
    MONTGOMERY C. MEIGS v. THE UNITED STATES.
    [No. 14310.
    Decided May 5, 1884.]
    
      On the Facts.
    
    An appropriation act provides for the erection of the Pension Bureau building “under the supervision of General M. G. Meigs, late Quartermaster-General, United States Army, retired.” The Secretary of the Interior engages General Meigs as superintendent, and agrees upon the compensation for his services. The accounting officers refuse to pass the account, upon the ground that, being a retired officer, he is not entitled to salary additional to his pay unless an express appropriation be made therefor.
    I.An appropriation act which provides for the erection of a building under the supervision of a designated retired Army officer does not impose the duty upon the officer. The designation is only an expression of the will of Congress that he be employed for that purpose.
    II.Under certain decisions of the Supreme Court it must be held that the Revised Statutes (§§ 1764, 1765) do not preclude an officer from receiving compensation other than his salary for services rendered the government in an employment which has no affinity or connection with his official duty.
    III.Where a statute forbade that retired officers be assigned to any duty whatever, it cannot reasonably be supposed that an appropriation act which provided that a public building be erected under the supervision of a certain retired officer was intended to impose duties upon him contrary to the general law. More direct and unequivocal terms would have been used if that had been the purpose of Congress.
    
      The Reporters’ statement of the case:
    This action the claimant brought by the voluntary filing of his petition. The following are the facts as found by the court: I. On the 8th of September, 1882, the Secretary of the Interior issued and delivered to the claimant the following commission :
    “The United States of America to all to whom these presents shall come, greeting:
    “Know ye that, reposing special trust and confidence in the integrity, ability, and discretion of Brig, and Bvt. Maj. Gen’l Montgomery O. Meigs, U. S. A. (retired), 1 do appoint him to be supervising engineer and architect for the erection of a brick and metal fire-proof building for the use of the Pension Office, under provisions of an act of Congress approved August 7,1882, this appointment to take effect September 1,1882, and do authorize and empower him to execute and fulfill the duties of that office according to law, and to hold the said office, with all the rights and emoluments thereunto legally appertaining, to him, the said Montgomery O. Meigs, during the pleasure of the Secretary of the Interior for the time being.
    “In testimony whereof I have caused the seal of the Department of the Interior to be hereunto affixed.
    “ Given under my hand, at the city of Washington, the eighth day of September, in the year of our Lord one thousand eight hundred and eighty-two, and of the Independence of the United States of America the one hundred and seventh.
    [SEAL.] ’ “M. L. JOSLYN,
    “ Acting Secretary of the Interior.”
    II. On the 9th of said September the said Secretary addressed to the claimant the following letter:
    “Department oe the Interior,
    “ Washington, September 9th, 1882.
    “Brigadier and Brevet Major-General M. O. Meigs,
    “ U. S. A. (retired):
    “Sir: Under your appointment as supervising engineer and architect for the erection of a brick and metal fire-proof building to be used and occupied by the Pension Bureau of this Department, authorized by an act of Congress approved August 7, 1882,1 have the honor to request that you will, as soon as practicable, proceed with the preparation of plans and make such preliminary examinations as to the availability of the site designated in said act as in your judgment may seém necessary for the information and action of the Secretary of War and the Secretary of the Interior.
    “You are hereby authorized to incur the expenses necessary for examination of tiie site designated; to ascertain its metes, and bounds, and levels, &c., and. to employ a competent clerk, and other necessary employés, and to procure the requisite office rooms, furniture, &e., &c.
    “Vouchers on account of expenditures connected with this work will be paid by the disbursing clerk of this Department upon presentation, bearing your approval, or certification that they are correct.
    “Such stationery and printing as maybe required will be furnished you upon requisition made upon the blank forms of this department, payment therefor to be charged to the appropriation for the work at contract and schedule rates.
    
      “ For the information of this department a monthly report of operations would seem desirable.
    “ Tour compensation will be at the rate of ten dollars per diem from September 1, 1882.
    “ Yery respectfully,
    “M. L. Joslyn,
    
      “Acting Secretary.”
    III. In pursuance of the aforesaid appointment and letter, the claimant, having first taken the oath of office prescribed by law, entered upon the duties of the position assigned to him, and has ever since been engaged in the performance thereof. He was paid for his services at the rate of $10 per day, from the beginning up to November 1, 1883; when, under instructions issued by the First' Comptroller of the Treasury to the disbursing clerk of the Department of the Interior, further pay was refused him.
    IY. From November 1,1883, to February 29, 1884, both inclusive, the claimant served as supervising engineer and architect of said building, and has received no pay for that service. During that time all the disbursing accounts for the said building were settled and paid upon his approval and certification.
    Y. Ten dollars per diem is not an undue compensation for the services rendered by him; but is probably lower than a man •of his character and ability, who was not a retired Army officer, could have been obtained for.
    
      Mr. Linden Kent for the claimant:
    1. If the act of August 7,1882, is, as to General Meigs, a repeal of section 1259, Bevised Statutes, then quoad the new duty he is on the active list of service and subject to executive authority and assignment.
    He has not been ordered by any executive authority to do this work and can’t be so ordered under the law. He can’t be court-martialed for not doing it. It is not in the line of military service, and is conceded to be a civil work for which nine-tenths •of the retired officers of the Army would be incompetent, yet they couldn’t be dismissed the service for such incompetency if assigned to it, as Meigs is said to be..
    2. The theory of “retirement” is a period of rest and reward for services performed.
    
      General Meigs retired is an officer of “ rank” without duty or power, and “pay” without labor or service to be given for it. He has performed the service which constitutes the consideration for pay without continuing service.
    The statute (Revised Statutes, section 1259) prohibits in terms his assignment to any duty. He is entitled by the Constitution, as any other citizen, to his time, property, labor, and skill, and it cannot be taken “for the public use” without compensation. The act of August 7,1882, is applicable by its own terms to obtaining the service and paying therefor.
    3. General Meigs as a retired officer, drawing a salary as such, may also hold a compatible civil office or employment under the government, and draw the salary or pay thereof. (15 Opin. Att’y Gen’l, 306, Devens; 12 Opin. Att’y Gen’l, 460, 401, 416, Evarts; 9 Opin. Att’y Gen’l, 123, 508, Black; 13 Opin. Att’y Gen’l, 15, 580; Converse v. United States, 21 How., 463; Collins’s Case, 15 C. Cls. R., 40; Landrum v. United States, 16 C. Cls. R., 85; Senate Judiciary Report No. 429, Forty-seventh Congress, first session.)
    The Revised Statutes, sections 1764,1765, prohibit additional compensation to public officers, but do not apply to the salaries of two offices or employments properly held by the same person.
    The act of 1882 does not require in the sense of command the services of General Meigs. It appropriates money to procure all necessary services and all materials, to procure them lawfully and justly, with due regard to value, prices, and consent of their owners. Its true intent and effect is to invite his aid and to make the expenditure of the appropriation conditional upon obtaining by just compensation that aid.
    
      Mr. George L. Douglass (with whom was the Assistant Attorney- General) for the defendants:
    1. The provision of the act of 1882 does not create a new office. On its face it simply imposes new duties upon the incumbent of an existing office, which Congress, of course, has a right to do.
    The so-called “appointment,” therefore, of General Meigs by the Secretary of the Interior, if it attempted to create an office, was, of course, null and void; as Congress alone can create offices. If, on the other hand, it was merely a designation to duty, it was wholly unnecessary, as the duty in question had already been devolved on the claimant by the act of 1882 5 and the Secretary of the Interior could neither add to nor qualify the duty regulated and imposed by law. The “ appointment,” therefore, may be dismissed from further consideration.
    2. The power of the Secretary of the Interior to allow extra pay for the service under the act of 1882, necessarily depends upon whether the statutes permit General Meigs to receive such extra pay.
    Clearly they do not. Section 1761 forbids extra pay unless “ expressly authorized by law.”
    Section 1765 forbids extra pay unless the “appropriation therefor explicitly states that it is for such” purpose.
    The act of 1882, neither “expressly” authorizes extra pay to General Meigs, nor does the appropriation out of which it is proposed to pay him “explicitly” state that it is for such extra compensation. His claim is therefore cut off by the provisions of both section 1761 and section 1765.
   Drake, Ch. J.,

delivered the opinion of the court:

In the sundry civil act of August 7, 1882, (22 Stat. L., 321, ch. 133,) among the appropriations “ Under the Department of the Interior,” is the following clause:

“ For the erection of a brick and metal fire-proof building, to be used and occupied by the Pension Bureau, in accordance with plans to be approved by the Secretary of "War and the Secretary of the Interior, under the supervision of General M. O. Meigs, late Quartermaster-General, United States Army, retired, the sum of $250,000, appropriated by the sundry civil act approved March 3,1881, is hereby reappropriated and made available for this purpose.”

The place given in the act to this provision, together with the fact that the Pension Bureau belongs to the'Department of the Interior, would seem to leave no room for question that the money there appropriated was to be expended under the authority and superintendence of the head of that Department.

Evidently, too, it was the intention of 'Congress that there should be appointed a supervisor of the erection of the building,’ and that the claimant should be selected for that service, notwithstanding the fact of his being a retired officer of the army.

The compensation of the supervisor was not specifically named or appropriated for; but it was doubtless the intention of Congress that it should be fixed by the Secretary of the Interior, and be paid, as any other legitimate expense, out of the appropriation.

The Secretary of the Interior engaged the claimant’s supervising services at a per diem compensation of $10. This was paid him up to November 1, 1883; but since that date it has been refused him, under instructions given by the First Comptroller of the Treasury to the disbursing clerk of the Department of the Interior, on the ground that, being a retired officer of the army, and receiving pay as such, he is not lawfully entitled to any compensation for his services, unless an express appropriation be made to pay him therefor.

For pay from November 1,1883, to February 29, 1884, inclusive, this suit is brought.

In support of the defense the government relies on sections 1704 and 1765 of the Eevised Statutes, which are, as follows:

u Sec. 1764. No allowance or compensation shall be made to any officer or clerk, by reason of the discharge of duties which belong to any other officer or clerk in the same or any other Department; and no allowance or compensation shall be made for any extra services whatever, which any officer or clerk may be required to perform, unless expressly authorized by law.
■ “ Seo. 1765. No officer in any branch of the public service, or any other person whose salary, pay, 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.”

These sections, beyond doubt, afford a wide field for discussion and difference of opinion as to their intent and scope; but we do not deem it necessary to enter it; for they have been passed upon twice by the Supreme Court in such a way as, in our judgment, to settle the questions involved here.

-It is claimed by defendants’ counsel that the act imposed new duties upon the claimant as an army officer, and that the law forbids his receiving extra pay for performing those duties, unless “ expressly authorized by law.” We do not concur in this view of the effect of naming- him in the act for the supervision of the erection of the building. An existing law forbade any retired officer’s being assigned to any duty whatever; and if it had been the intention of Congress to set aside that law as to him, and to impose this duty on- him as a retired officer, it is reasonable to suppose that more direct and unequivocal terms would have been used, than the mere designation of him by name as the person to render the service. We regard that designation as only an expression of the will of Congress that he should be employed for that purpose. He is, therefore-, not claiming extra compensation for extra services as a retired officer, but a stipulated pay for civil services rendered in a purely civil employment, having no connection with his military office. So viewed, the bearing of the decisions of the Supreme Court, now to be referred to, will be manifest.

In Converse v. United States, (21 Howard, 463,) the question was whether a custom-house officer, whose duty it was to make certain contracts and disbursements in his district, was entitled to compensation for service of that description rendered out of his district, under orders of the Secretary of the Treasury. Under the sections now before us it was contended that he could not be paid for the latter service; but the Supreme Court said:

u The Legislature contemplated duties imposed by superior authority upon the officer as a part of his duty, and which the superior authority had in the emergency a right to impose, and the officer was bound to obey, although they were extra and additional to what had previously been required. Butthey can by no fair interpretation be held to embrace an employment which has no affinity or connection, either in its character or by law or usage, with the line of his official duty, and where the service to be performed is of a different character and for a different place, and the amount of compensation regulated by law.”

In that court the question arose again, and was passed upon, as recently as the 3d of March last, in United States v. Brindle, (110 U. S., 688.) A receiver of public moneys in Kansas was appointed agent for the sale of Indian trust lands under a treaty with an Indian tribe; and the court, citing the second sentence of this quotation from the decision in the' previous case, held, that he was entitled to commissions on those sales, in addition to the full compensation as receiver allowed him by law. And in regard to the matter of his compensation the court ruled that while the exact amount of it was not fixed, 11 it was clearly to be inferred that such compensation as the law implies where labor is performed by one at the request of another, that is to say, a reasonable compensation would be paid.”

These cases seem to us to be decisive of the present one. The only difference between them and it is in the fact that in each of them the party held an office with active duties to be performed, while the present claimant held one withno such duties; but this does not appear to affect the result. The point in each of them was, 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. This disposes of the objections raised against the claimant’s demand in this case.

Judgment will be entered in his favor for $1,210.  