallowance, that the late Second Comptroller was not aware of general custom in the legal profession concerning expert witnesses, or as to the rights and privileges of such witnesses.
    His two expressed reasons for disallowance, viz, (1) that the Army Regulations fix the compensation of civilian witnesses, and (2) that, expert witnesses are not civilian witnesses, hardly seem to require notice.
    In Douglas v. The United States (21 C. Gis. R., 464) the whole question in an analogous case was discussed and decided by this honorable court within a year. If the judge advocate and Secretary of War be substituted for the assistant district attorney and Attorney-G-eneral, the cases of Douglas v. The United States and that now under revision will be found almost identical, with the exception that in the Douglas case there was a direct statutory provision for the compensation of witnesses within reach of the process of the court, while in the present case only an executive regulation prescribed their fees. As no statute prohibited the payments made to the expert witnesses, Hagan and Ames, the late Second Comptroller, under the decision of this court in Douglas v. The United States, exceeded his authority in attempting to revise the discretionary power of the Secretary of War, and to annul his orders, and to visit the consequences upon the subordinate who was bound to obey such orders.
    
      Tbe action of the late Second Comptroller of the Treasury in disallowing the expenditure made by Major William Smith, paymaster, U. S. Army, under orders of the Secretary of War, in the cases of A. B. Cochran, W. B. Hagan, and D. T. Ames, having been in excess of his lawful authority as an accounting officer, is absolutely void, and the Secretary of War is not obliged to make the stoppages required by such disallowance.
    The case now under revision, very well illustrates the character of the efforts of the late Second Comptroller to subordinate the head of another Executive Department to his dictum.
    
    Where it has suited his purpose an Army Regulation would be invoked and held as binding on t¡he authority which made such regulations for subordinates as well as upon the subordinates themselves. When a regulation has not been found applicable, then the late Second Comptroller assumed to substitute his own opinion as to the propriety of the expenditure for that of the head of the Department charged with its administration.
    In the present case, under revision, the late Second Comptroller wholly evaded paragraph 1007 of the Army Regulations of 1863 (37th section act of Congress July 28,1866), which was repeated in section 1663, Army Regulations of 1881, viz, that—
    “ An officer shall have credit for an expenditure of money made in obedience to the orders of his commanding officer.
    “ If the expenditure is disallowed, it shall be charged to the officer who ordered it.”
    In the present case the orders under which Major Smith made the payment were the orders of the late Secretary of War, and, in contemplation of law, were the orders of the President of the United States.
    Such being the case, even if the accounting officer’s action were not void for want of authority, a legal wrong would be perpetrated on Major Smith by stopping his pay because he obeyed his orders.
    
      Mr. Héber J. May (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Nott, J.,

delivered the opinion of the court:

The statutes of the United States prescribe a number of remedies whereby debts due to the Government by its own officers, agents, or creditors can be summarily collected or securedbut, inasmuch as the payments made by military officers are frequently made under orders which they can not disobey, or amid circumstances in which the public welfare does not admit of investigation or delay, a stoppage of their pay can not be compelled by the accounting' officers of the Treasury, but only by their official head, the Secretary of War. (Army Regulations, 1881, par. 2445.)

It is manifest that Congress never intended that a Secretary of War should order a paymaster or quartermaster to make a payment and then, upon the requisition of the accounting officers of the Treasury, punish the officer for having made it by stopping his pay. The power given to the Secretary is a reasonable one and it is to be reasonably exercised, and that it may be it is placed entirely within his discretion. That discretion requires that while the power of summarily stopping an officer’s pay may be asserted against a delinquent officer or against one who, without being delinquent, has acted upon his own responsibility, it is not to be asserted against one who has acted in obedience to orders, and whose act was really tbe act of his military superior, which he was bound to obey, and as to which he is expressly relieved from personal liability. (Army Regulations, 1881, par. 1653.) Such an abuse of the power would not tend to preserve, but to subvert, military order and discipline. The refusal of the Secretary of War to stop an officer’s pay is not a decision upon the merits ; it will not bind the Government nor preclude the Comptroller from causing a suit to be brought against the officer; it merely determines that the officer is so far without fault that the harsh and summary remedy of stopping his pay should not be resorted to.

The ground upon which the Second Comptroller refused to allow the item for the payment of experts was that the Army Regulations prescribe a less rate of compensation for civilian witnesses.

The regulations referred to are the regulations of an Executive Department, ratified by statute, and having the force of law. (Acts 28th July, 1866; 23d June, 1879, 14 Stat. L., 337, § 37,2d ed., p. 30, § 2.) But regulations which were prescribed and framed by the Secretary of War and which are intended for the direction and government of the officers of the Army and agents of the Department do not bind the Commander-in-Chief nor the head of the War Department. (Burns’s Case, 12 Wallace R., 246.) The Second Comptroller, therefore, could not properly rely upon the Army Regulations as authority for refusing to pay an expenditure ordered by the Secretary of War.

What are termed experts are not necessarily or properly witnesses. Their office may be simply to aid in the preparation of a case without being called to testify, and they are frequently employed to aid counsel in the cross-examination of witnesses. In the complexities of modern civilization they are constantly resorted to in all courts, civil and criminal; and it would be preposterous to say that a single department of the Government is the only litigant that can not have the benefit of their services, or that in a trial of this nature the Government can nót be assisted by experts, when the defendant can.

All persons in the course of ordinary life are liable to witness the transactions, or casualties, or crimes of their fellowmen. In such cases public necessity requires that they may be compelled to testify either with the incommensurate remuneration which the law allows or with none at all.

The burden of doing so must be borne by him on whom it falls, and the chance which casts the often unpleasant, or painful, or prolonged duty of attending court and being subjected to the examination of counsel, is a chance which may fall upon any member of the community. A surgeon walking down the street and witnessing an accident or murder may describe the injuries 6f the victim more clearly thau an ordiuary beholder. But he is not an expert; he is merely the fortuitous witness of an occurrence concerning which he may be made to testify. The laws which regulate the fees of witnesses refer to such persons — to those who can be compelled involuntarily to testify. But the expert is one who does not testify as to occurrences which he has casually beheld, but as to his own self-acquired knowledge. There is no principle of law which allows a suitor to acquire the benefit of another man’s knowledge or skill through the strategem of calling him as a witness. And the Government in this is not above other litigants. If it would acquire the services, skill, or knowledge of an expert, it must be with his consent. The Secretary of War, therefore, was justified in entering into an agreement with these experts, and in-determining by contract the rate of their compensation.

Whether an appropriation existed opt of which these experts could properly have been paid is another and distinct question. It is quite possible that a service can be required and a contract entered into though no appropriation exists to pay the debt so incurred. An act of the Commander-in-Chief of the Army or of the head of the War Department is not ultra vires because Congress have not foreseen a contingency and placed a fund at the disposition of the Executive. Congress can not foresee every necessary item of expenditure, and the employment of experts in military trials is of such rare occurrence that Congress might well omit to encumber the appropriation acts with an item which in the ordinary course of things will not be needed. Upon the question whether an appropriation existed in the year 1881 out of which Major Smith might properly have paid these experts the court expresses no opinion. It is sufficient for the present proceeding to say that in the opinion of the court the employment of experts in a trial before a court-martial is a matter within the legal and proper discretion of the Secretary of War; and that his order to employ and pay them is official authority to the officer who in the ordinary discharge of his duty makes the payment, and protects him from the summary remedy authorized by the Eevised Statutes and Army ^Regulations.

The order of the court is that the findings of fact and conclusions of law now filed in this matter, together with the opinion of the court, be certified to the Secretary of War for his guidance and action.  