
    ALLISON’S CASE.
    (10 Court of Claims R., 449; 91 U. S. R., 303.)
    William Allison, appellee, v. The United States, appellants.
    
      On the defendants' Appeal.
    
    
      The Twenty per cent. Resolution, February 28, 1867, (14 Stat. L., p. 569,) extends to employés in the executive departments, hut not to employés in the legislative branch, of the Government. An employé of the Government Printing Office brings suit for the twenty per cent, on the ground that the Superintendent of Public Printing was an executive officer,, and his office a bureau of the Inteiior Department. The court below being inclined to dismiss the case, but having in view the radically different constructions given to the resolution by it and the Supreme Court, tvithholds a final decision and renders judgment pro forma for the claimant. The defendants appeal.
    
    I. The Superintendent of Public Printing was not under the control'of any one of the executive departments. Neither had the Secretary of the Interior control over the employment of men in the Government Printing Office, nor could he fix their wages, nor supervise the action of the Superintendent in that regard, nor pay them, nor control the funds out of which they were paid. The Superintendent’s office was to a certain extent an independent department, partly under the Secretary of the Interior, partly under the Secretary of the Treasury, but more responsible to Congress than to any other authority.
    II. The Government Printing Office not being a bureau or division of an executive department, nor specially enumerated in the Twenty per cent. Resolution February 28, 1867, (14 Stat. L., p. 569,) the employés therein arc not entitled to the increase given by the resolution.
    
      The Reporters' statement of the case:
    The court below found the following facts :
    1. Under and in pursuance of the Act February 22, 1867, (14 Stat. L., p. 398,) the Senate, on the 26th day of February, 1867, elected the first Congressional Printer; but the Superintendent of Public Printing continued in charge of the Government Printing Office up to and including the 28th February, 1867, and the Congressional Printer, so elected as aforesaid, did not take possession of the Government Printing Office, nor enter upon the duties of Congressional Printer, until the 1st day of March, 1867.
    
      II. On the 28th February, 1867, the claimant was an employé in the Government Printing Office, being paid by the day. During the fiscal year ending June 30,1867, he worked 236 days, and received therefor $279.48, twenty per cent, whereof is $55.90.
    And the Court of Claims, at the claimant’s request, made the following additional finding, to wit:
    In 1867 the commission of the Superintendent of Public Printing was made out and recorded in the Department of the Interior, and the seal of the Department was affixed thereto, pursuant to the provisions of the Act May 31, 1854, (10 Stat. L., p. 297, § 3.)
    
      Mr. Solicitor-General Phillips, for the United States, appellants:
    In the present case, in accordance with public policy, the whole bureau was transferred on the 26th of February, or before, from the executive to the legislative department. The time of transfer was defined by the election of the Congressional Printer, not by his entrance upon his duties. The person chosen Printer became such by election, and not by taking possession of the Printing Office, or entering upon his official duties. (United States v. Le Baron, 19 How., 73; United States v. Bradley, 10 Pet., 344.)
    The resolution of February 28,1867, operated upon the state of things on that day (“ now ”) existing in contemplation of law, and the state of things so contemplated could not be affected by accidents affecting some individual intrusted with a part therein; such as whether illness, or death, or carelessness, or any other incidental circumstance prevented his seasonable co-operation. If an outsider were qualified to rejudge the action of Congress herein, reasons would not be wanting to show that it was wise to make the consummation of the policy of such transfer depend upon a great public event, the time of which is easily ascertained, rather than upon a private transaction, the evidence of which may always be contradicted, and in a short time thereafter rapidly disappear. It is also submitted that there is nothing in the law existiug previously to the 22d of February, 1867, that attached the Superintendent of Public Printing and the parties in his employment to the Department of the Interior. Whether they were such is matter of law, not of fact. Taking the history of the office in the legislation above stated, it seems probable that Oougrcss at all times intended that this burean should be legislative in character, not executive. It has always been under the control of a congressional committee, (Act 1852, sec. 12, 10 Stat. L., p. 34,) and that appears to be a very powerful argument that it was not intended to be an executive bureau. Although the Constitution requires (Art. 1, sec. 2 (5), and sec. 3 (5)) each house to elect its own officers, there seems to be no constitutional objection to making one who is an officer of both houses to be appointed by the President and confirmed by the Senate.
    
      Mr. J. A. Garfield and Mr. Joseph Daniels, for the appellee:
    Before the passage of the act of February 22, 1867, the Government Printing Office was a bureau or division of the Department of the Interior. This is evident, because—
    First. The Superintendent of Public Printing was an officer of the United States, holding an office established by law. He was appointed to that office by the President, with the concurrence of the Senate, and it is one of the facts found by the court below, that his commission was made out and recorded in the Department of the Interior, and the seal of the Department was affixed thereto, in pursuance of the Act May 21, 1854, (10 Stat. L., p. 297,) which requires that “ the commissions of all officers under the control of the Secretary of the Interior shall be made out and recorded in the Department of the Interior, and the seal of said Department affixed thereto.”
    Second. He was required by law to give bond with two sureties, to be approved by the Secretary of the Interior, in a penalty of $20,000, for the faithful discharge of his duties, (10 Stat. L., p. 30,) and the amount was increased to $80,000 by the Resolution January 12, 1866, (14 Stat. L., p. 347.)
    Third. All his purchases of materials for the public printing, in open market, were made “ by and with the approval of the Secretary of the Interior.” (12 Stat. L., p. 117.)
    Fourth. The extension of the building for the office of public printing, in 1872, for which $45,000 was appropriated, was made under the supervision of the Supervising Architect of the Capitol Extension, (17 Stat. L,, p. 501,) who is himself under the control of the Secretary of the Interior.
    
      Fifth. He was required to make a report to the Secretary of the Interior, at the end of each fiscal year, of all the paper received and used, and in what works or publications it was used. (12 Stat. L., p. 117.)
    Sixth. The Secretary of the Interior has frequently recognized this relation of the Government Printing Office to his Department in his annual reports. (See especially reports for 1861 and 1865.)
    Seventh. The opinion of this court in Manning's Case fully sustains this position, (13 Wall., 568.) Speaking of the em-ployés at the Washington jail, the court say: “Evidently they are employés in a bureau or division of the Interior Department, as their compensation is fixed by the head of that Department, and the officer by whom they are employed is required annually to make a detailed report to that Department of all his official acts.” i
    The chief ground on which error is assigned in the court below is the assumption that “ the whole bureau was transferred on the 26th of February, or before, from the executive to the legislative department.” On the contrary, we maintain that the act of February 22, 1867, did not transfer the bureau of public printing to the Senate. By the express terms of the act itself the organization and duties of the bureau • are continued in full force, except that the appointment of its chief is taken from the President and given to the Senate. (14 Stat. L., p. 398, chap. LIX, secs. 1, 2.)
    “ He [the person elected by the Senate] shall superintend the printing and binding of the journals and such other documents as'shall be ordered by the houses of Congress, and shall superintend the execution of all the printing and binding for the respective departments of the Government now required by law to be executed at the Government Printing Office, and shall in all respects be governed by the laws in force in relation to the Superintendent of Public Printing and the execution of the printing and binding.” (lb., sec. 2.)
    The clause of the act which it is alleged transferred the bureau to the Senate is peculiar. It is in these words: “ The person so elected shall be deemed an officer of the Senate, and shall be designated Congressional Printer.” (!&., sec. 2.) The essential character of an office established by law cannot be changed by changing its name. To “ deem ” a person an officer of the Senate does not make Mm so. By whatever name its chief may be known, the Government Printing Office is established by law, not by the Senate. His duties relate not to the Senate, nor to the House, nor to Congress alone, but to all the executive departments as well. The laws now in force relating to the Public Printing Office demonstrate that it is still an executive bureau. The character of the duties and obligations of the chief of the bureau, as it now exists, since the act of February 22, 1867, are set forth in Title XLV of the Revised Statutes. He must still file his bond with the Secretary of the Interior in the penal sum of $80,000. (Rev. Stats., sec. 3759.) He must deliver to the Secretary of the Interior all books and documents directed by law to be printed for the use of the Government, except those printed for the special use of Congress, the President, and the several departments. (Sec. 3813.) He must still make his annual report to the Secretary of the Interior. (Sec. 3820.) Congress appropriates about $2,000,000 annually to be expended by him for the several departments of the Government, and he must render the account of his receipts and expenditures in the manner required by other disbursing officers of the United States. (Sec. 3817.) He must.report to the Solicitor of the Treasury every case of default on the part of contractors to furnish materials for the public printing. (Sec. 3777.) If he defraud the United States while in office, or corruptly collude with others to defraud them, he may be tried by any court of competent jurisdiction, and if found guilty shall be sentenced to fine or imprisonment, and forfeiture of his office. (Sec. 3784.)
    What office will he forfeit by judicial sentence? Manifestly an office under the United States. It will not be claimed that any court can depose an officer of the Senate. The Solicitor-General says: “ It seems probable that Congress, at all times, intended that the bureau should be legislative in character, not executive. It has always been under the control of a congressional committee. That appears to be a very strong argument that it was not intended to be an executive bureau.” We are at a loss to understand what is meant by a “legislative bureau.” The fact that a congressional committee is charged with certain duties in reference to the public printing, does not take from the Government Printing Office its character as an office established by law, any more than the action of a committee on naval affairs makes the Navy Department a legislative department. If by changing its name, and making its chief elective by the Senate, a bureau of an executive department may be transferred to the Senate, Congress can empower the Senate or the House to elect all the executive officers whose appointment the Constitution vests in the President.
    Section 1 of the act under consideration provides that “the Senate shall elect some competent person, who shall be a practical printer, to take charge of and manage the Government Printing Office.” (14 Stat. L., p. 398.)
    The Government Printing Office being “an office established by law,” it appears to be too plain for argument that the clause of the act of Congress which confers upon the Senate the power to appoint its chief officer is void, being clearly in conflict with the provisions of article 2, section 2, of the Constitution. This section was construed in 1823 by theforemostof American jurists, and that construction has never since been changed or doubted. In the United States v. Maurice et al., (2 Brockenbrough, 97,) Chief-Justice Marshall says: “This clause makes a general provision that the President shall nominate and, by and with the consent of the Senate, appoint to all offices of the United States, with'such exceptions only as are made in the Constitution ; and that all offices (with the same exceptions) shall be established by law.” In the same opinion the.Chief-Justicehas defined the word “ office ” as employed in the Constitution. He says: “An office is defined to be a public charge or employment, and he who performs the duties of the ‘ office? is an officer. If employed on the part of the United States, he is an officer of the United States.”
    This definition has been substantially adopted, and even more succinctly expressed by this court in United States v. Hart-well, (6 Wall., 385,) where the court say : “An office is a public station or employment, conferred by the appointment of Government. The term embraces the idea of tenure, emolument, and duties.” This definition applies perfectly to the chief of •the Government Printing Office.
    In the light of this opinion and of the laws already referred to, it is clear beyond question that the Government Printing Office is an office of the United States; and the Constitution requires it to be filled by an appointment by the President, unless the Congress shall vest the appointment in the head of an executive department or in a court. The act of the Senate in electing a chief of the Government Printing Office does not come within the power conferred upon either house of Congress to elect its own officers. (Article 1, secs. 2, 3.)
    It was very properly held by the Court of Claims in Hiehoi-son’s Case, (1863,) “that an officer of either house, in the sense of the Constitution, must necessarily be one whose duties are confined to the business of that house. Each can have officers for no other purpose; and those officers are but its agents, and cannot have powers more extensive than their principal.” It has already been shown that the powers and duties of the chief of the Government Printing Office extend far beyond the duties of either house of Congress. In a later case, Clapp v. The United States, (7 O. Cls. R., 351,) the Court of Claims held that, by the act of February 22, 1867, the employés in the Government Printing Office did not become employés of the Senate.
    That the office of Superintendent of Public Printing, established by the act of August, 1852, is an office of the United States, has been recognized by this court in United States ex rel. Beverly Tuelcer v. Seaman, (17 How., 225.) Beverly Tucker, printer to the Senate, applied to the circuit court of the District of Columbia for a mandamus to compel Seaman, the Superintendent of Public Printing, to deliver the manuscript of the agricultural report to him (Tucker) to be printed. The petition was refused, and the case was brought to this court by writ of error. The argument for the Superintendent was made by the Attorney-General of the United States. The court dismissed the writ on the ground that the duties of the Superintendent on the subject referred to in the petition for the mandamus “ were not merely ministerial, but that he had inquiries to make before he could execute the authority he possessed. * * * He was obliged to examine evidence and form his judgment before he acted: and whenever that is to be done it is not a case for a mandamus.”
    Congress seem recently to have taken the same view of the subject, for by the Act June 20, 1874, (chap. 338, p. 88,) “so much of the act of February 22, 1867, as provides for the election of a Congressional Printer by the Senate and makes him an officer of the Senate is repealed, and such officer is declared an officer of the United States, to be appointed by the President by and with the advice and consent of the Senate; said repeal to take effect on the first vacancy.”
    The Solicitor-General insists that the election of the Congressional Printer, not his entrance upon his duties, marks the time of transfer, and cites in support of this view United States v. Le Baron, (19 How., 73,) and United States v. Bradley, (10 Peters, 343.) Both cases relate to officers appointed by the President and confirmed by the Senate, and resemble the case at bar very remotely. So far as the United States v. Le Baron is applicable, it strongly supports the position herein maintained. In that case the question was raised, “ When does the bond of a deputy postmaster take effect?” The court say, (pp. 76-7:) “ Our opinion is, that the bond speaks only from the time when it was accepted by the Postmaster-General. * * * The deputy-postmaster cannot act until his bond is accepted by the proper officer of the Department.” So, in the pending case, we hold that the Congressional Printer could not act until his bond was approved by the Secretary of the Interior. The other case cited (10 Peters, 343) grew out of a suit brought by the United States against the sureties of Hall, a defaulting paymaster of the Army. It was claimed by counsel for the defendant that the bond was not in accordance with law, and hence that Hall was not lawfully a paymaster. The court held that Hall, “having received Government moneys as paymaster, must account for them as paymaster,” and that the bond, though irregular in some respects, was valid. In delivering the opinion of the court, Justice Story remarked that “ the giving of the bond was not a condition precedent to his authority to act as paymaster.” This was clearly obiter dictum, the question at issue before the court being the validity of the bond. We have already seen that, in the later case, (19 How., 73,) the court held that a deputy postmaster could not act until his bond had been accepted by the Post-Office Department.
   Mr. Chief-Justice Waite

delivered the opinion of the court:

Allison was an employé in the Government Printing Office from June 30,1866, to June 30, 1867, and, in this suit, claims additional compensation for his services in consequence of the Joint Resolution February 28, 1867. (14 Stat. L., 509.) He contends that the Government Printing Office was, during the fiscal year commencing July 1,1866, a bureau in the Department of the Interior. If it was not, he substantially concedes he is not entitled to the benefit of the resolution.

The Department of the Interior is one of the executive departments of the Government. (Rev. Stat., § 437.) It was made so March 30,1849. (9 Stat., 395.) It is specially charged with the supervision of certain executive bureaus. Its present jurisdiction is defined in section 441, Revised Statutes. The Government Printing Office has never been placed under its jurisdiction by any express statute.

On the 26th August, 1852, Congress passed an act entitled “An act to provide for executing the public printing and establishing the prices thereof, and for other purposes.” (10 Stat. L., 30.) It is only necessary to say of this act, that it provided for the appointment of a superintendent of public printing, and that he was to give an official bond to be approved by the Secretary of the Iuterior. His duties were carefully defined, and he was made in fact, what his name implies, the superintendent of the public printing by the public printers. These public printers were, at that time, appointed by the two houses of Congress ; each house appointing its own.

On the 23d of June, 1860, a joint resolution was passed by Congress “inrelation to the public printing.” (12 Stat. L., 117.) This resolution dispensed with the public printers appointed by the two houses of Congress and placed the whole subject of public printing in charge of the superintendent. In the language of the resolution (sec. 2) he was “ to superintend all the printing and binding, the purchase of paper, * * * the purchase of other necessary materials and machinery, and the employment of proof-readers, compositors, pressmen, laborers, and other hands necessary to execute the orders of Congress and of the executive and judicial departments at the city of Washington.” To enable him more effectually to perform his duties he was to appoint a foreman of printing and a foreman of binding. These foremen were required to report to' him and to furnish him their estimates of the amount and kind of material required. He furnished them their supplies, for which they accounted to him. He was also to report to Congress at the beginning of each session the number of hands employed and the length of time each had been employed. And by section 9 it was made his duty to report to Congress “the exact condition of the public printing, binding, and engraving; the amount and cost of all such printing, binding, and engraving; the amount and cost of all paper purchased for the same; a statement of the several bids for materials, and such further information as may be within his knowledge in regard to all matters connected therewith.” JBy section 3 he was required to render to the Secretary of the Treasury, quarterly, a full account of all purchases made by him and of all printing and binding done in his office for each of the houses of Congress and for each of the executive and judicial departments. The Secretary of the Treasury was also authorized to advance ifioney to him on account, and he was to settle his accounts of receipts and disbursements in the manner then required of other disbursing-officers. By section 9 it was made the duty of the Superintendent, annually, to prepare and submit to the Register of the Treasury, in time to have the same embraced-in the general estimates from that Department, detailed estimates of salaries and other necessary expenses of the printing establishment for the second year. By section 7, the Joint Committee on Printing for the two houses of Congress was directed to fix upon a standard of paper for the printing of congressional documents. The Superintendent was to advertise for proposals to furnish the Government all paper necessary for the execution of the public printing, and to furnish samples of the standard paper to applicants therefor. The bids were to be opened by him in the presence of the Secretary of the Senate and the Clerk of the House of Representatives, and he was required to award the contract to the lowest bidder. All differences in opinion between the Superintendent and the contractors were to be settled by the Joint Committee on Printing of the two houses. Whenever engraving was required to be done to illustrate any document ordered to be printed by either house of Congress, the Superintendent was to procure it to be done under the supervision of the Committee on Printing of the house making the order.- (Sec. 8.) By section 7 it was provided, that if the contractor for furnishing paper failed to make his deliveries, the Superintendent might purchase for temporary supply in the open market, “by and with the approval of the Secretary of the Interior.” He was also, by the same section, to render to the Secretary of the Interior, at the end of each fiscal year, an account of all paper received from contractors, and of all paper used for the purposes of the Government under that act, and also the amount of each class consumed in the printing establishment, and in what works the same were used. Defaults by contractors in furnishing paper under their contracts were to be reported by the Superintendent, with a full statement of all the facts, to the Solicitor of the Treasury for prosecution.

The commissions of all officers under the direction or control of the Secretary of the Interior must be made out and recorded in the Department of the Interior, and the seal of the Department must be affixed thereto. (10 Stat. L., 297, § 3.) The court below has found as a fact that “in 1867 the commission of the Superintendent of Public Printing was made out and recorded in the Department of the Interior, and the seal of the Department affixed thereto, pursuant to the provisions of” this act. It nowhere appears that any act of Congress expressly required this to be done; neither does it appear at what time in the year 1867 this commission was issued or recorded.

On the 22d February, 1867, Congress passed an act entitled “An act providingfor the election of the Congressional Printer.” By this act the Senate was to elect some competent person “to take charge of and manage the Government Printing Office.” He was given the same powers as the Superintendent of Public Printing. From and after the election of the Congressional Printer the office of Superintendent of Public Printing was abolished. (14 Stat. L., 397.) The Senate elected a Congressional Printer in pursuance of this act February 26, but he did not take possession of his office until March 1, and the Superintendent continued to act until that time. The Superintendent was acting on the 28th of February, when the resolution under which Allison claims was passed.

In Manning’s Case (13 Wall., 578; 7 C. Cls. R., 294) it appeared that the guards of the jail in the District of Columbia were selected by the warden, but that their compensation was fixed and paid by the Secretary of the Interior. It also appeared that the whole subject of the jail was under the supervision of the Secretary, to whom the warden was required to report. Under these circumstances we held that theoffice of the warden of the jail was a bureau or division of the Department of the Interior.

This is as far as any case has yet gone. The Secretary of the Interior has no control whatever over the employment of men by the Superintendent of Public Printing. He cannot fix their wages or supervise the action of the Superintendent in that particular. He does not pay them, and has no control whatever of the funds out of which they are paid. He may pay the Superintendent for printing done upon the order of his Department, but the Superintendent disburses without any accountability to him. In short, the Superintendent seems to have a department of his own, in which he is in a sense supreme. Certainly he is not under the control of any one of the Executive Departments. Apparently he is more responsible to Congress than any ocher authority. The Secretary of the Interior keeps and approves his bond. The same Secretary must, under some circumstances, approve his purchases of paper in open market. He sends to that Department also his accounts of the receipts and disbursements of paper. The Joint Committee on Printing in the two houses of Congress settle all disputes between him and his contractors for the delivery of paper. He reports to Congress in respect to his employés, and to the Secretary of the Treasury in respect to his receipts and disbursements. From that Department also he draws his money upon proper requisitions. He is under the direction of the committees of each house of Congress in respect to engraving, and he goes to the Secretary of the Treasury with his estimates.

In our opinion his employés, as they are not specially enumerated, are not included in the resolution of February 28, 1867, and on that account this claim cannot be maintained.

The view we have taken of this case makes it unnecessary to consider the effect of the election of a Congressional Printer on the 26th February, 1867.

The judgment of the Court of Claims is reversed, and the cause remanded with instructions to dismiss the petition.  