
    ARTHUR KNIGHT, Administrator, v. THE UNITED STATES.
    [No. 21016.
    Decided February 26, 1900.]
    
      On the Proofs.
    
    The claimant is a commissioner to examine and classify lands. May 19, 1897, the Secretary of the Interior writes him: “ To enable you to complete some of the work now on hand, your furlough, as telegraphed on the 17th ultimo, is hereby revoked, and you will continue on duty to the end of the fiscal year; please tender your resignation to take effect on the latter date.” June 2,1897, the Commissioner of the General Land Office telegraphs: “Funds exhausted and your services are discontinued.” The claimant replies: “I mil remain here subject to orders, prepared to again continue the active discharge of the duties of the office ivhieh I hold.” July 1, 1897, without further instructions from the Interior Department, he enters upon his duties and continues to perform them till July 28,1897. The nature of his work appears in his weekly reports to the General Land Office. No objection is made by the Department. July 27,1897, he telegraphs that he has returned from the field and requests instructions in ' regard to his report. The reply is that his services had been previously ordered discontinued as of June 12, 1897.
    
      I.Where the head of a Department makes a request for a resignation and it is not handed in, the officer forfeits no right either because of his failure to resign or because requested to do so.
    II.Where the head of a Department notifies an official acting under him that the fund for his employment is exhausted, it impliedly means for that fiscal year only.
    III. Where weekly reports are transmitted in good faith by an official of a Department to its head in accordance with regulations, and received and filed without protest or objection and without notice that the work must cease, he is entitled.to be paid.
    IV. That the Government finally decides not to accept work honestly done and authorized by law will not relieve it of the obligation to pay for it though the work is not satisfactory.
    V.The Government may be estopped, though it is less liable than individuals to the application of the principle of estoppel.
    
      The Reportm'i statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant’s decedent was on August 7,1896, appointed a commissioner to examine and classify lands within the land-grant and indemnity-land-grant limits of the Northern Pacific Railroad Company in the Helena land district in Montana with special reference to their mineral or nonmineral charac-. ter, under the provisions of the act of Congress approved February 26, 1895.
    II. On May 19, 1897, the Secretary of the Interior wrote the claimant’s decedent as follows:
    “On the recommendation of the Commissioner of the General Land Office, to enable you to complete some of the work now on hand, your furlough, as telegraphed on the 17th ultimo, is hereby revoked, and you will continue on duty to the end of the fiscal year.
    “You will please tender your resignation to take effect on the latter date.”
    III. On June 2, 1897, the Commissioner of the General Land Office telegraphed the claimant’s decedent as follows:
    “Funds exhausted and your services are discontinued.” The commissioner acknowledged receipt of the above telegraphic order in the following words:
    “I have the honor to acknowledge the receipt of your telegram of date June 2, instant, as follows:
    “‘Funds exhausted and your services are discontinued. (Signed) Binger Hermann, Commissioner,’ and we have consequently temporarily again stored our small field outfit, which we had prepared to take the field with, pursuant to instructions contained in the official letter of the honorable the Secretary of the Interior, of date May 19, ultimo, transmitted to me by you with your letter of transmittal under date of May 22, 1897.
    “I will remain here subject to orders, prepared to again continue the active discharge of the duties of the office which I hold.”
    IV. On July 1,1897, without further instructions from the Interior Department, the claimant entered upon his duty as mineral-land commissioner and continued to perform duty every week, twenty-four days in all, until July 28,1897. The nature of the duties performed by him upon these days appears by the reports of the claimant to the General Land Office as follows:
    
      Report of Herbert Knight, Ü 8. mineral land commissioner, Helena land district, for week commencing the 28th day of June, 1897, and ending the 3d day of July 1897.
    
    
      
    
    I, Herbert Knight, TL S. mineral land commissioner, Helena (Montana) land district, do hereby certify that I have performed the services stated, and that the above is correct.
    Herbert Knight, Commissioner, dec.
    
    Approved:
    Herbert Knight, Chainman.
    
    Edward H. Movius, Seo'etaiy.
    
    July 3rd, 1897, Helena, Montana.
    
      
      Report of Herbert Knight, U. S. mineral land commissioner, Helena (Montana) land district, for week commencing the 5th day of July, 1897, and ending the 10th day of July, 1897, both inclusive.
    
    
      
    
    I, Herbert Knight, TJ. S. mineral land commissioner, Helena land district, do hereby certify that I have performed the services stated, and that, the above is correct.
    Herbert Knig-ht, Commissioner, &c.
    
    Approved:
    Herbert Knight, Chainman.
    
    Edward H. Movixjs, Secretary.
    July 10, 1897, Helena, Montana.
    
      
      Report of Herbert Knight, Í7. S. mineral land commissioner, Helena, Montana, famd district, for week commencing the 18th day of July, 1897, and ending the 17th day of July, 1897, both inclusive.
    
    
      
    
    I, Herbert Knight, TJ. S. mineral land commissioner, Helena land district, do hereby certify that I have performed the services stated, and that the above is correct.
    Herbert Knight, Commissioner, <&c.
    
    Approved:
    Herbert Knight, Chainman.
    
    • Edward H. Movius, Seweta'i'y.
    
    July 17, 1897, Camp Murray (sec. 9, Tp. 6 N., R. 6 E.), Montana.
    
      
      Report of Herbert Knight, TI. S. mineral land commissioner, Helena, Montana, land district, for week commencing the 19th day of July, 1897, and ending the 24-th day of July, 1897, both inclusive.
    
    
      
    
    
      I, Herbert Knight, U. S. mineral land commissioner, Helena land district, do hereby certify that I have performed the services stated, and that the above is correct.
    Herbert Knight, Commissioner, <kc.
    
    Approved:
    Herbert Knight, Chairman.
    
    Edward H. Movius, Secretary.
    
    July 24, 1897, Camp Murray (sec. 9,Tp.6N.,B.6E.), Montana.
    
      Report of Herbert Knight, late U. S. mineral land commissioner, Helena, Montana land district, for week commencing the 26th day of July, 1897, to the 28th day of July, 1897, both inclusive.
    
    
      
    
    
      
      Report of Herbert Knight, late U. S. mineral land commissioner, Helena, Montana land district — Continued.
    Bate. 1897. July 28.. Bay of week. Wednesday. Name of place visited. Helena. Nature of business. Note — When nature of business requires a more extended explanation than the space allotted to each day permits, state same in an accompanying letter. fleeting of board at 9.80 a. m. Received telegram from the Hon. Commissioner of the General Land Office that services were ordered discontinued June 2,1897. Prepared weekly report to date and adjourned sine die.
    I, Herbert Knight, Late IT. S. mineral land commissioner, Helena land district, do hereby certify that 1 have performed the services stated, and that the above is correct.
    Herbert Knight, Late Commissioner, etc.
    
    Approved:
    Herbert Knight, Late Chainman.
    
    Edward H. Movius, Late Secretary.
    
    July 28, 1897, Helena, -Montana.
    V. The claimant’s decedent transmitted the reports of work as shown in the foregoing finding to the Commissioner of the General Land Office, in accordance with regulations established by that office and printed on the back of the form of reports, as follows:
    “Weekly reports must be transmitted promptly at the end of each week and statements therein must be absolutely correct.”
    The report for three days, July 1-3 of the week ending Saturday, July 3, was received at the General Land Office on July 10, 1897. The report for the week ending July 10 was received at the General Land Office on July 15, 1897. The report for the week ending July 17 was received at the General Land Office on July 24, 1897. The report for the week ending July 24 was received at the General Land Office on August 2, 1897. The report for three days, July 26-28 of the week beginning July 26, was received August 6, 1897. ■
    VI. No objection was made by any officer of the Interior Department during the time of this service, from July 1 to July 28, to the claimant’s decedent continuing his official work.
    VII. On July 27,1897, the mineral land commissioners telegraphed to the Conimissioner of the General Land Office that they had returned from the field, and requested instructions relative to the making and filing of their report of 85,000 acres of land said to have been examined within the fiscal year beginning July 1, 1897. The answer to this telegram was a statement to the board of commissioners that their services had previously been ordered discontinued as of June 2, 1897.
    
      Mr. William B. King for the claimant:
    The ordinary rule in regard to the right of an officer to pay is that stated in Sleigh v. United States (9 C. Cls., 369, 375).
    The rule there announced was repeated in Chisholm v. United States (27 C. Cls., 94, 97) and affirmed in these terms:
    “To that opinion as the declaration of a principle we adhere. ”
    In Adams v. United States (20-C. Cls., 115-117) the rule was thus stated:
    “The law creates the office, prescribes its duties, and fixes the compensation. The selection of the officer is left to the collector and Secretary. The appointing power has no control, beyond the limits of the statute, over the compensation, either to increase or diminish it. This has been substantially decided in many cases.”
    In Delaneij v. United States (31 C. Cls., 41, 61) the rule is stated as follows:
    “ Salaried officers are as a general proposition entitled to pay as an incident to the right of office, which becomes consummate as soon as they are commissioned as such and perform whatever conditions the law requires before induction in office.”
    This rule applies in this case. The claimant’s right to his office was complete. He remained in office until removed by competent authority. He had not resigned and his removal was not affected, through the appointment of his successor, until after the day to which claim is made. It is true the act of February 26, 1895, annexes another condition to the right to salary and that a mineral land commissioner gets no pay unless actually engaged in the performance of his duties. It appears from the official reports that the claimant was so engaged, and he has therefore fully completed the conditions requisite to pay.
    The only objection raised to the claim is that contained in the letter of the Secretary of tbe Interior of September 29, 1897, in wbicb be decides that the .claimant is not entitled to pay because he had been notified of the discontinuance of his services previous to the close of the last fiscal year. But it must readily be conceded that the claimant continued to be a mineral land commissioner in spite of any such statement or order, and equally entitled to salary so far as the question of tenure is concerned.
    There is, however, involved in this objection the suggestion that the work done by claimant in July, 1897, was done- in violation of official orders, and that for this reason he can not assert a right to pay. There are two answers to this position, (1) that this work was not done in violation of orders, and (2) that in any event it was his duty to obey the law and not the regulation of the Secretary.
    The Commissioner of the General Land Office in discontinuing the services of the claimant on June 2, 1897, on account of exhaustion of funds, did not indicate that it was a permanent discontinuance, but, by giving the reason, showed that it was merely temporary while the deficiency in funds lasted. When funds were once more available, the claimant properly went to work again, the Commissioner’s order ceasing by the ceasing of the reason assigned. Had the claimant been working contrary to the departmental directions he should have been notified of that fact as soon as he reported his occupation. Nothing of the kind was done. It was known to the General Land Office on the 10th of Juty that he had resumed work, and on the 17th and 24th this fact was again brought to official attention, but no word ordering its cessation was received until the 28th.
    Under these conditions the claimant rightly presumed that his action had been approved by the Department. His course was thus fully ratified.
    But even had the Secretary directed him to be idle, when funds were available and work was at hand, it would not have effected his right to work or the consequent pay. The time within which the entire work under the act of 1895 should be done was limited and the commissioners had been directed immediately upon their appointment to proceed to examine and classify the lands. They were directly ordered by the statute to do certain work. The mandates of the act were to them personally and not tp the Secretary for them. Under these conditions the Secretary had no right to suspend the law, as he would have done had he told the claimant to proceed no further in his work. The claimant had the choice between obeying a law of Congress and obeying' a direction of the Secretary in direct contradiction of the law. He did right in obeying the law and, in so doing, can not be deprived of his pay.
    
      Mr. Charles F. Kmohdoe (with whom was Mr. Assistant Attorney-General Fradt) for the defendants:
    Counsel for claimant has cited and quoted from the decisions in the cases of Sleigh v. United States (9 C. Cls. R., 369), Chisholm v. United States (27 C. Cls. R., 94), Adams v. United States (20 C. Cls. R., 115), and Delaney v. United States (31 C. Cls. R.‘, 44), in support of this claim; but a consideration of those cases will show that the questions of fact and law involved and decided therein are not at all similar or analogous to those involved in this case.
    In all of the cases cited except the Adams case the claimants were employed at regular annual salaries, while in the case at bar the claimant was employed, as provided by statute, at a per diem compensation of $10 for each day he should be actually engaged in the performance of his duties (the total amount of compensation in any one year being limited to not to exceed $2,500, two hundred and fifty days’ compensation); hence the principles of law enunciated by the court in those cases do not at all apply in this case.
    The Secretary of the Interior clearly had jurisdiction over these commissioners, with authority to direct and control their work; and this being true, the work of claimant for which he seeks to recover pay was performed, not only without authority, but in direct violation of the positive orders of the Secretary of the Interior, which appears as follows:
    The Commissioner of the General Land Office, whose action was in effect the action of the Secretary of the Interior, telegraphed claimant on June 2, 1897, “Funds exhausted and your services are discontinued;” and this was the last order issued or transmitted to claimant from the Interior Department, be never thereafter being ordered or authorized bjr either the Secretary of the Interior or the Commissioner of the General Land Office to resume work.
    If, as we contend, the execution of the work of said commissioners came legally under the direction and control of the Secretary of the Interior, then the contention of counsel for claimant that the twenty-four days’ work in question was not performed in violation of orders is utterly groundless.
    Counsel for claimant says, “The Commissioner of the General Land Office, in discontinuing the services of the claimant on June 2, 189Y, on account of exhaustion of funds, did not indicate that it was a permanent discontinuance,” and that “when funds were once more available the claimant properly went to work again',” the whole of which argument is bafeed upon the groundless and ludicrous assumption that claimant did not know that his services were intended to be permanently discontinued, and that he had no authority to resume work without orders from the Interior Department. In view of the repeated requests by the Secretary of the Interior for claimant’s resignation, which requests, as appears from the first one, dated March 25, 189Y, were at the instance of the President, and claimant’s failure to comply therewith, together with claimant’s clearly apparent attempt to hold his position and force his services upon the Government regardless of the wishes of the President and the orders of the Secretary of the Interior, we can hardly conceive it to be possible, and it is nonsense to contend, that claimant did not know that it was intended that his services were to be dispensed with from and after June 30, 189Y, the end of the then fiscal year. All the circumstances indicate that he knew such to be the intention, and his action in resuming work without orders was probably due to the fact that being by profession a lawyer he read the statute over and concluded from his understanding of it that he could, without orders, resume work and compel the Government to pay him for it. How he could have resumed work, if the other members of this board had not agreed with him in such a construction of the statute, does not appear.
    It is further argued by counsel for claimant that “had claimant been working contrary to departmental directions he should Have been notified of that fact as soon as be reported bis occupation. ’’We answer that claimant baying been ordered to discontinue work and never thereafter having been ordered or authorized to resume same, he wrongfully did so at his own risk, and therefore no legal obligation attached to or rested upon the officials of the Interior Department to order him to discontinue such unauthorized work. He had been authoritatively notified on June 2 that his services were discontinued, and had answered the Department, saying that he would remain where he then was subject to further orders, which the Department was justified in presuming he was doing.
    As to the matter of the weekly reports of said commissioners, such reports were only for the information of the Interior Department in the matter of passing upon the accounts of said commissioners for services rendered, and they were not taken up and considered until the end of each month; and, as appears from the report of the Interior Department of October 21, 1899, the weekly reports of claimant of the work in question, July 1 to 28, 1897, were, in accordance with the practice prevailing in the General Land Office relative to all such reports, filed away without any examination or consideration whatever until the end of that month, at which time said work had been performed. In fact, it would appear that the Commissioner of the. General Land Office had no knowledge of claimant’s having resumed work on July 1 until he received his telegram of July 27, requesting instructions as to the filing of a report of the lands examined during that month; for, immediately following his receipt of said telegram, he telegraphed claimant in answer thereto, “Your services were ordered discontinued June 2, 1897.”
    If the Government had derived any benefit from the work claimed for, there might be some foundation in equity, though not in law, for this claim; but it is shown by the report of the Interior Department, dated May 19,1899, that the records of that Department show “that the result of the services alleged and claimed to have been done by Knight was not accepted and made use of by the Land Department, nor has the Government received any benefit from such services.”
    Counsel for claimant says that it must readily be conceded that claimant continued to be a mineral land commissioner in spite of the order of June 2,1897, discontinuing bis services, and that as such he was entitled to salary so far as the question of tenure is concerned.
    In answer to this we will say that even if his tenure of office did continue up to the appointment and qualification of his successor, which did not occur until after the performance of the work claimed for, this does not at all establish claimant’s right to pay for the time in question, for under the terms of the act he might have held as commissioner for years and yet been entitled to no pay. His right to pay was not dependent merely on tenure, it was dependent upon actual and authorized service.
   Ho wet, J.,

delivered the opinion of the court:

Plaintiff’s intestate was in 1896 appointed one of several commissioners to examine and classify lands within the land grant and indemnity land grant limits of the Northern Pacific Railroad, with special reference to the mineral or nonmineral character of said lands within the States of Montana and Idaho, under the provisions of an act of Congress approved February 28,1895 (28 Stat. L., 683), at a compensation of $10 for each day of actual employment if the same did not exceed $2,500 in any one year. On May 19, 1897, the Secretary of the Interior wrote to the intestate that to enable the latter to complete some of the work then on hand the furlough previously telegraphed to him was revoked and that he could continue on duty to the end of the fiscal year. Coupled with this letter was a. request for the commissioner’s resignation to take effect at the end of the fiscal year. Following this (June 2, 1897), the Commissioner of the General Land Office telegraphed plaintiff’s intestate as follows:

“Funds exhausted and your services discontinued.”

The receipt of this telegram was acknowledged by a statement from the deceased commissioner, whose interest is now represented by an administrator, that they had temporarily stored their field outfit pursuant to instructions contained in an official letter of the Secretary of the Interior of a former date, and that he would remain at that point subject to orders, prepared to again continue the actual discharge of the duties of the office which he held. On July 1,1897, without further instructions, the commissioner again entered upon his duties, rendering the twenty-four days’ service for which compensation is now claimed. The nature of these duties appears bjT the reports set forth in the findings. No objection was made by any officer of the Interior Department during the time of the performance of this service.

On July 27, 1897, two of the mineral land commissioners (of whom plaintiff’s intestate was one) telegraphed to the Commissioner of the General Land Office that they had returned from the field, and inquiring if they should make and file their report of 85,000 acres of land stated to have been examined. The answer to this information and inquiry was a statement that their services were ordered discontinued June 2,1897.

Upon the presentation of an account for the services thus rendered in July by plaintiff’s intestate the Seeretaiy of the Interior disallowed the account on the ground that the mineral land' commissioners were all notified of the discontinuance of their services previous to the close of the preceding fiscal year and were never in any way authorized or directed by the Secretary or the Commissioner of the General Land Office to resume work July 1 or at any other time.

The determination of the matter at issue depends upon the effect to be given to the order discontinuing the services of the deceased commissioner.

The act under which the account was presented defined the duties of the commissioners by sundry provisions in the first and second sections, as follows:

“ That the Secretary of the Interior be, and is hereby, authorized and directed, as speedily as practicable, to cause all lands within the land districts hereinafter named in the States of Montana and Idaho within the land grant and indemnity land grant limits of the Northern Pacific Railroad Company, as defined by an act of Congress entitled ‘An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific coast, by the northern route,’ approved July second, eighteen hundred and sixty-four, and acts supplemental to and amendatory thereof, to be examined and classified by commissioners to be-appointed as hereinafter provided, with special reference to the mineral or nonmineral character of such lands, and to reject, cancel, and disallow any and all claims or filings heretofore made, or which may hereafter be made, by or on behalf of the said Northern Pacific Bailroad Company on any lands in said land districts which upon examination shall be classified as provided in this act as mineral lands.”

The second section, after providing for the appointment by the President of commissioners for three districts in Montana and one district in Idaho and fixing the rate of compensation, provided that:

“Said commissioners shall make examination of the lands herein mentioned within their respective -districts, and may also take the testimony of witnesses as to the mineral or nonmineral character of any of said-lands, and receive any other evidence relating to said matter, and shall have power to summon witnesses to appear before them and to administer oaths; and they shall, immediately upon their appointment, proceed to examine and classify the lands herein mentioned within their 'respective districts, as provided in this act, and shall fully complete said classification within the term of four years from the date of this act. The oath of office of said commissioners shall be filed by them in the office of the Commissioner of the General Land Office. All testimony taken by said commissioners shall be reduced to writing, subscribed by the witnesses, and filed with the report of the commissioners hereinafter required. The action or decision of a majority of said commissioners in each district shall control in all matters herein provided for. That the commissioners shall perform the work of examination and classification herein directed according to such rules and regulations as the Secretary of the Interior shall prescribe.”

Becurring to the order attempting to discontinue the services of the commissioners, it will be observed that the appropriations for carrying into effect the act had all been used for that year. This was the sole reason assigned for the order of discontinuance, and is taken to be the true reason. But funds again became available on the 1st of July, 1897 (30 Stat. L., 37), and then it was that plaintiff’s intestate, without waiting for further instructions, resumed work and so continued until he received final information calling his attention to the previous notice that his services had been discontinued. A successor was subsequently appointed and confirmed under the act of June 4, 1897 (30 Stat. L., 38), and no question arises growing out of the occupancy of the office or the discharge of the duties pertaining thereto by another person.

This successor, it may be observed in passing, was appointed under the mistaken idea that the commissioner for the Helena land district had resigned (Cong. Rec., July 22,1897, p. 3218, subtitle “Nominations”). This is noticed only for the necessity to say that no resignation was ever tendered or authorized to be tendered by or for this particular commissioner.

The Secretary of the Interior, by a communication in writing, revoked a previous telegraphic order for the discontinuance of the intestate’s services,..and gave him express authority to continue on duty to the end of the fiscal year. It is true there was in this communication a request for the intestate’s resignation at the end of that time, but as a resignation was not handed in, the intestate forfeited none of his rights, either because of his failure to resign or because of the request upon him to vacate the office. The subsequent telegram of the Commissioner of the General Land Office notifying the intestate that funds were exhausted necessarily meant that funds were exhausted for that fiscal year only. The intestate evidently interpreted this telegraphic order notifying him that the appropriation was exhausted -and discontinuing his services in advance of a resignation as referring to that part of the fiscal year when funds were not available for the work. The letter of the Secretary of the Interior and the telegram of the Commissioner of the General Land Office to the intestate must therefore be construed together. The two communications did not have the effect of removing the intestate from the office. And this is true even if the telegram of the Commissioner of the General Land Office be taken by itself.

With funds available and work yet to be done, and acting pursuant to the instructions of the Secretary, this commissioner not only had the right, but it was his duty, to continue to discharge the functions of his office so long as he was in commission for that purpose. The law under which he was appointed limited the time for the completion of the work and imposed the obligation for him to proceed immediately upon his appointment to examine and classify the lands. If, complying with the law and the obligation of his oath, and funds being available to justify progress, the commissioner did the work in good faith, we think he is entitled to be paid. This is especially true under the facts disclosed by the findings. Weekly reports were transmitted in accordance with Department regulations of the work done as it progressed, and these reports were received and filed without protest or objection and without notice of any kind that the work must cease. Land was actually examined, and though some effort is made to show that the Department finally elected not to accept the classification by the first board of commissioners, of which the intestate was a member, this would not relieve the Government of the obligation to pay for work honestly done and performed under the law without protest or objection while it was being done, even if it be true that the work was not satisfactory. There is no evidence, however, that the work was not efficiently done or that any further examination and classification of the land became necessary. Acquiescence after the reports which supplied the means of knowledge of the progress of the work became, in any event, a recognition of such import the fact can not be ignored in determining the right and remedy of the case. It is a rule, both of law and equity, that when a parly by his silence seems to consent to a waiver of his right, and thereby misleads the other party, he is estopped from asserting the right. (Wehrman v. Conklin, 155 U. S. R., 314.) Estoppel is a doctrine not generally favored, but the law recognizes the necessity for its enforcement in many cases. The Government may perhaps maintain exemption from its application more successfully than individuals on the principle that no one is authorized to waive public rights without the authority of a statute. But even the Government may be estopped of a legal right (Eager v. United States, 33 C. Cls. R., 338), and in judicial proceedings and certain matters of executive administration the action of departments of the Government and its officers may be such as to preclude a defense involving so much of injustice as would result in this case if it be held that the defense should be sustained. Judgment will therefore be entered in plaintiff’s favor for the amount of the services which the findings show were rendered,  