
    CHARLES L. BENEDICT v. THE UNITED STATES.
    [No. 21156.
    Decided April 10, 1899.]
    
      On the Proofs.
    
    Tho claimant retires as judge of tlie district court for the eastern district of New York and receives the pay of such judge. He claims in addition $1,800 yearly which he had heen receiving continuously for twenty years before retirement, for services in the circuit court for the southern disirict.
    I. The Revised Statutes, § 714, provide that a retired judge “ shall, dwing the residue of his natural life, receive the same salary which was hy lato payable to him at the time of his resignation; and that (§ 613) “ the said judge of said eastern district shall receive the.sum of §300” for every term held hy him of the circuit court for the southern district of New York. This extra compensation for sitting in circuit court was uncertain and contingent, and does not enter into the amount of the judge’s retired pay.
    II. Salary implies certainty of amount and fixity of time. The amount of labor and responsibility have no relation, to the receipt of salary.
    
      III. Where a statute provides that a salaried officer shall receive extra compensation for extra work, it does not become part of his salary. It is extra pay for extra work in fact performed.
    
      The Reporters’ statement of tbe case:
    The following are the facts of the case as found by the court:
    I. The petitioner, Charles L. Benedict, is a citizen of the United States, of lawful age, and resides at Dongan Hills, Staten Island, in the city of New York, and State of New York.
    II. In the month of April, 1865, the petitioner was duly appointed by the President of the United States-judge of the district court of the United States for the eastern district of New York.
    III. The petitioner duly entered on the duties of his office, and duly performed the same until the year 1897, during which, and on or about the 20th of July, 1897, he resigned his office, having then held his commission as judge of said court for more than ten years, and having attained the age of 70 and upward.
    IY. Since the passage of the act of February 7, 1873, the petitioner has held, under the provisions of that act and of the Revised Statutes, to wit, sections 613 and 658 of the Revised Statutes, the six terms of the circuit court of the United States for the southern district of New York, referred to in said statutes, in every year, and has received for holding each of said terms the sum of $300, the same being paid to him by the United States marshal for the southern district of New York, pursuant to sections 613 and 597, Revised Statutes.
    Y. That the same was paid upon a voucher in substance as follows:
    “United States of America, southern district of New York: I, Charles L. Benedict, district judge of the eastern district of New York, hereby certify that I have held the circuit court of the United States for the southern district of New York at the-term thereof, provided for by section 613 of the Revised Statutes of the United States, and that I am entitled to receive therefor the sum of $300, as provided in said section. Signed, Charles L. Benedict (and dated).”
    “Received of-, United States marshal for the southern district of New York, the sum of $300 in full of the above account. Signed, Charles L. Benedict.”
    The total amount thus paid annually to the plaintiff was $1,800.
    
      YI. That such payments to tbe petitioner by tbe marshal were from time to time allowed in the marshal’s accounts, and paid to him out of the appropriations for defraying the expenses of the courts of the United States.
    YII. During the year previous to the petitioner’s resignation he received the said $1,800 for that year, in accordance with the provisions of sections 613, 597, and 658, Revised Statutes, as above set forth, and also the salary of $5,000, payable to him, as provided by the act of Congress of February 24, 1891 (26 Stat. L., 783), out of the appropriation to pay the salaries of district judges of the United States.-
    VIII. During the year since his resignation petitioner has only received as salary the sum of $5,000, which sum has been received by him without prejudice to the claim which he makes in this proceeding.
    IX. The petitioner presented to the Auditor of the State aud other departments a bill for the amount of his salary claimed by him herein to be remaining due and unpaid, and made claim on the Auditor for the payment of said bill, but the Auditor refused to audit or approve the said bill, and no part of the said $1,800 has been paid to him.
    
      Mr. Robert I). Benedict for the claimant:
    1. There is no reason in equity why this sum of $1,800, which has been paid to the judge of the eastern district for the last twenty-four years for his judicial services, should be held not to have been a part of his “ salary,” and should cease to be paid on his resignation.
    2. There is no reason in etymology why the word “salary,” aside from its use in the statutes of the United States, should not be held to include this $1,800. The definition of “salary,” given by Worcester’s Dictionary, is “Recompense or consideration stipulated to be paid to a person for services.” This $1,800 was a recompense stipulated by the law to be paid to the judge of the eastern district for services.
    3. The use of the word “salary” in the Statutes of the United States is so extended as expressly to include the compensation paid to persons the term of whose service is as indefinite as these services of the judge can be held to be. And that definition given by other sections of the Revised Statutes should be held conclusive as to the meaning of the same word in section 714 of the Revised Statutes.
    4. The salary which a retiring judge is entitled to receive after his resignation is the sum which was paid to him for judicial services during the year before his resignation. That sum in the present case was $6,800.
    5. And, finally, the object of the statute was to take away from the mind of a retiring,judge any question as to the advisability of his retiring, which might be presented to him if the effect of his resignation was to be a diminution of the compensation which had previously been paid to him for his judicial services.
    The construction of the statute claimed by the officers of the Government is contrary to the object of the statute, and should, therefore, not be adopted.
    The proper rule of construction of this statute was declared by the Attorney-General of the United States in 21 Op. Atty. Gen., p. 450.
    The objects of this statute are not such as sometimes lead to a strictness of construction which makes the turn of every phrase a justification for reluctance to believe that a meaning was intended which has not been clearly and unequivocally expressed. On the contrary, there is no reason why this statute should not'be fairly construed, reading its terms in the light of the manifest object and purpose of Congress.
    The object was to further the good of the public service by providing for the retirement, at full pay, of judges who have reached the age of 70 and been ten years on the bench. The expression “ any judge of any court of the United States” was certainly intended to have the widest application; although, if the meaning of this section is to turn on forms of expression, it would not apply to the chief justice of the Court of Claims at all, because by the act creating the court (Rev. Stat., sec. 1049), “It shall consist of a chief justice and four judges,” etc. All five of these officers are appointed by the President, confirmed by the Senate, hold their offices during good behavior, take the same oath, have the same jurisdiction, and receive the same salary, payable in the same way. It is not open to doubt that the retirement act was intended to apply to the chief justice as well as to the judges of that court.
    
      I understand that doubt lias been suggested by tbe pbrase “after having held his commission as such at least ten years.” This, it has been thought, may mean that the commission under which the judge is serving at the time of his retirement must have been in force at least ten years. Certainly no such intention is to be extracted from this language without resort to the same technicality which would deny to the chief justice of the Court of Claims the right under this section which the other judges of that court have. The simplest form of expression, and therefore perhaps the most natural, would have been “resigns after having served at least ten years.” But it is a matter of common knowledge that the object of this statute was not only to offer an additional inducement to enter the judicial service of the United States, but also to encourage the retirement therefrom of men whom age or infirmity make incapable of further service, some of whom, at the time of the passage of the act had already been for a considerable time wholly disabled. If the form of expression I have above suggested had been used, it might have been claimed that actual service for ten years was required, so that the period of past incapacity would be excluded. It was, in my opinion, to avoid this result that the reference to holding the commission was made instead of reference to holding the office or discharging its duties. This intention seems to me clearly to account for the language used, and at the same time to exclude the idea that any significance was meant to be given to the formal written expression of authority which might, for the time being, be evidence of official character. I am wholly unable to conceive any reason which could have led Congress to a consideration of this feature of the subject, especially with respect to judgeships, which are exactly alike in every particular except in name. It was being in commission and not holding a particular commission that Congress meant to make a condition.
    
      Mr. Assistant Attorney-General Pradt for the defendants:
    The ultimate question to be determined is, What was the “ salary which was by law payable to claimant at the time of his resignation 1 ” and the primary question to be determined is, whether the $1,800, which the petitioner claims in this action, was salary. And it is submitted at the outset that, conceding for the moment that the $1,800 referred to was salary, nevertheless the claimant is not entitled to recover in this action, for the statute upon which he relies provides that he shall receive the same salary which was by law payable to him at the time of his resignation. Now, it is undisputed in this case that at the time of his resignation his regular salary as district judge was $5,000. This was his undoubted official salary, but the $1,800 claimed in this case was compensation for special services rendered in the southern district of New York, and, granting it to be salary, it was clearly a special salary, having no relation to his regular official duties, which were fully compensated by his $5,000 salary. Hence, if the claimant has established anything, it is that at the time of his resignation he was receiving two salaries, one of $5,000, another of $1,800; and since the statute upon which he relies provides for the payment to him, after his resignation, of a salary and not salaries, it is clear that he can not be entitled to both, and having in this instance received the $5,000 salary he is precluded by the acceptance of the same from claiming the $1,800 salary.
    But the defendant insists that the $1,800 claimed is in no sense salary. The word “ salary” is defined in the Standard Dictionary as follows:
    “Periodical allowance made as a compensation to a person for his official or professional services for regular work.
    “As to officers having salaries, the rule is believed tobe universal that their compensation is established — decreed by authority, and for permanence,’ and that such salaries are paid to them at stated times.” (Dane v. Smith, 54 Ala., 49.)
    “The word ‘ salary’ (as used in a section of the State constitution ) was not used in a general sense, embracing any compensation fixed for an officer, but in its limited sense, of an annual or periodical payment for services — a payment dependent on the time and noton the amount of the service rendered.” (Thompson v. Fhillips, 12 Ohio State, 617.)
    “ The rule of fixed compensation by time that constitutes the earmark of salary.” (State v. Murphy, 24 Fla., 33.)
    In Castle v. Lawlor (47 Conn., 345), the compensation of the collector was adjudged to be a salary, because it was a fixed sum to be paid him as collector during his term of office (one year), and not for the collection of all the taxes that came due during the year without respect to the time which might be taken therefor.
    
      As far as official salaries are concerned, especially of tbe bigber grade, it is a matter of common acceptation tbat tbey are annual. This indeed bas been judicially determined:
    “Salaries are a per annum compensation to men in official and some other situations.” (Goivden v. Huff, 10 Ind., 85.)
    “ Salary is annual compensation in tbe accepted sense.” (42 Albany Law Journal, 332-333.)
    Tbis is true, without exception, of tbe salaries of United States judges. Tbe regular $5,000 salary of tbe claimant, while occupying bis judicial office, answers in every respect to tbe foregoing definitions. It was an annual compensation which be received, in monthly installments, pursuant to paragraph 4, chapter 130, 1 Supp. Rev. Stat., page 320. It was paid purely with reference to time and without reference to tbe performance of any particular amount of service or any specific service. Indeed, it was payable to him irrespective of tbe performance of any service. While bolding his office the claimant might have been incapacitated for performing any official duty for a whole year, or even for years, and would still have been entitled to receive bis full salary. Tbe amount of this salary was fixed by the act of February 24, 1891 (1 Supp. Rev. Stat., chap. 287, p. 896), in the following language:
    “Tbat tbe salary of the several judges of the district courts of the United States shall hereafter be at the rate of $5,000 per annum.”
    These salaries are provided for in the annual appropriation acts, in specific language :
    “For salaries of the sixty-five district judges of tbe United States, at $5,000 each, $325,000.” (29 Stat. L., p. 577.)
    On.the other hand, the $1,800 which was paid to the claimant during the year prior to his resignation has none of the characteristics of official salary as above defined. To begin with, it was not an annual compensation, but was made up of six $300 payments, made during tbe year, to be sure, but each of which was a separate and distinct payment, having no dependence upon or relation to the other payments. In other words, these payments were not each a proportional part of an annual compensation of $1,800, like the monthly installments of the $5,000 salary of the claimant. Again, these payments do not have the “earmark of fixed compensation by time” that betokens salary. Each is the compensation for holding a term of the circuit court for the southern district of New York, appointed exclusively for the trial and disposal of criminal business. In the nature of things the duration of each of these terms is indefinite, but the amount of compensation for holding them is unvarying. In other words, the payment is for the performance of a certain task, without any reference to the time employed in so doing. This distinction alone is sufficient to establish the fact that these payments are not salary, for in the case of salary every installment is necessarily a pro-rata part of the whole salary, based wholly upon consideration of time.
    Furthermore, the $1,800 is not a fixed and definite sum in any sense. The claimant received this $1,800 during the year previous to his resignation because he held six of the terms above referred to; but if during the time he had been so ill as to be unable to hold one or more of these terms he would have received less than $1,800; and if he had been incapacitated during the whole year for holding them he would have received nothing. Then, too, the number of these terms is entirely dependent upon the legislation of Congress, and if during the year their number had been reduced the amount which the claimant would have received would have been correspondingly reduced. The claimant, to be sure, has held all of these terms during the past twenty-four years, but this only emphasizes our argument. It is a matter of congratulation that Judge Benedict was thus fortunate in the continuance of his health and strength, butjiis case is certainly an extraordinary one; and since it is clear that it was only because of his unusually vigorous constitution that the claimant was enabled to receive this so called salary during the past twenty-four years, it would seem that, unlike the ordinary judicial salary, it is contingent upon good health instead of good behavior.
    But there is still another im portant consideration. The holding of these terms of the circuit court for the southern district of New Yorkwas not the sole and absolute duty of the claimant while he held his official position. The statute (sec. 613, Bev. Stat.) recites that these terms “ may be held by the circuit judge of the second judicial circuit and the district judges for the southern and eastern districts of New York, or any one of said three judges.” Hence, it is clear that it is undoubtedly only because of some arrangement with the circuit judge of the second judicial circuit and the district judge of the southern district of New York that the claimant has exclusively held these terms. There was nothing to prevent their being held at any time by one of the other judges, in which case the “ salary” of the claimant for that year would have been correspondingly decreased. Indeed, it seems like trifling with words to attempt to dignify a compensation so dependent upon circumstances and so unrelated to any idea of remuneration by the year with the term “annual salary,” and yet that is precisely what is asserted and must be asserted by the claimant. But this is not all. While the regular $5,000 salary of the claimant is annually appropriated as such and was paid to him according to well-known usage, simply upon his receipt for the same, each of the $300 payments was made to him by the United States marshal for the southern district of New York out of the annual appropriation for expenses of the United States courts, such payments being included in the marshal’s accounts; and the claimant was not entitled thereto until he had made out a certificate that he had held the particular term for which he claimed payment. So far, then, as can be gathered from legislation upon the subject and the regulations relating thereto these $300 payments are certainly not considered salary. It is interesting, also, to note that although the claimant contends that the $1,800 under consideration was a part of his annual salary, it admits of no argument that, as has already been said, this amount was entirely dependent upon the action of Congress, by which it might be reduced and even wiped out; for Congress might reduce the number of terms to be held each year or lessen the amount of the payment to the judge of the eastern district of New York for holding each term, or do away with the payment altogether. But it is one of the essential elements of the salary of a United States judge that it may not be diminished during his term of office. (Art. 3, sec. 1, Constitution of the United States.)
    Now, the claimant can clearly recover in this action only upon the theory that his regular salary of $5,000 was increased, after the Act of February 7,1873, $1,800, so that thereafter his salary, as he now contends, became $6,800; but if that is so, it could not thereafter be diminished one cent, but must continue at $6,800 during the life and good behavior of the claimant, and yet, of course, the claimant will not think of so contending.
   Davis, J.,

delivered the opinion of the court:

After long, faithful, and distinguished service as judge of the District Court of the United States for the eastern district of New York, the plaintiff, July 20,1897, availed himself of the privilege of the retiring act, and has since received the salary of district judge (sec. 714, Rev. Stat.).

The question now presented is as to the sum of $1,800 a year, in addition to the stated salary for the judge of the eastern district, which, in fact, at the time of his retirement Judge Benedict was receiving for services performed in the District Court for the southern district of New York.

It appears that plaintiff was appointed judge of the District Court of the United States for the eastern district of New York in April, 1865; that he performed the duties of this office until July, 1897, when, having the right thereto under the statute, he'retired.

Section 714 of the Revised Statutes provides that “when any judge of any court of the United States resigns his office, after having held his commission as such at least ten years, and having attained the age of seventy years, he shall, during the residue of his natural life, receive the same salary which was by law payable to him at the time of his resignation.”

Judge Benedict is in a position peculiar to the particular office he held, and he claims that by reason of this exceptional position he is entitied to larger payment from defendants than the simple salary of a district judge.

Congress (act 7 February, 1873) directed that certain additional terms of the Circuit Court (southern district of New York) be held, which should “not dispense with or affect the bolding of any other term of the court at the same time;” these terms to be devoted to “criminal matters.” It was further provided in the act that these terms might “ be held by the circuit judge of the second judicial circuit and the district judges for the southern and eastern districts of New York, or any one of said three judges; and at every such term held by said judge of said eastern district he shall receive the sum of three hundred dollars, the same to be paid in the manner now prescribed by law for the payment of the expenses of another district judge while holding court in said district.” Sections 658 and 613, Revised Statutes, also relate to the matter under consideration. Section 658:

“Theregular terms of the Circuit Court shall beheld in each year at the times and places following: * * * In the southern district of New York, at the city of New York * * * exclusively for the trial and disposal of criminal cases and matters arising and pendin g in said court, on the second Wednesday in January, March, and May; on the third Wednesday in June; on the second Wednesday in October and December.”

Section 613:

“The terms of the Circuit Court for the southern district of New York, appointed exclusively for the trial and disposal of criminal business, may be held by the circuit judge of the second judicial circuit and the district judges for the southern and eastern districts of New York, or any one of said three judges; and at every such term held by the said judge of said eastern district he shall receive the sum of three hundred dollars, the same to be paid in the manner now prescribed by law for the payment of the expenses of another district judge while holding court in said district.”

For twenty-four years Judge Benedict held these terms and received the compensation thus provided by statute, to wit, $1,800 a year; this in addition to his salary as judge of the eastern district.

It is now urged that under section 714, Revised Statutes (which provides that a retiring judge shall receive “ the same salary which was by law payable to him”), the plaintiff may be paid not only the $5,000 per annum as district judge, sitting in the eastern district of New York, but also the $1,800 specified in this section [613] of the Revised Statutes. The question is thus clearly and tersely stated by plaintiff’s counsel: “Was this $1,800 paid to judge Benedict yearly for twenty-four years, and provided for by section 613, a part of his salary which was by law payable to him?”

It is urged that “the same salary which was by law payable to him” means the salary received by the judge for judicial services during the year previous to his resignation; or, if it mean not that, it must mean “the salary he would have received during the year after the date of his resignation if he had not resigned.”

The retired judge is to receive the salary payable to him by law as the law existed at the date of his retirement. But it is salary he is to receive, not emoluments; salary, simply; the salary of the office which he surrenders. The question presented is absolutely exceptional; its decision can affect the district judge of the Brooklyn district alone.

Was this $1,800 a year salary? The important element of salary is certainty of amount in relation to duration of time. Severity of duty, weight of responsibility, or amount of labor have no relation to receipt of salary, although these elements control the minds of those who fix the amount of salary. Because of this certainty of receipt, salary is usually relatively low for the class of service required.

As judge of the eastern district, sitting in that district, Judge Benedict, without condition as to amount of business or length of terms, was entitled to a salary certain. As to his services in the southern district there were contingencies: In the first place, the term of the Circuit Court in the southern district for criminal business “may” be held by the district judge of the eastern district — not “ must” be held; on the contrary, it may as well be held by either the circuit judge of the second judicial court or the district judge for the southern district. The only distinction made by the law is that if the judge of the eastern district hold the court he shall receive extra compensation, to whi/h the others are not entitled; but this is contingent upon t ie fact that he in fact do hold the court. If ill and unable t< hold his court in the eastern district, this plaintiff’s salary would run; if ill and unable to attend in the southern distrh t he would not receive the compensation to that service allotti rl; for the statute provides pay only for the judge of the eastern district who in the southern district holds a term; that is, the extra pay is for extra work in fact performed. This pay does not attach to the office of judge of the eastern district, but that judge becomes entitled to it only when he in fact holds the term.

We do not think that this extra compensation was part of the salary “by law payable” to Judge Benedict when he retired. Therefore the petition will be dismissed.  