
    EDMUND S. OGDEN v. THE UNITED STATES.
    [No. 17101.
    Decided June 27, 1892.]
    
      On the Proofs.
    
    A census agent is appointed to collect statistics in Natchez. His appointment fixes his compensation. It is the practice of the office not to pay the amount named if the work falls below the average; but this practice does not appear in the printed regulations, nor is the claimant informed concerning it. He resides 16 miles from Natchez, but it is supposed at the time of his appointment that he resides in Natchez.
    I. The compensation named in the appointment of a census agent is not subject to a reduction under an office rule not published in the regulations and not known to the agent.
    II. A claim for subsistence by a pension agent can not be allowed where the Superintendent of the Census and Secretary of the Interior have fixed his compensation and have made no allowance for subsistence. The rule in Test's and Barre’s Cases (ante) reaffirmed.
    
      The Reporters statement of tbe case:
    Tbe following are tbe facts of tbis case as found by tbe court:
    I. On August 27,1890, under tbe provisions of tbe Act Mmeh 1,1889, chapter 319,1 Supp. Rev. Stat., 2d ed., pp. 658, 659), tbe claimant was appointed by the Superintendent of the Census to be a special agent to collect statistics of manufactures in the city of Natchez, Miss. His appointment and compensation, fixed by the Superintendent, were approved by the Secretary of the Interior, as follows:
    “ DEPARTMENT OE THE INTERIOR,
    “ Washington, September 1,1890.
    
    “The Superintendent oe Census:
    “ Sir : Tour appointment, as stated in your letter of the 27th ult., of Mr. Edmund S. Ogden, of Mississippi, as special agent of the Census Office, to collect the statistics of manufactures in Natchez, at a compensation of $4.00 per day, when actually employed, is hereby approved.
    “ Yery respectfully,
    “ Geo. Chandler,
    
      “Actmg Secretary.”
    His commission was sent to him at Natchez, inclosed in the following letter:
    “ Department oe the Interior,
    Census Oeeioe,
    “ Washington, I). C., Sept. 17,1890.
    
    “ Edmund S. Ogden,
    
      “Natchez, Miss.:
    
    “ Sir : I inclose herewith your commission as special agent of the Census Office to collect the statistics of manufactures in the city of Natchez, Miss., at a compensation of $4.00 per day when actually employed.
    “This appointment will expire by limitation-days from date of entry on duty. The time allowed is believed to be ample for a complete enumeration of the establishments of productive industry within the limits of the territory assigned to you, and will not be extended.
    “This appointment and rate of compensation has been submitted to and approved by the honorable Secretary of the Interior, as required by section 18 of the act entitled ‘An act to provide for taking the Eleventh and subsequent Censuses/ approved March 1,1889.
    “A blank form of oath is inclosed, which must be duly executed and returned to this office through the division of manufactures before you enter upon the discharge of your duties.
    “Robert P. Porter,
    “ Superintendent of Census.”
    II. He took the official oath and entered upon liis duties October 1,1890, and continued until February 20,1891, during which time he was actually employed 111 days and has been paid $269.
    
      III. It was the practice of the Census Office not to pay the special agents the full compensation fixed at the time of appointment when they attained the lowest average result made by the majority of agents engaged in similar work, but no such practice is mentioned in the printed regulations sent to claimant, nor does it appear that he was informed of the practice until a few days before his work was closed, when he received the following letter:
    “Department op the Interior,
    Census Oppioe,
    “ Washington, D. C., February 13,1891.
    
    “ Sir : This office is in receipt of your expense accounts for the month of December, from which it appears that you claim compensation for twenty-one days as special agent to collect statistics of manufactures in Natchez, Miss. During this period you obtained, on an average, slightly exceeding one return per day, and reported a total of seventy-five visits to establishments from which returns were not obtained.
    “ The majority of special agents engaged in similar work in other cities of equal manufacturing importance with Natchez, Mississippi, obtain daily from four to eight returns, and visit from five to twenty-five establishments without obtaining, at the time of such visits, the returns required fbr census purposes. A comparison of your work with such averages is not favorable to you.
    “ Full compensation, at the rate of $4.00 per day, can not be allowed, under the regulations of this office, to special agents who do not attain the lowest average made by the majority of agents engaged in similar work.
    “Inclosed please find corrected vouchers, prepared from your daily reports, for seven and one-half days’ service, at $4.00 per diem, amounting to $30.00, which is all that can be allowed you for the services rendered.
    “ Yery respectfully,
    “ Bobert P. Porter,
    “ Superintendent of Census.
    
    “ Mr. E. S. Ogden,
    “ Special Agent, Watches, Miss.”
    
    IY. When appointed he resided at or near Oannonsburg, about 16 miles from Natchez, though that fact was not known to the Superintendent and Secretary at that time nor while he remained in office. His appointment and all official communications were sent to him at Natchez, which was supposed at the Census Office to be his residence.
    
      V. He traveled from time to time from Ms borne, to Natcbez, tbe place of bis official duties.
    
      Mr. Chapin Brown and Mr. A. S. O’Connor for tbe claimant.
    
      Mr. Felix Brannigcm (witb wbom was Mr. Assista/nt Attorney-General Cotton) for tbe defendants.
   Richardson, Cb. J.,

delivered tbe opinion of tbe court:

Tbe claimant was appointed a special agent of tbe Census Office to collect tbe statistics of manufactures in Natcbez, Miss., witb a compensation of $4 a day when actually employed. It was supposed at tbe Census Office that be resided in Natcbez, and bis appointment and all official commuMcations were addressed to him at that place; but, in fact, be resided about 16 miles from Natcbez, and was obliged to travel to and from that place in tbe performance of bis duties.

Tbe letter of appointment fixed bis compensation at $4 a day while actually employed, and made no provision as to traveling expenses.

It was tbe practice of tbe office that fall compensation was not allowed to agents unless they attained tbe lowest average results made by a majority of agents engaged in similar work. This practice was not provided for in tbe printed regulations sent to claimant, and be was not informed of it until a few days before tbe close of bis work, when be received tbe letter set forth in finding in.

He was employed 111 days, which, at $4 a day, entitled him to $444, and be was paid, according to tbe practice adopted by tbe Department, only $269.

Tbe claim is for tbe difference of per diem compensation fixed at tbe time of bis appointment and tbe amount actually paid to him, and also a per diem of $3 in lieu of subsistence.

In our opinion tbe compensation fixed by agreement at tbe beginning was not subject to reduction by a practice of tbe office not provided for in tbe regulations and not otherwise known to him, and that be is entitled to tbe full compensation fixed by tbe terms of Ms appointment.

Tbe claim of $3 a day for subsistence can not be allowed, since tbe Superintendent and Secretary did not so agree when, witbin tbe maximum authorized by tbe statute, they fixed bis compensation at $4 a day. Tbe provisions of law appboable to claims for subsistence have been fully reviewed in the recent cases of Test and Barre (ante, pp. —), and it is only necessary to refer to them for a full exposition of our view on tbe subject.

Judgment will be entered for tbe claimant for $175.  