
    WILLIAM WILSON v. THE UNITED STATES.
    [No. 16747.
    Decided February 24, 1891.]
    
      On the Proofs.
    
    A postmaster of tie fourth class is entitled by increase of compensation to become a postmaster of the third class. The Postmaster-General assigns his office to the third class and fixes the salary; hut the President does not then nominate him as postmaster of the third class.
    
      T. Where the compensation of a postmaster of the fourth class has reached $250 for four consecutive quarters and the Postmaster-General has assigned the office to the third class and fixed the salary accordingly, the case comes within the Act 3d March, 1883, (22 Stat. L.,602), and the postmaster is entitled to the increased pay though not appointed by the President as a postmaster of the third class.
    II.A regulation of the Post-Office Department only, expresses the departmental construction of the statute which it carries into effect. It has not the force of law.
    III. The Act 3d March, 1883 (22 Stat. L., 602), does not change the classification of postmasters, but does increase the compensation of fourth-class postmasters in certain cases.
    IV. Postmasters, however appointed remain postmasters of their offices however changed in class; but salaries depend upon the revenue of the office.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant,, William Wilson, was a postmaster of class four, appointed by the Postmaster-General and duly qualified, atOhadron, Nebr., and served as such from July 1,1885, to January 25,1887. January 25, 1887, he was nominated by the President, confirmed by the Senate, and duly commissioned as postmaster of class three.
    II. From October 1,1886, to January 25, 1887, he was paid at the rate of $ 1,000 a year, and after that date at the rate of $1,600 a year.
    III. For the four quarters between July 1, 1885, and July 1, 1886, he made returns to the Auditor showing gross receipts amounting to $1,912.99, of which $338.50 was from box rent.
    IY. The Auditor thereupon reported this fact to the Postmaster-General, with a statement showing that the claimant would be entitled, upon these returns, to commissions and box rents amounting to $2,150.85 for the four quarters, being at the rate of $537.71 per quarter.
    Y. Thereupon, in the office of the First Assistant Postmaster-General, the following order and entries were made:
    
      “Office of the First Ass’t P. M. General, “Salary and Allowance Division, “August 27, 1886.
    
      “Chadron, Neb., Dawes Go. — Brief.
    “Auditor reports postmaster’s compensation, exclusive of money-order commissions, as having reached $250 for four consecutive quarters.
    “ Ordered, That the post-office at Chadron, Neb., be assigned to the third class, and the salary of the postmaster fixed at $1,600 a year, from October 1,1886.
    “A. E. Stevenson,
    
      First Ass’t P. 31. General.
    
    “ Sept. 27, ’86. Wrote P. M. and Auditor.”
    YI. November 16,1886, an order was issued by the Sixth Auditor, by which postmasters at post-offices changed from fourth class to first, second, or third class were allowed the salary and emoluments of offices of those grades from the date of commission by the President instead of from the date fixed .by the Postmaster-General as that upon whicht the change of classification should take effect.
    Prior to that date the increased salary was paid from the date of the change of the classification.
    
      Mr. Harvey Spalding for the claimant.
    
      Mr. James H. Nixon (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    The whole difficulty has, in our opinion, grown out of a failure to recognize the legal distinction and difference between the creation of a third-class post-office and a third-class postmaster. The first is created by the Postmaster-General by virtue of the proviso of section 2, chapter 142, of the Laws of 1883, page 602.
    By the power given him, the Postmaster-General, by his assistant, on August 27, 1886, converted the post-office at Chadron, Nebr., from a fourth-class post-office to a third-class post office.
    Also, and at the same timé, by virtue of the third-section of the same law above mentioned, he fixed the salary of a postmaster of the third class for Chadron, Nebr., whenever the President should see fit to nominate and the Senate confirm such an officer for that town of city. Here the power of the Postmaster-General ended. If the President commissioned such an officer before October 1, 1886, then his salary would begin on that date; if not, then it would begin whenever there was a third-class postmaster for Chadron legally appointed and qualified to whom it could be paid. A salary may attach by law to an office without there being an officer duly appointed and qualified to draw it. This occurs hundreds of times every year in the operations of our Government. The functions of the office are not suspended, but are performed temporarily by some one not of that grade of office. A Cabinet vacancy is often filled pro tern, by an assistant, or a colonel’s duties, in the interval of a vacancy in that rank, by the lieutenant-colonel.
    The duties of a third-class postmaster at Chadron, Nebr., were performed by a fourth-class postmaster from October 1, 1886, until January 25, 1887, the date of his commission from the President as a postmaster of the third class. He was a fourth class postmaster and received a fourth-class postmaster’s pay until he was created a third-class postmaster on the 25th day of January, 1887. (See reply of Post-Office Department.) A fourth-class postmaster can not, under the law, receive a third-class postmaster’s pay. A special act of Congress would be necessary to give him such pay on the ground that he had performed the duties of an office of higher grade than the one held by him.
    But the law is very plain on this subject. {Act of July 12, 1877, § 0; 19Stat. L.,80).
    It will be seen that while the Postmaster-General may create the office of third-class postmaster ánd fix the salary of the office, he has nothing whatever to do with the matter further, and no one can draw that salary until the President and Senate designate the person who shall be duly commissioned. (See § 5,19 Stat. L., 80; also, § 454, Postal L. and Peg.)
    This view of the case is made still clearer by section 258 of Postal Laws and Eegulations, which says:
    “ The change and classification from an office of the fourth class to third class takes effect upon the assumption of the duties by a postmaster appointed and commissioned by the President, and until such postmaster takes charge the daily reports of cancellation must be kept and transcript of cancellations furnished, upon which the postmaster’s compensation will be determined.”
    This regulation is in entire harmony with the law, and expresses the accepted interpretation of the law by the Post-Office Department.
    The law and the regulations of the Department are all in harmony, and they do not work any hardship to the claimant. He did not perform any greater or additional duties from October 1,18SG, until January 25, 1887, than he had previously performed. . His work was the same and his pay the same that he had been getting. If the President had appointed him on the 1st of October, 1886, and commissioned him on that date, his right to draw his $1,600 would have begun earlier, but the failure of the President to commission him until January 25, 1887, was a loss to him which this court can not remedy.
   ScoEiELD, J.,

delivered the opinion of the court:

The claimant, was appointed by the Postmaster-General a fourth-class postmaster at Ohadron, Nebr., and served as such from July 1, 1885, to January 25, 1887. At the latter date he was commissioned by the President a third-class postmaster at the same place.

From October 1,1886, to January 25, 1887, he was paid a salary at the rate of $1,000 a year. He now claims that he should have been paid at the rate of $1,600 a year. This would entitle him to $190 additional.

The claim is based upon the proviso to section 2 of the Act of March 3, 1883 (22 Stat. L., 602), and upon section 3 of the same act, which reads as follows:

“Provided, That when the compensation of any postmaster of this class shall reach $250 for four consecutive quarters each, exclusive of commissions on money-order business, and when his returns to the Auditor for four- consecutive quarters shall show him to be entitled to a compensation in excess of $250 per quarter, the Auditor shall report such fact to the Postmaster-General, who shall assign the office to its proper class and fix the salary of the postmaster as provided by section 1 of this act.
“Sec. hi. That the Postmaster-General shall make all orders relative to the salaries of postmasters, and any change made in such salaries shall not take effect until the first day of the quarter next following the order, and the Auditor shall be notified of any and all changes of salaries.”

All the requirements of this proviso were found in favor of the claimant, and the Auditor so reported to the Postmaster-General. August 27, 1886, the Postmaster-General assigned this office to the third class, and fixed the salary of the postmaster at $1,600 a year from October 1, 1886.

It thus appears that this post-office was prospectively withdrawn from the fourth class and placed in the third, and the salary raised from $1,000 to $1,600 a year, to take effect on the 1st day of October following. All this was done in strict conformity to the-statute above cited.

This law and the proceedings under it seem to sustain the claimant’s contention. To avoid this conclusion the counsel for the defendants cites section 6 of the Act of July 12, 1876 (19 Stat. L, 80), as follows:

“Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years, unless sooner removed or suspended according to law; and postmasters of the fourth class shall be appointed and may be removed by the Postmaster-General.

It is contended that the Act of 1883, taken in connection with the Act of 1876, only provides a mode for transferring a fourth-class post-office to the third class and of fixing the salary to be attached thereto. All this was provided for by the then existing law. If therefore the incumbent of the office was not to be benefited, the necessity of the enactment is not apparent. Counsel for the defendants in support of his construction of the law cites Postal Eegulations, section 258, as follows:

“ The change and classification from an office of the fourth class to third class takes effect upon the assumption of the duties by a postmaster appointed and commissioned by the President, and until such postmaster takes charge the daily reports of cancellation must be kept and transcript of cancellations furnished upon which the postmaster’s compensation will be determined.

This regulation was not promulgated by the Department until 1887. Prior to November 16,1886, as appears in finding Vi, the increase in salary was allowed and paid from the date of tlie new classification. Thus, the contemporaneous construction of, and practice under, the Act of 1883 was in harmony with the claimant’s present contention.

The regulation only expresses the departmental construction of the act at the time of its promulgation. While it is justly entitled to great consideration, it has not of itself the force of law. It was in consequence of this change of construction and practice in the Department that suit has been brought in this court.

While it is very certain that Congress did not by this legislation intend to change the classification of postmasters, it is not unreasonable to suppose they did intend to increase the compensation of fourth-class postmasters who “for four consecutive quarters, are shown to be entitled to a compensation in excess of $250 per quarter,” although they might not be immediately appointed to a higher grade. On the contrary, it appears to have been the chief purpose of the proviso and third section to produce that result, for it does not appear that the patrons of the office were to receive any particular advantage by the change.

Postmasters, however appointed, remain postmasters of the office, however changed in class by the increase or decrease of its revenues (1C Opinions of the Attorney-General, 18); but salaries depend upon the amount of revenue as ascertained by the Sixth Auditor in the manner prescribed by the statute.

Section 31 of the Act of March 3, 1879 (20 Stat.L., 355), provides that—

“Any person performing the duties of postmaster, by authority of the President, at any post-office where there is a vacancy for any cause, shall receive for the term for which the duty is performed the same compensation to which he would have been entitled if regularly appointed and confirmed as such postmaster.”

The pending case does not technically come within this section, but the Act of 1883 is in the same line of remedial legistion.

Judgment for claimant in the sum of $190. 
      
       This was the last opinion delivered by Judge Scofield.
     