
    EDWARD A. MOSELEY v. THE UNITED STATES.
    [No. 21473.
    Decided April 2, 1900.]
    
      On the Proofs.
    
    The claimant, as disbursing agent of the Interstate Commerce Commission, pays telegraph companies §73.24 and presents itemized vouchers therefor approved by the chairman of the commission. The account is settled and he is credited with the amount. The Comptroller within a year withdraws the account for revision under the Act July 31, 1894- (29 Stat. L., 207, § 8), and disallows the amount spent for telegrams on the ground that the claimant did not append the original telegrams to his account.
    I.The Act March 3, 1889 ( 25 Stat. L., 855, § 18), j:>rovides that all the expenses of the Interstate Commerce Commission “shall he allowed and paid on the presentation of itemized vouchers therefor approved by the chairman of the commission.”
    
    II.The Act Marchs, 1889 (25 Stat. L., 939, § 18), providing “that hereafter expenses of the Interstate Commerce Commission shall be audited by the proper accounting officers of the Treasury,” does not repeal the act prescribing the duties of its disbursing agent. It was intended to make the duty of the accounting officer clear and modified the Act July 31, 1894 (29 Stat. L., 207, § 8), prescribing the duties of the disbursing agent to the extent of requiring his accounts to be audited by the accounting officers as to their correctness and legality.
    III.The disbursing agent of the Interstate Commerce Commission is entitled to be credited in his accounts' with payments made for telegrams, for which itemized vouchers approved by the chairman of the commission are presented.
    
      The Bejiorters1 statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant herein is the secretary and disbursing agent of the Interstate Commerce Commission, and as such disbursing agent submitted his accounts showing expenditures for and on behalf of said commission to the Auditor for the State and other Departments for the second and third quarters of the fiscal year ending June 30, 1898, in the form of itemized vouchers approved by the charmain of the commission, which accounts were examined and approved by said Auditor and. settled,- and the claimant was duly credited with the expenditures embraced in said account. Among which items of expenditures so settled, for which the claimant was duly credited, were sundry payments shown in said accounts to have been made by him to the Western Union Telegraph and Postal Telegraph Cable companies, aggregating $73.24.
    II. Thereafter, March 13,1899, and within one year from tha.date of the settlement so made by the Auditor as aforesaid, the Comptroller withdrew said accounts from the files for the purpose of revision under section 8 of the act of July 31,1894 (28 Stat. L., 207), and so advised the claimant by letter of that date, noting therein his objections to the several items of said account and calling upon the claimant for explanation in relation thereto.
    Thereafter the claimant made explanation concerning the several items in his account; and the Comptroller, on May 26, 1899, allowed all the items of said account except the items for telegrams, as aforesaid, which were disallowed.
    III. The Comptroller assigned as his reasons for the disal-lowance of such items of expenditure for telegrams that under the ruling of the Comptroller (4 Comp. Dec., 233) the original telegrams or copies thereof were not furnished therewith.
    The claimant, under date of March 27, 1899, in relation thereto informed the Comptroller as follows:
    “The commission instructs me to say that for the present it declines to submit copies of the telegrams covered by these vouchers. Aside from the fact that it, is impracticable to do so in some cases, a considerable number of the messages were highly confidential, and the commission does not think it suitable that their contents should be known to every clerk who has access to your files.
    “These vouchers show the dates, number of words, places from and to which sent, and the charge for each message transmitted. The chairman has certified to their necessity and approved the amount paid therefor. No law requires that copies shall be exhibited to the accounting officer, and any general regulation to that effect would be unreasonable as applied to the telegraph business of the commission.
    “Entertaining this opinion, the commission directs me to inquire whether you will insist upon being furnished with copies of its telegrams.”
    In response thereto the Comptroller, under date of April 5, 1899, said:
    
      “Item IS. — Telegrams. Original telegrams or copies are required (4 Comp. Dec., 233). If any of the telegrams were confidential, furnish a certificate from the chairman of the commission stating that - it would be prejudicial to the public interests to disclose the contents. Copies of all other telegrams are required. Confidential telegrams should be described by dates and amounts in the certificate to be signed by the chairman of the commission.”
    Thereafter, under date of April 29, 1899, the claimant furnished the Comptroller with the action óf the Interstate Commerce Commission in relation to the revision of his said accounts, as follows:
    “Ata general session of the Interstate Commerce Commission, held at its office in Washington, D. C., the 27th day of April, A. D., 1899.
    “Present: lion. Martin A. Knapp, chairman; Hon. Judson C. Clements, Hon. James D. Yeomans, Hon. Chas. A. Prouty, commissioners.
    “The following proceedings were had, to wit:
    “The subject of the revision of accounts of the secretary and disbursing agent of the commission by the Comptroller of the Treasury being under consideration, the secretary presented a communication from the Comptroller, dated April 17, 1899, relating, among other things, to the telegraphic messages of the commission.
    “It was ordered that so much of the Comptroller’s commu-ication as requires copies of telegrams relating to the business of the commission to accompany telegraph vouchers for which credit is asked be disregarded by the secretary and disbursing agent, the commission holding that such messages are so far confidential as to justify refusal to disclose their contents, and that the requirement for their production is unreasonable and against the public interest.
    “It was also ordered, in accordance with the practice heretofore always required by the commission, that no telegraph bills be paid by the disbursing agent except upon itemized vouchers, showing the date, name of sender and receiver, places from and to which sent, number of words and amount charged of each message paid for, and only after such itemized vouchers have been carefully compared with the messages on file with the commission.
    “A true copy:
    “Edw. A. Moseley, Secretan/.”
    No further action was taken by the Comptroller looking to the allowance of said account, but his former action in reference thereto was allowed to stand; and thereafter, before the commencement of this suit, the claimant, as conceded by the defendants, paid into tbe Treasury of tbe United States to tbeir credit, tbe said sum of $73.24.
    
      The Olcmncmt im, propria persona:
    
    Tbe “act to regulate commerce,” approved March 2, 1889, section 7, chapter 382 (1 Supp. E. S., p. 690), provides:
    “All of tbe expenses of tbe commission, including all necessary expenses for transportation incurred by tbe commissioners, or by tbeir employees under tbeir orders, in making any investigation, or upon official business in any other places than in the city of Washington, shall be allowed and paid on tbe presentation of itemized vouchers therefor approved by the chairman of tbe commission.”
    By the appropriation act of March 2, 1889, chapter 411 (1 Supp. R. S. [par. 3], p. 698), it is made the duty of the disbursing agent “to allow and pay” all expense accounts presented to him which are supported by “itemized vouchers ■therefor approved by the chairman of the commission. ”
    The statute gives the disbursing agent no other discretion in the allowance and payment of such accounts than the ascertainment of the facts that the account is supported by “itemized vouchers,” and that these were “approved by the chairman of the commission.” It does not authorize him to inquire whether the expenses for which the charge was made were, in fact, “necessary,” or whether the “business” charged for was, in fact, “official.” These matters are, under the act of Congress, for the chairman of the commission to determine.
    ■ The last above-cited act merely gave to the proper Auditor in the Treasury the power and the duty to audit the accounts of the disbursing agent of the Interstate Commerce Commission, embracing both receipts and expenditures.
    • It did not purport to repeal or in any way modify the “act to regulate commerce ” of the same date, which prescribes to that disbursing agent the “earmarks” of the items which he is authorized and required to pay.
    The Auditor in the Treasury is required by this statute to see that each item of disbursement in the expense accounts of the Interstate Commerce Commission is supported by “an itemized voucher approved by the chairman of the commission.”
    
      When that fact appears, credit for such items must be allowed, because the statute imposes no other requirement and affords no other test of validity.
    The Auditor, like the disbursing ag’ent, is not authorized to go beyond the statute and impose tests of his own invention which the statute has not prescribed. He can not inquire into the propriety of the expenditure, or the sufficiency of the voucher by which it is evidenced, if it appears that such voucher is itemized and bears the approval of the chairman of the commission. For example, he could not require that the voucher should be of a certain size, form, or color, or that it should be reenforced by certain other documents or proofs, more fully attesting’ its validity and sufficiency.
    Congress had prescribed the powers and duties of the Interstate Commerce Commission, had expressly authorized it to make certain expenditures, and had provided that “all of the expenses of the eommission shall bo allowed and paid on the presentation of itemized vouchers, approved by the chairman of the commission. ” It surely was not competent for the Comptroller of the Treasury to add further conditions and requirements to those prescribed by Congress.
    The Comptroller had recognized and even insisted, in his letter of March 3, 1899 (Exhibit A, R., 7), that the chairman of the commission was the “head of the department,” and this head of department had ascertained and determined that the vouchers for telegraph messages were valid and adequate, by approving the same, and thus authorizing the disbursing agent to pay them.
    The contention of the Comptroller now is that he is himself invested with power, by the statute which authorizes him to revise the accounts passed by the Auditor, to set aside the discretionary action of the head of a department.
    A similar contention was made in 1887 by the accounting officers in the Treasury, which was not sustained, however, by the Supreme Court of the United States. (United States v. Johnson 124 U. S. R., 236.)
    And citing a former opinion the court said:
    “The accounting officers of the Treasury have not the burden of responsibility cast upon them of revising the judgments, correcting the supposed mistakes, or annulling the orders of heads of departments.” United States v. Jones, 18 Howard, 96; ib., 252.)
    Equally true is it that where Congress has made the approval of vouchers by the chairman of the Interstate Commerce Commission the warrant for their payment by its disbursing agent, it did not intend that the exercise of this discretion by the chairman of the commission should be subject to the revision and supersedeas of the Comptroller of the Treasury.
    Has the Comptroller of the Treasury the power, under the statutes by which his office was created and its powers and duties defined, to impose requirements upon the disbursing officers and agents of the Government which are not prescribed or authorized by the statutes under which their offices are administered?
    It may not be out of place to say here that the Supreme Court does not always regard the practices of the accounting officers — even of forty years’ standing — as any sanction for overruling the statutes. (United States v. Temple, 105 U. S., 97, 99.) Nor does that court favor any frivolous or vexatious practices of public accountants. (United States v. Tcmnei\ supra.)
    
    Neither a court nor the head of an executive department has the right to establish rules and regulations which are not expressly or impliedly authorized by Congress. In JIarvey v. United States (3 C. Cls. K.., 38) that court held, with reference to such rules and regulations:
    ‘ ‘ Those words describe rules relating to the subj ect on which a department acts, and are made by its head under an act of Congress conferring that power, and thereby giving to such regulations the force of law.”
    And where the Court of Claims itself had established £..• rule of procedure in that court, that where a claim was presented for adjudication the petition must show that application for its allowance had been made without success to that department in which such claims were ordinarily settled, the Supreme Court held, in Glyde v. United States (13 Wall., 38): “This was establishing a jurisdictional requirement which Congress alone had power to establish.”
    
      
      Mr. Felix A. Brannigan (with whom was Mr. Assistant Attorney-General Praclt) for the defendants:
    The Comptroller of the Treasury holds that it is necessary to have the copies referred to filed with the disbursing agent’s accounts in order to enable the proper accounting officers to determine whether the telegrams were sent or received by the commission upon public business; - whether the amounts charged for the service were according to the prescribed rates, etc. He considers the desired copies or the originals as a necessary part of the vouchers, and that it is for his office to determine, finally, the quantity and quality of the proof of disbursements before the disbursing agent is entitled to credit in the settlement of his accounts at the Treasury Department.
    The principle for which he contends is, that in the settlement of these accounts the accounting officers have a discretionary duty to perform, and that it is for them to determine the quality and quantity of proof which would satisfy them in giving credits for disbui'sements of public moneys; in other words, that it involves executive discretion. This principle is set forth and recognized in Beealmr v. Pa/uldvng (14 Pet., 497, 519); in Watldns v. United States (9 Wall., 759, 764); and in United States v. Fletcher (147 U. S., 664, 666).
    These original telegrams, or copies thereof, are vouchers, and as such are properly parts of the, accounts rendered for their payment. 82 F. E., 23; 147 U. S., 666; 14 Peters, 515; 9 Wallace, 759 and 764; 1 Lawrence, 538; 3 Lawrence, 349; 3 Dec. Comp. Treasy., 231-236; 4 Dec. Comp. Treasy., 233 and 236; 5 Dec. Comp. Treasy., 703. * * *
    That the Comptroller of the Treasury made only a reasonable requirement of claimant, and one which in law he was authorized to make, when he made the filing of the copies of the telegrams as vouchers a condition precedent to the payment of the charges therefor, I submit to be fully sustained by the authorities cited above.
   Peelle, J.,

delivered the opinion of the court:

This action is to recover for money paid into the Treasury by reason of the disallowance by the Comptroller of money expended by the claimant as disbursing agent of the Interstate Commerce Commission in the transmission of telegrams for and on behalf of the commission.

The material facts are that the claimant, as disbursing agent, paid to the several telegraph companies, set out in the findings, $73.24 and presented his account therefor, with others, in the form of itemized vouchers approved by the chairman of the commission, to the Auditor for the State and other Departments, for settlement. His accounts were settled by that officer, and the claimant was credited with the amount so paid. The Comptroller, within a year thereafter, withdrew the accounts, with others, for revision, under section 8, act of July 31, 1894 (29 Stat. L., 207); and while allowing such other accounts, disallowed the one for the money so expended for telegrams, on the ground that the claimant had not furnished thei’ewith the original telegrams or copies thereof, as required by the ruling of his office (4 Comp. Dec., 233), nor furnished in lieu thereof the certificate of the chairman of the commission that such telegrams were confidential. Neither having been furnished as required, the amount was disallowed.

None of the facts stated are controverted by the defendants. The claimant predicates his right to recover back the money paid into the Treasury, under the adverse ruling of the Comptroller, on the ground that under the last paragraph of section 7 of the “act to regulate commerce,” as amended by the act of March 2, 1889 (25 Stat. L., 855; 1 Supp. R. S., pp. 684, 690), “all of the expenses of the commission, including all necessary expenses for transportation incurred by the commissioners, or by their employees under their orders, in making any investigation, or upon official business in any other places than in the city of Washington, shall be allowed and paid on the presentation of itemized vouchers therefor approved by the chairman of the commission.” And that under that provision of the act the claimant, as disbursing agent of the commission, had no authority to inquire as to “whether the expenses for which the charge was made were, in fact, ‘ necessary,’ or whether the ‘ business ’ charged for was, in fact, ‘official;’ that these were matters, under the act of Congress, for the chairman of the commission to determine.”

And, further, that the appropriation act of the same date (25 Stat. L., 939; 1 Supp. R. S., 698, par. 3), providing “that hereafter expenses of the Interstate Commerce Commission shall be audited by the proper accounting officers of the Treasury,” did not repeal or modify the act in respect of the duties of the claimant as such disbursing agent, and that when he presented his account in the form of itemized vouchers, approved by the chairman of the commission, he was entitled to credit therefor; that the Comptroller in his revision of the account was limited in the discharge of his duties to the inquiry whether the amounts expended for the several objects named in the appropriation act exceeded the appropriation therefor, and whether such expenditures were itemized and approved by the chairman of the commission.

The two acts referred to became law on the same day, though it is evident that the second act referred to followed the first and that it was inserted in the appropriation act to remove any doubt which the first might otherwise have created as to the authority and duty of the accounting officers in respect of the audit of such accounts.

Had the first been omitted from the interstate-commerce act, there would have been no necessity for the second, as such accounts would then have been subject to audit and adjustment the same as the accounts of other officers of the Government.

We are, therefore, inclined to the opinion that while the language “that hereafter expenses of the Interstate Commerce Commission shall be audited by the proper accounting officers of the Treasury ” did not repeal the former act requiring the payment of such expenses to- be made “on the presentation of itemized vouchers therefor approved by the chairman of the commission,” it did nevertheless so modify it as to subject such expenses to audit “by the proper accounting officers of the Treasury,” and that such audit necessitates an examination as to the correctness and legality of such expenses, with such satisfactory proofs thereof as may be required by the accounting officers.

Thé alternative requirement of copies of telegrams, or if they were confidential, a certificate to that effect from the chairman of the commission was not unreasonable, especially as but one certificate of that character appears to have been contemplated for each quarterly account.

The question before us is, Are the payments shown in the account to have been made to the several telegraph companies proper and legal charges against the Government?

The claimant’s statement of account being in the form prescribed by statute — i. e., “itemized vouchers therefor, approved by the chairman of the commission,” is prwna facie correct. The defendants do not controvert the fact of the expenditures therein shown to have been made under the direction of the commission, nor of the money paid into the Treasury; and, as under the circumstances of this case we have no reason to doubt the correctness or legality of such expenditures, the claimant is entitled to recover, and judgment will be entered accordingly.  