
    GEORGE L. DYER v. THE UNITED STATES.
    [No. 21180.
    Decided March 24, 1902.]
    
      On the Proofs.
    
    A naval officer is ordered by the Secretary of the Navy to report for duty to our minister to Spain and accompany him to Madrid. It is also ordered by the Secretary that he be allowed §285 per month for “maintenance" to begin at the time he reports for duty, and that it be “ additional to the ordinary travel and other expenses that may be dlloived. ” The accounting officers refuse to allow the maintenance prior to the time of the officer’s arrival in Madrid.
    
      I. The money appropriated by the Act Sd March, 1897 (29 Stat. L., 648) for “maintenance of students and attachés and informaiion from abroad ” was in the nature of a contingent fund to be disbursed by the Secretary of the Na vy in his discretion. The only question that can arise under the statute is, how much did the Secretary intend to allow to an officer.
    II. Neither can the form of the Secretary’s allowance be a matter of judicial review, nor the time when the maintenance was to begin.
    
      The Reporters’ statement of the ease:
    The following are the facts of the case as found by the court: *
    I. The claimant, George L. Dyer, was on July 1,1897, and is still, an officer in the Navy of the United States, to wit, a lieutenant.
    II. On the above-mentioned date the following order was issued and delivered to him:
    “Navy Department,
    “ Washington, July 1,1897.
    
    “Sir: You are hereby detached from duty in the Navy Department and will report at once to Gen. Stewart L. Wood-ford for duty at Washington, D. 0., in connection with his mission. You will proceed with him to Europe, visiting with him such places as he may direct. W hile in Europe you will visit such naval and military establishments as 3’ou may find compatible with your other duties; and upon your arrival at MacTrid you will assume all the duties of naval attaché at that place. You will report to the Navy Department by what steamer you are to proceed to Europe in sufficient time for your passage to be ordered.
    “ Respectfully,
    “T. Roosevelt, Act. Sec.
    
    “Lieut. G. L. Dyer, U. S. N.,
    “ Office JJaval Intelligence,
    
    “ Navy Department, Washington, JD. GJ
    
    III. On the same date there was issued and delivered to him the following letter of instruction:
    “ Navy Department,
    “ Washington, July 1, 1897.
    
    “ Sir: During your service as naval attache, 5mu will regard Gen. Stewart L. Woodford, who has been appointed minister to Spain, as your superior officer, and will at all times comply with such instructions as he may give you.
    ‘ ‘Two hundred and eighty-five ($285) dollars per month will be allowed you for your maintenance, to commence from the time you report for duty and continue for six months from that date; and for the remaining six months of the fiscal year you will be allowed two hundred ($200) dollars per month. This allowance is for the purpose of covering the extraordinary expenses to Avhich you will be subjected by reason of your duties as naval attaché, and is to be considered as additional to the ordinaiy travel and other expenses that may be allowed.
    
      “ Bospectfully,
    “T. Roosevelt, Act. Sec.
    
    “Lieut. George L. Dyer, U. S. N.,
    “ Office Nmol Intelligence,
    
    “ Wamy Department, Washington, N. (7.”
    1Y. In obedience to said order and letter of instruction claimant reported for duty to Minister Woodford at Washington, D. C., on the 1st day of Juty, 1897. He left the United States on or about July 28, 1897, and arrived in England on August 4, and making stops en route, amounting in some cases to two weeks, in London, Paris, and San Sebastian, Spain, reached Madrid September 25, 1897.
    V. On February 1, 1898, the Judge-Advocato-General of the Navy Department decided, in response to an inquiry from the Auditor for the Navy Department, that it was the intention of the Department to allow Lieutenant Dyer compensation at the rate of $285 per month from July 1, 1897, the date when he reported for duty as aforesaid.
    YI. On April 19, 1898, claimant addressed a letter to the honorable Assistant Secretary of the Navy, in which he referred to the matter of the settlement of his accounts under the order and letter of instruction above referred to and appealed to the Assistant Secretary for protection from what ho, claimant, considered to be an illegal adjustment of his said accounts.
    Yll. On May 2,1898, the honorable Assistant Secretary of the Navy addressed a communication to the Hon. John D. Long, Secretary of the Navy, in which he said: “Mr. Dyer should, of course, receive pay for the whole time.”
    VIII. In the settlement of claimant’s accounts for the first, second, third, and fourth quarters, 1898, in accordance with the decision of the Assistant Comptroller, March 28, 1898, (above referred to), the accounting officers deducted from the amount claimed by claimant the sum of $.1,450.63, of which IpSOT. 50 was on account of maintenance from -July 1 to September 25, 189T.
    
      Mr. John Paul Jones for the claimant.
    
      Mr. George M. Anderson, (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court:

The naval appropriation Act 3d March, 1897 (29 Stat. L., p. 648), under the heading “Pay, miscellaneous,” among other things, appropriated for “maintenance of students and attaches and information from abroad i;' * * three hundred thousand dollars.”

The court is of the opinion that the appropriation, so far as it relates to the maintenance of attaches and information from abroad, 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 (18 How., 92), wherein 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 powers 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 any officer of any department, correcting the supposed mistakes or annulling orders of heads of departments.”

It being, then, within the discretion of the Secretary of the Navy to order an officer abroad and to assign him to duty as an attache, and there being no limit in the statute upon the amount of maintenance which may be allowed him, that amount is necessarily within the exclusive jurisdiction of the Secretary. It is not for the court and it is not for the accounting officers to say how much or how little shall be allowed to a naval attache. The only question which can arise is how much did the Secretary intend to allow to the officer for maintenance.

Neither is the form of the allowance a matter for judicial review. In this case the American minister to Spain was in the United States at the time when the officer was assigned to this duty, and he was directed to report to him for duty on the 1st of July, 1897. As a matter of fact his services as a, naval attache then beg’an. Duty of a diplomatic nature could then be assigned to him, and in the troubled condition of international relations then existing between the United States and Spain it may well be inferred that his services were needed by the minister.

The intention of the Secretary as to the amount to be allowed for maintenance is as clear as his words are unambiguous. It was that the officer should receive $285 a month from the 1st of July, 1897, when he reported for duty, exclusive of and in addition to whatever traveling expenses and subsistence and other allowances he might be entitled to if maintenance had not been allowed. It was equally within the power of the Secretary to have reached the same result by directing that the allowance for maintenance should begin when the attache reached Madrid and increasing the amount for it. The form of the allowance was merely a matter of form, and does not involve the question of authority. If the Secretary had been limited to §285 a month, a question of law would then bo presented as to whether the allowance could begin before the officer reached the end of his journey. But as the statute stands the Secretary had the power to allow this officer whatever amount he saw tit for maintenance during the fiscal year for which the appropriation was provided; and it is immaterial whether he made it payable monthly from the beginning of the fiscal year to the end thereof, or whether ho made it payable from the 25th of September, 1897, when the officer arrived in Madrid, and increased the amount thereof. In whichever form the allowance was made it was the act of the Secretary and within the proper exercise of his discretion.

The judgment of the court is that the claimant recover judgment in the sum of $807.50.  