
    MORRIS EBERT v. THE UNITED STATES.
    [No. 17612.
    Decided. March 19, 1894.]
    
      On the Proofs.
    
    A special agent of tlie Census Office is appointed to “ assist m the collection of statistics relating to mines and mining.” His compensation is fixed at $4 a day. Subsequently he goes to Europe and is absent two months. Before going he notifies the Census Office of his departure, and leaves the records of his office open to the inspection of the census officers and a person in charge to furnish information. He contends that the information in his office, the fruit of his own private researches, was what the Census Office really bargained for when he was appointed.
    I.Though the information acquired by one who is appointed a special agent of the Census Office may have been the inducement for appointing him, nevertheless he can not furnish a substitute and recover pay when absent from the country and unable to perform the duties of his office.
    II.The fact that an agent is to be paid by the day contemplates a daily service.
    III.An agent of the Census Office whose duties are to be performed at his own residence and whose compensation is expressly stated to be a per diem is not entitled to subsistence under the Act March 1, 1889 (25 Stat. L., p. 766).
    
      The Reporters’ statement of the case:
    As the claimant possessed no right of appeal in this case, no findings were filed; but the facts will be found stated in the opinion of the court.
    
      Mr. James S. Say den (with whom was Mr. Joseph K. MeOam-mon) for the claimant.
    At the time of the claimant’s appointment the United States statute relating to the compensation of special agents of the Census, provided that—
    “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 traveling expenses and a per diem allowance in lieu of subsistence of three dollars per day.” (Acts of March 1, 1889, and April 3,1890, supra.)
    
    
      Nothing could be clearer than this language. The basis of compensation is three fold: First, a compensation for services rendered; second, a compensation for actual traveling expenses ; and third, in addition to both of these, a compensation in lieu of subsistence of $3 per day.
    The provision relating to an allowance in lieu of subsistence is not qualified, as is that relating to traveling expenses. It entitles every special agent of the Census Office, who has not contracted for a compensation other than that provided by law, to a daily allowance of $3 for each day of the period during which he has held office. To place another construction upon the act of April 3,1890, it would be necessary to introduce a proviso, limiting the payment of the allowance in lieu of subsistence. This would be contrary to a well-established principle of construction, that “Where the legislature makes a plain provision, without making any exception, the courts can' make none.” (French v. Spencer, 21 How., 228; Yturbide v. United States, 22 How., 290.)
    Both the cases of Test v. The United States and Barre v. The United States (27 Ot. Cls. R., 352 and 367) are to be distinguished from the case at bar. In the former, it appeared that the appointment was made before the approval of the act of April 3,1890, and expressly provided that Test should be paid a daily compensation “and actual and necessary expenses of subsistence, together with expenses of transportation.” In the latter, Barrels appointment provided that he should receive “no allowance for subsistence or per diem in lieu thereof.” While in the case at bar the daity compensation for services is alone fixed by contract, and the appointment is silent with regard to traveling expenses and compensation in lieu of subsistence; therefore, it must be held that the latter were fixed by the statute then in force.
    
      Mr. Felix Brannigan (with whom was Mr. Assistant Attorney - General Bodge) for the defendants.
   WeldoN, J.,

delivered the opinion of the court:

On the 7th of April, 1890, the plaintiff was appointed a ¡special agent of the Census Office, under section 18 of the act ©f March 1, 1889, for “taking the eleventh and subsequent censuses of the United States” (25 Stat. L., 766). His duties as such agent were to “assist in the collection of statistics relating’ to mines and mining in the United States.” His compensation was fixed at $4 per day.

The following is the letter of his appointment:

“Department oe the Interior,
“Census Oeeioe,
“ Washington, April 7,1890.
“Sir: Under the act of Congress approved March 1,1889, making provision for taking the eleventh and subsequent censuses, T have this day appointed Mr. Morris Ebert, of Pennsylvania, as a special agent of this office, to assist in the collection of statistics relating to mines and mining in the United States.
“The 18th section of the act provides that the compensation of experts and special agents shall be fixed by the Superintendent of Census, with the approval of the Secretary of the Interior. I have fixed the compensation of Mr. Ebert at $4.00 per day, and I respectfully ask the approval of this rate by the Department.
‘ ‘ Y ery respectfully,
“Robert P. Porter,
jSuperintendent of Census.
“The honorable The Secretary oe the Interior.”
On the 12th day of April, 1890, the Secretary of the Interior approved the action of the Superintendent of Census, as follows:
“Department oe the Interior,
Washington, April 12th, 1890.
“The Superintendent oe Census:
“ Sir : Your appointment, as stated in your letter of the 7th inst., of Mr. Morris Ebert of Pa., as a special agent of the Census Office, to assist in the collection of statistics relating to mines and mining in the United States, at a compensation of ‡4.00 per clay, is hereby approved.
“Very respectfully,
“ J. W. Noble,
“ Secretary.”

On April 17,1890, the plaintiff accepted said appointment and took the oath of office prescribed for special agents.

At the time of his appointment he resided in the city of Philadelphia, and, as a result of his occupation and business, had collected and accumulated a large amount of information upon the subject of the stone industries of the United States, and in the discharge of bis duties as a special agent availed himself of the resources of his office in his consultations and suggestions with and to the agents and officers of the Census Office.

The plaintiff, about the 1st of November, 1890, went to Europe on private business, and remained there until the 1st of January, 1891, when he returned and entered upon the discharge of his duties.

He resigned on the 31st of March, 1891, and has been paid at the rate of $4 per day, including Sundays, for all the time from March 17, 1890, to said date, except for the months of November and December. He also received the sum of $21 as subsistence for seven days.

In the petition it is in substance alleged that for the months of November and December he is entitled to pay at the rate of $4 per day; that during said months he “rendered the services required of him as such special agent, and for that time he is entitled to pay.”

The plaintiff makes additional allegation, “That, under the provisions of the act of Congress approved April 3, 1890, entitled ‘An act to amend an act entitled “ an act to provide for taking the Eleventh Census and subsequent censuses”’ the sum of $1,044 became due and payable to the petitioner, as an allowance, in lieu of subsistence for three hundred and forty-eight days, at $3 per diem. He has been paid subsistence at the rate of $3 pier day for seven days in which he was absent from home on tbe business of his office. This suit is to recover the two items, per diem compensation and subsistence, at the rate of $3 per day, from the 17th of April, 1890, to the 31st of March, 1891.”

The evidence shows that at the time the plaintiff left he notified the officers of the Census Office of his departure, to which they made no objection. Nothing was said at the time of his leaving as to his pay; but on his return the officer in charge of the payment refused to pay him. The plaintiff contends that, inasmuch as the records of his office during his absence were open to the inspection and examination of the officers of the United States in charge of a person in his employ, and that the officers made no objection to his absence, therefore be is entitled to his pay, although not present at the place where he ordinarily discharged his duties. He also contends tbat tbe information in bis office was wbat tbe United States really bargained for, and, if tbat was subject to tbeir order and inspection, tbe purpose of tbe contract was accomplish ed.

Tbat information was at most in tbe shape of raw material, and when called for by tbe Census Bureau tbe defendants were entitled to bis experience and judgment as an expert thereon. To have bad some one left in charge to furnish tbe desired information from bis data would have been to allow him to furnish a substitute which was not contemplated in bis selection and appointment.

Tbe plaintiff testiffes tbat be was an advisory expert, and if so, it is difficult to understand bow be could discharge tbe duties of tbat position while he was absent in Europe, bolding no communication with tbe Department, founded either upon bis general knowledge or upon tbe information in bis office in tbe city of Philadelphia.

Tbe suit is brought for compensation as a special agent in tbe Census Office, which employment contemplates tbe performance of some service having relation to tbe duties of bis agency. He was not simply tbe custodian and owner of tbe data of information; but a person having such, with tbe knowledge of an expert, which would enable tbe Census Bureau to avail itself of tbe information contained in bis office. Tbe fact tbat be is to be paid by tbe day contemplates a daily service. He was employed because be was an expert, in tbe possession and collection of statistics relating to “mines and mining,” and to say tbat be can disconnect himself for two months with tbe performance of bis duty and yet recover compensation for tbe time is in violation of tbe spirit of bis undertaking with tbe G-overn-rnent. While tbe laborer is worthy of bis hire, tbe hire is worthy of tbe laborer in tbe substantial and honest performance of bis contract.

As to tbe claim for subsistence, it is insisted by tbe defendants tbat tbe case of Test (27 C. Cls. R., 352) is decisive of tbe claim in this case. Tbe counsel for tbe plaintiff sought to maintain that this proceeding did not come within tbe reason of tbat case, and while bis argument is entitled to great respect, it is not sufficient to differentiate tbe case in the opinion of tbe court. In tbe case of Texas Paeifie R. R. Co. (28 C. Cls. R., 379) a principle similar to tbe one atissue was declared. We think tbe Test case is conclusive against tbe contention of tbe claimant in tbis proceeding as to subsistence, and upon botb claims tbe law is witb tbe defendants. A judgment is ordered for defendants, dismissing petition.  