
    ANDREW GEDDES v. THE UNITED STATES.
    [No. 22597.
    Decided March 9, 1903.]
    
      On the Proofs.
    
    The question in this case is one of statutory construction, whether the chief clerk of the Department of Agriculture is entitled to both the salary of that office and his pay as an officer on the retired list.
    I. Where the compensation of an officer or employe of the Government is by statute fixed and certain, other officers of the Government can neither increase it nor diminish it nor take it away; and a so-called renunciation by a retired officer of his pay exacted by the accounting officers as a condition to his receiving the salary of another office is inoperative as a defense.
    II. An officer on the retired list who is also chief clerk of the Department of Agriculture is entitled to the salary of both offices. (Wright and ITowry, J.J., dissenting.)
    III. Aprovisoin an appropriation act that “no part of the money" “appropriated for the Department of Agriculture shall he paid to any person as additional salary" is a limitation upon the power of the Secretary which does not extend to courts whose judgments will not be paid out of that appropriation. (Wright and Howry, J. J., dissenting.)
    IY. An officer on the retired list owes no service to the Government and his retired pay is an honorary form of pension.
    V. The office of chief clerk of a Department and that of an officer on the retired list are not incompatible, and a person may hold two such offices.
    
      The Reporter £ statement of the case:
    The following are the facts of the case as found by the court:
    I. At the time of the passage of the act, 6th June, 1900 (31 Stat. L., 554), the claimant was, and had been for three years, chief clerk of the Department of Agriculture, receiving a salary of |2,500 a year, and has still held, and now holds, the same position.
    II. On the 14th January, 1901, the claimant was appointed and commissioned by the President captain of infantry, to rank as such from the 18th day of December, 1900; and on the 21st January, 1901, he accepted the appointment and took the oath of office and was placed on the retired list under and pursuant to said act of 6th June, 1900.
    III. Since the claimant was commissioned captain of infantry he has received the full salary of chief clerk of the Department of Agriculture, but has not been paid the pay of a captain of infantry, retired.
    IY. At the time of the claimant’s appointment as captain of infantry he was receiving a pension of $12 a month under the act 27th June, 1890. Immediately upon .his receiving his commission as captain his name was dropped from the pension roll, in pursuance of the requirement of the act 3d March, 1891, section 1,'atrd has not since then received such payment.
    
      V. After the claimant had been commissioned as captain of infantry as set forth in finding it, the Comptroller of the Treasury decided that he was not entitled to receive the salary of chief clerk of the Department of Agriculture and the pay of a captain of infantry on the retired list. The claimant thereupon gave to the Paymaster-General of the Army a stipulation or agreement in the following terms:
    “In view of this decision and in consideration of the payment of my salary as chief clerk of the United States Department of Agriculture, I, Andrew Geddes, do hereby renounce all claim to pay as a retired officer of the Army during the time that I may hold any office or position in the United States Department of Agriculture; but this renunciation shall not operate to prevent me from testing in the proper courts or in any other legitimate way my right under the law to receive compensation from the appropriations of the Department of Agriculture while receiving pay as an officer of the Army on the retired list, or my right to receive pay as an army officer on the retired list while receiving compensation as chief clerk or employee of the Department of Agriculture.
    “I shall use every honorable endeavor to obtain hereafter what I consider my rights in the premises; that is, the pay to which I am entitlecl as captain, United States Army, retired, also the pay to which I am entitled as an employee of the Department of Agriculture.”
    Since the time of his appointment, the claimant has received no pay as captain of infantry, retired, which pay, up to and including the 28th of February, 1903, amounts to $>3,705.
    
      Mr. George A. King for the claimant. Messrs. George A. and Williann B. King were on the brief.
    1. It may well be doubted whether the act of March 3,1885, is any longer in force.
    That act related to additional salary or compensation in the Department of Agriculture. Congress in passing the act of July 31, 1894, dealt with the whole subject of dual or extra compensation. It would seem to be a case where a later statute, comprehensive in character, has treated the entire subject, and has thereby repealed all prior provisions of law on the subject. (United States v. Tyne, 11 Wall., 88; Ecldoff v. District of Columbia, 135 U. S., 240; Belknaj) v. United States, 150 Ú. S., 588.)
    
      If this view is sound, the act of 1885 may be left out of consideration, and, it being admitted that the act of 1894 does not prevent the claimant from receiving pay, his right is established.
    2. But the prohibition of the act of March 3, 1885, is only of a payment of any part of the appropriation for the Department of Agriculture “as additional salary or compensation.”
    These words do not seem to point to the payment of a regular salary, but to the payment of some additional compensation for special services. It was evidently to prevent officers doing service in other departments of the Government, and in receipt of an annual salary therefor, from having their time and energies encroached upon and their compensation increased by getting special work to do for the Department of Agriculture. Such a case as that of Collier v. United States (22 C. Gis. R., 125) seems to be the character of the claims which the act of 1885 designed to cut off.
    Besides, the pay of a retired officer of the Army does not seem to be within either the letter or the spirit of the terms “other compensation as an officer or employee of the Government.” The pay of a retired officer of the Army is not “compensation” for any present service. In the language of the present Chief Justice, “In the present case the claimant was exempt from service, and his pay on the retired list an honorable form of pension.” (Fletcher v. United States, 26 C. Cls. R., 541, 563; see also Dig. Opins. J. A. G., ed. 1901, secs. 2209, 2210.)
    If such an officer has the time and ability to perform the duties of a civil office, there seems to be no reason why the Government should not avail itself of his services if desired. Nor does the act of 1885 express any intention of Congress that the. Department of Agriculture should not do so.
    The Committee on the Judiciary of the Senate in 1882, after a careful inquiry under a resolution of the Senate “Whether or not a retired United States Army officer can lawfully hold a civil office under the Government of the United States,” reported after an examination of Revised Statutes, sections 1222, 1223, and the act of 1815, March 3, chapter 178, section 2 (1 Supp. R. S., 96), “The committee answer the question in the affirmative” (S. Rept. No. 429, 47th Cong., Istsess.). There does not seem to be anything in the act of March 3, 1885, indicating any intention to disturb this well-settled policy of the Government. See also the opinion of Attorney-General Devens, which received the approval of this court in GolUns v. United States (15 C. Cls. R., 22, 38, 39); also Saunders v. United States (21 C. Cls. JR., 408; 120 U. S., 126, 129).
    3. The vital question in the case, however, does not primarily involve the construction of the act of March 3, 1885, relative to additional compensation to officers of the Department of Agriculture, but that of the special act of June 6, 1900, “An act to authorize the President to place Andrew Geddes on the retired list with the rank of captain.” (31 Stat. L., 554.)
    What, if any, benefit did Congress intend to confer upon the claimant by the passage of that act? He has, indeed, been vindicated of the military offense of which he was convicted. In a material point of view, however, he has up to this point received nothing but detriment from it. His pension of $12 a month has been stopped, while he has received no pay as a captain in the Army. Can it be that his commission, though of sufficient force to warrant the cutting off of his pension, was of no avail to give him the pay of his rank? No such paradox, we submit, can be found in the terms of the law. As was said of a similar act in Gollins v. United States (15 C. Cls. R., 22, 34):
    “The act was passed for the relief of the claimant, as its title expressly declares. It was intended to confer upon him an immediate benefit,” etc.
    The proviso to the act is very significant. It is:
    “That no pay, compensation, or allowance shall accrue by reason of this act for any cause prior to its passage.”
    This proviso contains a clear implication that the pajr and allowances shall accrue from and after the date of reappointment.
    Where it is intended that a restoration by a special act, like the present, shall be without pay, it is usual for Congress to express that intent in unmistakable terms.
    In the present case Congress was informed by repeated reports of its committees that the claimant was chief clerk of the Department of Agriculture. The sum of $2,500 was annually appropriated as the salary of that office in every appropriation act for tbe Department of Agriculture passed during tbe Fifty-fifth and Fifty-sixtb Congresses — tbe same Congresses in wbicb tbe reports of tbe Committees on Military Affairs informed tbe two Houses that this claimant was tbe occupant of that office. (30 Stat. L., 1, 330, 947; 31 Stat. L., 191, 922.) When, with full knowledge of these appropriations and of the fact that tbe claimant was the occupant of tbe office for which the salary was appropriated, Congress passed an act authorizing bis appointment and retirement as a captain of infantry, with a proviso that be should have no pay or allowances- prior to tbe passage of tbe act, tbe only reasonable construction of the act is that Congress intended him to receive the pay and allowances appropriate to his rank from the time of his reappointment thereunder.
    In this view the applicability of prior provisions of law becomes wholly immaterial. Even if they would apply to any other officer who held a civil position, they can not affect this claimant, for he has been specially taken out of their operation by the interposition of the legislative will in his favor.
    
      Mr. George M. Anderson (with whom was Mr. Assistant Attorney-General JPradt) for the defendants:
    In consideration of the payment to him of his, salary as chief clerk of the United States Department of Agriculture, the claimant, by his letter to the Paymaster-General, has formally renounced all claim to pay as a retired officer of the Army during the time that he shall hold any office or position in the Department of Agriculture, and has thereby divested himself of any and every right to claim his pay as a retired officer of the Army during that time. This renunciation of claimant operated as the compromise of a doubtful claim, and the receipt of the pay of chief clerk aforesaid was a good and valid consideration for the compromise of his claim, and should be considered by the court as a final adjustment and settlement of any claim that he may otherwise have had against the defendants' by reason of his pay as a retired captain of the Army during the time be continues to draw the salary of chief clerk aforesaid,
    
      If the court should take this view of the case the claimant has no legal standing in court, because, having no pecuniary or beneficial interest of any kind in the claim, it becomes simpty a moot question, such as courts uniformly refuse to consider. Had the case been referred to the Court of Claims by the Treasury Department for a ruling as a precedent for future guidance, the case would have stood upon a different footing.
    There are three classes of persons who are excepted from the prohibition of section 2 of the act JuVy 31, 1894- (28 Stat. L., 205). First, those persons specially heretofore or hereafter specially authorized thereto. This class should be subdivided as follows: (a) Those specially authorized for appointment; (b) those specially authorized to hold office; (c) those specially, authorized both for appointment and to hold office. Second, retired officers of the Army or Navy whenever they may be elected to public office. Third, retired officers of the Army or Navy whenever the President shall appoint them to office by and with the advice and consent of the Senate.
    The special act of June 6, 1900, only authorized the President to appoint the claimant to be a captain of infantry in the United States Army, but did not authorize the claimant to hold two offices to which compensation is attached at the same time; and there is very good reason for this construction, because Congress might, possibly, have thought it an injustice to have compelled the claimant to vacate the office which he already held before his appointment to another office, because, for some reason, the confirmation or appointment might have failed, after his resignation, but this reason would no longer apply after his confirmation and appointment. Had the claimant in this case been a retired officer of the Army when he was appointed to the office of chief clerk aforesaid, his appointment would have been bejmnd a doubt illegal, because it was not by and with the advice and consent of the Senate. The language of the statute, in excepting Army and Navy officers from the prohibition thereof in two. different events, would seem to indicate that all officers of the Army and Navy whether holding positions with salaries of $2,500 or under would come within the prohibition of the statute. If this construction of the statute be right, and as the claimant at the time of its passage was a civilian, the effect of the enactment of the above section of the act of 1894 would be to transport the claimant from a prohibited civil class to a prohibited Army class. If this be true, it can hardly be presumed that this is the kind of special act which Congress had in view at the time of the passage of the section of the act of 1894. The special act of June 6, 1900, certainty does not authorize the claimant in any event to hold the office of chief clerk of the Department of Agriculture. It is conceded that Congress was well aware of the fact that the claimant held the office of chief clerk aforesaid, and it is also conceded that Congress was well informed regarding the prohibition contained- in the act of July 31, 1894, and the prohibition contained in the act of March 3, 1885; but that act, June 6, 1900, is as silent as the grave in regard to authorizing the claimant to hold the office of chief clerk and the office of a retired captain of infantry at the same time, and it is equalty as silent in regard to authorizing him to draw the salaries of both offices for the same period of time. Had Congress so intended it is reasonable to presume that it would have expressed its intentions in unmistakable language. There is no evidence, so far as the record goes, showing that it was impossible for the claimant to resign his position as chief clerk as soon as his nomination for captain of infantry should be confirmed by the Senate. Congress might have considered that the fact of setting aside the court-martial proceedings in his case, and thereby relieving him from the effect of the stigma cast upon his name under which he had lived for about twenty years, together with the fact that the salary attached to his office of retired captain would amount to the sum of SI,755 per annum for life, would be a good and sufficient consideration for his resignation of the chief clerkship of the Agricultural Department. These two gracious acts might well be said to be the equivalent for the resignation by claimant of his $2,500 clerkship. Then, again, Congress might have considered it unreasonable to give two positions with such large salaries attached to one person when either one of them would have comfortably supported one office holder and his family. Everything considered, it is absurd to presume that Congress intended to legislate the claimant into a fixture, in the position of chief clerk, as well as into the position of a retired captain of infantry. The pay of a retired army officer is intended as a recompense for future, as well as past services, because he is liable at any time to be called into active service, and, as a matter of fact, is frequentty detailed for active duties under the Government and elsewhere for which he does not receive the full compensation of an officer on the active list. The claimant has been holding the office of chief clerk of the Agricultural Department in violation of the prohibition of section 2 of the act of July 31,1894, from January 14,1901, the date of his appointment as captain of infantry, and drawing the salary thereof from that date, and is, therefore, indebted unto the defendants in the full and just amount of the difference between the pay of said chief clerk and the pay of retired captain of infantry from said 14th dajr of January, 1901, for a period so long as he shall continue to draw the salary of the office of said chief clerk.
    The claimant says:
    “It may well be doubted whether the act of March 3,1885, is not repealed by the act'of Juty 31, 1894, because the latter act deals with the whole subject of dual or extra compensation. ”
    This view of the statutes can not for a moment be indorsed, because neither of them deal with the whole subject of dual compensation; but, if either is more comprehensive than the other, the advantage in that particular is with the act of 1885. Section 2 of the act of Juty 31, 1894, deals with the class of Government officials who receive a salary or annual compensation of $2,500, and excepts from its operations three classes of persons, while the act of March 3, 1885, deals with the whole force of employees of the Department of Agriculture. Both of these statutes are special in character; they are not inconsistent; they are not repugnant in any of their .features, and deal with entirety different subject-matter, and the later act does not expressly, or by implication, repeal the act of 1885. Therefore they should both stand.
    Section 2 of the act of March 3, 1885 (23 Stat. L., 356), provides:
    “That no part of the money herein or hereafter appropriated for the Department of Agriculture shall be paid to any person, as additional salaiy or compensation, receiving at the same time other compensation as an officer or employee of the Government.”
    The claimant attempts to escape from- the prohibition of the act of March 3,1885, above quoted, by taking the position that—
    “These words do not seem to point to the payment of a regular salary, but to the payment of some additional compensation for special services.”
    It is true that the prohibition of the act of 1885 does apply to additional compensation for special services, but it also applies to the case of an employee who holds two separate and distinct offices, to each of which is attached a regular salaiy, or annual compensation. This section, above quoted, appears to have been worded with extreme care, and the different shades of meaning of each word employed appears to have been closely examined. The claimant relies on the authority of Gollier v. United States (C. Cls. R., 125) to sustain his position, apparently oblivious of the fact that this case arose prior to the passage of the act under which payment was refused in the case at bar. The refusal to pay in the Collier case arose upon the construction by the Comptroller of section 1165 of the Revised Statutes, and the Court of Claims based their decision in claimant’s favor upon the decisions of the United States Supreme Court in the cases of Converse v. United States (21 How., 463); United States v. Bri-ndle (110 U. S., 688); and United States v. Smmders (120 U. S., 126). Section 1765 of the Revised Statutes is very ably and extensiveU discussed in the case of Saunders, above referred to, by the Supreme Court, and their conclusions are eminently right and proper in view of the language emplojred therein, but section 2 of the act of March 3,1885, is very dissimilar both in regard to language used and the purpose for which it was enacted.
    Had section 2 of the act of March 3, 1885, been intended only to cover additional pay for extra services, its enactment would have been entirely unnecessary, as that condition of affairs had already been provided for by section 1765, Revised Statutes. Therefore Congress must have intended to do something more than multiply acts intended for the same purpose. The act of March 3, 1885, section 2, reads, “ that no part of the money appropriated,” etc., instead of “no officer,” etc., used in section 1765 of the Revised Statutes. The act of March 3, 1885, section 2, employs the words “as additional salaiy or compensation,” instead of the words “additional pay, extra allowance, or compensation,” used in section 1765, .Revised Statutes. The word salaiy in the act of March 3, 1885, section 2, appears to have been used for a purpose and for the first time applied to additional pay. Therefore Congress must have intended to do something by its deliberate employment in-the prohibition contained in the act of March 3, 1885. The definition'of the word given ly Bouvier’s Law Dictionary, volume 2, page 943, is very significant: “Salary is regarded as a per annum compensation.” Section 2 of the act of March 3, 1885, appears to have been enacted for the purpose, so far as the Department of Agriculture is concerned, of prohibiting one officer of the Government from drawing two salaries for the same period of time, although it is admitted that the above prohibition would also apply to an officer of the Department of Agriculture drawing additional pay for extra services as well. The cases of Fletcher v. United States (26 C. Cls. R., 541) and Collins v. United States (15 C. Cls. R., 22) are not applicable to this case.
    
      Mr. Anderson in support of defendants’ counterclaim:
    Upon the question of the claimant’s right to hold the office of chief clerk of the Department of Agriculture and the office of retired captain of infantry in the United States Army for the same period of time, and to draw the salaries of both offices during the same period, the attention of the court is called to a few more authorities.
    “It is a rule of general law that an officer .who accepts another appointment inconsistent with the first is held to have thereby resigned the first.” (Rawle on the Constitution, 2d od., p. 184.)
    The following references bear on this question and sustain the above-stated principle, to wit: 8 Blackf., 329; 14 Ind., 182; 17 Ill., 191; 45 Mo., 355; 16 Inch, 368; 35 Ind., Ill; 105 Inch, 221; 56 N. H., 220; 77 N Y., 503; 53 Tex., 387; 73 Cal., 230; 29. La., 824; 46 N Y., 380; 58 N. Y., 295; 2 Hill., 93; 67 N. Y., 450; 11 R. L, 638; 3 Nev., 566; 14 Penn., 853; Yl Me., 20Y.
    The principle announced in 2 Kent, 295, “Salary and fees are incident to the title,” has been almost universally accepted as the law to prohibit the payment of compensation to defacto officers.
    The following' are some of the cases in which it was enforced: Biddle v. County of Bedford, Y Serg. and R., 386; Bowman v. State Treasurer, 25 Penn., 23; Gity of Philadelphia v. Gibson, 60 Penn., 136; Dorsey v. Smith, 28 Cal., 21; People v. Potter, 63 Cal., 12Y; Kimball v. Aloorne, 45 Miss., 151; 8 Abbott’s Practice Reports, 359.
    The claimant, by his act in accepting the office of captain of infantry in the United States Army thereby vacated the office of chief clerk of the Agricultural Department, held by him up to the time of his said acceptance, and his tenure of the chief clerkship of the Agricultural Department, from the 14th day of January, 1901, has been that of a de facto officer, and as such he is not legalty entitled to draw the salary of that position.
    There is perhaps another view of this case that might be taken by the court. In view of the prohibition contained in the act of July 31, 1894, under ordinary circumstances, if an official holding a $2,500 position had accepted another position to which compensation ivas attached, his acceptance of the second position would have been invalid. But by the act of June 6, 1900, he was excepted from the prohibition -of the act of Juty 31, 1894, in so far as the legality of his appointment to be a captain of infantry in the United States Army was concerned. In view of the last-mentioned act, it would have been illegal for him to hold both of these positions at the same time; yet, having been legally appointed to both, the court might consider that after his later appointment he had the right of election as to which office he would prefer to hold, and having elected to draw the salaiy and fill the position of chief clerk of the Agricultural Department, he therebj1' vacated his office of captain of infantry, retired, in the United States Army, though the uncontested facts in the case-clearly demonstrate that he has attempted to hold both offices, onty drawing the salary of one.
    
      
      Mr. King in reply:
    A question somewhat similar was presented to the Supreme Court in United States v. llarsha (172 U. S., 567). It was held in that case that the act of 1894, relied upon bj^ the United States, did not compel an officer to make an immediate election between two offices, even if made incompatible by that act. Incidentally the Supreme Court approved the decision of the Circuit Court of Appeals (56 Fed. Rep., 953), which questioned the power of the accounting officers of the Treasury to raise the question of the right to hold the office in a proceeding for the recovery of fees. The claimant, upon his appointment as a retired officer of the Army, showed no intention of resigning that of the chief clerk of the Department of Agriculture, and has ever since been, as he was before, in active performance of the duties thereof.
    This suit is not for the recovery of compensation as chief clerk of the Agricultural Department, but for pay as an officer of the Army. The title of the claimant to the office of the chief clerk of the Department of Agriculture can not be collaterally tried in this proceeding, and money earned and paid him for services in good faith performed recovered back. (Bennett v. United States, 19 C. Cls. R., 379, 888; Palmy. United States, 19 C. Cls. R., 389, 394.)
    It may be suggested that there is nothing in- recent legislation which indicates any departure from the memorable language of Justice Story in United States v. Morse (3 Story, 87 Fed. Cases, No. 15820). In the conclusion of the opinion in that case, that great judge said (27 Fed. Cases, 3):
    “The law, as I conceive, adjusts, or intends to adjust, the measure of the compensation of every officer to the duties to be performed in that office, and not in another independent office. It does not seem to me, therefore, that the court, except upon the most clear and positive language of a statute, ought to adopt any such conclusion; and where the words are loose and obscure and admit of two interpretations, it seems to me that the construction ought to be favorable to the-claims of the officer who performs the duties of two independent offices. It has always appeared to me, looking historically to the legislation upon the subject of compensation of officers of the customs, that the great object of the Legislature was, not to cut down the reasonable emoluments of officers holding dif. ferent offices but to prohibit their union when incompatible with public policy, or to prevent and suppress tbe growing-evil of extra compensation claimed for services purely incidental to a single office.”
    Such is still the legislative policy. Congress may have gone somewhat further than in Judge Story’s day in prohibiting the union of different offices when incompatible with public policy, but it is after all a mere matter of defining public policy as to what offices are incompatible.
    It seems to us quite clear that neither the act of 1885 nor that of 189tt declared any incompatibility in public policy between the same person holding the office of chief clerk of the Department of Agriculture, drawing the salary and performing the active duties thereof, and also being upon the retired list of the Army, and in that capacity receiving what this court has accurately characterized as “an honorable form of pension.” (JBletcher v. United States, 26 C. Cls. Ii., 544, 563.) Yet the case can be determined upon the terms of the act of 1900 for the relief of this particular officer without reference to the general terms of prior legislation. Congress, with full knowledge that the claimant was holding the chief clerkship of the Department of Agriculture, determined to relieve him of the disgace inflicted upon him by the sentence of dismissal pronounced upon him by the court-martial twenty years previous, to restore him to the Army, to place him upon the retired list, and to allow him pay as a retired officer. The last-named purpose is clearty indicated by the proviso to the act which in prohibiting the allowance of pay prior to the passage of the act, by the strongest implication confers upon the claimant the right to receive such pay after its passage. Unless, therefore, the beneficent purpose which Congress endeavored to carry out bjr the passage of this act is wholly to fail, there should be a judgment allowed the claimant for his full pay as a retired captain of infantry in the Armjr from the time of his appointment as such, as claimed in the petition and opening-brief.
   Nott, Ch. J.,

delivered the opinion of the court:

The claimant brings this action to recover his pay as a captain of infantry upon the retired list. It is conceded that he wan appointed to the office under the Act of 6th -June, 1900 (31 Stat. L., 554), and that he holds the office, and that he has not been paid the pay or salary of the office.

The first ground of defense rests upon what is termed a renunciation of the pay given by the claimant to the Paymaster-General as a condition to his receiving the salary of chief clerk of the Department of Agriculture. The so-called renunciation contains these words:

“ But this renunciation shall not operate to prevent me from testing in the proper courts or in any other legitimate way my right under the law to receive compensation from the appropriations of the Department of Agriculture while receiving-pay as an officer of the Army on the retired list, or my right, to receive pay as an army officer on the retired list while receiving compensation as chief clerk or employee of the Department of Agriculture. ”

There is nothing, therefore, in this defense. Where the salary or compensation of an officer or employee of the Government is by statute fixed and certain, other officers of the Government can neither increase it nor diminish it nor take it away.

Furthermore, the so-called renunciation can not possibly operate as an equitable estoppel. The claimant expressly' made his renunciation, by the same instrument, conditional upon his legal rights, and avowed his intention to assert them, and it is manifest that the officers of the Government intended to do nothing more than they propei’ly might do — reserve the question of legal right for the determination of the judiciary.

Here the case might technically stop.' The claimant is entitled to the pay of a captain of infantry on the retired list, he has not been paid, and the renunciation does not renounce the legal right to it. The counterclaim of the defendants, however, presents the real question in controversy. It is whether the claimant can receive the pay of an officer on the retired list and also the salary of the chief clerk of the Department of Agriculture.

The Comptroller of the Treasury decided that the claimant might receive the one but not the other — that he might forego the pay of a retired officer and receive the pay of chief clerk of the Department. The defendants’ counsel goes much further, and contends that the claimant can receive no compensation whatever as chief clerk of the Department of Agriculture; that if he holds the office and performs its duties, he must do so gratuitously; and that the difference between the pay of a retired officer, $1,755, and that of the chief clerk, $2,500, which has been paid to him may bo recovered back upon the defen dants’ counterclaim.

The adverse decision of the Comptroller of the Treasury stands exclusively on the Act 3d of March, 1885 (23 Stat. L., pp. 353, 356, sec. 2), which contains the following provision:

“That no part of the money herein or hereafter appropriated for the Department of Agriculture shall be paid to any person, as additional salaiy or compensation, receiving- at the same time other compensation as an officer or employee of the Government.”

But the subsequent Act 31st of July, 18,94- (28 Stat. Ii., pp. 162, 205, sec. 2), contains this provision:

“No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand live hundred dollars shall be appointed to or hold' any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate. ”

It was correctly held by the Comptroller of the Treasury that—

“The act of July 31,1894 (supra), when read in connection with that of June 6,1900 (supra), does not forbid the appointment of Mr. Geddes as a retired officer of the Army, and hence, in the absence of any contrary provision of law, does not make the payment of his salary in both places illegal. ”

That is to say, while the claimant was holding the office of chief clerk of the Department of Agriculture, with a salary attached thereto of $2,500 per annum, he was appointed an officer on the retired list by the President and confirmed by the Senate; and that appointment was specially authorized by the Act 6th June, 1900. (31 Stat. L., 551.) Hence the Comptroller, as before stated, grounded his decision exclusively upon the earlier statute of 1885.

That statutory provision is a proviso to an appropriation, and its plain purpose is that no person in the Department of Agriculture, or out of the Department of Agriculture, who is receiving “ compensation as an officer or employee of the Government ” shall be paid additional compensation for additional service out of general funds appropriated for tire Department of Agriculture. Applying to no designated class of persons, it is a provision of law controlling appropriations for the Department by limiting the discretionary authority of the Secretary. The evil .against which it is directed is the practice of allowing additional compensation for additional service in that Department.

That limitation upon the power of the Secretary does not constitute a defense. An appropriation is the setting aside by Congress of a designated amount of public money for a designated purpose.

“ No money shall be drawn from the Treasury but in consequence of appropriations made by law.” (Const., Art. 1. sec. 9.)

The accounting officers are the guardians of the appropriations. It is their business to see that no money is paid out of the Treasury unless the payment is authorized by an appropriation act. It is not their business to adjudicate abstract questions of legal right beyond the legal right of a person to be paid out of a specific appropriation. An appropriation constitutes the means for discharging the legal clebtsAf the Government.

The judgment of a court has nothing to do with the means— with the remedy for satisfying a judgment. It is the business of courts to render judgments, leaving to Congress and the executive officers the duty of satisfying them. Neither is a-public officer’s right to his legal salary dependent upon an appropriation to pay it. Whether it is to be paid out of one appropriation or out of another; whether Congress appropriate an insufficient amount, or a sufficient amount, or nothing .at all, are questions which are vital for the accounting officers, but which do not enter into the consideration of a case in the courts. This lias been repeatedly held by the Supreme Court and this court, beginning with Graham's Case, in the first vol-time of the Reports. (1 C. Cls. R., 380.) The appropriations made for all the Executive Departments, except that of the Department of Agriculture, are specific — so much for this object, so much for that. But it has been the legislative practice for some years to appropriate gross amounts for the Department of Agriculture, and at the same time to append the above limitation upon the power of the Secretary. The judgment of this court will not be paid out of that appropriation ; the limitation upon the power of the Secretary does not extend to the court; the real question before the court is that of the claimant’s legal right to receive the pay of both offices, irrespective of the statutes above quoted. All these questions were considered in Collins’s Case (15 C. Cls. R., 22), and are there exhaustively treated.

To bring a retired officer of the Army within the inhibition of the statute it is plain that he must be an “officer or emplo3ree of the Government” within its intent; that his unofficial life after retirement must be regarded, within the intent of the statute, as service; that his three-fourths retired pay must be “salary or compensation” for such service, it is well settled that an officer on the retired list owes no service to the Government in time of peace; that if called into service in time of war he returns thereby to the active list and receives full pay; that there is but one military office which he can hold — that of Superintendent of the Soldiers’ Home; and that his reduced retiied pay is but an honorary form of pension to be paid him when, having reached a certain age, it is presumed that he is no longer well fitted to render active service to the Government. (Hayden’s Case, ante, p. 39; Act 2d March, 1899, 30 Stat. L., p. 977, sec. 7.) If this officer on the retired list had been rendering service to the Government, and if his retired pay was intended as “compensation” for that service, and if the Secretary of Agriculture had intended to give to this retired officer “additional compensation,” to be paid out of the funds of his Department, the case would come within the purview of the statute. But there must be “^compensation ” received before there can be “ additional compensation” prohibited. As a matter of fact, the. pay of a retired officer is not compensation; and it follows as a matter of law that the salary of the chief clerk of the Department of Agriculture was not “ additional compensation."’ The act of 1885, therefore, does not control the case.

The Supremo Court has said that a statute prohibiting an officer from receiving more than one salary can not" “by fair interpretation be held to embrace an employment which has no affinity or connection, either in its character or by law or usage, with the line of his official duty, and where the service to be performed is of a different character and for a different place, and the amount of compensation regulated by law."’ Converse v. United States (21 How., 463); United States v. Brindle (110 U. S., 688, 694); and this court has held ever since Collins’s Case (15 C. Cls. R., 22, 40) that the pajr of a retired officer “is not given as compensation for discharging the duties of anj^ office during the period for which it is to be paid, but rather as a bounty and in the nature of a pension for services to his country previously performed.” Under these decisions the claimant might legally hold both offices, and if he held them, receive the salaries of both. The duties or nonduties of a retired officer are not incompatible with the duties of a chief clerk in an executive department. The duties of an officer beyond seas would be incompatible with those of a retired officer liable to be called at any time into-active service. Congress have recognized the distinction by providing that a retired officer shall not receive his pay as s.uch while holding a diplomatic or consular office beyond seas, but have left the right of a retired officer to hold a civil office within the country unimpaired. Congress have prohibited onty officers “on the active list” from holding “any civil office” (Act 15th July, 1870, 16 Stat. L., 319; Rev. Stat., sec. 1222), and retired officers only from holding appointments in the diplomatic or consular service {Act 80th March, 1868; Rev. Stat., sec. 1223.) “Congress,”says the Supreme Court, “distinguished, and adhered to the distinction, between officers on both lists and officers on the active list only, and between ordinary civil appointments and appointments in the diplomatic or consular service. No officer, whether on the active or retired list, could accept appointment in the latter and remain an officer, but that rule was not applied to retired officers in the matter of holding a civil office. ” (Badeau v. United States, 130 U. S., 439, 449.)

The judgment of the court is that the claimant recover |3,705, the amount of his pay-up to and including the 28th February, 1903, and that the counterclaim of the defendants be dismissed.

'Wbiü-i-it, J.,

dissenting.

The claimant was appointed October 1,1897, to the office of chief clerk of the Agricultural Department, and by authority of an act of Congress for that purpose was, January 14,1901, by the President, by and with the advice and consent of the Senate, appointed captain of infantry in the United States Army, which appointment the claimant accepted, and on January 26, 1901, he was duly placed upon the retired list of the Army to date from the time of his appointment. After this he applied to the disbursing officer of the Agricultural Department for his salary for the month of January, 1901, as chief clerk, and on the same day the disbursing clerk submitted to the Comptroller of the Treasuiy for his decision the question as to the legal right of the claimant to receive the salary of chief clerk, and for the same time receive his pay as a retired officer of the United States Armjr. The Comptroller gave his decision adversely to claimant’s right to receive the salaries of both offices for the same period of time. After this decision, March 18, 1901, the claimant filed a renunciation of his pay as captain of infantry, retired, while drawing the salary of his office as chief clerk of the Agricultural Department, and he has not, therefore, drawn any pay as a retired officer of the Army, which latter he seeks to recover in this suit.

Waiving the question whether the claimant has, by disclaiming the pay of a retired officer to enable him to accept the higher pay of chief clerk, surrendered'whatever rights he possessed to the pay of a retired officer, the more important, and, it seems to me, the vital question is whether section 2 of the act of March 3, 1885, is not a prohibition of the payment of any part of the money therebj^ authorized or appropriated by that act to the claimant as a person receiving at the same time other compensation as an officer or employee of the Government. The language of that section is:

“That no part of the money herein or hereafter appropriated for the Department of Agriculture shall be paid to O o $0 o ■Jl c3 a o s ►o CD D O & i-i £ CD S É CD P ® P O co o §

The argument of the majority of the court, as I understand and construe it, proceeds upon the theory that the pay of a retired officer is not “additional salary or compensation” to claimant’s salaiy or compensation as chief clerk and therefore not within the prohibition of that section, and generally that a retired army officer is not an officer within the meaning of the act, and that his pay as such is but a gratuity or pension, as distinguished from salary or compensation. I do not concur in either the reasoning or conclusion of the majority of the court in this regard. It seems clear to me that the provision of the statute, to which reference has been made, is a plain and positive prohibition of the payment of any money authorized by that act to the claimant while he at the same time was receiving other compensation as an officer or emploj^ee of the Government. To argue that the pa}' of the chief clerk would not be as additional salary or compensation, when at the same time he was also receiving pay as a retired officer, is simply to deny the plain import of the language used, and it would seem mere pedantry to produce argument to refute such reasoning. It is a sufficient statement for this purpose to say that if while a person is receiving one compensation another, is added the latter would be additional compensation. Any argument to produce a different result must necessarily be specious and reductio ad absurdmn.

Neither can it be reasonably supposed that Congress intended by retiring officers of the Army at a given age with specified pay'that such is a mere gratuity or pension, for all know that many of these officers, eligible to retirement, are in the vigor of manhood, both in bod}' and mind, and therefore the inference is reasonable that by such legislation it was intended to provide a continuous compensation for services already performed and for waiting for orders to active service when the contingency may arise. (30 Stat. L., 979.) These officers, although retired, constitute part of the Army; are borne on its register; are subject to the rules and articles of war and trial by general court-martial for any breach thereof. They all retain their commissions and rank without resignation, and may be assigned to a specified service, and therefore clearlj- fall within the descriptive words of the prohibition contained in the statute before recited.

Also, by section 1760, Revised Statutes, no officer in any branch of the public service, or any other person whose salaiy, pay, or emoluments are fixed by law or regulation, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, allowance, or compensation. Here the claimant was receiving a salaiy of $2,500, fixed byr law, as chief clerk of the Agricultural Department, and was, by the statute referred to, expressly inhibited from receiving any additional salaiy, allowance, pay, or compensation for discharging the duties of any other office unless expressly authorized bjr law, of which there is no pretense in this case. That the case of this claimant falls within the exception pointed out in Badeau v. The United States (130 U. S., 439), of offices not incompatible, is not seen, and that exception not having been expressly stated in the statute itself, resulting by judicial construction merefy, should not be further extended without a plain necessity, to the end that the words of the statute may not be wholly nullified. The ease presented is otherwise controlled by the decision cited, which is but declaratoiy of the explicit principles of the section considered, applied to facts which, in legal effect, are not different than those here delineated.

In my opinion it was necessary for claimant to disclaim the pay of a retired officer, as he did, before he could gain the right to the higher salaiy of chief clerk provided by the act in question, and without such disclaimer he could not receive it without a clear violation of the will of Congress. By accepting the higher compensation he is now estopped from claiming or receiving the lesser without first refunding the former. It is the plain spirit and intent of the legislation under consideration that no person should receive two salaries, and, in my opinion, the conclusion and judgment of the majority of the court does violence to the will of Congress.

Howry, J.,

dissenting:

We are all agreed that the Comptroller rightly decided that the act of 1894 does not by necessary implication repeal the act of 1885. The latter act was directed against the practice which obtained elsewhere of carrying on the work of the Government by persons holding düal appointments; and in creating the Department of Agriculture the use of the appropriations then and thereafter to be made as additional compensation to persons already receiving pay as officers or employees of the Government was prohibited regardless of the character, quality, or amount of service performed elsewhere. The use of any part of the money appropriated for the Department in payment to officers or employees receiving-other compensation was the thing forbidden. If the lawmakers had in mind any one class of people whom it was deemed best to exclude from the work of carrying on the Department of Agriculture the class specially excluded would seem to be militaiy and naval officers, who are supposed to be less familiar with agriculture and its interests than most any others.- But the intent was clearly expressed to restrict the use of the appropriations generally to a class not otherwise in the pay or employ of the Government as officers.

Payment of any part of the money appropriated for the Department of Agriculture as salary to an officer or employee while receiving other compensation is, to the extent of the salary paid, “additional” compensation. I-f the pay of a retired officer is not compensation of an officer of the Government, what is it? ¡Retired pay is not a gratuity, but is compensation in the same sense that pay for other service is compensation.

Immediate and present service is not the inhibition of the statute, but official compensation elsewhere is the sole prohibition. If active duty in the military or naval service continuously measured the obligation to compensate the officer, his pay would cease as much while on waiting orders or leave of absence as during the period of retirement. In either case the compensation is given because the person receiving it is yet a naval or military officer subject to orders of the Government.

The Revised Statutes do not place retired officers wholty out of the service. The longevity pay statutes (20 Stat. L., 145) make no discrimination against officers on the retired list.

(Tyler's case, 16 C. Cls. R., 224.) If they are not required to labor while so retired — in consequence of which their compensation is diminished — no reason exists why the accounting officer should add a further limitation of pay not found in any statute. (United States v. Tyler, affirming this court, 105 U. S., 224.) On the other hand no reason exists why by construction predicated upon want of active duties for the time being retired officers should be permitted to claim advantages which Congress intended should not be claimed. The allowance of the claimant’s contention in this case seems to me to be a clear innovation upon the salutary rule expressly meant to exclude the use of appropriations made to carry on the Department of Agriculture where officers retired, as well as those in the active service, are receiving the compensation which follows from their office as such.

It is true the judgment in this case will not be paid out of the money appropriated for the Department of Agriculture. But can the claimant with knowledge that he could not at the same time lawfully receive both salaries receive the one and defer collecting the other and thus recover the additional compensation forbidden by the statute? I think not. Want of knowledge of the terms of the statute while performing duty as chief clerk would not strengthen the right to claim the compensation as clerk and retired officer afterwards for the same time. But with knowledge that the statute prohibited the payment of the double compensation the claimant’s contention here is entitled to even less consideration.

The real question is whether the claimant can receive the compensation as a military officer and as chief clerk of the Agricultural Department for the same period of time. The act of 1885 says he shall not. That act is controlling and makes the application of the counterclaim necessary to give the act its proper effect.  