
    PETER H. ALLABACH v. THE UNITED STATES.
    [No. 14268.
    Decided May 26, 1884.]
    
      On the Facts.
    
    An appropriation act awards one montli’s extra pay to the officers and em-ployés of tlie Senate and House of Representatives borne on the annual session rolls. The police of the Capitol are appointed by a board consisting of the Architect and the Sergeants-at-Arms of both houses. They are borne on a pay-roll of Con gress and have the entire supervision of the Capitol and its grounds whether Congress is in session or not.
    I. The Sundry civil appropriation Act 1883 (23 Stat. L., p. 226), which awards one month’s extra pay to “the officers and employees of the Senate and Souse of Representatives home on the annual session rolls," does not extend to the Capitol police.
    
      II. Though the Capitol police are borne on the x>ay-rolls of Congress, yet being appointed by the Capitol police board and being custodians of the building and grounds of the Capitol, they have not been regarded as employés of the Senate and House in previous legislation.
    
      The Reporters’ statement of the case:
    This action the claimant brought by the voluntary filing of his petition. The following are the facts as found by the court:
    I. The claimant was on the 3d of March, 1882, as he had been previous thereto, captain of the Capitol police.
    II. His name, on the 3d of March, 1883, was on a pay-roll of the Secretary of the Senate and the Clerk of the House of Representatives, and each officer paid him alternately.
    III. The Capitol police were appointed by the Sergeants-at-Arms of the Senate and the House of Representatives and the Architect of the Capitol extension. They organized as the Capitol Police Board, the Architect as president.
    IV. Said Board made rules and regulations for the government of the police as follows:
    “RULES and regulations GOVERNING THE CAPITOL
    POLICE.
    “1st. The duties of the police shall be to preserve order and decorum within the Capitol and its grounds, protect the public property, and enforce the rules and regulations prescribed by Congress and the Capitol Police Board.
    “2d. The police shall be divided into such reliefs as may be deemed best by the president of the Board and the captain.
    “ 3d. The captain shall divide the building and grounds into proper beats, and detail the force accordingly.
    “ 4th. The police, when on duty, shall be particular as to their personal appearance, and prompt and courteous in their attention to visitors. They are forbidden to injure the walls, piers, columns, or other portions of the building by leaning against or putting their feet on the same, and they shall, in a respectful manner, prevent others from doing the like injury. Reading, writing, or smoking while on duty is prohibited, except during the night-watch.
    “ 5th. All applications for leaves of absence must be made in writing to the captain, and before being allowed must be approved by the Board, except in their absence, when the captain is hereby authorized to act.
    “ 6th. Each member of the force shall be entitled to fifty days’ leave of absence during the year, and in all cases where the absence extends beyond that time, for any cause, the Board shall place a substitute on duty, who shall receive the pay of the-principal during such absence.
    
      “ 7th. The Capitol will be opened at 9 a. m. and closed at 4.30 p. m., except on Sundays, legal holidays, and when either house of Congress is in session, when the respective wing will remain open until adjournment.
    “ 8th. No one will be allowed to enter or remain in the building after it is closed for the night, or on Sundays or holidays, except persons in the employment of Congress, the Supreme Court, or Library of Congress, unless by special permission. And no person will be permitted to loaf in or about the building.
    “ 9th. The use of intoxicating liquors by members of the force, while on duty, is prohibited. Drunkenness shall be cause for removal.
    “ 10th. The police while on duty shall appear in full uniform; but the captain may detail any member of the force for special ■duty in citizen’s dress.
    “11th. The captain is authorized to make and enforce such additional rules and regulations as from time to time he may deem necessary, reporting the same to the president of the Board.
    “12th. No guides will be permitted to show visitors over the Capitol, -except those under the control of the Capitol Police Board.
    “Approved: “Edward Clark,
    “ Architect U. 8. Capitol.
    
    “John C. Thompson,
    “ 8ergeant-at-Arms ZJ. 8. Rouse of Representatives.
    
    “ R. J. Bright,
    
      u8ergeant-at-Arms 77. 8. Senate.77
    
    
      Y. The pay of captain of police was, on the 3d of March, 1883, at the rate of $1,600 per year.
    VI. The Capitol police were paid on December, 1882 and 1883, under the following resolution:
    •“JOINT RESOLUTION authorizing the payment of the salaries of the employ 6s of the two houses of Congress on the twenty-second instant.
    “ Resolved by the Senate and Rouse of Representatives of the United States of America in Congress assembled, That the Secretary of the Senate and the Clerk of the House of Representatives be and they are hereby authorized and directed to pay the employés of the two houses of Congress their salaries for the -current month on the twenty-second instant.
    “Approved, December 22, 1882.”
    [Public Resolution — No. 2.]
    ■“JOINT RESOLUTION authorizing the payment of the salaries of the em-ploy6s of the two houses of Congress on the twenty-second instant.
    “ Resolved by the Senate and Rouse of Representatives of the United States of America i/n Congress assembled, That the Sec-scetary of the Senate and the Clerk of the House of Representatives be and they are hereby authorized and directed to pay the employés of the two houses of Congress their salaries for the current month on the twenty-second instant.
    “Approved, December twenty-first, 1883.”
    Upon the foregoing findings the court determined as conclusion of law that the petition be dismissed.
    
      Mr. F. J. Lippitt (with whom was Mr. James Lowndes) for the claimant.
    
      Mr. F. H. Howe (with whom was the Assistant Attorney-General) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

The claimant alleges that on the 3d day of March, 1883, he was, as he had been, captain of tbe Capitol police; that his pay was by law at said time at the rate of $1,600 a year; that on the said date an act was passed making appropriations for sundry civil expenses, providing that “the officers and employees of the Senate and House of Representatives borne on the annual session rolls on the 3d of March, 1883, should be paid <ong month’s extra pay,” and that on said day he was borne on the annual session rolls of the Senate and House of Representatives as an employé thereof. This suit is brought to recover the sum of $133.33, the payment having been refused.

The portion of the statute referred to in the petition is as follows:

“That the following sums be, and the same are hereby, appropriated, # * * to enable the Acting Secretary of the Senate and Clerk of the House to pay the officers and employees of the Senate and House of Representatives, respectively, borne on the annual and session rolls on the 3d day of March, 1883, one month’s extra pay, at the rate of compensation then paid them by law, whióh shall be immediately available.”

It is insisted on the part of the defense that the claimant is neither an officer nor employé of the Senate or House, and therefore not entitled to the benefit of said law. Upon the decision of that question depends the claimant’s right to recover.

The captain of the Capitol police is appointed by the joint action .of the Sergeants-at-Arms of the two houses of Congress and the Architect of the Capitol extension. He is paid by the sergeants of either house, acting alternately, and for that purpose his name appears on a pay-roll of both houses.

In order for the claimant to recover, he must, by the requirement of the statute, have the qualifications of being borne on the annual session rolls, and be either an officer or an employé of the Senate or House of Eepresentatives. By finding II he was on the 3d of March, 1883, on the “pay-roll” of Congress, and the question arises, was he on that day an officer or employé within the meaning of the law.

The fact that his name appears on a pay-roll of both houses will not confer upon the claimant the right to recover, as his right to be on such rolls depends upon the qualification whether he was in contemplation of the statute an officer or employé of either house.

Prior to 1867 the police of the Capitol were appointed by the Commissioner of Public Buildings and Grounds$ then it was provided that the Chief Engineer of the Army and the Sergeants-at-Arms of the two houses should constitute the Board; and by the act of 1873 the “Architect of the Capitol extension” was added in place of the Chief Engineer of the Army.

The officers who by law constitute the appointing power have organized, as a distinct Board, the Architect being the president. The rules adopted by this board embrace the entire supervision of the Capitol and its grounds, whether Congress is in session or not. It is a police having jurisdiction of the grounds and Capitol as the property of the United States, and which is simply incidentally protective, to each house of Congress, in the preservation of “order and decorum within the Capitol and its grounds.”

It cannot be said that Congress intended to employ such a large force in addition to the ordinary force of. a legislative body simply to preserve order, to facilitate and protect the deliberations of the two houses. But it is insisted by the claimant that the fact that the police áre paid by the officers of the House, and for that purpose are on a roll, and that they have been paid in advance under a resolution anticipating the payment of officers and employés, is such a legislative construction as authorizes their payment under the act of March 3,1880.

At the time said act was passed a joint resolution was also passed providing in express terms that those on -the pay-roll ■on the 1st of July, 1882, should be paid one month’s extra pay. The last resolution would seem to indicate that when Congress intended to provide for them they did so by express provision. They are not appointed by the joint or several action of the houses, but by a Board, having distinct powers to do so, under the act of 1873.

A question somewhat similar to the one at issue came before this court in the case of Saunders (22 Wall., 492; 10 C. Cls. R., 63). In that case the court, in substance, held that an employé “had reference only to persons employed under the direction •of the two houses of Congress or their committees; and in the statute construed, in that case, all the employes of the Senate and House are enumerated, and in addition thereto the “Capitol police.” (14 Stat. at L., 323, section 18.) It is true at that time the police were appointed by a Board differently constituted, but that fact is not sufficient to justify a different construction of the law.

Considering the history, duties, and laws incident to the police, we must determine that they do not come within the description of persons contemplated by the act of March 3,1883.

It is therefore adjudged that the petition of claimant be dismissed.  