
    PAUL C. LELLMANN v. THE UNITED STATES.
    [No. 21270.
    Decided January 6, 1902.]
    
      On the Proofs.
    
    A draftsman in the office of the surveyor-general for Idaho and in the classified civil service is suspended by the surveyor-general. No charges are preferred against him, the suspension being upon the alleged ground that his services are not needed. Two weeks after this the surveyor-general reports an accumulation of work, and asks for another draftsman. The Commissioner disapproves these proceedings, and orders the surveyor-general to reinstate the claimant. The surveyor-general then prefers charges against the claimant, which are found by the Civil Service Commission to be untrue. Subsequently the Commissioner of the Land Office orders that the claimant’s suspension be permanent. The claimant seeks to recover his salary from the time of his first suspension to the time of bringing this action.
    I. Where a clerk in the office of a surveyor-general was suspended by him without charges being preferred, but the suspension was revoked by the Commissioner of the General Land Office and his reinstatement ordered, the revocation invalidated the suspension, and the clerk was entitled to the salary of his office during the period of his susj)ension.
    II. Where a clerk in the classified service was suspended and charges were preferred against him by a surveyor-general, and the Commissioner investigated the charges and ordered that the suspension be permanent, the action of the Commissioner was in legal effect a dismissal, and can not be reviewed by the judiciary.
    
      The Reporten? statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Paul C. Lellmann, is a citizen of the United States, residing in Boise, Ada County, Idaho.
    On .November 1, 1893,-he was appointed by the United States survej’or-general for the State of Idaho to a clerkship as a draftsman in his said office for an indefinite period at a salary of fourteen hundred ($1,100) dollars per annum; he was placed within the classified service by order of the President of the United States May 6, 1896, and he held said position as clerk and continued to serve as such, in the capacity of a draftsman, at said annual salaiy of fourteen hundred ($1,400) dollars, up to November 1,1897.
    II. On November 1, 1897, he was suspended from said service by the surveyor-general. No charges in writing or orally were preferred against him, either touching his service as a clerk or otherwise. Said surveyor-general based said suspension upon the fact that his services were not required on account of the lack of work .-to be done. The surveyor-general, on the 15th of November, 1897, reported an accumulation of mineral work, and the employment of certain clerks by himself, and requested the appointment of additional clerks; shortly after Lellmann’s suspension the survejmr-general requested the appointment of another draftsman; that the Commissioner of the General Land Office, on November 22,1897, advised the sunuyor-general as follows: “The ground taken that certain persons were dismissed because there was no further occasion for their services, and the immediate appointment of other persons in their places can not be sustained.” That claimant has not since said date last aforesaid been permitted to discharge the duties of said clerkship, although he has at all times since said date stood ready and willing to discharge the duties thereof. The United States has not paid him any money in payment of his salary as said clerk since October 31, 1897; he has applied for reinstatement to his said office, and on November 5, 1897, protested against his suspension, and requested payment of his salary.
    III. Mrs. Ina M. Way was employed November 15, 1897, by the surveyor-general as a stenographer and typewriter at a salary of $1,100, but never recognized by the Civil Service Commission and never paid by this office.
    Miss Edna Sprague was employed November 15, 1897, by the surveyor-general, temporarily, at a salary of $3.50 per day; never recognized by the Civil Service Commission and never paid by this office.
    James J. Porrault, jr., salary $400, as messenger, appointed November 2, 1897; last day of service, August 31, 1898:
    Miss Lucian Leonard, salary $1,100, December 30,1897, to March 31, 1898, stenographer and typewriter; appointed for thirty days and extended each month to March 31, 1898.
    
      F. C. Whitthorne, salar}'- $900, transferred from surveyor-general’s office, Olympia, Wash.; on duty January 3, 1898; resigned April 15, 1898.
    R. McCracken, salary $1,000, appointed January 6, 1898, and still (December 13, 1899) in the service.
    John D. Bell, salary $900, appointed January 7, 1898; still (December 13, 1899) in the service.
    Viola Scull}7-, salary $900, appointed August 1, 1898, promoted to $1,000 July 1,1899; still (December 13,1899) in the service.
    Dwight D. Chase, salary $400, messenger, appointed September 1, 1898; still (December 13, 1899) in the service.
    Charles H. Irwin, salary $4 per day, appointed October 12, 1898, mineral draftsman, employed to April 22, 1899; out of the service. -
    Earnest H. Hesse, mineral draftsman, salary $4.50 per day, appointed May 27, 1899; still (December 13, 1899) in the service.
    Frank Bishoprick, entered on duty November 2, 1897, approved by Civil Service Commission, for thirty days, at $75 per month, vice Kempt, resigned.
    Theodore Simon, appointed April 6, 1891, mineral draftsman, at $5 per day, promoted April 1, 1898, to $1,600.
    Axel Nixon, appointed August 1, 1893; still (December 13, 1899) in the service; present salary, $1,400 per annum.
    Elmer E. Forshay, appointed January 20,1896, salary $1,200 per annum, promoted November 2, 1897, to $1,400 per an-num; still (December 13, 1899) in the service.
    Charles Paynton, appointed June 21, 1886; still (December 13, 1899) in the service; present salary, $1,100 per annum.
    IV. On November 1, 1897, the surveyor-general reported the resignation of certain clerks to the office of the General Land Office, and in addition thereto notified said Commissioner that from that day the claimant and others ceased to be employed in his office, because the amount of work to be executed in this office, at the present time, does not justify their retention.
    On November 9, 1897, the Commissioner of the General Land Office replied to the surveyor-general stating-“the resignations are approved, and also the discontinuance of the service of the clerks who are no longer required for the business of your office.” It is stated in the communication of the Commissioner of the General Land Office that the business pending before the surveyor-general’s office on November 1 did not show that it demanded the retention of the claimant, or the employment of any other person in his stead, and no other draftsman was employed for about eleven months after claimant’s services were dispensed with.
    Y. The Commissioner of the General Land Office, on the' 27th day of Mhy, 1898, revoked the action of the surveyor-general aforesaid in suspending claimant, and directed said surveyor-general to reinstate him, which he did on June 3, 1898, but did then prefer charges against the claimant; that said charges were found to be untrue by the Civil Service Commission, basing its finding upon the report of an investigating agent; that pending the investigation of said charges the suspension of claimant was continued, and it was also continued thereafter up to the present date.
    In the order directing the reinstatement of the claimant the Commissioner of the General Land Office said:
    “I have received your letter of the 15th instant, in reply to mine of the 10th instant, directing you to reinstate the clerks in your office to which jtou make objection. As it appears from your letter of November 1,-1897, that your sole reason for dispensing with the services of Lellmann and Miss Howie was the ’lack of work, and as the action of the Civil Service Commission was based upon such statement by you, the directions to restore them to duly, already conveyed to you by direction of the Commission, should be promptly complied with when you shall have work. Therefore, if you have charges to make against them you will proceed in the manner directed by departmental circular order of October 27,1897.”
    VI. Lellmann replied to those charges, and on August 8, 1898, the Commissioner of the General Land Office, upon said charges and the defense thereto by claimant, said:
    “After a careful review of the evidence and a thorough investigation, so far as it can be possible to make it with the proof submitted and the evidence obtained in this office, I am of the opinion that Lellmann’s services and conduct while a draftsman in the office of the surveyor-general of Idaho were not of such a character as to entitle him to further retention in the public service, and his suspension will be permanent.”
    
      VII. The charges preferred against Lellmann made by the surveyor-general on the 3d of June, 1898, were (1) inefficiency in discharge of his duty because of the intemperate use of intoxicating liquors; (2) the execution of an affidavit falsely charging the surveyor-general with a conspiracy with the draftsman in his office to allow the working force in his office to be reduced so that the work which should be performed at the expense of the Government would accumulate and thereby compel deputy surveyors to have the same performed at their own expense; (3) that said affidavit was executed by said claimant at the request of the engineer of Idaho for the purpose of securing the nonapproval of the Commissioner of the General Land Office of certain proposed contracts for the survey of the public lands; (1) inefficiency as a draftsman in requiring more time in the execution of work than is ordinarily required by reasonably expert draftsmen.
    
      Mr. W. G. Andrews for the claimant.
    
      Mr. Fdix Brannigan (with whom was Mr. Assistant Attorney - General Pradt) for the defendants.
   WeldoN, J.,

delivered the opinion of the court:

On April 4-, 1899, the claimant filed a petition in which it is substantially alleged: That on the 1st day of November, 1893, he was appointed to a clerkship in the office of the surveyor-general in the State of Idaho at a salary of $1,100 per annum; that he continued in the service of the United States as such clerk until November 1, 189T, when he was suspended without fault on his part; that since said date he has been willing and ready at all times to discharge the duties of said office; that his suspension was without just cause; that in suspending the claimant the surveyor-general gave no reason for such suspension, except that said surveyor-general might take time to learn if there was any work for him to do; that the suspension was merely temporary; that on the next day the surveyor-general appointed other clerks who had not been certified by the Civil Service Commission; after the suspension of claimant persons were appointed to perform the duties performed by petitioner; no charges were preferred against him; on the 3d day of June, 1898, said surveyor-general reinstated your petitioner by direction of the Commissioner of the General Land Office; that upon such reinstatement the said surveyor-general for the first time preferred charges against petitioner, which charges were untrue; he has received no compensation as clerk in said office from the 31st day of August, 1897; there is due him because of said illegal suspension the sum of SI,960.

On June 6, 1901, the claimant filed an amended petition, in which he substantially alleges the same as in the former petition, claiming the sum of <$5,133.33, being the amount due him as he alleges from the time of said suspension until the filing of the amended petition.

The facts found by the court show that the petitioner was appointed as he alleges; that he was discharged and reinstated; and upon his restoration the surveyor-general preferred charges against him; that claimant replied to those charges on August 8, 1898, and upon such charges and the defense of claimant the Commissioner of the General Land Office said:

“After a careful review of the evidence and as thorough investigation as it can be possible to make, it appears that from the proofs submitted and the evidence obtained in this office, I am of the opinion that Lellmann’s conduct and services while a draftsman in the office of the surveyor-general of Idaho were not of such a character as entitle him to continuance in the public service, and his suspension will be permanent.”

The charges preferred against claimant by the surveyor-general on June 3, 1898, were: First, inefficiency in the discharge of his duties because of the intemperate use of intoxicating liquors; second, the execution of an affidavit falsely charging the surveyor-general with a conspiracy with the draftsman in- his office to allow the working force in his office to be reduced, so that the work which should be performed at the expense of the Government would accumulate and thereby compel deputy surveyors to have the same performed at their own expense; third, that said affidavit was executed by said claimant at the request of the engineer of Idaho for the purpose of securing the nonapproval of the Commissioner of the General Land Office of certain proposed contracts for the survejr of public lands; fourth, inefficiency' as a draftsman in requiring more time in the execution of work than is ordinarily required by a reasonably expert draftsman.

It is also shown that the charges were found to be untrue by the Civil Service Commission, basing its findings on the report of an investigating’agent; that pending the investigation of said charges the suspension was continued and was also continued thereafter up to the present date. ■

The theory of plaintiff’s claim is that ho was improperly and illegaly discharged from the public service, and that being-ready and willing at all times from and after such suspension to enter upon the dischaige of his duties as clerk, that ho is entitled to recover .in this proceeding his salary at the rate of §1,400 per annum.

It is insisted by counsel for defendants that no regular clerkships were created by law for the offices of surveyors-generai, but that appropriation was made annually in the legislative, judicial, and executive appropriation act for clerks in those offices in various amounts, and these appropriations in lump sums was the authoritj- for the appointment of clerks by the surveyors-general; that from June, 1893, and for the succeeding fiscal years during which the claimant was employed, there was appropriated as follows: For the year 1893, for the surveyor-general of Idaho, §2,500; for clerks in his office, §5,000 (21 Stat. L., 217); for the year 1894, for the surveyor-general of Idaho, §2,000; for clerks in his office, §6,000 (27 Stat. L., 708); for the year 1895, for the surveyor-general of Idaho, §2,000; for clerks in his office, §10,000 (28 Stat. L., 198); that for the year 1896 there was appropriated for the surveyor-general §2,000, and for clerks in his office, §10,000 (28 Stat. L., 799); for the year 1897, for the surveyor-general ’ of Idaho, §2,000; 'for the clerks in his office, §10,000 (29 Stat. L., 172); for the year ending June 30, 1898, there was appropriated the sum of §2,000 for the surveyor-general, and for clerks in his office, §8',000 (29 Stat. L., 571).

It is contended by defendants that his classification under civil-service rules gave him no tenure of office whatever, and in support of that theory the law cites the case of Keim (33 C. Cls. R., p. 174), which was affirmed by the Supreme Court.

We have carefully considered the very elaborate and able brief filed upon the part of the claimant, seeking to maintain his right to the emoluments of his office from the time he was suspended on November 1,1897, to a period when his amended petition was filed, predicated upon his alleged right to recover for the whole time between his suspension and the amendment of his petition.

It is not necessary, in the view which we have adopted of the rights of the parties in this proceeding, to enter into a discussion of the tenure by which the claimant held his position in the public, service. The findings show that he was suspended of the 1st daj' of November, 1897, without any charges preferred against him, and upon the theory that the condition of tlie business of the office was not such as to justify his retention. He was not discharged absolute^, as an employee or clerk in the department; ho was merely suspended, and that suspension was acquiesced in by the Commissioner of the General Land Office; but upon the protest of the claimant, and because of the fact that he was suspended without having-charges preferred and an opportunity to be heard thereon, the suspension was revoked. Tin' Commissioner of the General Land Office, who had legal jurisdiction of the subject-matter of his suspension and restoration, ordered his restoration, thereby invalidating in law such suspension and the effect and consequences which would result therefrom.

It is not necessary to cite authorities to establish the proposition that where a person is unjustly suspended in the exercise of official duty, and the poAver having jurisdiction of him as an employee annuls such suspension, that the party is entitled to whatever emoluments there might be due him.during the time of such suspension.

When he was reinstated on June 3, 1898, charges were then preferred against him by the surveyor-general, the cause of which existed at the time of his suspension on the 1st of November, 1897. Upon those charges he was given an examination, and he defended himself against such charges; but the result of that examination and trial was, that the authority having the right of passing upon the question as to whether they were true or false found they were true, and from that date made the suspension permanent.

This state of the findings makes two conditions in law. The first between his suspension and restoration, and the second after the-finding of the charges to be true and the permanent suspension of the claimant by the examination of the Commissioner of the General Land Office.

The conditions being materially different, different rights and obligations originate from the difference of conditions. He was improperly suspended from November, 1897, until the following June, and during the period of that improper and illegal suspension he is entitled to whatever emoluments the law gave him for his services during that period.

Computing his compensation upon the basis of his salary- — ■ to wit, $1,400 per year — he would bo entitled, as a compensation, to the sum of $816., and for that amount, in the opinion of the court, he is entitled to recover.

But from his permanent suspension, amounting in legal proceedings to a dismissal, from the 3d of Juno, 1898, he is not entitled to recover, and for that period no allowance is made.  