
    JOHN C. DELANEY v. THE UNITED STATES.
    [No. 18348.
    Decided December 16, 1895.]
    
      On the Proofs.
    
    Congress direct tlie President to open a new land office in Oklahoma. The newly appointed receiver is directed by the Commissioner of the General Land Office to proceed there and make the necessary preparations to open the office. He does so, conferring with the officers of other districts, preparing and issuing notices, giving information and receiving instructions, attending to the transfer of records from other offices, etc. The question in the case is whether his compensation began to run from the time he entered upon these preliminary duties, or from the time whon the office was opened for the transaction of business.
    
      X. The Revised Statutes provide (§ 2243): “ The compensation of registers and receivers, both for salary and commissions, shall commence and he calculated from the time they respectively enter upon the discharge of their dutiesThe compensation begins to run from the time when a receiver, acting under the instructions of the Commissioner, enters upon the performance of duties, preliminary to the opening-of the office, which must be performed by some one.
    II. There can be no recovery against the United States by a public officer for the loss of money by ordinary theft and robbery whero the amount has been withheld from him by the accounting officers.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the-court:
    I. The claimant, John C. Delaney, a citizen of the United States and a resident of the State of Pennsylvania, was duly appointed and commissioned as receiver of public moneys at Oklahoma City, in the Territory of Oklahoma, on June 23, 1890, and on July 7,1890, he qualified by taking the oath of' office and giving the bond required by law.
    II. The United States land office at said Oklahoma City was established by executive order of the President on June 6, 1890.
    III. The claimant left his home in ’ Harrisburg, Pennsylvania, on July 15,1890, and proceeded to Oklahoma City, and on July IS, 1890, he entered upon his official duties as receiver of public moneys at that place, as is shown by the correspondence and facts set forth in the 5th and 0th findings, and continued in the discharge of the same until the termination of his services September 30,1893.
    IY. That from July 15, 1890, to June 30, 1891, the close of the fiscal year, the pro rata compensation of claimant, from salary, fees, and commissions, at the maximum rate of $3,000 per annum, as fixed by law, amounting to $2,885.87, and the fees and commissions earned by claimant from September 1, 1890, when the land office at Oklahoma City was opened for the sale of public lands, to June 30,1891, exceeded said pro rata of maximum compensation by $832.31. The First Comptroller of the Treasury allowed and paid to claimant compensation only from September 1, 1890, amounting to $2,494.60, and refused to allow or pay the balance claimed, which amounts to $391.27, no part of which has been paid.
    
      Y. The following letters were addressed to and received by claimant1 after his arrival in the Territory of Oklahoma:
    “Department oe the Interior,
    “General Land Opeioe,
    “ Washington, D. O'., July 18, 1890.
    
    “.Register and Receiver,
    
      “Oklahoma City, Oklahoma T’y.
    
    “Sirs: I enclose herewith copy of Public Notice No. 940, for the establishment of an additional land district in the Territory of Oklahoma, and the location of the office thereof. Other copies of this notice are sent you with suggestion that one or more be mailed to each post-office in your district, to be conspicuously posted for the information of the public.
    “The officers at Guthrie and Kingfisher have been directed to turn over to you all the plats and records of every description relating to the lands forming your district, and you will at once confer with them upon this subject.
    “As soon as the records are received you will proceed to give notice by publication, as an advertisement, at regular advertising rates in the newspaper having the largest circulation in your district, once a week for four weeks, of the precise date when your office will be open for the transaction of public business, and when the officers at Guthrie and Kingfisher will cease to transact business relating to the lands transferred.
    “ Full supplies of blanks and stationery will be sent you from this office, and a safe, three desks, letterpress stand, and chairs will also be sent.
    “ You will submit a requisition with estimates, specific and in detail, for any other articles of furniture and cases that may be required, giving exact cost, when authority will be given for such expenditures as may be deemed necessary.
    “In this connection, I desire to inform you that no expense whatever must be incurred without the authority of this office being first obtained.
    “If practicable, an inspector or agent will be sent to assist in the opening of your office, and further instructions will be sent you as to your duties.
    “The receiver as disbursing agent will defray the expense of publication of notice herein ordered, and transportation of records from Guthrie and Kingfisher, if there be any such expense, referring on his certified vouchers to this letter by its initial and date as his authority therefor.
    “Please acknowledge promptly the receipt of these instructions and report 'promptly the date fixed for the opening of your office.
    “ Yery respectfully,
    “Lewis A. Groee,
    “ Commissioner P
    
    
      “Department oe the Interior,
    “General Land Oeeioe, “Washington, D. 0., July 23, 1890.
    
    “Register and Receiver,
    “ Oklahoma, Oklahoma T’y.
    
    “Gentlemen: The local officers at Guthrie and Kingfisher have been intrustéd to transmit to your office, upon the closing of business in their offices as to the lands in your district, tract books containing all the entries and filings for lands in your district, together with a list of all the homestead entries and soldiers’ homestead declaratory statements filed on said lands since they were opened to entry, with the cancellations or consummations of entries that may have occurred since that date.
    “You will post in said tract books from day to day such filings or entries as may be allowed, posting the entries in ink and the declaratory statements in pencil.
    
    “ In numbering filings and entries allowed at your office, begin with No. 1 in each class, and number consecutively therein.
    “I inclose herewith a copy of a letter of this date to the register and receiver at Guthrie, which will doubtless give you further information in the matter. A similar letter has been sent to the Kingfisher office.
    “Acknowledge receipt hereof, and of the records from the offices at Guthrie and Kingfisher.
    “Yery respectfully, “Lewis A. Grope,
    “ Commissioner.”
    “Department op the Interior,
    “General Land Oppice,
    “ Washington, JD. C., August 1,1890.
    
    “Mr. John O. Delaney,
    
      “Receiver, &c., Oklahoma, Oklahoma.
    
    “ Sir : I inclose herewith letter of the honorable Secretary of the Interior, dated 31st ultimo, designating you as a special disbursing agent and requiring you to bond as such officer in the penal sum of $5,000.
    “Blank bonds, instructions, &c., are herewith inclosed. Please give the matter prompt attention.
    “Yery respectfully,
    “Lewis A. Grofp,
    “ Commissioner.”
    “Department op the Interior,
    “General Land Oppice,
    “ Washington, JD. C., August 4, 1890.
    
    “Register and Receiver U. S. Land Oppice, •
    
      “Oklahoma, Oklahoma Territory.
    
    “ Sirs : I have this day directed that you be furnished with a supply of stationery, blank books, and forms, together with copies of Land Decisions, U. S. Statutes, copy of tbe Revised Statutes, &c., tbe receipt of wbicb you will please acknowledge.
    “Further supplies, blank books, and stationery may be bad upon application to this office.
    “Very respectfully,
    “Lewis A. Grope,
    
      “Commissioner.”
    
    “Department op the Interior,
    “General Land Oppioe,
    “■Washington, D. C., August Id, 1890. “Deceiver United States Land Oppioe,
    “ Oklahoma City, Oklahoma.
    
    Sir: Tbe honorable Secretary of the Treasury has designated tbe First National Bank of Arkansas City, Kansas, in wbicb to deposit to tbe credit of tbe Treasurer of tbe United States tbe receipts of your office.
    “You will transmit your receipts by Wells-Fargo Express Company to'the bank, and will include in your estimates to this office tbe amount necessary for tbe payment of charges of such remittances.
    “Very respectfully,
    “W. M. Stone,
    
      ‘ ‘Assistant Commissioner.”
    
    “Department op the Interior,
    “ General Land Oppioe,
    “ Washington, D. 0., August 15, 1890.
    
    “Eegister and Deceiver,
    “ Oklahoma Oity, Oklahoma.
    
    “Gentlemen: Deferring to tbe receiver’s letter of tbe 6th instant iu relation to freight ou safe, you are informed that tbe contracts call for tbe delivery of the safe and tbe office furniture at tbe railroad station nearest your office, and no' freight charges should be paid by you.
    “ Tbe expenses attendant upon tbe removal of tbe safe and furniture from tbe station to your office will be paid by tbe receiver as disbursing agent, who will, upon bis certified vouchers, refer to this letter by its initial and date as bis authority therefor.
    “ You should submit a specific and detailed estimate of tbe cost of such additional furniture, cases, Sue., as may berequired, bearing in mind that tbe appropriation will not admit of any extravagant outlay, and tbe articles should be of an inexpensive character, so far as possible.
    “An inspector will be sent to assist in opening your office,. and be will report as to clerical assistance necessary.
    “Very respectfully,
    “Lewis A. Gropp,
    “ Commissioner.”'
    
    
      “DEPARTMENT OE THE INTERIOR,
    “General Land Oeeioe,
    “ Washington,- D. C., August 25, 1890. '
    
    “Eeg-ister and Eeoeiyer,
    “ Oklahoma City, Oklahoma T’y.
    
    “Sirs: Deferring to tbe letter of the register of the '22nd instant, calling attention to the clerical force in your office, you are advised that at the present time there are no funds available. The sundry civil bill has not as yet been passed. As your office does not open until the 1st proximo, you will be advised before that date as to the employment of a clerk. “Yery respectfully,
    “Lewis A. Grope,
    “ Commissioner.”
    
    VI. Claimant was directed verbally by the Commissioner of the General Land Office on the 10th of July to go to Oklahoma, as speedily as possible to make the necessary preparations to open the office. He left Harrisburg, Pa., on the 15th of July, 1890, and arrived at Oklahoma City on the 18th. The nature of the service performed by claimant after his arrival and before the 1st of September is as follows: Conferring with the officers of other districts in the Territory from which his district was formed, to determine what date to open the office; preparing and issuing thirty days’ notice of the day fixed for opening the office; overseeing and superintending preparation of rooms for office; getting estimates for the manufacture of cases for office; superintending the construction of fixtures and having them put into office; giving information and receiving instructions from the inspector; attending to the transfer of the records from the other offices of the Territory to that of the Oklahoma office. During said time there was a continuous arrival of letters from different parts of the district, as well as letters from the Department, which required the attention of claimant up to the 1st of September, 1890.
    
      Mr. John O. Ohaney for the claimant:
    1. Certainly, on July15,1890, when claimant began his journey to Oklahoma, by direction of the Commissioner of the General Land Office, he began to perform service, under his appointment in behalf of -the United States, and to devote himself to his duties. Having been duly appointed and commissioned, and given the bond, and taken the oath required by law, why should he not be compensated for his time, in traveling at his own expense, from bis home to the place where the land office is located'? The statute does not provide that the salary shall begin from the time he enters upon his duties at the land office, but from the time he enters upon his duties.'
    In the ease of a marshal to theUnited States consular court at Shanghai, China, duly appointed and commissioned, in answer to a question propounded to the Attorney-General by the Secretary of State, whether the salary of such marshal should begin with the date of his commission, or the date of his entry upon duty in China, the Attorney-General held that, after having duly qualified by taking the oath and giving bond, the marshal of the consular court might be lawfully considered as having begun to devote himself to the public service, in the performance of such duties as were preliminary to his departure, and should be paid for the time occupied in the same, as well as for the time in traveling to his post. (10 Op. A. G., 250.) This case is the more emphatic because of the fact that marshals to United States consular courts are not included in the statute (sec. 1740, It. S.) which allows salary to certain diplomatic and consular officers for time occupied in receiving instructions prior to departure and for time in making the transit to their respective posts.
    This opinion of the Attorney-General has been adopted as the rule governing the time when the compensation of marshals to United States consular courts shall begin. (U. S. Consular Regulations, 1888, paragraph 483, pp. 171,172.)
    The construction of the statute, as to the time when the register and receiver of a land office enter upon the discharge of their duties (sec. 2243, E. S.), as made and applied by the Comptroller in the claimant’s case, is narrow and technical, against the officer and not in his favor, and is opposed to the rule laid down in United States v. Morse (3 Story’s Reports, 87), cited and approved by this court in Moore v. United States (4 C. Ols. R., 141).
    2. The second and third items which go to make up the total claim may properly be considered together, being $08, cancellation fees in contested land cases, and $138.27, current receipts from fees and sales of public lands, which were deposited for safe-keeping for the time being in the Government safe in the United States land office at Oklahoma City, and were stolen therefrom when the safe was blown open and robbed on the night of September 28, 1890.
    
      These moneys were deposited, in the safe provided by the Government for the safe-keeping of the current funds. The claimant acted in good faith and with reasonable diligence in the matter. There is no charge of any negligence on his part, and no evidence to sustain any such charge if made. On the contrary, his accounts show that the moneys received by him were deposited with reasonable promptness. The amount on deposit in the safe (at the time of the burglary) was comparatively small, showing that claimant was not behind in making his deposits, and that only current collections were kept in the safe.
    The general liability of public officers having the charge of property is put by Mr. Justice Story on the same footing as that of bailees for hire. (Story on Bailments, secs. 96, 130, 390, 620; Browning v. Hanford, 5 Hill, N. Y., 590.)
    In line with the above are the decisions of this court in Hobbs v. United States (17 O. Gis. B., 189) and Bisley v. United States (No. 15900, decided March 5, 1894, 29 O. Cls. B., 265).
    
      Mr. George H. Gorman (with whom was Mr. Assistant Attorney- General Bodge) for the defendants:
    1. The time when the pay of an official commences is always one of law. In most cases he is entitled to a salary and other emoluments when he has been duly sworn into office. In the case of officials who are obliged to give bond, giving the bond is a condition precedent to the right to collect and have paid the salary. In other cases and under similar statutes, in fact under most statutes, the officer must have taken the oath, given bond, where one is required, and entered upon the discharge of his duties before he is entitled to compensation. In the case under consideration, however, there is a statute specially made for registers and receivers. Their compensation, both for salaries and commissions, shall not commence until they enter upon the discharge of their duty. The fact should be noted that their “ salaries and commissions ” commence at the same time. I suppose it would not be contended by anyone that the commissions can be allowed or collected until work is done upon which commissions can be lawfully charged; therefore, if the salary and commissions can not commence until work is done upon which commissions can be charged, it follows that the salary can not commence until these officials absolutely enter upon the discharge of the duties of their office — not in form, not in theory, but in fact.
    In fact and in law there are many necessary and essential preliminary acts to be accomplished before a new United States land office is actually and completely established, equipped, and opened for the transaction of public business relating to public lands, and before the room or building in which the office is to be kept becomes and is in actual and legal intent a land office, which is a place equipped and prepared for the transaction of the actual business of receiving and acting upon entries and disposing of the public lands within that land district.
    First. The new land district must be established by law, and a place must be designated where the laud office is directed by law to be established, opened, and kept! (Secs. 2234, 2235, U. S. Rev. Stat., and all laws establishing new land districts and offices.)
    Second. A register of the land office and a receiver of public moneys must be appointed by the President for that land district. (Sec. 2234, Rev. Stat.)
    Third. The register and the receiver so appointed must each give a bond for the faithful discharge of their duties, which bonds must be approved by the proper authority. (Sec. 2236, Rev. Stat.)
    Fourth. The register and receiver must each take the oath of office. (Sec. 1756, Rev. Stat.)
    Fifth. The register and the receiver must each reside at the place where the land office is by law directed to be kept. (Sec. 2235, Rev. Stat.)
    Sixth. Such new land office must be duly opened in accordance with previous public announcement under the direction of the Secretary of the Interior. (Sec. 2254, Rev. Stat.)
    Seventh. Such register and receiver must each, actually and concurrently, enter upon the discharge of his duties. (Sec. 2243, Rev. Stat.)
    Until all of these acts are accomplished the register and the receiver at a new land office are not lawfully entitled to, and can not be allowed any compensation, either as salaries or commissions.
    The law plainly and clearly intends and provides that there may be registers and receivers properiy appointed and qualified wbo are not entitled to the compensation provided for such officers, for after this has been actually accomplished there is another plain but very important requirement of law relating to them which is found in but few, if any, other laws fixing the status of United States officers. This requirement is that the compensation provided by law for registers and receivers “shall commence and be calculated from the time they respectively enter on the discharge of their duties.”
    The first act of Congress containing this requirement and limitation plainly and clearly indicates what the duties are which the register and the receiver must “ enter on the discharge of” before their salaries were to commence, viz:
    “ To be ready to commence, take up, and carry on the sale of public lands within the Willow River land district, and in all cases hereafter the salaries of land officers shall commence only from the time they enter on the discharge of their (similar) ■duties.” (See sec. 3, Aot of February 24, 1855, 10 Stats., 615.)
    Can anyone doubt that that act fixed the time and the duties those and all similar officers were to enter on and discharge before their compensation should commence? The act of February 2, 1859, extended the above limitation in regard to salaries by adding “compensation” and “commissions,” thus ■covering all the pay of such officers. This law is now section 2243, Revised Statutes. The Aot of .May 31, 1892 (17 Stats.,-192), now section 2234, Revised Statutes, extended the provisions of section 3 of the act of February 24,1855, in relation to continuing the sale of public lands at the Willow River land office, to all new land districts and offices to be thereafter created or erected by a change of boundaries of old districts, and added the provision that “public announcement” would thereafter be given, under the direction of the Secretary of the Interior, of the time such change from the old to new land office would go into effect. This ‘ ‘ public announcement” is the notification to the officers of the old district and to the public that the officers of the new district will at a named date be “prepared to enter on their duties.”
    Ever since the enactment of the above-named laws, the Interior Department and the Treasury Department have continuously and uniformly given them the above construction, which it is clear is what Congress said and intended, and this construction bas never before been disputed or denied, nor any claim known to liave been made that it is not the real, true intent and meaning of those laws. See Lester’s Land Laws, Regulations, and Decisions, published in I860, page 313, under head of “Salaries and commissions of registers and receivers,” for the contemporaneous construction and ruling of the General Land Office on these laws, where it is shown to have been held that such officers were entitled to compensation only from the time they actually enter upon the discharge of the duties of their office.
    “The contemporaneous construction of those who were called upon to act under the law and were appointed to carry its provisions into effect is entitled to very great respect,” says the court in Ranil v. The United States (38 Fed. Rep., 067), which is quoted with approval by this court in Keallfs Case (29 O. Cls. R., p. 138). To the same effect is Edwards Lessees v. Darby, 12 Wheaton, 210), United States v. Union Pacific Railroad (307 Fed. Rep., 555), and United States v. Johnston (124 U. S., 236, 253).
    2. The Interior and Treasury Departments know nothing of this alleged loss of $68, and even if it occurred, as the receiver in this case for the first time reports or claims, the United States was not and should not be held liable. As shown by the statement of the claimant, it was not public moneys of the United States; was not paid by or received from entry-men as fees on land entries nor for any duty or act performed by the register or the receiver.
    3. This item is for money alleged to have been stolen from the safe of the register by robbers, without any fault or neglect of the claimant.
    The claimant here was a bonded officer of the United States, as is required by Revised Statutes, section 3834, under the usual bond, conditioned upon his safely keeping and paying-over all money received by him, etc. If, therefore, he had failed to account to the proper officers of the Government for all public moneys by him received, an action on his official bond for the discrepancy could have been successfully maintained by the United States, and the plea of loss by theft or robbery would have been no defense to such an action, as will be seen from the cases hereafter cited.
    
      A fortiori, then, this action does not lie to recover back money which the law required him to pay. The ease does not involve the degree of diligence required of a bailee. It is a matter of special contract under his bond and the doctrines of the law of bailment have nothing to do with the matter. (United States v. Prescott, 3 How., 517, 587, 588, 589; United States v. Thomas, 11 How., 154,161; United States v. Dashiel, 4 Wall., 182, 185.)
    These cases were followed and approved by the court in United States v. Keehler (9 Wall., 88).
    The decision in this case is rested partly on the ground of public policy, that any other rule would open the door wide for frauds, and thereby the public funds would be constantly in jeopardy by reason of dishonest officials, while folly upholding and ax>plying the doctrine that the bond given by the officer is an undertaking' to account for the moneys intrusted to his care at all hazards. Thus, the officer must account for all public money deposited by him in a bank, whether it be a public depository or not, if it fails. There is no exception to this rule, unless by acts of Congress, exceptions and reservations have been made, as has been done in the cases of postmasters and paymasters of the Army. (See last page of .opinion in United States v. Keehler, supra; Hobbs'1 Case, 17 O. Cls. R., 189; Scott’s Case, 18 O. Cls. R., 1; Rev. Stats. TJ. S., secs. 1059, 1062; United States v. Boy den, 13 Wall., 17; United States v. Thomas, 15 Wall., 337.)
    A careful search through the Supreme Court Reports reveals no case on this subject subsequent to that of Thomas, supra; and the question has not been dealt with by this court in any reported case.
    Where the precise question has been raised in the State courts, the decisions have been in conformity with the decisions of the Supreme Court in the cases anterior to the Thomas Case, which I have cited. (See Muzzy v. Shattoeh, 1 Denio (N. Y.), 233; Gom. v. Gomley, 3 Pa. St., 372; State v. Harper, 6 Ohio St., 607; Golerain v. Bell, 9 Mite. (Mass.), 499 (a case against a collector); Inhabitants v. Hazzard, 12 Cush. (Mass.), 112 (a case against a treasurer); Looney v. Hughes, 26 N. Y., 514; Pearley v. Muslcegon, 32 Mich., 132; Stienboch v. State, 38 Ind., 483 (see also 28 id., 86, and 22 id., 125); Taylor v. Morton, 37 Iowa, 550; Providence v. McKachron, 4 Yroom (N. J.), 339; State v. Powell, 67 Mo., 935.)
    
      Money destroyed, by an accidental fire must be accounted for by a public officer. Tbe loss by fire does not exonerate him, though occurring through no fault or neglect of his. (Union v. Smith, 39 Iowa, 9.)
    With reference to Hobbs’ Case (17 O. 01s. R., 189) and Scott’s Case (18 O. Gis. R., 1), it is only necessary to remark that the claimant here was not a disbursing officer of the United States, and therefore those cases which proceeded upon the provisions of sections 1059, 1062, Rev. Stats., have no sort of application to the case at bar.
    The other cases cited by claimant’s counsel all have reference to the obligations of an ordinary bailee. As the decisions of the Supreme Court which I have quoted and cited show that a receiver of public moneys is not a bailee, and that the law applicable to bailees is not the test whereby his responsibility is to be measured, it is unnecessary to notice the citations.
    The claimant in this case would also be prevented from recovering this item and Item II under the doctrine of voluntary payments, as laid down in JUlliott v. Swartout (10 Peters, 137,152), and Bend v. Hoyt (13 ib., 262, etc.).
   Weldon, J.,

delivered the opinion of the court:

The petition embraces three causes of action, first, a claim for fees as receiver of public moneys at Oklahoma, in the Territory of Oklahoma, earned between the 15th of July, 1890, and the 1st of September, 1890; second, fees “which he (claimant) was required to make good in contested land cases from time to time, which amounted in the aggregate to sixty-eight dollars, and for which he has not been allowed or paid any partin the settlement of accounts;” third, as alleged in this petition, that, “ to wit, on the 28th of September, 1890, at the city of Oklahoma, the Government safe of the receiver of public moneys and in his office, which contained moneys of the United States received by him as receiver, was blown open by burglars, and all the moneys therein were robbed and taken therefrom, and that the moneys of the United States, being the receipts of said land office there deposited in said safe in the sum of $138.27, were then and there stolen and robbed, and that in depositing said sum your petitioner exercised the care of a prudent business man in and about his.own business affairs; that after the taking he demanded that his accounts should be credited for the amount of the said loss, which was refused by the accounting officers of the Government.”

The serious contention arises on the claim for salary and fees earned from the 15th of July, 1890, the date on which claimant left the State of Pennsylvania, and the 1st day of September, 1890.

The land office of which he was receiver was opened for the transaction of business on the 1st day of September, 1890, pursuant to a notice given by the register and receiver thirty days prior to said time.

The notice and order of the General Land Office establishing an office at said place was made on the 11th of June, 1890, in which it is stated:

Further notice of the precise date when the office at Oklahoma will be opened for the transaction of public business will be given by the register and receiver of the district by publication.”

The claimant left his home in Pennsylvania and arrived at Oklahoma on the 18th day of July, and from that time, it is insisted, he commenced his services as receiver, and not from the 1st of September, when the office was opened for the loca-tain and sale of land. The defendants insist that his term of service commenced when the office was opened for the entry and sale of land, and from that time they have allowed his compensation.

The Commissioner of the General Land Office construed the law in favor of the claimant’s right to compensation from the time he arrived at Oklahoma and entered upon the discharge of the preliminary service incident to the opening of the office; but in that construction the Comptroller did not concur, and the result was that in the settlement of the accounts the compensation was allowed from the 1st of September. On the ,18th day of July, that being about the time the claimant arrived at the post of duty, he received a communication from the Commissioner of the General Land Office, in which was inclosed the notice of the establishment of tho office at Oklahoma City. The letter in geñeral terms defined certain services to be performed by the claimant before the opening of the office for the entry and sale of land, and in pursuance of that letter the claimant commenced the performance of certain services pirelimniary to tbe opening of the office on the 1st day of September following.

It is shown in finding’vi, that on the lOtli of July tlie claimant was verbally directed by tlie Commissioner of the General Land Office to go to Oklahoma as speedily as possible, and make tlie necessary arrangements to open tlie office. He left bis borne on tbe 15tb, and arrived at Oklahoma City on the 18th of July, and from that time until the 1st of September he was engaged in conferring with the officers of other districts as to the date of opening the office at Oklahoma; fixing and determining the date when the office should be opened; preparing and issuing thirty days’ notice of the opening of the office; overseeing and superintending the preparation of rooms for the office; renting an office; ordering and putting in fixtures; giving information to and receiving instructions from the inspector; attending to the transfer of the records from other offices of the Territory to tlie Oklahoma office; receiving and replying to letters from the different parts of tlie district on public business, and in receiving and replying to letters from the Department.

The letter of the 18th of July, giving instructions as to tlie duty of the claimant in a general way shows what lie was expected to do by the Department, and the acts of the claimant show what he did as preliminary to the discharge of his specific duties commencing on the 1st of September.

In the able argument and brief of the counsel for the defendants it is contended that section 2243 of the Revised Statutes limits the comjiensation of claimant to the time when the office was actually opened for the sale of lands, and that the time from the loth or 18th of July preceding such opening can not be computed in the allowance of fees and salary. There was no controversy between the parties as to the amount, and the only question is, as to what is claimant’s legal right to compensation from the time he entered upon the discharge of his alleged services and the opening of the office. Section 2243 provides: “The compensation of registers and receivers, both for salary and commissions, shall commence and be calculated from the time they respectively enter upon the discharge of their duties.”

The defendants construe the statute in the specification of duties as applicable to a time when the receiver could by the condition of the office earn commissions arising from the entry and sale of land, and that the right to a salary is commensurate in time to the right to commissions. Counsel for the defendants cite section 2234, Revised Statutes, providing for the appointment of a register and receiver; section 2235, providing for the residence of the register and receiver at the place of the land office; section 2237, providing for a salary, and section 2238, providing fees and commissions, as tending-to strengthen the theory of their contention. We do not regard these sections as tending to a construction in favor of the theory of the defendants; they are applicable to subjects which do not affect the question when the official duty of a receiver may commence, except the section providing for a residence; but that question does not arise in this case except as to the time from the 15th of July, when claimant left his place of residence, and the time when he arrived at the place of the location of the office — a period of about three days.

Whatever may be said of the abstract legal right of the plaintiff to recover compensation for the time intervening* between the 18th of July and the 1st of September, he certainly performed meritorious and important service preparatory to the opening of the office on the 1st of September. There were services which had to be performed by some person, as, without their performance, the office could not have been opened on the 1st of September or at any other time. Some of the service could have been performed by any person having the physical ability, as, for instance, the arrangement of the office, and attending to the transfer of the records from other offices. These duties involve simply physical service, but not so with the other service embraced in finding yi. Ro person but the receiver and register could have given the notice under the order of the Commissioner of the General Land Office; no person but the claimant could have given the information to the inspector upon which the inspector could have based his instructions to claimant; the letters which he received on public business and his correspondence with the Department were services peculiar to himself, grew out of his official character, and were dependent for their performance upon his official relation with the duties of receiver.

The statute requires him to reside at the place of the office; in legal contemplation the office as a place for the discharge of public business was by the act of the President established at Oklahoma, and to that place he repaired on the 15th of July and remained in the performance of the service enumerated in finding vi until the opening of the office on the 1st of September.

The preliminary services from their very nature were necessary, and had to be performed by some person antecedent to-the performance of the undoubted duties of the claimant, to wit, “of receiving public moneys.” Is it certain that giving information to the inspector and receiving instructions are no part of his duties as receiver"? It is true the law presumes that every person upon his appointment is substantially competent to discharge the duties of his office, but that applies more particularly to the general duties; there may be details in the business of the office that require special instruction, so that the mere routine of business may become familiar to the incumbent. The land office from the character of its business, and the fact that instructions are given by an inspector, may be assumed to be a position which requires special information and direction preparatory to the successful discharge of its more important duties.

We have not been able to find a statute making it the special duty of any particular officer connected with the Land Department to perform the service indicated in the finding. In the appropriation act of July 11, 1890, there is a provision—

“For per diem in lieu of subsistence of inspectors, of clerks detailed to investigate fraudulent land entries, trespass upon the public lands and cases of official misconduct, and also clerks detailed to examine the books of and assist in opening new land offices while traveling on duty at a rate to be fixed by the Secretary of the Interior, not exceeding three dollars per day, and for actual necessary expenses of transportation, ten thousand dollars.” (26 Stat. L., 257.)

It will be seen by the terms of this statute that the clerks are “to assist in opening new land offices,” but are not made the exclusive persons who perform that duty. It does not appear that a clerk assisted in the opening of the office at Oklahoma; but if such assistance was rendered, it would not be to the exclusion of the agency and service of the claimant.

In a matter involving the question as to when the pay of a public officer commences, to wit, marshal of a consular court at Shanghai was referred by tbe State Department to the Attorney-G-eneral, who said in reply:

“And, except where it is so directed by the statute, I do not think that the salary of a public officer, whose duties require him to leave the countiy, should be withheld until he reaches the field of service. Every person appointed to an office of that kind has preliminary duties to perform before he leaves the country, and after he has taken the official obligation in the manner prescribed bylaw, as by making oath and giving bond,, the time and labor devoted to those preliminary duties, as well as the time occupied in reaching his official post, are just as much spent in the public service as though he were already at that post exercising its more immediate functions.”

It has been held by this court in the case of Moore (4 C. Cls. R., 314):

“In the construction of statutes which fix the compensation of public officers the rule, of interpretation as held by the courts is that when the words of the statute are loose and obscure and admit of two meanings they should be construed in favor of the officer.”

Without assuming that the statute comes within the definition of the statute it may be said that in this matter the officers, of the Interior Department and the officers of the Treasury Department differed most radically on the question of the claimant’s right to recover.

The statute does not specifically define the duties of a receiver; but it must be assumed that his general and most important duties do not commence until the opening of the office when land is subject to entry and sale. The statute evidently intended to prevent the payment of salary and the consequent right of fees until he entered upon the discharge-of some duty, which would prevent the right of pay founded upon the mere legal right in the office of receiver. Salaried officers are as a general proposition entitled to pay as an incident to the right of office, which becomes consummate as soon as they are commissioned as such and perform whatever conditions the law requires before induction into office. The law can not measure the importance and value of service, or the performance of duty, and while what the claimant did before the 1st of September measured by the importance of what he did afterwards is rather unsubstantial, yet if they constituted official duty their performance entitle him to recover. The Commissioner and the claimant were acting upon the theory that from tbe 18tb of July to the 1st of September he was engaged in the discharge of duties incident to his office as receiver. Construing the statute as including the performance of duties which may be performed as incident to and necessary to the opening of the office for the transaction of public business, the court holds that the claimant is entitled to date the commencement of the performance of his duties from the 18th of July and not the 1st of September.

As to the other alleged causes of action, there is no right of recovery on the facts. There can be no recovery against the United States for the loss of money by ordinary theft and robbery against the liability of a party on his bond to faithfully account to the United States. The claimant is entitled to recover the sum of $366 as salary and fees for the time from July 18 to September 1, 1890, and for that amount judgment is ordered.  