
    JOHN A. BARRE v. THE UNITED STATES.
    [No. 17102.
    Decided May 31, 1892.]
    
      On the Proofs.
    
    The census act, 1889, provides that special agents “shall receive compensation at rates to he fixed hy the Superintendent of the Census, with the approval of the Secretary of the Interior: Provided, That the same shall in no ease exceed ‡6 per day,” etc. An agent is appointed at $4 ppr day and “ actual expenses of transportation, hut no allowance for subsistence or per diem in lieu thereof.”
    
    I. Census agents are entitled only to the rate of compensation specially fixed hy the Superintendent, with the approval of the Secretary of the Interior; and where one is allowed only “actual expenses of transpoi'tation between the places named in yowr commission,” he can not recover for subsistence.
    II. When the salary of an officer is fixed hy law, the compensation can not he altered hy agreement; hut where a statute fixes only the maximum rate which may he allowed, the officer is entitled only to the amount fixed hy the appointing power. (Census Act, 1889.)
    ■ The Reporters’ statement of the ease:
    There being no right of appeal from the judgment in this case, no findings were filed. The facts will be found stated in the opinion of the court.
    
      Mr. Chapin Brown andJfr. A. H. O’Connor for the claimant.
    The court cannot sustain the action of the superior officer in depriving this claimant of a right given him by the plain words of this statute by any construction of its intent or purposes not expressed by the law itself, nor by importing into it words not found therein.
    The court, when asked to sustain the action of the Superintendent in this case, is in effect asked to deprive an officer of the Government of a benefit given him by law, by doing what the Supreme Court of Colorado says cannot be done even to prevent a hardship. (Cheyenne Co. v. Bent Co., 25 Pac.Rep., 508.)
    
      A fortiori the court could not do so in order to deprive an officer of a benefit given him by the words of the statute. Even a where the words of a statute, prescribing compensation to a public officer, are loose and obscure aud admit of two interpretations, tbey should be construed in favor of the officer.” (United States v. Morse, 3 Story, 87.) This court and tbe Second Comptroller of the Treasury have adopted this principle in a number of cases, notably in the case of extra pay to adjutant under the Military Academy appropriation act of June 11, 1878. (Decision of Second Comptroller, Nov. 30, 1878, vol. 40, pp. 55-657; Digest, § 310, p. 148.)
    The action of the Superintendent of Census in this case cannot be justified by reason of his possessing the power to appoint the special agents.
    “ Neither the appointing nor the paying officer, unless especially authorized so to do, has power to reduce or change the compensation allowed by law to any other officer of the Government.”
    “ The appointing power has no control, beyond the limits of the statute, over the compensation, either to increase or diminish it. This has been substantially decided in many cases.” (Elisha Adams v. United States, 20 C. Cls. B., 115; Foote v. The United States, 23 C. Cls. B., 443).
    The regulation made by the Superintendent of Census declaring that special agents for the collection of statistics of manufactures in cities shall not be allowed per diem in lieu of subsistence is an arbitrary, one without authority of law, and can not be regarded even as a departmental construction of the statute. But even if so regarded, it is not binding or conclusive upon the court. In a very late case the Supreme Court of the United States decided that “ a regulation of a Department can not repeal a statute, and a departmental construction of a statute is not binding or conclusive on the court unless such construction has been continuously in force for a long time, and then only when the statute is doubtful.” (Merritt v. Gamer on, 137 U. S. B., 542; Potter’s Dwarris, 313-314, original text.)
    The claimant can not be deprived of this right given him by law by anything in the terms of his commission or letter of appointment, nor by any instruction received by him either before or since his appointment. (Foote v. United States, supra.)
    
    This could be material only in case this allowance was a matter of contract. It being a provision of law, no officer has any authority to make a contract on the part of the Government changing it. The court in the Adams Case (supra) went farther than this, and held that the acceptance by the officer of a less sum than was due him was no bar to the recovery of the balance. (Also in Samborn v. United States, 23 Ct. Ols. R., 361; and see O'1 Herrin v. Milwaukee Oo., 67 Wis., 142.)
    As to the first of the three items which the statute provides, “they shall receive,” viz, compensation, the power is given to the Superintendent to “fix the rate,” with the approval of the Secretary of the Interior, limited by the maximum rate of $6 per day. This power has been exercised, and various rates have been fixed up to the limit of $6 per day.
    Over the second item, however, the statute gives him no control. Its very terms, “ actual necessary traveling expenses,” preclude the possibility of bein g fixed or limited. The amount of that item must be governed by the circumstances of each case.
    Should it be contended that the power of the Superintendent to “fix the rate of compensation” could be extended to traveling expenses and to per diem in lieu of subsistence because they all follow the term “ provided,” it should be observed that the words “the same,” following the word “provided,” relate to compensation, and that the limitation is upon that alone; that the same (compensation) shall not exceed $6 per day. This is the end of the proviso, if there is a proviso at all in the usual sense of the word.
    The general purpose of a proviso, as is well known, is to except the clause covered by it from the general provision of a statute or from some provision of it, or to qualify the operation of the statute in some particular. But it is often used in other senses. It is a common practice in legislative proceedings, on the consideration of bills, for parties desirous of securing amendments to them to precede their proposed amendments with the term “provided,” so as to declare that notwithstanding existing provisions the one thus expressed is to prevail, thus having no greater signification than would be attached to the conjunction “but” or “and” in the same place, and simply serving to separate or distinguish the different paragraphs or sentences. (<Georgia R. <fe B. Go. v. Smith et al., 128 IJ. S. R., 174.)'
    There remains yet one other view of this case. What would the effect be upon this law to sustain the position of the Superintendent of Census? Would it not be to strike out of this law every word added to it by the amendment?
    
      Under tbe power incidental to carrying ont tbe provisions of tbe original act, tbe Superintendent and Secretary of tbe Interior bad power to allow actual expenses of subsistence, and were given expressly tbe power to provide for all incidental expenses.
    If this amendment does not fix tbe per diem allowance in lieu of subsistence it is without any force whatever, and this construction not only renders a part of an act of Congress nugatory, but nullifies tbe entire act of April 3, 1890.
    Now, when a construction can be given in accordance with tbe plain meaning of tbe words, consistent with its obvious purposes and with tbe administration of tbe other parts of tbe original act, a contrary construction can not be given.
    Tbe statute in tbe case at bar is too plain and unequivocal to need or even admit tbe aid of an extrinsic rule of construction to get at tbe intent and meaning of Congress.
    
      Mr. Felix Brannigan (with whom was tbe Assistant Attorney-General Cotton) for tbe defendants.
   'Richardson, Cb. J.,

delivered tbe opinion of tbe court:

Tbe claimant was appointed by tbe Superintendent of tbe Census December 3,1890, a special agent of tbe Census Office, and bis appointment was approved by tbe Secretary of tbe Interior, as follows:

“Department of the Interior,
Washington, December 8, 1890.
“Tbe Superintendent of Census:
“Sir: Your appointment, as stated in your letter of tbe 3rd inst., of Mr. John A. Barre, of South Carolina, as a special agent of tbe Census Office, to collect tbe statistics of manufactures in G-reenville, Piedmont, and Pelzer, at a compensation of $4.00 per day, when actually employed, is hereby approved.
“Very respectfully,
“Geo. Chandler,
Acting Secretary

He was notified December 10,1890, by a letter, tbe material parts of which for this case are as follows:

“Department of the Interior,
“Census Office,
Washington, D. C., December 10, 1890.
“ Sir : I beg to advise you that your commission as special agent to collect statistics of manufactures in Greenville, Piedmont, and Pelzer, South. Carolina, was mailed to yon this day.
# # # # #
“Ion will be allowed your actual expenses of transportation between the places named in your commission, but no allowance for subsistence or per diem in lieu thereof. -
“ Very respectfully,
“Geo. S. Boudinot,
Chief of Division.
“Mr. Johe A. Barre,
Special Agent, Columbia, S. CP

He took the oath of office and entered upon the discharge of his duties December 20,1890. At that time the statute provided as to special agents:

“They shall receive compensation at rates to be fixed by the Superintendent of Census, with the approval of the Secretary of the Interior: Provided, That the same shall in no case exceed six dollars per day and actual travelling expenses, and a per diem allowance in lieu of subsistence of three dollars per day. ” (Act of 1889, March 1, ch. 319, as amended by act of 1890, April 3, ch. 61, 1 Supp. R. S., 2d ed., pp. 659, 711.)

Thus, by this statute, the compensation of special agent was to be fixed by the Superintendent of the Census, with the approval of the Secretary of the Interior, within the limits prescribed.

The claimant resided in Columbia, S. C., while he performed his duties in Greenville, Piedmont, and Pelzer, S. C., all some miles distant from the place of his residence, and he was obliged to travel and to be away from home much or all of his time. He seeks to recover a per diem of $3 a day in lieu of subsist-tence under the provisions of the amendment to the eighteenth section of the census act.

His claim would be sustained if the statute fixed his compensation absolutely, but it does not do so, and in his letter of appointment his' compensation was stated at $4 a day while actually employed, without mention of subsistence or traveling expenses; and in a letter from the Census Office it was expressly stated:

“ You will be allowed your actual expenses of transportation between the places named in your commission, but no allowance for subsistence or per diem in lieu thereof.”

The claimant accepted the office knowing the terms on which the appointment was offered to him. This made a contract, by which he is bound.

On Ms bebalf it is urged that tbe compensation of a public officer can not be changed by contract, relying upon tbe authority of three cases in this court: Adams’s Case (20 C. Cls. R., 115), Foote’s Case (23 C. Cls. R., 443), and Sanborn’s Case (24 C. Cls. R., 367).

In the first case, Adams, the claimant, was an inspector of customs, for which office the statute fixed the compensation at $3 a day while actually employed. In his letter of appointment the Secretary of the Treasury limited Ms pay at $2.50 a day.

In Foote’s Case, the claimant was envoy extraordinary and mimster plenipotentiary to Korea, and was paid a salary less than that provided by statute.

In Sanborn’s Case, the claimant was appointed by the marshal of his district as special deputy, and on his appointment he “waived all claim against the United States or the marshal unless an appropriation be made.” By statute deputy marshals were entitled to prescribed fees for their services.

The court held in each case that the amount of fees or salaries fixed by statutes could not be altered by agreement between public officers, and the claimants recovered the statute compensation.

The difficulty with the claimant’s case is that the statute fixes not the exact compensation of census special agents, but only the maximum of rate beyond which they can not be paid, and it gives to the Superintendent of the Census, with the approval of the Secretary of the Interior, authority to fix the amount at any rate below the maximum. Within the limitations of the statute the Superintendent and Secretary had a right to fix the compensation. In this case they did so, and the claimant has been paid accordingly, and he is entitled to no more.

The petition must be dismissed.  