
    DANIEL B. DYER v. THE UNITED STATES.
    [No. 13279.
    Decided February 9, 1885.]
    
      On the Proofs.
    
    In 1880 the claimant is appointed “ agent for the Indians of the Quapaw Ageney, in the Indian Territory,” “the salary of the office being $1,200 per annum.” He claims that the salary was fixed by the Revised Statutes (§ 2052] at $1,500.
    I.The provision oí the Revised Statutes (§ 2052) fixing the salary of fourteen Indian agents east of the Rocky Mountains was superseded, for 'the time being, by the Appropriation Acts llí7¡. May, 1880, 31si March, 1881 (21 Stat. L., pp. 114, 485), which increased the number and fixed the salary of each.
    II.The only authority in 1880 for the appointment of an Indian agent at the Quaxsaw Agency, by that name, is found in the appropriation acts, which fix the salary at $1,200.
    III.A salary established by statute can neither be increased nor diminished by executive officers.
    
      The Reporters' statement of the case:
    The following are the facts as found by the court:
    I. The following correspondence toolr place between the claimant and the Commissioner of Indian Affairs, at the dates thereof:
    “Department of the Interior,
    “ Office of Indian Affairs,
    “ Washington, June 28, 1880.
    “ D. B. Dyer,
    “ Quapaw Ageney, Indian Territory :
    
    
      “ Sir : You have been appointed by the President to be agent for the Indians of the Quapaw Agency, in Indian Territory.
    “ If you accept the appointment, please notify this office, and at the same time forward a bond in the penal sum of $20,000, with at least two approved sureties.
    “ I inclose blank form of the required bond, together with blank descriptive property statements of sureties, and your attention is especially called to the foot-notes on the first page of the blank bond, with the advice that the requirements therein mentioned must be strictly complied with. The several sums in which the sureties justify must in all cases aggregate at least double the penal sum of the bond, in unencumbered real estate, and be so 'expressed on the property estimate attached to the bond, as well as upon the separate statements descriptive of the property of the surety.
    ' “ Upon receipt of your bond, if satisfactory, your commission and letter of instructions will be forwarded to you.
    “ The salary of the office is $1,200 per annum, with an allowance of actual necessary traveling and incidental expenses incurred in the discharge of official duty.
    “ Kesimctfrflly,
    “ R. B. Trowbridge,
    “ Commissioner.”
    
    “ Baxter Springs, Kansas, July 6,1880.
    “Hon. B>. B, Trowbridge,
    “ Commissioner Indian Affairs, Washington, I>. C. :
    
    “ Sir : In compliance with instructions contained in yours ‘A, Quapaw, June 28, 1880,’ I accept the appointment as agent for the Indians of the Quapaw Agency, Indian Territory, and inclose herewith my ‘ bond ’ in the penal sum of $20,000, made out in strict conformity with instructions, as I understand them. I hope it will prove satisfactory and meet with your approval.
    “ In accepting this position I realize the full extent of the responsibility, and also the many trials and cares that must necessarily come to my lot; but my heart is in this work, and I can only hope, with your assistance, to make such a record while in the service that any straightforward man would be justly proud of.
    “ I am, very respectfully,
    ‘‘Daniel B. Dyer.”
    “Department op the Interior,
    “Oeeice of Indian Affairs,
    “ Washing ton, July 26, 1880.
    “Daniel B. Dyer,
    “ U. 8. Indian Agent, Quapaw Agency, Indian Territory :
    
    “ Sir : As you have filed a satisfactory bond, I transmit herewith the commission from the President appointing you to be agent for the Indians of the Quapaw Agency, in the Indian Territory, during the pleasure of the President for the time being, and until the end of the next session of the U S. Senate, and no longer.
    “ You will, immediately upon receipt of these instructions, relieve Mr. Amos T. S. Kist, farmer in charge, at said agency, who is by letter of this date instructed to transfer to you the public property, records, files, &c., belonging to the agency or the government, taking receipt therefor.
    
      “ You will keep tbis office advised from time to time of all matters pertaining to your agency, and submit for its consideration suck reports and recommendations as in your judgment may be deemed necessary.
    “ Your attention is especially called to Office Circular No. 16 (copy herewith), issued May 4,1878, relative to the failure on the part of agents to comply with the requirements of this office in the rendition of their accounts.
    “ Your compensation is at the rate of $1,200 per annum. Immediately on receipt of your instructions you will assume charge of tiie agency, and conduct its affairs, making issues, &c., keeping a record of all transactions, as your accounts will include all transactions after said date, and you will direct the employés and report them from said date.
    “ The late farmer in charge can close up his accounts after you take charge. Your pay will commence on the day you assume charge of the agency.
    “ It is imperative that- you report this date promptly to this office. Upon your assuming charge of your agency, Mr. Kist will turn over to you certified receipt rolls for the salaries due employés up to and including June 16, 1880, the date when he ceased to be Indian agent, and also other certified receipt rolls for the salaries due employés for the period in which he had charge of the above agency as farmer in charge. You will satisfy yourself of the correctness of these receipt rolls, and then pay the amounts due thereon, for which purpose funds will be placed to your credit.
    “ Your certificate will be attached to these receipt rolls to the effect that you have actually paid the amounts claimed on the same.
    “Very respectfully,
    “ E. J. Brooks,
    
      “Acting Commissioner.
    
    “ United States Indian Service,
    “Qtjapaw Agency,
    “ Seneea, Mo., July 31, 1880.
    “Hon. R. E. Trowbridge,
    “ Commissioner Indian Affairs, Washington, J). C. :
    
    “Sir: I am in receipt of dept, letter ‘A, July 26, 1880,’ inclosing my commission. According to instructions, I shall take possession at once. We cannot commence our invoice before Monday morning, but all matters of business will date from August 1st (Sunday morning). The business of the office will- have my undivided attention, and I shall be very careful to observe strictly the rules of your department, not wishing to assume any responsibility unauthorized.
    “ I am, very respectfully,
    “ D. B. Dyer,
    
      ’■'■United States Indian Agent.”
    
    
      II. The claimant was duly appointed Indian agent at the Quapaw Agency, as stated in said correspondence, entered upon his duties August 1,1880, and continued to June 30,1882. He was paid $1,200 a year, and no more, and upon receiving payments he signed certificates as follows:
    “ I certify on honor that the above receipt roll is correct and just, that the services were rendered as stated, and that the employés hereby paid are borne on my report of employés for the quarter ending ” * * *
    
      Mr. George A. King for the claimant:
    There can be no question that claimant is entitled to recover under the decision of this court in Lighttier v. United States (18 C. Ols. R., 281), with which this case is in all essential facts identical.
    
      Mr. F. H. Howe (with whom was the Assistant Attorney-•General) for the defendants:
    The claimant, as appears, willingly accepted the appointment. The contract was. thereupon concluded, and the claimant is bound by its terms. It does not lie in his mouth to say now that his contract was for $1,500. He should be held to have acquiesced in the reduction of salary and to be equitably es-topped from setting up this claim. (Duryea’s Case, 17 O. Ols. R., 42; Green’s Gase, id., 238; Fray's Case, 106 U. S. R., 594.)
   Richardson, Ch. J.,

delivered the opinion of the court:

The claim set up in this case is that the claimant was appointed one of the fourteen Indian agents for the tribes east of the Rocky Mountains and north of New Mexico and Texas authorized by Revised Statutes, section 2n52, and is entitled to the annual salary of $1,500, as thereiu provided. Having held the office two years, and having been paid only $1,200 a year, he now asks judgment for the difference.

Tbe difficulty in case of the claimant is that it does not appear that he was one of the fourteen agents authorized by the Revised Statutes, but that his appointment and compensation depend wholly upon the appropriation Acts of May 11, 1880 (21 Stat. L., 114), and of March 31, 1881 (21 Stat. L., 485), in each of which the salary is fixed at $1,200 a year.

Section 2052 of the Revised Statutes authorized the appointment of fourteen agents for the tribes east of the Rocky Mountains and north of New Mexico and Texas, without naming’ any particular agency, and twenty-eight other agents for other tribes, making forty-two in all.

The acts of 1880 and 1881 above referred to appropriate salaries for sixty-eight agents by the former act and sixty-six by the latter act, each for a specific agency therein named; but in no case do they provide for one or more agents for particular tribes, as do.the Revised Statutes. In each of these acts there was an appropriation of $1,200 for an agent at the Qua-paw Agency.”

It is true that this agency was east of the Rocky Mountains and north of New Mexico, but there were thirty-one such agents specifically provided for by name in those appropriation acts, and we cannot say that the claimant or any other of them were of the fourteen mentioned in the Revised Statutes. They are not so designated in these acts and are not so appointed.

It would seem that Congress abandoned the appointment of agents under the provisions of the Revised Statutes, section 2052, and superseded that section for the time being by adopting the plan of providing annually for one agent at each named agency, largely increasing the number and fixing the salary of each separately. While but forty-two were authorized by the Revised Statutes, the appropriation act of 1874 provided for sixty-nine, that of 1875 seventy, and those of subsequent years still different numbers. (Supplement to Rev. Stat., 325, note to chap. 142.)

Lightner's Case (18 C. Cls. R., 282) is relied upon on the part of the claimant as supporting his demand. In that case it was conceded at the trial, and so found as a fact, that the claimant was one of the fourteen agents east of the Rocky Mountains authorized by the-Revised Statutes. Anew trial has been granted, and the question whether the claimant was one of those agents authorized by Revised Statutes will be open for investigation and controversy.

In this case it is clear from the findings of fact, when the statutes are applied to them, that the claimant cannot claim his salary under the provisions of the Revised Statutes. The only authority for the appointment of an agent “ at the Qua-paw Agency,” by that name and title, is found in the appropriation acts which fix the salary, and that salary has been paid to the claimant.

As fixing the compensation, we give no force to the fact that the Commissioner of Indian Affairs stated to the claimant before his appointment that the salary was $1,200 a year, nor to the fact that the claimant signed pay-rolls wherein he certified that the amounts received by him at that rate were correct and just.

A salary that is established by statute cannot be increased nor diminished by executive officers. It is not a subject of contract between such officers. The incumbent of an office is entitled to the salary attached thereto by law, and if he receives a less sum from disbursing officers he can claim and receive the balance.

The judgment of the court is that the claimant’s petition be dismissed.

Nott, J.,

delivered the following opinion :

That the claimant was not one of the fourteen Indian agents authorized by the Revised Statutes (2052) is a defense which was not presented by the defendants on the trial, and in regard to it I express no opinion.

Upon the case which was presented and argued I am of the opinion that judgment should be for the defendants, for the reasons given by me in Upton’s Oase (19 C. Cls. R., 46), which are substantially as follows:

The rule laid down in Graham’s Case (1 O. Cls. R., 380) that “ a failure to appropriate affects no legal right ” is reasonable, and one with which no just mind can quarrel; bub it is not to be turned into a technicality and used to defeat a legislative intent. “A statute which establishes a salary or prescribes a rate of remuneration expresses the intent of both parties, as a written agreement does in the cases of private employers and employés, and assures to a government official a fixed and certain compensation for his services. When under such a statute, by the inadvertence of a legislative committee or the mistake of an executive officer, an inadequate sum is appropriated, it is manifest that no intent to reduce the compensation can be imputed to the appropriation act; still more apparent would this be where no appropriation whatever was made, while the office was allowed to remain and the officer to continue ren■dering service.” But where Congress by prospective appropriation acts give notice to public officers that their statutory ■salaries, for the time being at least, will be reduced, and this legislative notice is given before the service is rendered, and ■the implication of the appropriation act is so clear that no one ■can reasonably doubt the legislative intent, effect must be given ■to the legislative will.

As to services performed before the appropriation act is passed, and as to salaries over which Congress are forbidden by the Constitution to exercise such control, a different rule must prevail. But in cases where Congress occupy the position of an ordinary employer, Congress, like an ordinary employer, may reduce the compensation of the employés if that intent be signified to them in due time; and the only question for the judiciary in such cases is whether that intent has been ■signified.

In this case the signification was given before the appointment of the officer, and is too clear to be disregarded.  