
    HUNTINGTON’S CASE. Samuel H. Huntington v. The United States.
    
      On the Proofs.
    
    
      In Baker’s Case (4 G. Cls. B,,p. 227) it is held that the employés referred to in the Twenty per cent, Resolution February 28,1867, fall into two general classes : persons whose employments are within the civil sei'viee, cmd persona whose employments are sneh as might he found under any other employer. In the Twenty per cent. Cases (7 O. Cls., p. 290) the Supreme Court decides that the 
      
      resolution extends to all employés in the Depm-tments named therein. The clerics and officers of the Court of Claims noiu bring suit upon the ground that the decision of the Supreme Court covers their cases.
    
    The Twenty per cent. Resolution February 28, 1867, refers to clerks and em-ployés in the Executive Mansion and in certain-named Departments and bureaus, but does not extend to the clerks and employés of the judiciary. In the cases heretofore decided by the Supreme Court the question was whether the resolution embraced certain persons connected with the Executive Departments, and not whether it extends to the clerks and employés of any other than the Executive Departments.
    Messrs. Carlisle & McPherson for the claimant:
    This is a claim for the percentage upon the claimant’s salary granted him by the resolution of Congress, No. 30, of February 28,1867.
    He was clerk of the Court of Claims/ a civil service officer, and, as such, employed in the civil service of the United States at Washington, during the entire year from and after the 30th of June 1866, and so waS within the description of the act above referred to, as constructed by the Supreme Court in Mtzpatriclc y. The United States, (7 C. Cls. R., p. 290).
    
      Mr. Assistant Attorney-General Goforth for the defendants:
    The Joint Resolution February 28th, 1867, (14 Stat. L., p. 569,) provided:
    “That there shall be allowed and paid to the following-described persons-now employed in the civil service of the United States, at Washington, as follows:- To civil officers and temporary and all other clerks, messengers, and watchmen, including enlisted men detailed as such, to be computed upon the gross amount of the compensation received by them, and employés, male and female, in the Executive Mansion, and in any of the following-named Departments, or any bureau or division thereof, to wit: State, Treasury, War, Navy, Interior, Post-Office, Attorney-General’s, Agricultural; and including civil officers and temporary and all other clerks and employés, male and female, in the offices of the Coast Survey, Naval Observatory, Navy-Yard, Arsenal, Paymaster-General, (including the division of referred claims,) commissary-general of prisoners, Bureau of Refugees, Freedmen and Abandoned Lands, Quartermaster’s, Capitol and Treasury extensions, city post-office, and Commissioner of Public Buildings; to the photographer of the Treasury Department; to the superintendent of meters, and to lamplighters under the Commissioner of Public Buildings, an additional compensation of twenty per centum on their respective salaries as fixed by law, or, where no salary is fixed by law, upon their pay, respectively, for one year from and after the •30th day of June, 1866.”
    It is submitted that the claimants in these cases, who were the clerk, the assistant clerk, and the bailiff of the Court of Claims during the period named in this resolution, are not within its purview.
    The case of The United States y. Fitzpatrich, (7 C. Cls. B., p. 290,) quoted by the counsel for claimant, cannot possibly be construed so as to include these officers within the joint resolution.
   Nott, J.,

delivered the opinion of the court:

When the cases known as the Twenty per cent. Cases were first before this court, it was thought by my brother Milligan and myself, with other judges then on the bench, that they fell into two general classes, viz, of persons whose employments were within the civil service of the Government, and of persons whose employments were such as might be found under any other employer. The former we regard as the clerks, watchmen, laborers, and employés to which the Joint Resolution 28th February, 1867, referred; the latter as mere contractors with the Government, in no proper sense members of its civil service. Baker's Case, (4 C. Cls. R., p. 227.) To those views we still adhere as a matter of individual opinion, but have felt constrained to yield them to the very broad terms of the opinion of the Supreme Court in the test cases that were carried up, especially when coupled with the concession of the Attorney-General, that the opinion covered all of the cases in which judgment has recently been rendered. Indeed, as those were test cases appealed to obtain the opinion of the Supreme Court while some fifteen hundred other claimants were here awaiting their decision, we cannot doubt that the distinction which this court had made in favor of the Government was pressed upon the attention of the Supreme Court; and we cannot believe that the Supreme Court would have used language so broad and unreserved in its opinion, and cited the decisions of this court which were in favor of the claimants, and refrained from citing others which were in favor of the Government, unless it had been resolved by the court that the distinction we had made could not be sustained. With that decision before us, and the Attorney-General confessing that there was no defense, it would not have been proper for us to have again interposed doubts and objections of our own so as to throw upon parties the renewed delay of presenting a question to the Supreme Court which could have been and should have been presented before, if it was not. We therefore agreed to the judgments which have been rendered.

The present cases, however, are contested by the Attorney-General, and differ from those previously decided. In those the question was whether the joint resolution embraced certain persons connected with Executive Departments, and the Supreme Court answered that it did " if they'were employed by the head of the Departments or of the bureau or any division of the Department, charged ioith that duty, and authorized to malee such contracts and fix the compensation of the person employed — The Twenty per cent. Cases, (7 C. Cls. R., p. 290.) In these the question is whether the joint, resolution extends to the clerks and employés of any other than the Executive Departments. The decision of the Supreme Court related to the character of the employés in those Departments named in the resolution, and not to the character of the Departments embraced by the resolution.

Beferring now to the joint resolution, we are forced to conclude from its terms that it was intended to apply to the employés of the Executive Departments, and does not extend to those of the legislature or judiciary. Stripped of unnecessary words, the joint resolution, so far as applicable to the claimant’s case, would read as follows:

That there shall be allowed and paid to the following-described persons, now employed in the civil service 'of the United States, at Washington, as follows: To clerics in the Executive Mansion, and in any of the following-named Departments, or any bureau or division thereof, to wit: State, Treasury, War, Navy, Interior, Post-Office, Attorney-General’s, Agricultural; and including clerics in the offices of the Coast Survey, Naval Observatory, Navy-Yard, Arsenal, Paymaster-General, (including the division of referred claims,) commissary general of prisoners, Bureau of (Refugees, Freedmen and Abandoned Lands, Quartermaster’s, Gapi- tol and Treasury extensions, city post-office, and Commissioner of Public Buildings, an additional compensation of twenty per centum on their respective salaries as fixed by law.

It will be seen that this does not refer to clerks in the judicial department, and while it is so broad as to include every employ é with whom the chief of a bureau is authorized to contract, it by the very profuseness of its terms and designations excludes all others.

The judgment of the courtis that the petition be dismissed. But if the counsel desire to have this class of cases submitted to the Supreme Court, judgment proforma in favor of the claimant will be entered in one case, and the others will be remanded to await the decision of the Supreme Court.  