
    WALTER L. PRICE v. THE UNITED STATES
    
    [No. D-883.
    Decided March 5, 1928]
    
      On the Proofs
    
    
      Jurisdiction; cleric, conference minority, House of Representatives; continuance as clerk afte/r expiration of Congress; construction of House rules. — The act of May 29, 1920, appropriated a certain amount for expenditure by the conference minority of the House of Representatives for the services of a clerk, and did not create a Federal office. Whether one selected to perform those services continues as an assistant to the conference minority after Congress has expired by limitation of law, is to be determined solely by tbe rules . of tbe House which under the circumstances the Court of Claims has no jurisdiction to construe or interpret.
    
      The Reporter's statement of the case:
    
      Mr. Jolm F. MeGdrron for the plaintiíf.
    
      Mr. John H. Small for the intervenor.
    
      Mr. P. M. Qoa>, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. Plaintiff is a citizen of the State of Indiana and of the United States.
    II. On April 11, 1921, plaintiff, Walter L. Price, was appointed ■ by Hon. Claude Kitchin, minority leader and chairman of the conference minority of the United States House of Representatives of the 67 th Congress, clerk of the conference minority at a salary of $2,500 per year and bonus of $240 per annum, and on April 12, 1921, plaintiff took the oath of office and assumed the duties of said position.
    III. Hon. Claude Kitchin, minority leader and chairman of the conference minority of the United States House of Representatives of the 67th Congress, derived his authority for making such appointment of plaintiff to the position heretofore stated from the Democratic Members of the House of Representatives of the 67th Congress in caucus assembled under date of April 9, 1921, and said Members were known as the minority of the House of Representatives of the 67th Congress, and also from the act of Congress, Public, No. 231, 66th Congress, approved May 29,1920. The particular section of such act giving said authority is:
    “Conference minority: Clerk, $2,500; assistant clerk, $1,500; janitor, $1,000; in all, $5,000; the same to be appointed by the chairman of the conference minority.”
    The amount of salary for the position of clerk to the conference minority is made annually in the legislative branch appropriation act, and for the year ending June 30, 1921, it is found in Public, No. 231, 66th Congress, approved May 29, 1920, and succeeding Congresses.
    
      IY. Plaintiff, without further appointment from Hon. Claude Kitchin, minority leader and chairman of the conference minority during the period of the 67th Congress, or without taking any further oath of office during said period, continued to discharge the duties of the position of clerk to the conference minority from April 11, 1921, to December 3, 1923, and was paid salary at the rate of $2,500 per annum and bonus of $240 per annum for the period from April. 11, 1921, up to and including May 31, 1923.
    Y. Under date of June 1, 1923, William Tyler Page, Clerk of the United States House of Representatives, made an alleged appointment of Charles H. England to the position of clerk to the conference minority. Plaintiff protested said alleged appointment in writing to the said Clerk of the United States House of Representatives, but to no avail, and has repeatedly demanded of said Clerk of the House of Representatives the salary due and owing him.
    YI. On March 4, 1923, the 67th Congress expired by limitation of law.
    VII. On April 17, 1924, plaintiff appealed in writing to the Comptroller General of the United States for the amount of salary due him,, amounting to $1,385.22, for the period from May 31, 1923, to December 3, 1923. The Comptroller General on October 29, 1924, denied the claim and stated in his decision the following:
    "The facts appearing do not establish that your appointment on April 11, 1921, was an appointment `by the chairman of the conference minority,' as was expressly required by the terms of the appropriation; but even if it could be established that your appointment was in accordance with the statute, the only authority for the payment of salary for the office or position of clerk, conference minority, for the fiscal years 1923 and 1924, which are the fiscal years involved in your claim, was the provision hereinbefore quoted making a specific appropriation therefor, and these appropriations must be understood to be appropriations for pay for services rendered and as available only for payments to persons actually in possession of the office or position appropriated for as distinguished from persons having only a legal right to such office or position."
    
      The court decided that plaintiff was not entitled to recover.
    
      
       Certiorari denied.
    
   Booth, Judge,

delivered the opinion of the court:

Plaintiff’s case depends upon the following facts: April 11, 1921, plaintiff was appointed by the Hon. Claude Kitchin, minority leader and chairman of the conference minority of the House of Representatives, as clerk of the conference minority, salary $2,500 per annum, and bonus of $240 per annum. On April 12, 1921, he took the oath of office and entered upon the performance of its duties. Plaintiff received the salary and bonus attached to the office from April 12, 1921, up to and including May 31, 1923. On June 1, 1923, William Tyler Page, Clerk of the House of Representatives, appointed Charles H. England to the position of clerk to the conference minority. Since that time, notwithstanding repeated protests and assertions of title to the office by him, the plaintiff has not received any compensation whatever which he alleges is due and unpaid. The claim is for $1,385.22, salary alleged to be due from May 31, 1923, to December 3, 1923. On May 24, 1926, Charles H. England was permitted to and did file an intervening petition, under which claim is made'for the salary of the same office from July 1, 1923, to December 3, 1923, amounting in all to the sum of $1,157.22. Plaintiff’s contention, as well as that of the intervenor, is predicated upon -a section of the annual branch appropriation act, approved May 29, 1920, 41 Stat. 636, providing in terms as follows:

“ Conference minority: Clerk, $2,500; assistant clerk, $1,500; janitor, $1,000; in all, $5,000; the same to be ap-_ pointed by the chairman of the conference minority.”

Under this section of the appropriation act the plaintiff asserts that he was duly appointed by the minority leader in Congress, who in turn derived his position and power to appoint from the Democratic Members of Congress in caucus assembled, and that no authority whatsoever Tesided in the Clerk of the House to either revoke his appointment or appoint another.

There is no doubt, of course, that the plaintiff was on the date he alleges duly appointed to the office he claims by the minority leader, nor that he served until superseded by England’s selection. Plaintiff’s insistence is that when the Congress expired by law on March 4, 1923, the minority leader as such became functus- oficio, and hence England’s appointment was not lawful, and the Clerk of the House was without authority in any event to make the selection. The vital question deducible from the facts stated is one of jurisdiction. Who is recognized by the minority party in Congress as minority leader is a matter of voluntary selection by those who constitute the minority. Obviously it is solely and peculiarly a political question with which the courts have nothing to do. True the political organization as thus established seeks assistants in the conduct of its affairs, and Congress by appropriating certain sums makes available to the organization the sums so appropriated to pay said assistants; but by so doing statutory offices of the Government are not created with fixed salaries, and the incumbent selected by the minority leader does not in any sense become an official of the United States. The sum of $2,500 is made available to the minority organization to pay a clerk. Nevertheless, the leader, if he so chooses, might engage an assistant of this character for a less sum without imposing upon the United States a monetary liability to pay the sum stated in the appropriation act. The plaintiff’s misconception of his rights follows his treatment of the appropriation act as one creating an office and filing an annual salary therefor. Such is not the case. The legislation simply makes available for expenditure the sums stated, and the leader of the minority is designated as the one authorized to make the expenditure up to the amount of the sums available for the purpose. Clearly the clerk to the minority leader is simply an assistant to a voluntary political organization, responsible alone to the organization, and subject to be displaced as the judgment of the leader dictates. Whether the leader of the minority became functus officio during a recess of Congress or subsequent to the expiration of a Congress is a matter for the minority organization to determine, not this court.

We need not indulge citation of authorities to sustain a proposition that no right to recover the salary of an office prevails until the office is created, the salary fixed, appointment proved, and duties are performed. Aside from all that has been said, it is indisputably certain that where a matter is solely one governed and controlled by the rules of the House of Representatives, this court is without jurisdiction to interpret or construe them. Even so, it would bring about a most unusual situation to sustain a proposition that one selected as a clerk to the minority would be entitled to recover a judgment for an alleged fixed salary for a period of time during which the clerk himself asserts there existed no minority and no minority leader. Whether the clerk so selected continues in office during this time is one foreign to our jurisdiction under section 145 of the Judicial Code. The plaintiff’s petition and the intervening petition will be dismissed. It is so ordered.

Moss, Judge; Graham, Judge; and Campbell, Chief Justice, concur.  