
    PETER COLLIER v. THE UNITED STATES.
    [No. 14552.
    Decided March 14, 1887.]
    
      On the Proofs.
    
    The chemist of the Department of Agriculture is employed hy the Secretary of the Treasury with the consent of theCommissioner of Agirculture to assist in the defense of some two hundred suits against the collector of the port of New York involving imposts collected on sugars. He renders valuable service as chemist and expert, hut is not paid.
    Where a service which cannot he legally required of an officer is rendered with the consent of his superior for another Department having no official control of him, and is a service within the lawful discretion of the Department employing him, he may receive additional pay therefor, notwithstanding the Revised Statutes (§1765).
    
      
      The Reporters’ statement of the case:
    The following are the facts found by the court so far as they relate to the decision rendered :
    The claimant is a chemist by profession and was, at the time the claim occurred, to wit, during the year 1881, the chemist of the Department of Agriculture, receiving a salary of $1,900 per annum.
    In the year 1881, there being pending in the Circuit Court of the United States for the southern district of New York about two hundred suits brought against the United States collector of customs at New York for refundment of duties collected bn imported sugars, special agents of the Treasury Department applied to the Commissioner of Agriculture for permission to employ and use the services and skill of the claimant in the chemical analyses of sugars, and for the detection of frauds on the revenues of theUnited States. The Commissioner assented to the employment by the Treasury Department, with the distinct understanding that no'service should be required from the claimant that would interfere in the least with his duties as chemist in the Department of Agriculture; that his work should be done outside of the hours of labor required of all em-ployés of the Department, and that his services should be paid for by the Secretary of the Treasury at the same rate that he paid other men of like skill and experience. The agent of the Treasury Department said in reply that he was authorized to say that the claimant’s services were considered to be very desirable and important, and that he would be paid a suitable recompense for such services. The Commissioner’s consent was given, and subsequently he was careful to note that the claimant’s time and attention due to the Department of Agriculture were fully given. The Commissioner tendered the Treasury agents the use of the spectroscope and other apparatus of the laboratory for the purposes in view whenever the use of such apparatus might be necessary. The use made by the claimant of the laboratory or its instruments was not in any manner a loss or detriment to the Department of Agriculture. What part, if any, of the work he thus did for the Treasury Department after hours in the laboratory of the Department of Agriculture, and what part of this work he did at his own house, is not shown, but it does appear that he engaged in this work at bis own bouse at nights and on Sundays. It also appears that the claimant did not limit his work for the Government while under the direction of the Commissioner of Agriculture to the hours usually required.
    Of the suits so pending, as aforesaid, the case of Welch v. Merritt was selected as a test case, and tried in the said Circuit Court for the southern district of New York in April, 1881. Prior to and during said trial, claimant frequently gave advice to the officers of the Government engaged in defending said suit, at the request of said officers, and in said case claimant was summoned and testified for the defendant, for which attendr anee and testimony claimant was paid merely his actual expenses, as provided by section 850 of the Ee vised Statutes.
    The other principal expert for the defendants was Dr. Gideon E. Moore, of New York, who was not allowed to testify on the trial as to the merits of the case, but for services in aiding the defendants to prepare for trial, was paid the sum of $5,000 by the Treasury of the United States, out of the permanent appropriation, contained in section 3687 of the Ee vised Statutes, for collection of the revenue from customs, from which appropriation it has been the custom of the Treasury Department to pay for services similar to those of claimant and of Dr. Moore.
    Claimant’s labors were fairly worth to the Government the sum of $5,000, and the only reason he was not paid out of the permanent appropriation for the collection of customs revenues was the supposed bar to such payment created by section 1765, Eevised Statutes.
    A number of letters between different persons, some before and some after the claimant’s services were rendered, were put in evidence and found by the court at the defendants’ request. The only one considered by the court as affecting the decision was the following:
    “Treasury Department,
    “Oeeice op the Secretary,
    “ Washington, D. O., March 11,18S1. “Peter Collier, Esq.,
    “ Chemist Agricultural Department, Washington, D. G. :
    
    “ Sir : Tlie.Department is in receipt of your letter of the 10th instant, inquiring as to the compensation to be granted to you for your services in connection with the expected trial of the sugar casoj in New York.
    “In reply, .you are informed that as you are a Government officer, whose salary is fixed by law, this Department could not, in view of section 1765 of the Revised Statutes, give you any compensation for such services, without authority of special act of Congress. What rate of compensation Congress would be willing to grant by a special appropriation this Department cannot now say. Should the district attorney avail himself of your services for such purpose this Department would be pleased to recommend to Congress such special compensation as, in its judgment, might be proper, having in view the length of time consumed and other facts necessary to form a judgment in the premises.
    “Very respectfully,
    “H. F. French,
    
      “Assistant Secretary.”
    
      Mr. John Paul Jones and Mr. Robert B. Lines for the claimant:
    Section 1765, as construed by the Supreme Court in Converse v. The United States (21 Howard, 463), United States v. Brindle (110 U. S., 688), Meigs v. United States (19 O. Cls. R., 497, and cases cited therein), does not prohibit the payment of this claim; on the contrary the right of recovery is thereby clearly established.
    The material facts in the case at bar are similar to those in Brindle’sCase, and, with slight paraphrase, the language of the court in that case practically disposes of this one.
    
      Mr. Heber J. May (with whom was Mr. Assistant Attorney-General Howard) for the defendants:
    The claimant sues to recover for services which were rendered, as he avers, for the defendants while he was chemist in the Department of Agriculture, at a salary of $1,900 per an-num. He drew his salary while performing the alleged services, and subsequently received his necessary expenses under section 850, Revised Statutes.
    By the acceptance of such expenses he recognized the law as applicable to him and also to the services performed for the defendants, while he acted in an official position for the United States.
    We believe section 1765, Revised Statutes, is comprehensive enough to cover all the points in controversy. It explicitly provides that—
    
      u No officer in any branch of the public service, or any other person whose salary, páy, 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 claimant was an officer in the public service, with a salary fixed by law, at the time he performed the services alleged in the petition. The services were not authorized by law, nor was there an explicit appropriation made to pay him for the same. He is therefore clearly within the prohibition of this statute. (Converse v. The United States, 21 Howard 471; United States v. Shoemaker, 7 Wall., 342; Stansburyv. The United States, 8 Wall., 37.)
    So far the decisions of the Supreme Court are uniform and consistent. In fact there is no conflict, unless it can be found in the late case of The United Statesi v. Brindle (110 U. S. R., 688). The questions in controversy in the Brindle Case arose solely under section 1763, Revised Statutes, and reference is had by the court to that section alone in its opinion. The case was determined under the provisions of that section without reference to any other. The Converse Case, supra, was cited in regard to the affinity of the respective employments. Upon close examination the Brindle Case can hardly be said to liberalize the doctrine, of the former decisions.
    The Supreme Court has not overruled the doctrine of Converse v. The United States, but has applied and reaffirmed it.
    In Meigs v. The United States (19 C. Ols., 504) this court says in reference to the Converse and Brindle Cases, supra, that—
    
      “ The point in each of them wa.s, whether the party was entitled to compensation for services rendered in an employment which had no affinity or connection with the line of his official duty; and the Supreme Court held that he was.”
    Meigs was a retired officer, and for this and other reasons the case is not analogous here. Retired officers are not required to perform active service. (Collins v. The United States, 15 C. Cls. R., 40.)
    In connection with the statutes already referred to, the court’s attention is called to the latest provision of Congress prohibiting extra compensation to civil officers. It was passed in 1874. (18 Stat. L., p. 3,109; 1 Supp. Rev. Stat., p. 47, § 3.)
    The attention of the court is called to Hedrick and Warden’s 
      
      Cases (1G C. Cls. B., 88),for a thorough, discussion oy counsel,' and an exhaustive review by the court, of the provisions of this section.
    The facts in this case do not bring it within the law extracted from the decision in Gratiot’s Case (15 Pet., 33G). The Secretary of the Treasury was prohibited by the express terms of the statute from employing the claimant to do any kind of service, and so informed him. Such a rule as the one referred to might apply in the absence of a statutory prohibition, but not where it exists as in this case. While it may have been the custom to employ persons and pay them out of an appropriation, as indicated, it certainly has not been the custom to so employ Government officers and xiay them, regardless of the statutes prohibiting such employment and payment. ■ The claimant, as a salaried officer of the Government, was subject to the law, and not to “ custom.”
   Per curiam :

The court is of the opinion that the service which the claimant rendered having been one which could not have been legally required of him either by the Secretary of the Treasury or the Commissioner of Agriculture, and having been rendered with the knowledge and consent of his superior officer, and for a Department having no official control of him and to which he owed no service whatever, and the employment moreover being within the iegal discretion of the Secretary of the Treasury and for the benefit of the Government, the case is necessarily ruled by the decisions of the Supreme Court in the cases of The Converse v. United States (21 How., 463), The United States v. Brindle (110 U. S. R., 688), and The United States v. Saunders (120 id., 126).

The judgment of the courtis that the claimant recover of the defendants the sum of $5,000.  