
    IN THE MATTER OF MAJOR WILLIAM SMITH.
    (Departmental 30.
    Decided November 5, 1888.)
    
      On the Proofs.
    
    This matter is transmitted by the Secretary of War under the Bowman Act. The only question involved is whether the Secretary should order a stoppage of the pay of a paymaster because of a payment made by him in good faith and pursuant to Army Regulations to an officer who was absent without leave, and who fraudulently obtained the same pay from two other paymasters.
    I. The Army regulation (1863), par. 1006, was approved by the Act July 28, 1866 (14 Stat. L., p. 337, § 37), and is a valid regulation having the force of law, protecting a paymaster who makes a payment in accordance therewith.
    
      II. Under Refised Statutes, § 1265, tlio pay of an officer absent without leave is not absolutely forfeited. The absence may be excused as unavoidable.
    III. Where a paymaster receives no notice of stoppage, as prescribed by Army Regulations, 1887 (par. 2446,2447), and innocently .pays an officer, the overpayment must be recovered from the officer and not from the paymaster. The statutory history of the Army Regulations stated.
    
      The Reporters1 statement of the case:
    This matter was transmitted to .the court by the Secretary of War by the following communication :
    “War DEPARTMENT,
    “ Washington City, October 25, 1887.
    “ To the honorable the Chief Justice and
    
    
      Judges of the Court of Claims :
    
    “The undersigned, Secretary of the Department of War, respectfully represents that a matter is now pending in said Department involving a controverted question of law, to wit: Whether paragraph 1006 of the Army Regulations of 1863, repeated in paragraph 1652 of the revised Army Regulations of 1881, is a valid and lawful regulation having the force of law to the extent of protecting the paymaster who makes a payment in accordance therewith, or independently of that regulation whether he is protected in case of payments made in good faith under the circumstances therein set forth from the consequences of an error of fact in the certificate of a commissioned officer, on whose certificate the payment may be made, the particular case in question being the payment by Maj. William Smith, paymaster U. S. Army, to Second' Lieut. Charles M. Carrow, Seventh Cavalry, on April 30, 1879, of pay of $125 for said month as said second lieutenant.
    “As the finding and opinion of your honorable court are necessary for the guidance and action of this Department in a like class of cases, the vouchers, papers, proofs, and documents pertaining thereto are herewith transmitted for such procedure as you may take under section 2 of the act of Congress, approved March 3, 1883, commonly known as the Bowman Act.
    “Major Smith has been duly informed of this reference, but has no desire to be represented by counsel.
    “William C. Endicott,
    “ Secretary of War.”
    
    The following are the facts as found by the court and certified to the Secretary of War:
    I. Second Lieut. Charles M. Carrow, Seventh Cavalry, was serving with his troops at Fort A. Lincoln, Dakota Territory, on.February 4, 1S79, and left that post for Saint Paul, Minn., on that day on detached service, and on February 7, 1879, availed himself of a sick-leave for one month.
    II. There is no record of any authority for his absence after expiration of sick-leave, nor any certificate from him of inability to travel from that time until he committed suicide at Saint Louis, Mo., May 39, 1879. The post returns of Fort A. Lincoln for March 31 and April 30, 1879, to the Adjutant-General at Washington, reported him “ absent without leave since March 7, 1879.” No other notice was given of his absence, and no action was taken thereon.
    III. April 30,1879, Lieutenant Carrow, by regular voucher, in duplicate, made out and signed in accordance with the reg-illations and instructions of the War Department, and presented in the ordinary and usual manner, obtained from said Maj. William Smith, paymaster TJ. S. Army, at Saint Paul, Minn., $125, being the amount of compensation allowed by law for one month’s salary. Major Smith was the proper paymaster in that military department to make payments to officers of the Seventh Cavalry, stationed at Fort A. Lincoln. He had not been informed and had no knowledge that Lieutenant Carrow was absent without leave during the month of April, nor was the name of Carrow on any “ stoppage, circular ” issued under General Order No. 119, A. D. 1877, as it now appears in the edition of Army Eegulations of 1881, par. 2446. fie made the payment in good faith in the regular and usual course of business and of official duty, on the certificate of said Carrow that the amounts charged in the account were correct and just, as authorized by law, and that they were rightfully due him as stated. He proceeded in accordance with the practice of the Department, and as he paid other officers of the regiment at the same time. Said Lieutenant Carrow at the-same time and in the same manner obtained the same amount from each of the other two paymasters who had authority to make payments in that military department.
    1Y. Upon the settlement of Paymaster Smith’s accounts the sum of $125 so paid to said Carrow was disallowed by the Second Comptroller, and said Smith was charged therewith, on the ground that Lieutenant Carrow had forfeited his pay for the month of April by his absence without leave, under the provision of Revised Statutes, section 1265.
    
      The Second Comptroller, some time in 18S3 or 1884, communicated the fact to the Paymaster-General, who notified Major Smith and requested him to make his account good. Major Smith appealed to the Secretary of War, as prescribed by Regulations, article 2445, edition of 1881, and the Secretary without other action transmitted the matter to this court.
    Upon the foregoing findings of fact, the court decided as conclusions of law that paragraph 1008 of the Army Regulations of 1883, repeated in paragraph 1652 of the revised Army Regulations of 1881, is a valid and lawful regulation to the extent of protecting the paymasters who make a payment in accordance therewith, and by that paragraph, and independently of it, Paymaster Smith is not liable for the loss by payment to Lieutenant Carrow.
    
      Maj. Asa Bird, Gardiner, for the Secretary of War.
    (1) The Army regulation under which Major Smith is entitled to be credited with the amount paid Lieutenant Carrow is a valid regulation and can not lawfully be nullified by the accounting officers of the Treasury.
    Practically, the paymaster's duty in the premises was purely ministerial. The account was made out and certified in regular and due form by a commissioned officer, who presented it at maturity to the regular paymaster in his department, who paid the other officers of his regiment, and to whom he was known. In making the payment the paymaster was not remiss, but was actually performing his duty.
    If there was any reason why Lieutenant Carrow should not have been paid Major Smith should have been informed of it, and then, if he had paid him, Major Smith would have been justly chargeable.
    As it is, we have an instance of an accounting officer of the Treasury attempting to override and set aside a regulation which was promulgated by the President and had received the approval of Congress, and which experience has shown in the past quarter of a century to be reasonable and wise and necessary in the administration of the affairs of the Army. Practically, in its serious aspect, the late Second Comptroller undertook, in his so-called udecision” in this case, to pass upon the constitutionality and validity of this regulation and to assume judicial powers.
    
      (2) The action of the late Second Comptroller in disallowing the sum paid to Lieutenant Oarrow by Major Smith being void,, the Secretary of War is not bound to enforce it, and Major Smith is entitled to have the amount placed to his credit.
    Concede to the accounting officers of the Treasury Department the usurped authority claimed by the late Second Comptroller and the military establishment of the nation could not be administered by the Commander-in-Ohief without first obtaining their approval to every disbursement and every movement involving expense.
    No disbursing- officer would be willing to pay any account, however valid prima facie, even when prepared and certified in exact accordance with law and departmental regulations, and submitted to him in due course of public business.
    No officer would undertake a journey involving expense, or-make a purchase entailing an expenditure of public funds, even when made under apparent sanction of law, lest an accounting officer, with little knowledge of law and an overweening idea of the importance of his own office, should, years afterwards, visit on the unfortunate officer the penalty of his displeasure by endeavoring to stop his pay and by compelling him to defend in the courts, at his own expense, acts performed by him m the conscientious discharge of duty.
    The late Second Comptroller’s decision, being in excess of his legitimate authority and void, can not be made conclusive on the Secretary of War.
    But even if it were not void, it shows a deliberate attempt “ to make the law and not construe it,” which the United States Supreme Court has heretofore severely commented on (United-States v. Temple, 105 U. S., 98), and to make Major Smith, contrary to the regultaion, responsible for Lieutenant Carrow’s-wrong-doing.
    The United States Supreme Court has declared (United States v. Jones, 18 Howard, 95) that “the accounting officers of the Treasury have not the burden of responsibility cast upon them of revising the judgments, correcting the supposed mistakes, or annulling the orders of heads of Departments.” Thelate Second Comptroller’s “decision” in Major Smith’s case being-illegal and an arbitrary assumption ot' authority not conferred on an accounting officer, Major Smith’s pay should not be-stopped, and he is entitled to have the sum in question passed to his credit as a disbursing officer of the United States.
    
      
      Mr. Beber J. May (with whom was .Mr. Assistant Attorney-General Howard) opposed.
    (1) Paragraph 1006 of the Army Regulations of 1863, repeated in paragraph 1652 of the Revised Army Regulations of 1881, is not a valid and lawful regulation, with the force of law, to the extent of protecting a paymaster who has made a payment in accordance therewith.
    (2) Nor is Paymaster Smith, who made the payment in this instance, so protected under said regulations, or independently thereof, under the facts and circumstances as they existed, in making the payment to Lieutenant Carrow in the claim transmitted by the Secretary of War.
    (3) Inasmuch as Lieutenant Carrow was absent from his command during the month of April, 1879, without leave, and was paid his salary for the said month by three different pay-
    'masters upon similar vouchers made upon his honor, the, Second Comptroller acted correctly in disallowing the amount thus paid to Lieutenant Carrow, and by refusing to ifiace the same to the credit of Paymaster Smith in the settlement of his accounts with the Government.
   Richardson, Ch. J.,

delivered the opinion of the court:

The Secretary of War, in his letter transmitting the matter-involved in this case, states the questions upon which he desires, the opinion of the court to be “ whether paragraph 1006 of the Army Regulations of 1863, repeated in the Revised Army Regulations of 1881, is a valid and lawful regulation, having-the force of law to the extent of protecting the paymaster who makes a payment in accordance therewith, or independently of that regulation whether he is protected in case of payments made in good faith under the circumstances therein set forth from the consequences of an error of fact in the certificate of a commissioned officer, on whose certificate the payment may be made, the particular case in question being the payment by Maj. William Smith, paymaster IT. S. Army, to Second Lieut. Charles M. Carrow, Seventh Cavalry, on April 30, 1879, of pay of $125 for said month.”

We shall first consider the Army regulation in general.

The Constitution provides, in article 1, section 8, paragraph 14, that Congress shall have power “ to make rules for the government and regulation of the land and naval forces.”

It has been argued here and elsewhere that this provision •deprives the President of authority to make such rules of his ■own motion, or even when previously authorized by legislative action, on the ground that the power is exclusive in Congress and can not be delegated; and so that all rules for the government and regulation of the land and naval forces made by the executive are void and of no. effect without the enactment ■by Congress in the form of approval or otherwise.

Congress has established rules and articles for the government of the armies of the United States, commonly called “Articles of War” (act of 1806, April 10, ch. 20, 2 Stat. L., 359, now Revised Statutes, sec. 1342).

For the making of other and ordinary regulations Congress has from an early day proceeded upon the idea that the power ■might be delegated to the President, and has passed several ■acts expressly conferring such authority (act of March 3,1813, ■ch. 52, sec. 5; 2 Stat. L., 819; act of April 24, .1816, ch. 69, sec. 9; 3 Stat. L., 298; act July 15, 1870, ch. 294, sec. 20; 16 Stat. L., 319; act of March 1, 1875, ch. 115; Supplement to Rev. Stat., 149; and the act of June 23, 1879, ch. 35, sec. 2; Supplement to Rev. Stat., 494, under which the edition of 1881 was published).

Congress has three times recognized or approved existing regulations:

(1) The Act of April 24, 1816, ch. 69, sec. 9 (3 Stat. L., 298), provided that “ the regulations in force before the reduction •of the Army be recognized, as far as the same shall be found applicable to the service, subject, however, to such alterations as the Secretary of War may adopt, with the approbation of .the President.”

(2) The Act of March 2, 1821, ch. 13, sec. 14 (3 Stat. L., 616), •enacted that the system of ‘ general regulations for the Army’ compiled by Major-General Scott shall be, and the same is hereby, approved and adopted for the government of the Army of the United States and of the militia, when in the service of the United States.” This section was unconditionally repealed by the Act of May 7, 1822, eh. 88 (3 Stat. L., 686). As to this act Attorney-General Wirt advised that, notwithstanding such repeal, the regulations having received the sanction of the President, continued in force by tbe authority of the President in all cases where they did not conflict with positive legislation (1 Opins., 549).

(3) The Act of July 28, 1866, ch. 299, see. 37 (14 337, 338), required the Secretary of War to prepare a code of regulations for the government of the Army, and enacted ‘‘the existing regulations to remain in force until Congress shall have acted on said report.” No such action has been tab on.

It is well settled that Army proved by Congress have the absolute force of law equally with other legislative acts until repealed by the same power. Congress so treated them when it passed the Act of June 8, 1872, ch'. 348 (17 Stat. L., 337), providing that the fifth section of the Act of May 8, 1872 (17 Stat. L., 83), should not be held to repeal that part of paragraph 1030 of the Eevised Army Begulations of 1803 with which it appeared to be in conflict, thus recognizing the regulations approved by Congress in that year as having the same force as Congressional enactments.

On the other hand, as not so approved have the force of law only when founded on' the President’s constitutional powers as commander-in-chief of the Army, or are “ consistent with and supplementary to the statutes which have been enacted by Congress in reference to the Army” (Symonds’s Case, 120 U. S. R., 46, affirming 21 C. Cls. R., 151; Reed's Case, 100 U. S. R., 22: Smith v. Whitney, 116 ib., 180; United States v. Whitney, 120 ib., 47; Wayman v. Southard, 10 Wheaton, 43; United States v. Eliason, 16 Peters, 291; United States v. Freeman, 3 Howard, 556; Kurtz v. Moffitt, 115 U. S. R., 503; United States v. Webster, 2 Ware, 66; United States v. Maurice, 2 Brock, 103; Ferren's Case, 3 Benedict, 447; Gates v. Fletcher, 1 Minn., 204; 1 Opins. Attys. Gen., 469, 547; 2 ib., 225; 3 ib., 85; 6 ib., 10, 215, 365; 10 ib., 415; 16 ib., 38).

Whether a regulation, question, is within the constitutional power of the President to promulgate, or whether it has been approved by Congress, -or whether it “ is consistent with and supplementary to the statutes,” are judicial questions not always free from difficulties of determination.

In the light of these views and the adjudicated cases we shall examine the existing regulations.

The present regulations are contained in the edition of 1881, published under authority of the Act of March 1, 1875, ch. 115 (Supplement to Bev. Star., 149), which directs the President “ to make and publish regulations for the government of the Army in accordance with existing laws,” and under the Act of June 23, 1879, ch. 35, sec. 2 (Supplement to Rev. Stat., 494), which further directs the President to “cause all the regulations of the Army and general orders now in force to be codified and published to the Army,” and provides for the expenses of the work.

As promulgated in this edition they contain orders and regulations of four different classes intermingled. At the end of each the earlier authority for it is specified by a note in brackets.

(1) General orders which he (the President) has aright to issue under his constitutional prerogative of “ Commander-in-Ohief of the Army and Navy of the United States ” (Const., art. 2,, sec. 2, par. 1).

(2) Departmental regulations, under Bev. Stat., sec. 161, authorizing the head of each Department to prescribe regulations, not inconsistent with law, for the government of his Department, the conduct of officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property appertaining-thereto.”

(3) Begulations not approved by Congress, but made by the President in the exercise of legislative authority conferred by the acts above cited.

(4) Begulations expressly approved by Congress.

As to the regulation involved in the present inquiry, now paragraph 1652 of the edition of 1881, we find that it first appeared in its present form in the edition of 1857, as paragraph 908. It was reproduced as paragraph 1006 in the published Begulations of 1863, which were in whole expressly approved by Congress by the Act of July 28, 1866, ch. 299, sec. 37 (14 Stat. L., 337, 338). It is therefore “a valid and lawful regulation, having the force of law.”

This answers the first inquiry of the Secretary of War,

Secretary submits the case of Paymaster Smith in making payment to Lieutenant Garrow as the one to which he lias special reference. We have found the facts in that case, and it only remains to apply the law.

Lieutenant Carrow, of the Seventh Cavalry, serving at Fort Abraham Lincoln, Dak., availed himself of sick leave of absence, which expired in March, 1879. He never returned to his post, but committed suicide at Saint Louis, Mo., on the 19th of May following.

Major Smith was the proper paymaster in that military department to pay the Seventh Cavalry. Lieutenant Oarrow’s voucher, in duplicate, for his salary of $125 for the month of April, made out in the usual form, in accordance with instructions of the War Department, with his certificate attached that the amounts charged in the account were correct and just, as authorized by law, and that they were rightfully due him as stated, was presented in the regular and usual course of business, and paid in good faith by Paymaster Smith, who had no knowledge that any of the statements of fact therein contained were untrue. The returns from the fort to the Adj utantG-eneral at Washington for March 31 and April 30 reported Lieutenant Carrow as u absent without leave,” but Major Smith had not been notified of that fact and did not know it.

The payment was made on Carro w’s voucher, just as payment was made at the same time on the vouchers of many officers of the same regiment.

In our opinion Paymaster Smith is protected from loss by said paragraph 1606 of the Regulations of 1863, which is as follows:

“ 1006. If any account paid on the certificate of an officer to the facts is afterwards disallowed for error of fact in the certificate, it shall pass to the credit of the disbursing officer, and be charged to the officer who gave the certificate.”

The case comes exactly within the terms of that regulation, and no fault on the part of Paymaster Smith appears to prevent its operation or to deprive him of its benefit.

As to the second question submitted by the Secretary of War, we are of opinion that, independently of paragraph 1006 of the Regulations of 1863, Paymaster Smith is not chargeable with loss in this matter. Departmental orders provided how notice should be given to paymasters of the stoppage of officers’ pay and what action should be taken thereon.

Those orders now appear in the Regulations of 1881, as - follows:

“ 2446. The notice of stoppage of officers’ pay will take the form of a monthly circular to paymasters, advising them of stoppages in force at its date. This circular will be submitted to the Secretary of War for his approval prior to publication. When an officer’s name is borne upon this circular, no payment of salary will be made to him which is not in accordance with the stoppage entry in the case. Paymasters disregarding this requirement in any case will be held liable for the amount of the stoppage.
“ 2447. Overpayments to an officer are to be deducted on first payment after notice after stoppage, even if the pay accounts have been assigned. The assignee takes the account subject to all risks of stoppage. * *! * ”

Those two regulations were not among those in the edition of 1863, approved by Congress, but they had been promulgated before Paymaster Smith paid Lieutenant Oarrow, and were proper departmental regulations, upon which paymasters had a right to rely in the absence of other direct information. They are founded upon the assumption that cases arise where over-payments may be made without fault of a paymaster. They provide how such overpayments shall be recovered back, not by cliargingthem to the officer innocently making the payment, but by deducting them from the pay of the officer receiving the same on the first payment after notice of stoppage.

At the time of the payment by Paymaster Smith in this case it was by no means certain that Lieutenant Oarrow would be subjected to the forfeiture of his pay.

The section of the Revised Statutes under which the forfeiture is claimed is as follows :

“ Section 1265. Officers * * * when absent without • leave, shall forfeit all pay during such absence, unless the absence is excused as unavoidable.”

No action was taken on account of the absence of Lieutenant Oarrow beyond the mere notice of the fact to the Adjutant-General in the monthly returns from the fort where his regiment was stationed.

Had he lived, his absence might have been excused as unavoidable. Had the forfeiture been insisted upon, the overpayment might have been set off against his future compensation under the regulations, or it might have been charged to his personal account and an action thereon maintained against him by the United States (Parker v. United States, 1 Pet., 292). The accidental circumstance of 0arrow’s sudden death before action taken upon his absence is no reason why Paymaster Smith should be charged with the loss.

There may be cases where an officer is prima facie or otherwise liable to stoppage of pay and yet the Secretary of War may not deem it advisable to have the stoppage enforced through notice to paymaster on the monthly circular.

The giving of such notice is a matter wholly within the discretion of the Secretary of War, if appeal be made to him (Billing's Case, 23 C. Cls. R.). Paymasters are not responsible if notice be omitted and they are misled by the action or non-action of superiors, upon whom they have a right, under the regulation, to depend for information and instructions.

It matters not that other paymasters made payments to the • same officers at the same time and for the same period of service claimed. If the regulations of the Army and the instructions of the War Department were such that an officer could thus fraudulently draw his pay three times for the same service, the paymasters who acted in good faith on such authority were without responsibility for the loss. (Hartson’s Case, 21 C. Cls. R., 455.)

The clerk will certify the foregoing findings of fact, conclusions of law, and opinion to the Secretary of War for his guidance and action.  