
    John Fraser v. The United States.
    
      On the Proofs.
    
    
      The Supervising Architect of the Treasury is suspended. The claimant is directed by the Secretary to talce charge of and perform the duties of the office. He is at the time superintendent of a building inprooess of erection, and is receiving a stipulated per diem compensation. The Supervising Architect receives the salary of that office for the period of his suspension. The claimant receives during the same period his per diem allowance. He now sues for the salary of the office while he performed its duties.
    
    I.There cannot he two persons holding the same public office at the same time.
    II. Where the President suspends an officer “I'Voto theeocecution of his official duties,” until after his trial upon a pending indictment, it does not necessarily suspend his salary.
    III. The Tenure of Office Act (Rey. Stat., § 1768) applies only to civil officers appointed by and with the consent of the Senate, and does not govern the suspension of an officer otherwise appointed.
    IY. The fact that a superintendent temporarily performing the duties of Supervising Architect, during- the latter’s suspension from duty, continues to receive his own pay as superintendent, at the same time certifying pay-rolls bearing the name of the suspended person as architect (thereby enabling him to draw the pay of the officer), is evidence that the office was held by the latter and not by the superintendent.
    V. The style of “ acting” attached to an officer’s title is a form of expression in constant use and well understood as designating, not an appointed incumbent, but merely a locum tenens who is performing the duties of an office to which he does not himself claim title.
    
      The Reporter’s statement of tbe case:
    Tile following are the facts of this case as found by the court:
    I. On the 24th day of June, 1878, the claimant was employed by the Secretary of the Treasury to superintend the erection of a building for the use of the Bureau of Engraving and Printing in the city of Washington, D. C., at a stipulated compensation of $8 per day. He continued in that employment until after May 22,1879.
    
      II. On the 9th. of August, 1876, the Secretary of the Treasury appointed Mr. J. G-. Hill to the office of Supervising Architect of the Treasury Department. Thereupon Mr. Hill duly qualified, entered upon duty, and thereafter continuously held said office and qierformed the duties thereof, except as hereinafter set forth, until the date of the claimant’s petition.
    III. On the 5th of December, 1878, the Secretary of the Treasury issued the following notices and directions:
    “James G-. Hill,
    “ Supervising Architect:
    
    “ Sir : In view of the indictment pending against you in the circuit court of the United States in Chicago, of which you have given me verbal notice, I am directed by the President to suspend you from this date from the execution of your official duties until after the trial.
    “Very respectfully,
    “JOHN Sherman,
    “ Secretary.”
    “Mr. John Fraser,
    “ Superintendent of construction of the new building for the Bureau of Engraving and Printing :
    
    “Sir: You are hereby directed to take charge of the office and to perform the duties of Supervising Architect during the suspension of Mr: J. G-. Hill from duty.
    “Very respectfully,
    “John Sherman, Secretary.”
    
      - IV. On the 6th day of December, 1878, the claimant assumed charge of the office of Supervising Architect of the Treasury Department, styling himself “Acting Supervising Architect.” He performed the duties thereof up to and inclusive of the 22d day of May, 1879, when Mr. Hill returned to duty, and the claimant was relieved therefrom. During all of said time he received payment as superintendent of the construction of the building for the Bureau of Engraving and Printing, and receipted therefor on monthly pay-rolls certified to by himself in the following form each month:
    
      “Pay-roll of mechanics a/nd laborers on Bureau of Engraving a/nd Prig, bldg., during the month of-.
    “We, the undersigned, acknowledge to have received from Thomas J. Hobbs, disbursing agent, the amounts hereunto set opposite our names, respectively, in full payment of our services for tbe time specified:
    Term of service. Signers’ names. Hames. Occupation. John Fraser. Superintendent. 31 John Fraser. Price, per day. Amount. 248 Ho. of days. . Expiration. Commence-witness’ names. Remarles.
    
      u Original.
    “I certify that tbe services charged in tbe above roll were actually performed, and necessary for tbe construction of tbe Bur. of Eng. and Pritg. bldg.; and that tbe compensations paid were just and reasonable.
    “John Feasee,
    “ Superintendent.
    
    “ Correct.
    “John Feasee, Act,g Siyfv’g Architect.”
    Said Hill during said time performed no duties, but was regularly paid eacb month tbe whole salary of Supervising Architect on monthly pay-rolls, certified by tbe claimant eacb month to be correct, in tbe following form:
    “We, tbe subscribers, acknowledge to have received from Busbrod Birch, disbursing clerk, Treasury Department, tbe sums opposite our respective names, in full of our salaries in tbe Supervising Architect’s office for tbe month of-.
    FTames. Capacity. Annual salary. Amount of salary. Signatures. James G-. Hill.. Supervising Architect... 4,500 00 379 10 Jas. G-. Hill.
    “ Correct.
    “John Feasee,
    
      “Act’g Su/p’v’g Architect
    
    The claimant has received no compensation for bis services as such “Acting Supervising Architect” distinct from bis pay of $8 a day as superintendent of tlie construction of tbe building for tbe Bureau of Engraving and Printing, which has been paid to him.
    
      Messrs. Paine, Grafton & Ladd for the claimant:
    Claimant’s employment as superintendent of construction of the building for the Bureau of Engraving and Printing did not confer upon him an office. He was only an employé of the government. There is no law creating such an office. The appointment under which he held the office of Supervising Architect, during the suspension of Mr. Hill, made him a public officer during that period; and as' such he is entitled to the salary fixed by law for that office.
    
      Mr. George G. Wing (with whom was the Assistant Attorney-General) for the defendants:
    The sole point relied on by claimant’s brief is that during the suspension of Mr. Hill he held the public office of Supervising Architect, and is entitled therefore to its salary.
    In order that this point can have place it must appear not only that claimant’s first capacity was not that of an officer, and so of one prevented from receiving additional compensation, but also that his case is within the tenure of office acts. (§ 1768, Bev. Stat.)
    But § 1768, Bev. Stat., gives authority to withhold a salary from a suspended officer and give it to the one performing his duties only in the case of an officer appointed by and with the advice and consent of the Senate.
    The position of Supervising Architect is not one of that class' of officers; suspending its incumbent, accordingly, did not justify under any statutes the suspension of his salary, or entitle another to receive it. Therefore, no express statutory authority excepted the case from the established doctrine applied in Sleigh’s Case (9 C. Gis. B., 369), and Mr. Hill having been duly appointed, and having never been dismissed, he held the title to the office during the period in question, and was the only one entitled to its salary.
    The suspension was in the nature merely of a direction by the superior authority not to perform duty, or a temporary furlough, containing no stipulation (as in Murray’s Gase, 100 U. S. B., 536) that his absence should be without pay. Claimant signed himself “Acting Supervising Architect”; approved as correct the monthly payments to Mr. Hill of his salary as the Supervising Architect; and when the latter resumed his duty no new commission issued to him. The language of the letter is plainly enough not an appointing, but, if it were dubious, the interpretation it received from himself and the department forbid the argument that by it he was commissioned and held the public office.
    There is no evidence that the Secretary attempted to make a contract 'with claimant, and, not having authority to employ him to act as architect a promise to pay him for so doing cannot be implied.
    In United States v. Fillebroum (7 Peters, 28), the defendant had, upon request of the naval board, rendered service with an understanding on both shies that he should be compensated. The language of the opinion seems surely conclusive in this case, where no such understanding has been shown:
    “If the board had authority to employ thé defendant to perform the services which he has rendered, and these services have been actually rendered at the request of the board, the law implies a promise to pay for the same.” (7 Peters, 17.)
    But no authority can be found, expressed or derived, for the Secretary to employ one not an officer already to perform the functions of another officer. (Floyd Acceptance Gases, 7 Wall., 677.)
    The Secretary was expressly prohibited from employing claimant so as to bind the government by § 3732, Bev. Stats. “No contract or purchase on behalf of the government shall be made unless the same is authorized by law, or is under an appropriation adequate to its fulfillment,” &c. (.Mason’s Gase, 4 O. Cls. B., 496.)
    There was no authority of law to hire one to perform the entire duties for which another receives the entire salary. Nor was there any appropriation adequate. The appropriation for salary belonged to the appointed officer until dismissed. No fund for contingent or miscellaneous purposes could be used. ’ (§ 3682, Bev. Stat.)
    Though generally-, when there was nothing in the relations of the parties to indicate that the service was gratuitous, the request to perform implies a promise to pay, “yet there might be circumstances in the case, or relations between the parties, such that the promise to pay would not necessarily be implied, but must be expressly proved.” (Fartlow v. Ooolce et al., 2 ft. I., 454; Moulin v. Columbet, 22 Cal., 510.)
    
      Messrs. Paine, Grafton & Ladd in reply:
    If Mr. Fraser, who at the time held no office under the government, was not by virtue of these orders made an officer of the United States for the time being; if Mr. Hill still remained Supervising Architect of the Treasury, and Mr. Fraser, a private citizen, was intrusted with and performed the duties of the office without being himself for the time Supervising Architect, then the Secretary was guilty of a violation of law in placing Mm there, and Mr. Fraser was guilty of a violasion of law in taldng and' holding the place. This is an unnecessary and inadmissible interpretation of the proceeding.
    The proceeding was not a mere technical suspension of one officer accompanied by an assignment of another officer to the temporary performance of the duties of the suspended officer. It was a dismissal of one officer for an uncertain but limited period, and an appointment of a private citizen to the office to the same limited period. It is quite immaterial that the formalities attending this dismissal and appointment differed from those observed by the Secretary in ordinaiy cases. It was for him to choose his own modes and forms of appointment in this case, as in all cases within his own exclusive jurisdiction. The use of the word “suspension” by the Secretary is unimportant. Whatever technical signification the term “ suspension ” may or may not have in the case of an officer appointed by and with the advice and consent of the Senate, the suspension of Mr. Hill until his trial, and the installment of Mr. Fraser to take charge of the office and perform the duties of Supervising Architect during the suspension of Mr. Hill, amounted in substance to a temporary dismissal of Mr. Hill and a temporary appointment of Mr. Fraser.
   RichardsoN, J.,

delivered the opinion of the court:

The claimant sues for the salary of Supervising Architect in the Treasury Department for a period of five months and sixteen days from December 6, 1878, to May 22, 1879, at tbe rate of $5,000 a j^ear.

Tbe Supervising Architect is an officer whose appointment by tbe Secretary of the Treasury and whose salary are provided for by the Revised Statutes, §§ 169, 235.

If the claimant held the office during the time he alleges in his petition, he is prima facie entitled to the salary established by law; and it becomes necessary to determine whether or not he did hold the office.

Mr. Hill was regularly and duly appointed by the Secretary of the Treasury Supervising Architect on the 9th of August, 1876, and still continues to hold the office under that appointment.

On the 5th of December, 1878, the Secretary gave notice to him that in view of an indictment pending against him he was directed by the President to suspend him from the execution of his official duties until after the trial. Whereupon Mr. Hill performed no official service until May 22, 1879, when he was restored to duty.

The claimant, who was employed by the Secretary of the Treasury to superintend the erection of a building in process of construction for the use of the Bureau of Engraving and Printing in Washington, at an aggregate compensation of $8 a day, was directed by the Secretary to take charge of the office and perform the duties of Supervising Architect “during the suspension of Mr. Hill from duty,” and he performed those duties during that time in addition to superintending the construction of the building.

For the whole of this time separate pay-rolls were made out monthly for the payment of wages earned in the construction of the building, upon which the claimant was allowed' $8 a day as superintendent, and he certified as such superintendent to the correctness of those rolls and receipted thereon for his pay accordingly.

In like manner monthly rolls were made out for the payment of salaries in the office of the Supervising Architect. In each of these the name of Mr. Hill was included as the Supervising-Architect and the salary of the office was therein allowed to him. Mr. Hill received the salary monthly and receipted therefor on the rolls. The claimant styled himself “Acting Super-wising Architect,” and under that designation he certified each ■of said rolls to be “correct.”

Upon this state of facts we are of opinion that the claimant did not hold the office of Supervising Architect and' is not entitled to the salary attached to it. There could not be two persons holding one office at the same time. Mr. Hill was duly appointed and was never removed. His suspension was not a suspension under the tenure of office act (Bev. Stat., § 1768). That 'act applies only to civil officers appointed by and with the advice and consent of the Senate, and Mr. Hill was not ■thus appointed. It was a suspension, not from office, but from 'the execution of his official duties. Its operation was like that of a leave of absence or a furlough, by which the officer is relieved from active duty while he is permitted to still hold his office.

The Secretary did not intend to appoint the claimant to the -office of Supervising Architect. The letter to him is not in the language of an appointment. It is addressed to him as “superintendent of the construction of the new building for the -Bureau of Engraving and Printing,” and directs him merely “to take charge of the office and perform the duties of Supervising Architect during the suspension of Mr. Hill from fluty?

That such was the clear understanding of all parties at the ■time is manifest from their acts. Mr. Hill’s name continued to be borne on the pay-rolls from month to month as still in office, and his salary was regularly paid to him. Of this the Secretary must have been cognizant. The claimant not only knew it, but he assented to it and certified to its correctness.

He did not then claim the title and the full enjoyment of the office. He invariably styled himself “Acting Supervising Ar-chiteet,” a form of expression in constant use and well understood in all the executive departments of the government as designating, not an appointed incumbent, but merely a looum-tenens who is performing the duties of an office to which he does not himself claim title.

Moreover, the claimant having stood by and not only per•mitted, without objection, but approved in writing the payment •of the salary to another who claimed the office and its emolu.ments, he is now estopped from setting up a claim to it himself.

But it is argued in behalf of-the claimant, that even if he is not entitled to tbe salary proper, be is entitled to a fair and reasonable compensation for tbe extra duties imposed upon bim by tbe Secretary of tbe Treasury, and not included in tbe services for wbicb be received tbe agreed payment of $8 a day. This might be so if tbe Secretary bad authority of law for tbe separate employment of another person to perform tbe duties ■of a public officer at tbe expense of tbe United States. But he has no such authority. He might have removed Mr. Hill and appointed tbe claimant in bis place, but be could not retain Mr. Hill and give bim tbe salary, and at tbe same time hire another person at tbe cost of tbe government to perforin bis duties. Public officers are only agents of tbe government. They can contract for employment at tbe cost of tbe government only in cases authorized by their principal, as laid down in tbe laws enacted by Congress.

In this case, however, we do not think that the Secretary of tbe Treasury intended to create any liability for additional payment for tbe services assigned to the claimant in connection with tbe Architect’s office, or that the claimant, at tbe time of bis employment, expected any payment beyond Ms $8 a day, wbicb be has received.

Tbe judgment of tbe court is that tbe claimant’s petition be dismissed.  