
    ASHFIELD’S CASE.
    (9 Court of Claims R., 331; 91 U. S. R., 317.)
    John M. Ashfield, appellee, v. The United States, appellants.
    
      On the defendants’ Appeal.
    
    
      The Appropriation Act, 1866, fixes the pay of ivatehmen on the public grounds under the Commissioner of Public Buildings at $900. The Appropriation Act, 1870, provides that the pay of watchmen “in either of the Departments; executive or judicial,” “shall be $720, and no more.” The same act places the appropriation for watchmen on the public grounds under the Commissioner■ 
      
      of Public Buildings undo- the heading “legislative.” One of such watchmen being paid only $720, brings suit to recover the difference between that and $900. The court below decides that, Congress having placed the appropriation for watchmen on grounds connected with the Capitol among the ‘1 legislative ” expenses of the Government, their pay does not come under the limitation elsewhere imposed by the same statute on watchmen in the Executive Departments. Judgment for the claimant. The defendants appeal.
    
    I. The office of Commissioner of Public Buildings, originally placed under the supervision of the President, subsequently transferred to the Department of the Interior, and afterward abolished, its duties being transferred to the Chief Engineer of the Army, leaves the officer performing its duties under either tne Department of the Interior or the Department of War, but certainly under one or the other. Therefore, a watchman employed by him is in one of the Executive Departments of the Government.
    II. A limitation on the pay of watchmen “in either of the departments, executive or judicial, of the Government,” contained in an appropriation act, extends to all who are legally in an Executive Department, though the appropriation for their pay is placed by the same statute under the head of “legislative” expenses, and they are employed on grounds of the Capitol.
    III. The different subdivisions ordinarily employed in an appropriation act, viz, “ legislative,” “ EXECUTIVE,” “ judicial,” are intended to classify the appropriations, and not to designate the department to which they belong. Thus, under the head of “ legislative,” there may be an appropriation for the payment of persons who are in an Executive Department, though employed upon the legislative grounds around the Capitol.
    
      The Reporters’ statement of the case:
    The court below found the following facts:
    The claimant was employed in reservation No. 2 of the public grounds from the 1st January, 1867, until 11th May, 1870, under the Commissioner of Public Buildings, while that office existed, and, after it was abolished, under the Chief Engineer of the Army, in charge of the public buildings and grounds.
    From the 1st January, 1867, to 30th June, 1867, he received at the rate of $900 per annum. $450 00
    20 per cent, on same. 90 00
    From the 1st July, 1867, to the 30th June, 1868, he received his salary. 900 00
    20 per cent, on same. 171 00
    And under act 2d March, 1867. 100 00
    
      From 1st July, 1868, to 30th June, 1869. $1,000 00
    From 1st July, 1869, to 11th May, 1870. 500 00
    And under act of 20th April, 1870 . 103 55
    And on the facts found the court finds that the petitioner is entitled to receive from the United States the balance for Ms salary, at $900 per annum, 20 per cent, on same, $169.12. And the court finds, as conclusions of law, that, under the Act July 22, 1866, (14 Stats., p. 321,) the petitioner was entitled to an annual compensation at the rate of $900 per annum; that this rate of the petitioner’s compensation was not altered by the statute of March 1, 1869. That the second section of the Appropriation Act 1867 (14 Stat. L., p. 466) transferring the duties of the Commissioner of Public Buildings to the Chief Engineer of the Army did not affect the jurisdiction or control of Congress over the public buildings and grounds and its own halls.
    
      Mr. Assistant Attorney-General Smith and Mr. John 8. Blair for the United States, appellants :
    Beference to the reports of the Secretary of War since March, 1867, will show that the Chief Engineer of the Army performed his duties relating to the public grounds under and through the Secretary of War, precisely as the Commissioner of Public Buildings had done through the Secretary of the Interior. He never reported directly to Congress. Therefore, the watchmen on reservation No. 2 are in an Executive Department of the Government, and their .salary is fixed at $720, by the Act March 3, 1869, (15 Stat. L., p. 287.) Nor can it properly be said that the classification of the act aforesaid assigns the claimant to any other Department. The word “ executive,” italicized at the commencement of the twelfth line of page 287, refers to the executive office and not to the Executive Departments, as is evident from the context. It is apparent, from an inspection of the several items, that the word u legislative,” immediately after the enacting clause, upon page 283, does not indicate that all those subjects for which appropriations are made, up to the word “ executive,” on page 287, are intended to be considered as embraced within the legislative department; for, if so, this would include all those employed about the Executive Mansion and the Court of Claims.
    
      If it be said that Congress would not surrender the control of its grounds to any Department, the answer is that its control can only be exercised through agents, and the War or Interior Department can be made by legislation as responsible and effective an agency as any other. Its control over reservation No. 2 is no greater than that which it exercises over all public lands or any other Government property, and must be exerted in the sanie way, i. e., by the passage of appropriate laws. The control of the grounds and the subordination of employés are essentially different things. It would be more reasonable to suppose that Congress would place the laborers upon the public grounds under the direction of some Department whose officers were here thoughout the year, than that it would assume that of those employed about the Executive Mansion; yet, if this claimant is treated as belonging to the legislative department, in consequence of the arrangement of this act, so must the President’s door-keejiers and watchmen.
    In the case of the United, States v. Saunders, (10 C. Ols. R., p. 62,) this court held that the superintendent of the Botanic Gardens and his assistants, being “ under the immediate direction of the Joint Library Committee of the two houses of Congress, were, in fact, employés of this committee.” By parity of reasoning, persons placed bylaw under the immediate direction of the War Department and its officers are employés of an Executive Department.
    That it was the intention of Congress to fix the salary of these watchmen at $720 is further shown by the appropriations in their favor,. (15 Stat. L., p. 286.) Three thousand dollars are appropriated to pay them for the year 1869-’70; and in the deficiency bill of the same year $600 are appropriated to pay five watchmen employed in reservation No. 2 $120 each, in order to make their entire pay for the current year $720 each, (16 Stat. L., p. 90.)
    The objection urged by the claimant to the application of this provision upon page 287 to him is, that upon page 298, at the conclusion of the paragraph of “ contingencies^ and just before that relating to the “ United States Mint,” &c., it is provided that the act shall not be so construed as to reduce the compensation of any employé of the Government below the amount allowed in the last or present appropriation bill. As there is no discrepancy between this provision and the sum allowed in tbe (then) present appropriation bill, the only effect he seeks to give to the saving clause is to preserve his salary at the amount allowed in the preceding appropriation bill, thus attempting to nullify a legislative enactment by a clause claimed to be repugnant, instead of holding the clause itself void for that reason. There is, in fact, no repugnance-, and the most natural construction of the two clauses will permit them both to stand.
    The act passed March 3, 1869, went immediately into operation ; consequently, on that day, the salaries of all watchmen in the executive and judicial departments of the Government would have been reduced to $720 but for the proviso upon page 298, which preserved to each employó the amount allowed in the preceding appropriation bill, and also any appropriation in that of March 3, 1869, in excess of the salaries prescribed therein. The effect of the saving clause was to postpone the reduction of salary until the specific appropriations then or theretofore made were exhausted. No attempt was made to reduce Ashfield s salary on or from March 3, 1869, but, as he states in his petition, “for the fiscal year commencing July 1, 1869, he has been paid at the rate of $720 per annum only.”
    The claimant was not entitled to the 20 per cent, additional compensation under the Act July 28, 1866, (14 Stat. L., p. 323, §18,) which only had reference to the employés of Congress, and not to those in an Executive Department, as is expressly declared by this court in the United States v. Saunders, No. 382, upon the docket of the October term, 1874. The amount thus received by Ashfield was $90, June, 1867; and $171, June, 1868.
    The appropriation of 20 per cent, to some and $100 to others indicates that it was never intended that any one should receive both gratuities.
    
      Mr. J. D. McPherson, for the appellee:
    . There is no question that the salary attached to the claimant’s position was, by the Act July 28, 1866, (14 Stat. L., 321,) $900 per annum; the question is whether it was reduced by the Act March 3, 1869, (chapter 121, 15 Stats, 287.) That act reducing compensation did not reduce this claimant’s salary:
    1. Because it applies, in terms, to watchmen in the executive and judicial departments only, and this claimant was not in either of said departments, but in the legislative — that is to say, under the Commissioner of Public Buildings, who was not attached to any executive or judicial department.
    2. Because the act, if it applied to the claimant, did not reduce his salary below $900, for by its terms it did not reduce the pay of any watchman below the amount allowed by the then present or the then last appropriation bill, (same act, p. 298,) and it is averred in the petition, and proved by acts of Congress cited, that neither the then present nor the then last appropriation-bill allowed less than $900. (See Act July 20, 1868, chap. 176, 15 Stat. L., p. 96, for the then past, and Act March 3, 1869, chap. 121, 15 Stat. L., p. 286, for the then present appropriation act.) If either of these acts allowed watchmen as much as $900, then their salary was not reduced below $900. Both, in fact, allowed as much, and one act of 1868 allowed more.
   Mr. Chief-Justice Waite

delivered the opinion of the court.

Ashfield was employed as a watchman in reservation No. 2, part of the pubflic grounds in Washington, from July 1,1869, until April 12, 1870. He has been paid for his services at the rate of $720 a year. He claims compensation at the rate of $900 a year, and this suit is brought to recover the difference between what he has received and what he claims.

The fifth section of the uAct making appropriations for sundry civil expenses of the Government for the year ending June 30, 1867, and for other purposes,” passed July 28, 1866, (14 Stat. L., p. 321,) provided “that each watchman in the public buildings and grounds, under the Commissioner of Public Buildings, whose pay is less than one thousand dollars a year, shall, from the 1st day of July, 1866, receive a compensation of nine hundred dollars per annum.” The claimant insists that this provision had not been repealed when he performed his services, commencing July 1, 1869, and that it fixes the rate of his compensation after that time. It is conceded that there was not, prior to the appropriation act for the year ending June 30, 1870, any express change of this provision.

The act making appropriations for the year ending June 30, 1867, provided “for compensation of two watchmen in reservation No. 2, $1,200,” (14 Stat. L., p. 206.) At the next session there was included in the deficiency bill, under the head of the “Department of the Interior,” an appropriation of the further sum of $2,000, “ to enable the Commissioner of Public Buildings to pay to the watchmen mentioned in the fifth section of the act, * * * the difference between their pay as fixed prior to the passage of that act and the allowance made by said section.” (14 Stat. L., p. 374.) In the appropriation act for the year ending June 30, 1868, $4,500 was appropriated “for the compensation of five watchmen in reservation No. 2,” (14 Stat. L., p. 456,) and in that for the year ending June 30, 1869, five thousand dollars for the same purpose. (15 Stat. L., p. 96.) The claimant received for his services during the last of these years one thousand dollars. There was no other provision for this increased compensation than such as may be inferred from the increase of appropriation for the service. He does not now seek to have his compensation regulated by this act. In his petition he only asks to be paid in accordance with the act of 1866, and at the rate of nine hundred dollars a year.

In the “Act malcing appropriations for the legislative, executive, and judicial expenses of the Government for the year ending June 30,1870,” under the head of “Public buildings and public grounds,” $3,000 was appropriated “ for compensation of watchmen in reservation No. 2.” (15 Stat. L., p. 286.)“- There is no designation of the number to be employed. At the end of the first paragraph, under the head of “Department of State,” after certain appropriations, a proviso is inserted in the following words: “Provided, That the pay of any messenger in either of the departments, executive or judicial, of the Government shall be $840 per annum and no more • * * * and the pay of all laborers and watchmen * * * employed as aforestated shall be $720 per annum and no more,” (p. 287.) And at the end of the appropriations, under the head of the “Department of Agriculture,” these words are found r “And this act shall not be so construed as to reduce the compensation of any employó of the Government below the amount allowed in the last or present appropriation bill,” (p. 298.)

If five watchmen should be employed for the year commencing July 1, 1869, the appropriation actually made would give' them compensation only at the rate of six hundred dollars a year, if equally divided between them. The findings of the Court of Claims do not show how many were employed, but in the Deficiency Bill April 20, 1870, (16 Stat. L., 90,) six hundred dollars was appropriated “ to pay five watchmen employed in reservation No. 2 $120 each, in order to make their entire pay for the current year $720 each.” Thus it appears that five watchmen were actually employed in these grounds, and that the appropriation, as originally made, left a deficiency for their compensation at the rate of $720.

The office of “ Commissioner of Public Buildings ” was created by the Act April 29, 1816, (3 Stat. L., 324, § 2.) The Commissioner was, for certain purposes, placed under the supervision of the President. On the 3d March, 1849, the Department of the Interior was established, (9 Stat. L., 395,) and the supervisory powers of the President over the Commissioner were transferred to the Secretary of that department, (see. 8.) In the Appropriation Act August 4,1854, (10 Stat. L., 573, § 15,) it was made the duty of the Commissioner to report his operations annually to the Secretary of the Interior, and to submit to the same officer his estimates for approval and transmission to Congress with the annual message of the President. On the 2d March, 1867, the office of Commissioner of Public Buildings was abolished and its duties transferred to the Chief Engineer of the Army, (14 Stat. L., 466, § 2.)

Under the ruling of this court in Manning's Case, (13 Wall., 579; 7 C. Cls. R., p. 294,) the office of Commissioner of Public Buildings being under the supervision of the Department of the Interior, was a bureau or division of that department. That was one of the executive departments of the Government. The Chief Engineer of the Army performs the duties which belonged to the Commissioner. He is under the supervision of the Department of War, which is also one of the executive departments. It is not necessary for us to decide whether the change of the office necessarily transferred the supervision of the officer performing its duties from the Department' of .the Interior to the Department of War. It is certain that he is under one or the other of the two, and that each is an executive department. We are, therefore, clearly of the opinion that Ashfield was a watchman employed in one of the executive departments of the Government. For this reason he comes within the operation of the proviso of the act of 1869, which has been stated. It makes no difference that the proviso is inserted in that part of the act which relates to appropriations for the Department of State. It is general in its language, and applies to watchmen in each of the several executive and judicial departments.

Neither do we think it affects the case that at the head of the act, and after the enacting clause, the word “legislative” appears. The act is one making appropriations for the legislative, executive, and judicial departments, but there is no attempt to assign the particular subject of appropriation to any one of these several departments. The appropriation is made for the purpose specified, and the laws organizing the several departments assign it to the one to which it properly belongs. If the theory on which the argument proceeds is correct, then all the appropriations made by the act are for the legislative department, for there is nothing to separate the executive and judicial departments from the legislative, any more than there is the public grounds. The different subdivisions of the section are intended to classify the appropriations, not to designate the department to which they belong.

The compensation of the watchmen in reservation No. 2 was fixed, therefore, for the year ending June 30, 1870, at $720, unless the proviso which so declares is overcome by the subsequent clause declaring that nothing in the act should be so construed as to reduce the compensation of any employé below the amount allowed in the last or present appropriation bill. As has been seen, the last previous appropriation bill did not in terms allow or fix any special rate of compensation for this service. On that account the claimant in this case seeks to avail himself of the act of 1866. But that is not one of the appropriation bills referred to in this saving clause. We are left, then, to the act of 1869 alone, and that fixes the rate at $720. The clause relied upon was undoubtedly intended to provide for cases where the appropriation made was not sufficient to pay in full at the rate of compensation fixed.

There is nothing in the record sent here by the Court of Claims to show that the United States presented any counterclaim before the case was heard and decided. The addition to the record which has been made fails to show at what time the counter-claim was presented to the court below, or that it was ever filed in the cause.

The judgment is reversed, and the cause remanded with instructions to dismiss the petition.  