
    ANNA F. WHITING, Administratrix, v. THE UNITED STATES.
    [No. 21095.
    Decided March 19, 1900.]
    
      On the Proofs.
    
    The decedent while an employee of the United States Coast and Geodetic Survey at a salary of 32,400 a year is appointed a member of the Mississippi River Commission at the same salary. Later his salary is reduced by the Secretary of the Treasury to 31,600 a year.
    I.Where a statute creates an office and fixes its compensation the appointing power can not diminish or increase it.
    II.A public officer may recover the lawful compensation of his office though he accepted a less amount and receipted therefor in full.
    III.Where a statute provides that Government officers shall discharge duties additional to those of their regular office and that they “ shall receive no other pay or compensation than is now allowed them, by law,” the pay at the time of the appointment fixes the amount to be paid in the new position.
    
      The Reporters! statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Anna F. Whiting, was at the date of the bringing of this suit, and now is, the administratrix of the estate of Henry L. Whiting, deceased.
    II. On June 10, 1890, Henry L. Whiting, the claimant’s intestate, was appointed by the President a member of the Mississipi River Commission.
    III. At the time of said appointment the decedent was an employee of the United States Coast and Geodetic Survey, at a salary of $2,400 per annum.
    IY. Decedent received compensation after his appointment by the President as a member of the Mississippi River Commission at the same salary, namely, $2,400, which he was receiving as an employee of the United States Coast and Geodetic Survey at the time of his appointment until August 18,1894.
    
      Y. On August 24, 1894, the salary of the decedent was reduced by the Secretary of the Treasury to $1,600 per annum, the reduction taking effect from August 18, 1894.
    YI. The decedent served continually as a commissioner of the Mississippi River Commission from the time of his appointment, June 10,1894, to the date of his death, February 5,1897.
    Yir. The salary received by the decedent during his service as such commissioner was paid by the Treasury Department at the rate, of $2,400 per annum frofli June 10, 1890, to August 18, 1894, and at the rate of $1,600 per annum from August 18, 1894, to February 5,1897, the decedent executing receipts for his salary at the rates mentioned, which expressed to be in full for the amounts due him at those rates, respectively.
    VIII. No payments as salary were made to the decedent during his said service as commissioner by the War Department, but only for traveling expenses incurred in the performance of his official duty.
    
      Mr. W. II. Robeson for the claimant:
    First, it is observed that the plain purpose of the provision of the statute was that the commissioners so selected should not receive salaries as officers of the Army or of the Coast and Geodetic Survey and at the same time ■ additional compensation as commissioners. Second, it would seem that the purpose was equally plain that in the transfer of the member of the Engineer Corps of the Army and the member of the Coast and Geodetic Survey their salaries should be unaffected.
    Certainly there was no intention to reduce the former salaries of these commissioners who were to be chosen and removed from another service, because there is no expression significant of such purpose. Yet the act is one which declares a limitation to the salaries of the officers whom it contemplates, for it fixes the compensation of the civilian commissioners atagivensum, $3,000 per annum. It would be strange if, providing this limitation of salary for the civilian commissioners, a similar purpose was not existent as to the salaries of those taken from another branch of the Government. We find such limitation, by reasonable intendment, in the language already cited, that as to the other commissioners they should receive “no other payor compensation” than was allowed them by law at the time of their appointment; and as establishing a rule which should not leave the amount of salary' doubtful it was provided that vacancies occurring in the commission should be filled by the President “in like manner.” If, therefore, a member appointed from the Coast and Geodetic Survey should die, resign, or be removed, the salary of his successor was to be, if a $1,600 clerk, $1,600; if a $2,400 expert, $2,400.
    Ordinarily the salaries of Presidential appointees are fixed by statute in terms, or a mode is provided by statute from which salaries of such appointees are determined. If this act establishing the Mississippi Fiver Commission is to be taken as not positively fixing the salaries of those members of the commission who were to be appointed by the President, it furnishes an anomaly in legislation. Is it not fair to say that if there was an intention that the salary of an officer appointed with such dignity should be liable to reduction at the hands of the President he would have been by the terms of tbe act clothed with such authority? If there 'had been such a purpose, would it not naturally have followed the declaration that the officers appointed from the Engineer Corps of the A rrnj- and the Coast and Geodetic Survey would receive “ no other pay or compensation than is now allowed them by law ? ”
    The second proposition is that, as the power of appointment and removal was given in terms to the President of the United States, if the salary of a commissioner could be reduced bjr anyone that authority would vest in the President alone, for if the President had the power of appointment and removal he of course had all intermediary power and jurisdiction, if any existed anywhere. If, in addition to the power of appointment and the power of removal there was the power of reducing salaries, it must have been the legislative intent to give that power to the President. This would seem evident from the fact that there is no contrary provision in the statute; and also because otherwise a subordinate officer, by an arbitrary reduction of salaries, could practically annul appointments which the President h'ad made and create vacancies. W ould it not have been ridiculous to provide that the President might appoint commissioners at a salary already fixed by law, and be given jurisdiction and power over them, even to removal, but that in the meantime the head of a Department might interfere and reduce the salary of his commissioners ? But this case presents even a more remarkable aspect. The Mississippi Iiiver Commission is a bureau of the War Department. If by any possibility of reasoning it may be shown that there was authority anywhere to reduce the salary of a member of the commission, and if this reduction could be lawfully accomplished by any subordinate officer, it would seem unreasonable to assume that any other Department than that of War should have such authority; yet the reduction of Professor Whiting’s salary was effected not by the President nor by the Secretary of War, but by the Secretary of the Treasury. Professor Whiting, as a member of the Coast and Geodetic Survey, was subject to the jurisdiction of the Secretary of the Treasury, but with his appointment by the President as a commissioner there was immediately effected a complete change of authority — a transfer to the jurisdiction of the War Department.
    That this is so is evident—
    First. Because the act in terzns gives the Secz’etary of War authority over the work of the commission.
    Second. Because the appropriations for the payment of the salaries provided for in the act are to be expended under the direction of the Secretary of War.
    Third. Because the coznmissioners were to be appointed by the President of the United States.
    It appears fzzom the record that Professor Whiting’s salary was paid by the Treasury Department, but it seems clear to counsel that such payment was wholly without authority of law, since under the terzns of the act in questiozz- all the salaries therein provided for were without exception to be paid out of the appropriation with the expenditure of which the Secretary of War was charged.
    In addition to these reasons, in support of the proposition that the Secretary of the Treasury had no jurisdiction to interfere with the salary received by Professor Whiting there is noted a clause of section 3 of-the act in question, in these woi’ds:
    And the Secretary of the Treasury shall when requested by said commission * * *. detail from the Coast and Geodetic Surrey such officers and men as may be necessary.
    
      Men were to be detailed from the Coast- and Geodetic Survey if necessary, and of course being “detailed” were continually subject to the jurisdiction of the Secretary of the Treasury, whose power of curtailment of salaries was not affected by the detail; but the commissioner appointed from the Coast and Geodetic Survey was not a detailed employee of the Government. He was a Presidential appointee, and as we have shown with that appointment the Secretary of the Treasury lost whatever jurisdiction he had previously enjoyed.
    In the report of the Auditor of the Treasury to the Comptroller with reference to Professor Whiting’s claim for balance of salary, he says:
    “His receipts are now on file for his salary at the rate above mentioned and express to be in full for the amounts due him at these rates respectively.”
    In view of the well-established principle that payment of part of a liquidated demand is not satisfaction of the whole, even though a receipt in full for the whole demand be given by the creditor, and of maní'- decisions of our Federal courts: that receipts of this character are not to bo taken as a relinquishment of a claimant’s right to the remainder of compensation to which he is entitled under the law, we do not apprehend a contrary insistence by the defendants. (Baldwin v. United States, 15 C. Cls., R. 297; Adams v. United States, 20 C. Cls., R. 115; Bostwick v. United States, 94 U. S., 53.)
    In the case of Adams v. United States, 20 C. Cls., R. 115, it is said in the opinion:
    “The law creates the office, 'prescribes its duties, and fixes the compensation. The selection of the officer is left to the collector and Secretary. The appointing power has no control beyond the limits of the statute over the compensation either to increase or diminish it.”
    If, as we have shown, this act fixes the salaries of the officers of the commission, have we not an exactly parallel case, except in the fact that the President was to be the appointing power?
    The reduction of Professor Whiting’s salary was, so far as is known, without cause. The act was upon the part of the Secretary of the Treasury purely arbitrary, if not tyrannical. The court is asked to find for the reasons stated that it was without authority of law.
    
      
      Mr. John G-. Capers (with whom was Mr. Assistant Attorney- General Uradt) for the defendants:
    Where, payments for work done in Government employ are made' frequently and for a considerable period of time, and are received without objection or protest; and where there is no pretense of fraud or duress, it is entirety legitimate to infer that such payments were made and received on the understanding of both parties that they were made in full. And such a presumption is much strengthened if the employee waits two years after the expiration of his service before making any demand for further compensation. {Carling er Case, 169 U. S., 316, citing JBalier v. Nachindeb, 19 How., 126; United States x. Child, 12 Wall., 232; De Arnaudx. United States, 151 U. S., 483.)
    The circumstances in this case, as to the payments to Whiting, his vouchers, the absence of any evidence whatever of discontent or protest by him, and the total absence of any fraud or duress on the part of the Government brings the case clearty within the law as laid down by the Supreme Court and quoted aboim. It would seem, therefore, that without going any further the claimant is precluded from a recovery in this case.
    It is true that ordinarily the salaries of Presidential appointees are fixed by statute law in terms, as stated by claimant’s counsel. The fact, howeAmr, that the salaries of the civilian members of the commission were fixed by law and that there was no definite amount fixed as the salaiy of those members of the commission taken from the two branches of the Government service, establishes the Arery opposite proposition to that stated by claimant’s counsel. And, in fact, it seems conclusive that the words of the statute, “ commissioners appointed from the Engineer Corps of the Army and the Coast and Geodetic Survey shall receive no other pay or compensation than is now allowed them by law,” leaves them out of the class whose salaries are fixed by the President, and confines them to the salaries of the respective departments in which thejr were serving and from which they were appointed.
    Every officer or regular employee of the Government should be limited in his compensation to such salary or fees as were ■by law specifically attached to his office ox* employment. Extras, which are such a fruitful subject of disputes in private contracts, were to be eliminated from the public service. \Qarlinger Case, 169 U. S., 316-, United States■ v. Evncj, 147 TJ. S., 676; Mullet's Admmisiyratrix v. United States, 150 U. S., 566, 570.)
    If it is true, as contended by claimant’s counsel, that by the appointment of Whiting from the Coast and Geodetic Survey to the Mississippi River Commission he was taken from the Treasury Department and removed from its pay rolls, it is equally true that the appointment of the Army officers removed them from their Army status and from the Army pay rolls and transformed them wholly into members of the Mississippi River Commission. A mere statement of this proposition is sufficient to satisfy the court of the untenable position taken by claimant’s counsel in regard to the member from the Coast and Geodetic Survey.
    If Whiting ceased to be a member of the Coast and Geodetic Survey when he was appointed on the Mississippi River Commission — the transformation to the commission made him ineligible immediately upon his appointment. And similarly, if the appointment of the Army officers of the commission took them out of the Army it would make them ineligible on the Mississippi River Commission under the terms of the act.
    The work of the commission was such that they needed a Coast and Geodetic Survey expert, and also engineers from the Army. Not that they needed persons who had been in the Coast and Geodetic Survey or had been in the Army, but persons who were in good standing and possessed of all the professional requirements of the two branches of the public service referred to. These, together with three civilian members, two of whom were to be engineers, were to constitute ,the commission.
    “The Government is not bound by the act of its officers making an unauthorized payment under a misconstruction of the law. Parties receiving moneys illegally paid by a public officer are liable ex ceguo et bono to refund them. ” (Wisconsin Central Sail/road v. United States, 164 U. S., 190.)
    I hardly think, therefore, in view of this well-settled principle of law* that claimant’s counsel will insist upon his contention that all of the moneys received by Whiting from the Secretary of the Treasury were unlawfully paid to him, for, if so, the claimant is subject to an action which would result in forcing him to refund the same.
    First. Because during his entire term of service on the commission he signed vouchers in full of all salary account without protest and without manifestation of discontent or expression of dissatisfaction as to the insufficiency of his salary. This applies to vouchers signed by him when his salary was $2,400 a year, as well as when it was $1,600 a year. The claimant made no demand for additional compensation during-his lifetime, and there is no evidence of fraud or duress on the part of the Government in connection with the vouchers signed bjr him. It is therefore legitimate to infer that the payments made to him and receipted for by him were clearly understood by both parties to be in full of account for services.
    Second. Because claimant’s service, by special appointment on the Mississippi River Commission, did not transfer him from the Treasury Department or remove him from its jurisdiction and pay rolls. His appointment to the commission was made by the President in conformity with the statute creating the commission, and it was only because he was a member of the Coast and Geodetic Survey that he was eligible for service on the Commission. This appointment only changed the character of his duties for such a period of time as it pleased the President to retain him fis the Coast and Geodetic Survey member of the Mississippi River Commission.
   Weldon, J.,

delivered the opinion of the court:

The findings show that the decedent was on the 10th day of June, 1890, appointed by the President a member of the Mississippi River Commission, and received a salary of $2,400 per annum from the date of his appointment until August 18, 1894; that on the 24th day of August, 1894, his salaiy was reduced by the Secretary of the Treasury to $1,600 per annum, the reduction taking effect from August 18, 1894.

His sórvice as a • commissioner of the Mississippi River Commission was continuous from the time of his appointment, June 10, 1890, to the date of his death, February 5, 1897.

At the time of his appointment the decedent was an employee of the United States Coast and Geodetic Survey, at a salary of $2,400 per annum.

The salary received by the decedent during his service as such commissioner was paid by the Secretary of the Treasury as aforesaid, the decedent executing receipts for his salary at the rates mentioned, which expressed to be in full of the amount due him at the dates, respectively.

The claimant brought this suit to recover the difference between the salary first paid decedent and the salary paid from August 18, 1894, to the date of his death, to wit, February 5, 1897, making in the aggregate the sum of $1,968.80, upon the theory that the salary was by implication fixed by the provisions of the act establishing the Mississippi River Commission, andothat it was not within the power of the'Secretary of the Treasury to change it below the sum fixed by the legal effect of the provisions of the act, to wit, the sum of $2,400.

The defendants contend that the act under which the claimant was appointed one of the commissioners of the Mississippi River Commission did not fix the salary permanently at $2,400, the sum which the decedent was receiving when appointed; but that the salary was subject to be changed to meet the financial conditions of the Geodetic Survey, as it was changed by the Secretary of the Treasury when it was reduced from $2,400 to $1,600 per annum.

It is also insisted by the defendants that the decedent having received without objection his salary at the reduced rate the claimant is estopped by that act, and can not now recover the difference between the salary first paid and the salary subsequently paid.

The statute under which the decedent was appointed to the Mississippi River Commission is in part as follows:

“SeotioN 2. The President of the United States shall, by and with the advice and consent of the Senate, appoint seven commissioners, three of whom shall be selected from the Engineer Corps of the Army, one from the Coast and Geodetic Survey, and three from civil life, two of whom shall be civil engineers. And any vacancy which may occur in the. commission shall in like manner be filled by the President of the United States; and he shall designate one of the commissioners appointed from the Engineer Corps of the Army to be president of the commission. The commissioners appointed from the Engineer Corps of the Army and the Coast and Geodetic Survey shall receive no other pay or compensation than is now allowed them by law, and the other three commissioners shall receive as pay and compensation for their services each the sum of three thousand dollars per annum; and the commissioners appointed under this act shall remain in office subject to removal by the President of the United States.

* # * * -X-

“ Section 7. The Secretary of War is hereby authorized to expend the sum of one hundred and seventy-five thousand dollars, or so much thereof as may be necessary, for the payment of the salaries herein provided for, and of the necessaiy expenses incurred in the completion of such surveys as may now be in progress, and of such additional surveys, examinations, and investigations as may be deemed necessary, reporting the plans and estimates, and the plans, specifications, and estimates contemplated by this act, as herein provided for; and said sum is hereby appropriated for said purposes out of any money in the Treasury not otherwise appropriated.” (21 Stat. L., 37.)

The law provides for the appointment of seven commissioners by the President, with the advice and consent of the Senate, three of whom shall be taken from the Engineer Corps of the Army, one from the Coast and Geodetic Survey, and three from civil life, two of whom shall be civil engineers. It is provided that as to the members of the commission appointed from Army and the Coast and Geodetic Survey that “they shall receive nb other pay or compensation than is now allowed them by law.”

Under section 7 the Secretary of War is authorized to expend the sum of 1175,000, or so much of said sum as may be necessary, for the salaries provided for and the expenses in the completion of certain surveys.

The question was made as to the right of the Secretary of the Treasury to assume jurisdiction of the subject of the decedent’s salary after his appointment to the commission, upon the legal theory that it was the duty of the Secretary of War to pay the salaries of all the members of the commission.

As to whether it was the right and duty of the Secretary of War or the Secretary of the Treasury to pay the salary of the decedent is, as to the liability of the defendants in this proceeding wholly immaterial, as what has been paid is either a full settlement of the claim or goes in diminution of the claimant’s demand on the defendants:

The only question is, what in law was the salary of the decedent from the 18th day of August, 1894, the time at which his salary was decreased, to the time of his death, February 5, 1897.

It is well settled, when a person is duly appointed to an office his right to the salary attached to the office follows as an incident, and if he is refused payment ho has a right to bring suit and recover whatever portion of salary is unpaid.

In the case of Dyer (20 C. Cls. R., 166) it is in substance held that a salary established by statute can neither be increased nor diminished by an executive officer. The prop-sition is too plain and manifest to need the citation of judicial authority in support of it.

It is said in substance in the case of Adams (20 C. Cls. E., llo), when a statute creates an office, prescribes its duties, and fixes its compensation the appointing power has no control over the compensation either to diminish or increase it. The appointment to the office, by the proper authority gives to the incumbent a vested right in whatever salary may be by law attached to the office.

• It is insisted as against the demand of the claimant to recover the alleged unpaid salary of the decedent, that he receipted in full without protest for his salary covering the period for which the claimant seeks by this suit to recover. To maintain this theory the defendant’s counsel cites the case of the United States v. Garlinger (169 U. S. R., 319). That case differs very much from the case at bar. That was a suit to recover extra pay upon the theory that service performed at night, as night inspector, entitled the claimant to extra pay, because he was not relieved thereafter from duty in consideration of having performed service during the whole of the night.

The court says : “ It is contended from these facts the law will imply a contract between the claimant and the United States whereby the former will be entitled to be paid for both watches as if they constituted two days’ service.”

I-n that case it was contended that by a regulation of the Secretary of the Treasury the plaintiff was entitled to recover tbe additional pay for which he sued. In repy to such contention the court saj^s: “We are unable to accept the contention that it was competent for the Secretary of the Treasury, by passing regulations dividing a day’s service into two parts, to attach to each part the pay for a full day’s work. By the word day in section 2733 Congress evidently meant the calendar day, and the pui’pose of Congress in prescribing the pay of $3 for every day, and in forbidding any allowance or compensation for extra service, would be defeated if the regulation in question were to be construed as provided that a period of twenty-four hours might be so divided as to justify two or more payments to the same person of the amount fixed for the daily compensation.”

It is true, as quoted in the brief of the defendants, that the Supreme Court held that the claimant, by accepting compensation such as was paid him by the officer without protest, estopped himself from claiming after the performance of the service a larger amount of compensation, but in connection with the enunciation of the estoppel the court says: “We do not want to be understood as saying that the mere fact of receiving money in payment will estop a creditor.” It will be seen by an examination of the decision that one theory of the plaintiff’s claim was that an implied contract arose, but the court holds, in substance, that the conduct of the claimant and the defendants with reference to the receipt and payment of the money estopped the claimant from relying upon the theory that there was an implied contract. The court in substance held that it was not within the power of the Secretary of the Treasury to adopt the regulations, insisted on by claimants, as such regulations would be in violation of section 2733, Revised Statutes.

In the case of Adams this court has decided that a public officer may recover the lawful compensation of his office, notwithstanding he accepted a less amount and receipted in full therefor. The court said further in reference to the execution of a receipt by claimant: “We do not think he thereby relinquished his right to claim the further compensation allowed by law. If the appointing officer has no power to change the compensation of an inspector, certainly the paying officer has not. He had no right to exact such a receipt and the claimant lost nothing by signing it.” (Fisher’s Case, 15 C. Cls., R., 323; Bostwick v. United States, 94 U. S. R., 53.)

The question as to the right of the claimant to recover turns upon the construction of the words of the statute: “The commissioners appointed from the Engineer Corps of the Army and the Coast and Geodetic Survey shall receive no other pay or compensation than is now allowed them by law.”

At the time of the appointment the decedent was receiving a salary at the rate of $2,400 per annum. That condition was assumed by the statute to be a reasonable compensation for the discharge of the duties of the new office by the person taken from the Coast and Geodetic Survey, and hence the statute provided that such persons should receive the compensation “ now allowed by law.”

The condition and extent of the decedent’s pay at the time of his appointment fixed the compensation per annum which he was to receive as a member of the commission, and not having received that amount he is entitled to recover the difference between what he was then receiving and what has been paid him, which is the sum of $1,968.80.  