
    HENRY B. McNEIL v. THE UNITED STATES.
    [No. 15569.
    Decided June 18, 1888.]
    
      On the Proofs.
    
    The only question. in this case was whether an internal-revenue storekeeper is entitled to a per diem compensation when not assigned to duty, though instructed that he must he vigilant at all times.
    'Theffcf August 15, 1876 (19 Stat. L., pp. 143, 152), declares that internal-revenue store-keepers “shall only receive compensation when rendering actual service.” This excludes compensation during intervals when a store-keeper is not assigned to duty. (Rev. Stat., § 3153.)
    
      The Reporters'1 statement of the case:
    The following are the facts of this case as stated by the court:
    This action was brought by an internal-revenue store-keeper to recover bis per diem compensation for periods when be was not assigned to duty.
    His appointment was in these words:
    “ Treasury Department,
    “ Washington, October 29, 2878.
    “ These presents witness that Henry B. McNeil, of California, is appointed an internal-revenue store-keeper, and that he is hereby authorized to execute and perform all the duties of said office during the pleasure of the Secretary of the Treasury, from and after taking the oath of office and filing his bond.
    John Sherman,
    “ Secretary of the Treasury.
    
    His assignment to duty was in these words:
    “Treasury Department,
    “ Washington, November 22d, 1878.
    “ Henry B. McNeil, Esq.,
    “ U. 8. Store-keeper, San Francisco, Gal.:
    
    : duly appointed and qualified as internal-revenue store-keeper, you are hereby assigned to the distillery warehouse of Potrero Distfg Co., at-, in the 1st district of California, under the direction of the collector, to take effect Dec. 2, 1878.
    “ Your compensation will be $4 per day for such time as you shall be actually employed.
    “ The statute prohibits your being engaged in any other business while in the service of the United States, without a written permission from this office.
    “G-reen B. Baum,
    
      ‘ ‘ Commissioner.”
    It appeared by a statement of the Treasury Department that there were intervals sometimes of an entire month when the claimant was reported as “not assigned; not on duty.’’
    statutes authorizing the employment of store-keepers and regulating their compensation provide:
    
      “ There shall be appointed by the Secretary of the Treasury such number of internal-revenue store-keepers as may be necessary, who shall each receive such compensation, not exceeding five dollars a day, to be paid monthly by the United States, as may be determined by the Commissioner of Internal Revenue. No store-keeper shall be engaged in any other business while in the service of the United States, without the written permission of the Commissioner of Internal Revenue.” (Rev.. Stat., § 3153.)
    Also, the Act August 15, 1876 (19 Stat. L., 143, 152), as follows:
    “And, hereafter, no store-keeper shall receive a greater compensation than four dollars per day; and said gaugers and store-keepers, respectively, shall only receive compensation when rendering actual service.”
    The fact upon which the claimant relied as a basis for compensation when not assigned to duty was that when he received his appointment the revenue agent of the district—
    “ Instructed me in what the duties were as a store-keeper, and impressed on me the importance of vigilance in looking about to see that there was no infraction of the law, whether I was actually assigned to any distillery or warehouse or not.”
    
      Mr. George A. King for the claimant:
    The principle on which this case depends is the same as that decided by this court in Jones v. United States (21 C. Cls. R., 1; Harper v. United States, 21 C. Cls. R., 56, and Bill v. United States).
    
    The claimant’s services were required of him by the Government on every day of his holding the office except for twenty-four days, for which he has credited the Government, during which period he was sick and unable to perform any service-whatever.
    The law, let it be remembered, expressly prohibited his engaging in anyother business without the written consent of the Commissioner of Internal Revenue. Such consent he never obtained nor applied for, and never, in fact, engaged in any other business. His whole time and services were devoted to the interests of the Government, and this under the express instructions from his superior officer, which he could not without peril disregard. The quantity and degree of his services might and doubtless did vary, and probably his service under special assignment to some bonded or distillery warehouse was of a more active and unremitting character than such service of a general character as he rendered to the Government while not under assignment to some particular distillery. As this court has pointedly put it in Strong v. United States, “ it is impossible to discriminate in law between the services in the two cases. The one may be more active than, the other, but they are both active in the performance of a duty', differing, it may be, in degree, but not affecting the question of compensation. The highest form of activity may be -discharged in a naval engagement, and the lowest form may be on a receiving-ship, but the court can not establish legal principles founded on degrees of activity.”
    The Treasury Department has thought fit to go only half way, and has denied to the internal revenue service what it grants to the customs. Whatever difference there is between the two is in favor of the internal-revenue store-keepers, for the statute absolutely prohibits their engaging in any other business while they hold their commissions, without the written permission of the Commissioner of Internal lie venue, while no such provision is made as to inspectors of customs.
    If the provisions of the act of August 15, 1876, are relied upon on the part of the defense in this case, it would be a forced construction to apply them to cases where actual service was in fact rendered, merely upon the ground that it was not rendered at some distillery warehouse. The statute prevents their drawing pay while disabled by disease or bodily injury from performing the duties of the office, to which they would, iu the absence of such a prohibition, be entitled (Sleigh v. United States, 9 C. Cls. E., 369). Thus full scope is left for the limitation of the act of 1876 to operate upon cases where the officer is rendering no actual service, without so unjust an application of it as to require the withholding of pay for such actual service simply because the s ame was not rendered at a distillery warehouse. (Tyler v. United States, 16 C. Cls. E., 223; 105 U. S. E., 246; Morton v. United States, 19 O. Cls. E., 200; United States v. Morton, 112 U. S. E., 1; Sleigh v. United States, 9 O. Cls. E. 369, 375.)
    
      Mr. Heber J. May (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Per curiam :

This case presents a very simple question of statutory interpretation, which was submitted by the Secretary of the ‘Treasury to the Attorney-General, who, on the 19th of May, 1886, gave an opinion, in which, among other things, it is said:

“ Mr. McNeil, during his term of office, was from time to time assigned to duty at various distilleries, and has been paid at the maximum rate for every day while on duty under such assignments.
“ When not under an assignment to duty no service whatever was required of him, or rendered by him to the Government. '
“ His present claim is for compensation for those days during his term when he was not under any assignment to duty and not performing any duties.
“ The law in force at the date of his appointment and throughout his term provides that internal-revenue store-keepers shall receive such compensation, not exceeding $4 a day, to be paid monthly, as may be determined by the Commissioner of Internal Be venue, and ‘ said store-keepers shall only receive compensation when rendering actual service.* (19 St-at. L., p. 152.)
“While the fact that a store-keeper, when not under an assignment to duty, was obliged to hold himself in readiness to poriorm any duty that might be assigned, could have been considered as an element in determining his compensation, and may have been considered in fixing the amount when on duty, the express inhibition of the statute prevents any such consideration from entering into the determination of the time during which the per diem salary is computed.
“ The time during which the storekeeper ‘rendered actual service’ could alone be taken into account.
The interpretation adopted by the Commissioner not only gives the words employed their usual and natural significance, but is unembarrassed by conflicting considerations, arising either from other provisions in the law or any general policy or practice in connection with the internal-revenue system.
“Indeed, it is the only jiossible construction. Under the system arranged by law the store-keeper in the service was either rendering actual service under an assignment to duty or unable to render any service because unassigned. Therefore the provision quoted either has the meaning assigned it or none at all.”

The court adopts the opinion as a correct exposition of the case and a sound interpretation of the statutes.

The judgment of the court is that the petition be dismissed.  