
    FRANK B. CROSTHWAITE v. THE UNITED STATES.
    [No. 18389.
    Decided April 22, 1895.]
    
      On the Proofs.
    
    Acting Attorney-General Aldrich appoints an examiner in the Department of Justice as special assistant attorney “to aid in the preparation and prosecution of all criminal business properly coming before the eourt during its special term,” his compensation to be “determined by the Attorney-G-eneral upon completion of your service.” The attorney takes the oath of office and performs the duties assigned to him, hut Attorney-General Miller refuses to determine the amount of his compensation, or to allow him any.
    
      I.The Attorney-General can not commission an examiner in his Department as special assistant attorney and assign him to criminal business and send him into the grand-jury room to examine witnesses, and then deny that he was acting as district attorney. An examiner in the Department of Justice has no right to enter a grand-jury room and assist at the finding of indictments.
    II.The duties of an examiner in the Department of Justice and of special assistant attorneys appointed to assist in the prosecution of criminal business are distinct and different. (Act 5th August, 189$ 27 Stat. L., 349; Rev. Stat., §§ 363, 366.)
    III.It is settled that a person may hold two offices and receive the salaries of both, each having its own duties and compensation and they not being incompatible.
    IT. Two offices are imcompatible when a performance of the duties of the one will prevent or conflict with the performance of the duties of the other, or when the holding of the two is contrary to the policy of the law.
    Y. A lawyer by accepting the appointment of special assistant attorney agrees to submit the amount of his compensation to the Attorney-General, but not the question whether he is, in law, entitled or not entitled to any compensation whatever.
    VI. Where the Attorney-General refuses to fix the valire of the service he leaves the attorney free to recover in quantum meruit. If a person is legally entitled to compensation, the refusal of a public officer to fix the amount will not deprive him of his right.
    VII. The value of a lawyer’s services is a matter of opinion, as to which the court will not be bound by the testimony of witnesses.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. During’ the year 1892 the claimant was an examiner in the Departmentof Justice, duly appointed by the Attorney-General. On the 22d June, 1892, he received from the Attorney-General the following order:
    “You are directed to discontinue your investigations in Utah and proceed at once to Idaho and confer with the author of the communication [referring to a confidential communication at the same time transmitted by the Attorney-General] and make a thorough examination of all matters that maybe brought to your attention or that you may be able to find out in any way relating to the marshal. In addition to the above, while in Idaho you will make an examination of the offices and accounts of the United States attorney, the United States marshal, the clerk of the United States Court, and the United States commissioners. You will make the usual investigation as to the manner in which the business is conducted, inform yourself as to the character and qualifications of the various officials, and report the results of your examination to this Department.”
    II. While thus engaged in Idaho the claimant received the following order by telegraph, with which he complied:
    “Department oe Justice,
    . “ Washington, D. C., August 9, 1892.
    
    “F. B. Crosthwaite,
    
      “Examiner, Department Justice, Boise City, Idaho:
    
    “ (Care U. S. Attorney.)
    
    “ Report to and assist the United States attorney at special term to be called by Judge Beatty at Coeur d’Alene City, Idaho.
    “ Aldrich,
    
      “Acting Attorney-General.”
    III. On the 13th August, 1892, the claimant was appointed special assistant to the attorney of the United States for the district of Idaho. The appointment was in the following terms:
    “Department op Justice,
    “ Washington, D. C., August 13,1892.
    
    “ Frank B. Crosthwaite, Esq.,
    “ Boise City, Idaho:
    
    “ (Through Fremont Wood, TJ. 8. Attorney.)
    
    “Sir: You are hereby appointed a special assistant to the attorney of the United States for the district of Idaho, to aid him in the preparation and prosecution of ail criminal business properly coming before the court during its special term ordered at Coeur d’Alene for August 23rd, 1892.
    “Your compensation will be determined by the Attorney-General upon completion of' your service.
    “Execute the customary oath of office and forward the same to this Department without delay.
    “Respectfully,
    “Charles H. Aldrich,
    ‘ ‘A eting A ttorney- General. ”
    IV. The claimant took the oath of office as prescribed by the appointment and performed the duties assigned to him thereunder. He appeared on behalf of the United States before the United States commissioner at Wallace, Idaho, for the purpose of having him discharge a large number of the rioters who had been held to appear for examination; and he examined a large number of witnesses before the grand jury, and he rendered daily attendance and assistance at the trial of the cases, and generally rendered tbe professional assistance of an assistant district attorney from tbe 23d August, 1892, to tbe 28tb September, 1892. He also performed and discharged bis duties of examiner.
    Y. At tbe time of rendering tbe service above described as special assistant district attorney, tbe claimant was receiving from tbe United States as examiner in tbe Department of Justice a salary of $2,500 per annum. He was also reimbursed for bis traveling expenses during tbe period be acted as assistant district attorney.
    YI. On tbe 14th August, 1892, while at Boise City, Idaho, and after bis appointment as special assistant district attorney bad been made, but before it had been received by him, tbe claimant mailed to tbe Attorney-General an official letter in relation to tbe criminal proceedings then being instituted in Idaho against rioters and conspirators, in which be said:
    “I will proceed to Wallace on to-morrow for tbe purpose of preparing tbe cases for trial and to select tbe necessary witnesses, in order that none may be subpoenaed unnecessarily. Tbe marshal has been instructed -to provide a sufficient guard for tbe term to be held, and everything appears to be moving along smoothly.
    “In order that no question may be raised by tbe defense as to my status, and that I may be able to appear before tbe grand jury, I beg to suggest tbe advisability of my appointment as a special assistant to tbe United States attorney, without compensation, for these cases.”
    YII. Tbe court finds that tbe value of tbe claimant’s services as special assistant district attorney for tbe period from tbe 23d August to tbe 28th September, 1892, was $300.
    YIII. Before suit brought, the Attorney-General refused to fix tbe compensation of tbe claimant for bis services as assistant district attorney hereinbefore set forth, and has refused to allow him any compensation whatever.
    Tbe claimant’s application for compensation and tbe refusal of tbe Attorney-General are in tbe words following:
    “Ooetjb d’Alene, Idaho, Sept. 29th, 1892.
    
    “Tbe Attoeney-Geneeal,
    “ Washington, I). G.
    
    “ Sib : I have tbe honor to band to you herewith a statement of services rendered as special assistant United States atty. for tbe district of Idaho.
    
      “I send this statement to you, considering that it is necessary, if it shall be determined that I shall be compensated for the services performed as asst. U. S. atty. I have left the amount to be inserted at the Department in accordance with your action thereon.
    “Very respectfully,
    “Frank B. Orosthwaite.”
    “ The United, States to Frank B. Orosthwaite, Dr.
    
    “To services as special assistant United States attorney for the district of Idaho, for and during the special term of the United States district court held at Coeur d’Alene City from August 23d to September 28th, inclusive, 1892, 37 days, at -per diem.
    “Appointment dated Aug. 13th, 1892.
    “ I hereby certify that I have performed the services charged for and that I have received no pay for the same.
    “F. B. Orosthwaite.
    “I certify that F. B. Orosthwaite has performed the service on the days specified in the foregoing account.
    “Jas. H. Beatty,
    “ Judge U. S. Dist. Court, Dist. of Idaho.
    
    “Coeur d’Alene, Idaho, Sept. 29th, 1892.”
    
    “ 4948 — 1892.] “ Department oe Justice,
    '“ Washington, D. 0., October 7,1892.
    
    “ F. B. Orosthwaite,
    “ Examiner, Department of Justice, Oheyenne, Wyoming.
    
    “ Sir: Yours of the 29th ultimo relating to your request to be allowed compensation for services as special assistantUnited States attorney in the Idaho cases is received, together with your account for the same. Also letters from Judge Beatty and United States Attorney Wood concerning it.
    “ No such claim can or will be allowed by me. I am surprised that you should have made such a demand. You certainly did not exercise your usual sense of propriety in this matter, especially in consulting with officers whom you were sent out to examine about a claim of your own so unfounded. You were there especially Cor the jrarpose of curtailing expen ses in all directions, and such a claim as you submit was, to say the least, a very poor example to others.
    “ As an examiner of this Department you receive $2,500 a year and expenses, and what you have been doing is clearly within the line of your duty in the premises. ■
    “Very respectfully,
    “ W. H. H. Miller,
    
      Attorney- General.”
    
    
      
      Mr. John 0. Chaney for the claimant:
    Tbe real and only question in the case is whether the claimant may hold the office of special examiner of the Department of Justice, and also at same time hold the position of an assistant to Fremont Wood, United States attorney for the district of Idaho, and draw the compensation in each position. It is now well settled that a person may hold two compatible offices at the same time, and draw the compensation provided by law for each. (Converse v. The United States, 21 How., 463; United States v. Brindle, 110 U. S.; 688; Meigs v. United States, 19 C. Ols. B., 497; Saunders v. United States, 21 O. Ols. B., 408; Collier v. United States, 22 O. Ols. B., 125; Comptroller’s Decisions, 5th vol., 253.)
    There is no incompatibility in the position of a special examiner and that of a special assistant to a United States attorney for any judicial district of the United States. But, on the other hand, they are shown by the very circumstances of this case to be thoroughly compatible.
    There was a special work to do at the special term of the United States Court, at Coeur d’Alene, to prosecute the rioters who had taken the law into their own hands, defied the legally constituted authorities, and destroyed much valuable property. Special care must be taken to prepare and conduct those prosecutions.
    The Attorney-General was duly advised of the situation, and, in his discretion, found it proper to appoint the claimant to assist the regular attorney of the United States for that district, and stated in the Tetter of appointment that his “compensation will be determined by the Attorney-General upon the completion of (his) your service.”
    The Attorney-General having failed to determine his compensation at the “completion of his service,” it becomes necessary to prove the value of his service on the quantum meruit, which he has done.
    A letter has been put into the record, not printed, from the claimant to the Attorney-General, written some time prior to his said appointment, to the effect that the claimant might serve in the capacity of such assistant to the United States attorney without compensation; but it is submitted that such a letter, even if claimant made any such suggestion as is contained therein, can not vary or invalidate the appointment which, in terms, provides for a compensation upon the “completion of his service.”
    He received the appointment, he qualified under said appointment as provided by law, and he rendered faithful service under said appointment.
    
      Mr. Samuel A. Putnam (with whom was Mr. Assistant Attorney- General Podge) for the defendants.
    Section 1763, Revised Statutes, is as follows:
    “No person who holds an office, the salary or annual compensation to which amounts to the sum of two thousand five hundred dollars, shall receive compensation for discharging the duties of any other office, unless expressly authorized by law.”
    This court and the Supreme Court have held in several cases, among others Saunders’s Case (120 U. S., 126), that this section is not applicable to persons holding two offices whose duties are different and distinct and not incompatible.
    In Converse’s Case (21 How., 463) the Supreme Court held, in discussing this- and similar statutes, that the Secretary of the Treasury could appoint a collector of customs an agent to purchase supplies for light-houses, and could allow him commissions upon his disbursements for supplies for light-houses outside of his district, but could not allow him anything upon those purchased for use in his district, because the Secretary might have ordered him to make such purchases as collector, in which case he would not have been entitled to any extra compensation if his regular compensation amounted to as much as $2,500 per annum.
    In this case it was the duty of the claimant, as an examiner, to assist the district attorney in every manner possible in the trial of these cases, and the only service which-he is shown to have performed as a special assistant which he could not have performed as an examiner was going into the grand-jury room, and I hardly think it will be contended that this was worth $1,000. This question of double compensation has been recently considered again by this court in Graham’s Case (29 C. Cls. R., 404), and the position I have here taken has been sustained.
    Two other reasons why claimant should not recover in this case are so simple and conclusive in the mere statement as to need, in my opinion, no further argument. The first is that by procuring tbe appointment as special assistant by tbe promise not to claim compensation be is now estopped from claiming it, and tbe second is that when sucb special assistant is appointed tbe Attorney-General must, under tbe provisions of section 365, Revised Statutes, certify that tbe services could not have been performed by tbe officers of tbe Department of Justice or- tbe district attorney before sucb special assistant can be compensated for bis services.
   Nott, J.,

delivered tbe opinion of tbe court:

Tbe Government, as defendant in this case, can not say that when it commissioned tbe claimant and sent him into tbe grand jury room at Ooeur d’Alene be was an assistant district attorney, and that when be came to it for compensation be was not an assistant district attorney. If be was not then an assistant district attorney be bad no right to go into tbe grand-jury room and assist in tbe finding of indictments, and tbe Government bad no right to send him. If be was an assistant district attorney, tbe service which be rendered in tbe grand-jury room was service as sucb, and tbe question in tbe case is whether be is precluded from recovering compensation by reason of bis bolding another office and receiving tbe salary attached to it by law.

It is contended by tbe counsel for tbe defendants that tbe services of tbe claimant as special examiner in tbe Department of Justice and as assistant district attorney were not “distinct and different.”

Tbe statute authorizing and defining tbe duties of special examiners is as follows:

“For tbe detection and prosecution of crimes against tbe United States, preliminary to indictment; for tbe investigations of official acts, records, and accounts of officers of courts, including tbe investigation of tbe accounts of marshals, attorneys, clerks of tbe United States courts, and tbe United States commissioners, under tbe direction of tbe Attorney-General, and for this purpose all tbe records and dockets of these officers, without exception, shall be examined by bis agents at any time, thirty-five thousand dollars.” (Sundry civil appropriation act, August 5, 3892.)

Tbe statute authorizing tbe employment of assistant district attorneys is as follows:

“ Tbe Attorney-General shall, whenever in bis opinion tbe public interests -requires it, -employ and retain in the name of the United States, such attorneys and counsellors at law as he may think necessary to assist the district attorneys in the discharge of their duties, and shall stipulate with such assistant attorneys and counsel the amount of compensation, and shall have supervision of their conduct and proceedings.” (Sec. 363, R. S. U. S.)
“Every attorney or counsellor who is specially retained under the authority of the Department of Justice to assist in the trial of any case in which the Government is interested, shall receive a commission from the head of such Department, as a special assistant to the Attorney-General, or to some one of the district attorneys, as the nature of the appointment may require, and shall take the oath required by law to be taken by the district attorneys, and shall be subject to all the liabilities imposed upon them by law.” (Sec. 366, R. S. U. S.)

Upon the face of these statutes the duties do appear to be distinct and different. It appears that the claimant had been sent to the West to assist in working up the cases in which he afterwards took part as assistant district attorney. But conceding this, it does not follow that the services were not distinct a.nd different. A surgeon may be employed at an annual salary to edit a medical journal. During his period of service his employer may employ him to perform a surgical operation. Both the editing of the journal and the performance of the operation will require a knowledge of surgery; yet no one would contend that the two are not distinct and different. So the hunting up of witnesses, the examining of accounts, and other work of an examiner differ from the professional work of going into a grand-jury room and examining 175 witnesses. The latter duty involves responsibility, preparation, professional skill, and nervous strain, distinct and different from those of a lawyer’s clerk or a detective or a special examiner.

It has been regarded as settled since the decision of the Supreme Court in United States v. Saunders (120 U. S. R., 126) that a person may hold two offices and receive the salaries of both, notwithstanding the provisions of the Revised Statutes (sections 1763, 1764, 1765), provided that they are distinct, each having its own duties and compensation, and are not incompatible. In this case we have seen that the offices are distinct and that each has its own duties and compensations. The resulting question is whether they are incompatible.

Two offices are incompatible when a performance of the duties of the one will prevent or conflict with a performance of the duties of the other; as in Webster’s Case (28 C. Cls. R., 25), where the offices were those of engineer in the Navy and paymaster; and as in Winchell’s Case (Ib., 30), where the offices were that of engineer in the Navy and that of draftsman in the Hydrographic Office; or when the holding of the two offices is contrary to the policy of the law, as in Badeau v. The United States (130 U. S. R., 439), where the one office was that of a retired army officer and the other one in the consular service. In this case the duties were not incompatible. Both required the claimant to be at the same place; and it appears that the perpormance of the duties of the one did not interfere with or relieve him from the performance of the duties of the other.

In this case, as in Bentley's (26 C. Cls. R., 241), there may be a question whether the claimant can recover until the Attorney-General has fixed the amount of his compensation. That point was raised, but was not decided, the case going off for other reasons. Here the claimant was ordered by telegram to proceed to a certain place. He did so, and there found an appointment from the Attorney-General as special assistant to the attorney of the United States for the district of Idaho to aid him in the preparation and prosecution of all criminal business properly coming before the court during its special term, ordered at Coeur d’Alene for August 23, 1892. The appointment also said, “Your compensation will be determined by the Attorney-General upon completion of your service. Execute the customary oath of office and forward the same to this Department without delay.” The claimant complied with these instructions; he took the oath of office and assisted in the preparation and prosecution of the criminal business referred to. It is true that before he had accepted the office he had suggested the advisability of his appointment “as a special assistant to the United States attorney, without compensation, for these cases.” But that letter was not written until after this special appointment of the Attorney-General had been made. It was a proposition not acted upon by either party, and is properly in the case only as it may affect the question of damages.

Another peculiar fact in this case is that the appointment was made by one Attorney-General (Acting Attorney-General Aldrich), and the refusal to allow the claimant compensation came from another (Attorney- Gen er al Miller). If the Attorney-General had allowed the claimant some compensation, though small and inadequate, it may be that it would preclude him from seeking more. By accepting the appointment he may be said to have agreed to submit the amount of compensation exclusively to tke.Attorney-General. But he did not agree by accepting the appointment to submit to the arbitrament of the Attorney-General the question whether he was in law entitled or not entitled to any compensation whatever. Does the refusal of the Attorney-General to fix the value of his service and the amount of his compensation leave the claimant free to recover in quantum meruit ? In Cooper’s Case (8 C. Cls. R., 199) it was held that where a contract provides that a contractor shall be allowed and paid a reasonable price, to be estimated and determined by a board of inspectors appointed by the Quartermaster’s Department, and the department neglects to appoint such board, the contractor may bring his action and recover for his work. This case has been frequently recognized since, and rarely, if ever, questioned. It seems clear that if a person is legally entitled to compensation, the refusal of a public officer to fix the amount should not deprive him of his right.

In this case, as in Bentley’s, the claimant has sought to prove by the depositions of lawyers the value of the'services rendered. As in Bentley’s Case, we regard their.statements as little more than the opinion of witnesses. Furthermore, the opinions are not based upon the actual relations of the parties. Here the preparation of the claimant as counsel was largely acquired by his services as examiner. The value of his services as examiner must be gauged by the salary which he received and accepted, $2,500. His traveling expenses and hotel bills were paid by the United States.

As was said in Bentley’s Case, the value of a lawyer’s services is a matter of opinion, as to which the court will not be bound by the testimony of witnesses. Basing our conclusion upon all of the facts of the case, the value of the claimant’s services as examiner, the relations of the parties, the fact that the claimant offered to perform without compensation, and the nature of the services rendered, we place the compensation at $300.

Three of the four members of the court who sat in the case concur in this opinion. ■  