
    ALBERT J. MAXWELL v. THE UNITED STATES.
    [No. 31246.
    Decided February 9, 1914.]
    
      On the Proofs.
    
    This is a suit by a civilian clerk in the Commissary Department of the Army for reimbursement of actual expenses incurred by him between April 9 and July 20, 1911, while performing temporary duty at San Antonio, Tex., and is based upon paragraph 74 of the Army Regulations. The plaintiff received subsistence under this regulation for 30 days, but was refused it for the balance of the time he was on such temporary duty and it is for the sum so refused that this suit was brought.
    I. Sections 161 and 216, Revised Statutes, authorizes the head of each department to prescribe regulations, not inconsistent with law, for the government of his department, and it is conclusively settled that the acts of the heads of departments, within the scope of their respective duties, are treated as the acts of the President.
    II. Where the Secretary of War, as the head of an executive department, is clothed with the power to make proper regulations, not inconsistent with law, ■ for the government of his department, he also has the authority to suspend, alter, amend, or abrogate them in the interests of the public service, and it was within his discretion to fix 30 days as the limit of the temporary duty to which a civilian clerk was assigned.
    
      The Reporter’s statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Alfred J. Maxwell, was on and prior to March 7, 1911, a clerk in the Subsistence Department of the Army, which position he had held since August 2, 1906, and was on duty at Fort ftiley, Kans., a post where he had been serving for about two years.
    
      II. On March 7, 1911, the following telegraphic order was issued by the Commissary General of the Army to the commandant of Fort Riley, Kans.:
    “ Secretary War directs Clerk Maxwell proceed to San Antonio at once, reporting commanding general, Department Texas, temporary duty with division to be formed there.”
    In obedience to this order, the claimant left his station on March 9,1911, reached San Antonio on the evening of March 10, 1911, and reported to the adjutant general, Department of Texas, the following morning, when he was assigned to duty with Maj. Wilkins, chief commissary of the division.
    He performed duty between March 9 and July 20,1911, in the office of the chief commissary, maneuver division, San Antonio, Tex. Between those dates he incurred necessary expenditures for room, meals, and laundry work, not in excess of $4.50 per day, to the amount of $199.27.
    June 30, 1911, the Commissary General recommended to the Chief of Staff:
    “ That the commanding general of the maneuver division be authorized to direct the return of all officers and clerks of the Subsistence Department to their proper stations as soon as their services can be dispensed with.”
    In accordance therewith The Adjutant General, July 19, 1911, telegraphed to the commanding general, maneuver division, San Antonio, Tex.:
    “ Return all officers and clerks of the Subsistence Department to proper stations as soon as their services can be dispensed with. * * * By order Secretary War.”
    Accordingly, July 20, 1911, by Special Orders, No. 100, headquarters maneuver division, San Antonio, Tex., July 20, 1911, the following order was issued:
    “Pursuant to instructions from the War Department, dated July 19, 1911, Civil Service Clerk Alfred J. Maxwell, Subsistence Department at Large, is relieved from further duty with this division and will proceed to his proper station, Fort Riley, Kans., reporting upon arrival to the commanding officer for duty at the training school for bakers and cooks.
    
      • “ The Quartermaster’s Department will furnis hthe necessary transportation.
    “ The travel is necessary in the military service.”
    In obedience to the order last quoted, claimant returned to Fort Eiley, Kans., where he arrived and resumed duty July 24, 1911.
    He has received reimbursement for the amount expended as above during the first 30 days at San Antonio, amounting to $105.20, but has not received any reimbursement for the amount so expended by him during the remainder of the time, amounting to $94.07.
    III. The maneuver division at San Antonio was an ephemeral organization, assembled for a transient purpose. It was established for the purpose of merely temporary maneuvers of both the Eegular Army and the National Guard, and largely with a view of quieting the disturbed condition of affairs then existing in Mexico along the American border. At no time since the arrival of the claimant at San Antonio could any definite statements have been made as to the probable length of his stay there.
    IY. On March 10, 1911, the date on which the claimant arrived at San Antonio, the following Army Eegulations were in effect:
    “744. Eeimbursement of actual expenses when traveling under competent orders will be allowed, under the following heads, to civilians in the employ of any branch of the military service, excepting the expert accountant of the Inspector General’s Department, paymasters’ clerks, and those mentioned in paragraph 745, viz: * * *
    “ (5) Cost of meals and lodgings, including baths, tips, and laundry work, not to exceed $4.50 a day while on duty at places designated in the orders for the performance of temporary duty.”
    V. Under date of December 15, 1910, the Quartermaster General of the Army addressed a letter to the Secretary of War calling his attention to said paragraph 744 and recommending that allowances provided for in section 5 of that paragraph be allowed to civilian employees of the Quartermaster’s Department for not more than 30 days, and to make 30 days the limit of time for which the allowance should be paid to those who might thereafter be assigned to such tern-porary duty at a place other than their permanent stations, whatever the length of time of such temporary service. Under date of December 30, 1910, Robert Shaw Oliver, Assistant Secretary of War, returned said letter to the Quartermaster General, indorsed “Respectfully returned to the Quartermaster General approved as within recommended.”
    Under date of March 23, 1911, the Quartermaster General of the United States Army addressed a letter to the Secretary of War calling his attention to the fact that his former letter and the approval of the same applied to the employees of the Quartermaster’s Department only, and recommended that the same rule be extended and applied to civilian employees of other departments of the military establishment whose per diem and traveling expenses while on temporary duty are paid from Quartermaster’s Department appropriations, and closed his letter with the following statement: “ The balance of the appropriation available for payment of traveling and per diem expenses of civilian employees for the current fiscal year is barely sufficient to pay such expenses for more than the first 30 days.” This letter was returned to the Quartermaster General March 28, 1911, indorsed as follows:
    “ WAR DEPARTMENT,
    “ Oeeice oe the Chiee oe Staee,
    “Washington, March 88,1911.
    
    “Respectfully returned to the Secretary of War, concurring in the recommendation of the Quartermaster General.
    “(Signed) Leonard Wood,
    
      “Major General, Chief of Staff.
    
    “War Department, March 88,1911.
    
    “Approved.
    “(Signed) J. M.’Dickinson,
    
      “Secretary of War.”
    
    Under date of March 30, 1911, said letter with indorse-ments was referred to the Adjutant General of the Army with the following indorsement:
    “War Department,
    “ Oeeice oe the Quartermaster General,
    “ Washington, March 80,1911.
    
    “Respectfully referred to The Adjutant General of the Army, recommending that the contents of the within letter and the indorsements thereon be communicated to all concerned.
    “(Signed) J. B. Aleshike,
    
      “Quartermaster General, U. S. A.”
    
    This order was not carried into the regularly published Army Regulations, but it was communicated to the claimant prior to the- expiration of the first 30 days of his assignment to duty at San Antonio.
    VI. This claim was presented to the Auditor for the War Department and was disallowed by him, and the Comptroller of the Treasury also decided against a similar claim.
    
      Mr. George A. King for the plaintiff. King dk King were on the brief.
    If Congress fails to make an appropriation adequate to meet a legal liability, or even affirmatively directs that an appropriation shall not be used to meet certain designated liabilities, the rights of the parties in whose favor such liabilities arise are not affected either by the absence of an appropriation or by the limitation upon an appropriation made. Langston v. United States, 21 C. Cls., 10; affirmed, 118 U. S., 389; Converse v. United States, 26 C. Cls., 6, 8, 9; Geddes V. United States, 38 C. Cls., 428, 444; Vulte v. United States, 47 C. Cls., 324.
    Much less can an officer he prejudiced by the failure or refusal of a department to pay him an amount lawfully due him under a regulation on the ground that it has not a sufficient appropriation at its disposal.
    A “regulation of an executive department” is treated by all the acts defining the jurisdiction of this court, beginning with that of 1855 and coming down to section 145, paragraph 1, of the Judicial Code of 1911, as a source of legal liability of the United States.
    In Harvey v. United States, 3 C. Cls., 38, 39, the court says:
    “A ‘regulation of an executive department’ is a rule made by the head of the. department for its action, under an act of Congress conferring power so to do. A mere order of the President or of a Secretary is not a regulation.”
    In TTmrber v. United States, 40 C. Cls., 489, the officer entered the naval service on the faith of a published circular of the Navy Department, construing an act of Congress fixing his pay. The- court awarded the pay stated in the circular, though expressing some doubt whether that construction would have been adopted by the court on an independent view. The ground for so doing was thus stated:
    "The services of the claimant were enlisted after the promulgation of this construction of the act and no doubt under the belief that its terms would be fully complied with.”
    In McDonald v. United States, decided April 1, 1912, it was held that the appointment of the claimant was made with reference to the general and permanent regulations, and that a mere letter of the Secretary of the Navy stating that a vessel which was, by tbe regulations, a first-rate collier, would be treated only as a second-rate collier, did not and could not have the effect to make her so, and that the claimant was therefore entitled to the pay appropriate to a first-rate collier under the regulations.
    In Plummer v. United States, 224 U. S., 137, the court, quoting the circular issued by the Navy Department inviting applications for appointment as acting assistant surgeons, refers to the terms of that circular as sustaining its judgment in favor of the claimant for the rate of pay therein assured to him as an inducement upon which he applied for the appointment.
    Colonel Winthrop, in his learned work on Military Law, thus states this principle (Vol. I, p. 29):
    "The President, equally with the most subordinate officer, is bound by executive regulations; although he maybe em-Eowered to alter or abrogate them, they are conclusive upon im while they remain in force” — citing Attorney General Bates, 10 Opins., 17.
    He quotes with approval the opinion of Attorney General Toucey, 5 Opins., 42 Winthrop, Vol. I, p. 34, Note 1:
    "It would be directly repugnant to the character of the power conferred to suppose that a power to make rules was a power to dispense with them altogether and to substitute in their place caprice or arbitrary discretion.”
    In Arthur v. United States, 16 C. Cls., 422, a contract made by the Surgeon General, with an acting assistant surgeon, to pay him more than the amount provided by the Army Pegu-lations was held to be void. Much more must the present order of the Quartermaster General, undertaking by mere fiat to deprive a civil officer of the allowances secured to him by the terms of a lawful Army regulation, be held ineffective.
    It was stated by the Supreme Court in Rio Grande Irrigation Company v. Gildersleeve, 174 U. S., 603, 608, 609:
    “As no discretionary power was reserved to the trial judge, he could not dispense with this rule of court. As was said in Thompson v. Hatch, 3 Pick., 512:
    “ ‘A rule of the court thus authorized and made has the force of law, and is binding upon the court as well as upon parties to an action, and can not be dispensed with to suit the circumstances of any particular case.’ * * * The courts may rescind or repeal their rules, without doubt; or, in establishing them, may reserve the exercise of discretion for particular cases. But the rule once made without any such qualification must be applied to all cases which come within it until it is repealed by the authority which made it.”
    Following this case, and the Massachusetts case therein referred to, the Court of Appeals of this District says, District of Columbia v. Roth, 18 Appeals D. C., 547, 553:
    “That case, in the Supreme Court, fully decides that there is no power either in the trial or appellate court to dispense with the rule of court, unless the power to do so be expressly reserved in the rule itself, or in the statute which authorized the making and promulgation of such rule; that a rule of court duly made and published has the force of law, and is binding upon the court as well as upon the parties to the action, and, therefore, can not be dispensed with to suit the circumstances of any particular case.”
    In Sherburne v. United States, 16 C. Cls., 491, the court says that the obligation to return a person in the military service to his home without expense to him was “a part of the moral compact between the Government and its soldiers,” 16 C. Cls., 498; also, that “this obligation, so far as the knowledge of the court extends, the Government has never sought to evade.”
    The claimant’s option, if he had any, of serving after the first 30 days without reimbursement of his hotel expenses while at the temporary station or of resigning at a distance' from his home was not a fair choice. He probably was without means of getting back. He was not entitled, as of right, to resign at his own convenience. Edwards v. United States, 103 U. S., 471, 476.
    In Davis v. United States, 47 C. Cls., 195, a paymaster’s clerk was held to be entitled to be returned to his home at the expense of the Government before being discharged.
    
      Butler v. United States, 47 C. Cls., 39, approaches this case very closely in principle. A clerk of the Isthmian Canal Commission, in whose letter of appointment it was stated that he should receive six weeks’ leave of absence on full pay each year, was held entitled to such leave and to recover his pay for the period thereof, although orders were issued subsequently to the appointment, but prior to the leave being taken, which modified the promise contained in the appointment.
    In Gurry v. United States, 47 C. Cls., 493, this court sustained a claim of a civilian employee for payment of lodging, subsistence, etc., while engaged in the performance of temporary duty under circumstances similar to those of the present case.
    In United States v. McDaniel, 7 Peters, 1, the court says, with reference to usages of the several departments of the Government:
    “No change of such usages can have a retrospective effect, but must be limited to the future.”
    It comes very close to United States v. Davis, 132 U. S., 334, where, after an officer had rendered services, the head of the department undertook to limit the number of days during which he might receive payment for the service, and the Supreme Court held that such a regulation would be retroactive and beyond the power vested in the head of the department.
    
      Mr. B. W. Andrews, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
    It is well established that the acts of the heads of departments within the scope of their respective duties are to be treated as the acts of the President. Wilcox v. Jackson, 13 
      Peters, 493, 517, at page 512;' Wolsey v. Chapman, 101 U. S., 755, 772, at page 769; Jones v. United States, 137 U. S., 202, 224, at page 217; Truitt v. United States, 38 Ct. Cls., 398, 407, at page 403; In re Brodie, 128 Fed. Pep., 665, 672; 17 Opin. Atty. Geni., 19; 1 Comp. Dec., 71; 3 Comp. Dec., 316.
    The especial attention of the court is respectfully directed to tbe case of United States v. Eliason, 16 Pet., 291, 302, which, in connection with the authorities hereinbefore cited, is conclusive of the issues involved in the case at bar. Eliason was a captain in the Engineer Corps, U. S. Army, and claimed certain allowances under a paragraph in the Army Regulations, 1821, which regulation had been changed by order of the Secretary of War. In the opinion of the Supreme Court in that case it was said:
    “* * * the question propounded was neither more nor less than this, whether a subordinate officer of the Army, insisting upon a prior regulation, which he thinks is or ought to be in force, shall obtain from the Government emoluments which a subsequent order from his superior had warned him that it was not in his power to require.”
    The court denied the claim, and in so doing laid down the following rules, which have long since become recognized as controlling in all like cases:
    “The power of the Executive to establish rules and regulations for the government of the Army is undoubted. The very appeal made by the defendant to the fourteenth section of the sixty-seventh article of the Army Regulations is a recognition of this right. The power to establish implies, necessarily, the power to modify or repeal or to create anew.
    “The Secretary of War is the regular constitutional organ of the President for the administration of the military establishment of the nation, and rules and orders publicly promul-Sated through him must be received as the acts of the ¡xecutive, and as such be binding upon all within the sphere of his legal and constitutional authority.
    “Such regulations can not be questioned or defied because they may be thought unwise or mistaken. The right of so considering and treating the authority of the Executive, vested as it is with the command of the military and naval forces, could not be entrusted to officers of any grade inferior to the Commander in Chief; its consequences, if tolerated, would be a complete disorganization of both the Army and Navy.” 16 Pet., pp. 301 and 302.
    
      The above principles, so forcefully expressed by Mr. Justice Daniel, have long since become firmly fixed as the law of this country, and can not now be successfully controverted. Among other cases in which the above decision is cited are the following: Confiscation cases, United States v. Clarke, 20 Wall., 109; Kurtz v. Moffitt, 115 U. S., 503; Bunkle v. United States, 122 U. S., 557; Arthur v. United States, 16 Ct. CIs. 432; McCollum v. United States, 17 Ct. Cls.„ 102; Bunkle v. United States, 19 Ct. CIs., 415; Be Billings, 23 Ct. CIs., 177; Be Smith, 23 Ct. CIs., 459; O'Shea v. United States, 28 Ct. CIs., 401; Dugan v. United States, 34 Ct. CIs., 466; Hayden v. United States, 38 Ct. CIs., 50; Truitt v. United States, 38 Ct. CIs., 403; United States v. Badeau, 31 Fed., 699; Be Neagle, 39 Fed., 860; Be Euttman, 70 Fed., 702; United States v. Ormsbee, 74 Fed., 209; Be Eirsch, 74 Fed., 931; Be Comingore, 96 Fed., 562; Be Fair, 100 Fed., 153; Motherwell v. United States, 107 Fed., 452; Be Brodie, 128 Fed., 668; United States v. Eardinson, 135 Fed., 422; Eickey v. Euse, 56 Me., 495; Be Spangler, 11 Mich., 322; Peters v. United States, 2 Okla.; Nye v. Daniels, 75 Vt., 85.
   AtkiNSON, Judge,

delivered the opinion of the court:

This is a suit by a civilian clerk in the Subsistence Department of the Army to recover for expenses incurred by him for board, lodgings, and laundry between April 9 and July 20,1911, while performing temporary duty in the office of the chief commissary at San Antonio, Tex. The claimant had held the position of civilian clerk in the Subsistence Department at large since August 2,1906, and on March 9,1911, Was on duty at Fort Eiley, Kans., where he had been since March 24,1909. On March 7,1909, the Commissary General recommended that he, together with other civilian clerks in the same service, be relieved from their duty “ at their respective stations and directed to proceed at once to San Antonio, Tex., * * * for temporary duty with a division to be formed at that point.” This recommendation was duly approved, whereupon the claimant left Fort Eiley March 9, 1911, and arrived at San Antonio the next day, and was there assigned to duty. He served at San Antonio till July 20, 1911, when he was relieved from such temporary duty and was returned to Fort Riley, where he assumed his regular duties.

This claim is based upon the provisions of paragraph 744 of the Army Regulations, which, so far as it relates to this case, is as follows:

“ Reimbursement of actual expenses when traveling under competent orders will be allowed, under the following heads, to civilians in the employ of any branch of the military service, excepting the expert accountant of the Inspector General’s Department, paymaster’s clerks, and those mentioned in paragraph 745, viz:
* * * * * * *
“(5) Cost of meals and lodgings, including baths, tips, and laundry work, not to exceed $4.50 a day, while on duty at places designated in the orders for the performance of temporary duty.”

The plaintiff received subsistence under this regulation for 30 days, but was refused it for the balance of the time he was on such temporary duty at San Antonio, and it is for the sum so refused that this suit is brought.

It is conceded by the defendants that paragraph 744 above was in force at the time of the assignment of the claimant to such temporary service and that if it had remained in force during the whole period of such service he would be entitled to recover in this suit. The defendants contend, however, that this regulation was so modified by the proper authorities March 28, 1911, as to entitle the claimant for subsistence while on such temporary duty for 30 days only. This is denied by the claimant, and that is the question for decision.

The facts connected with the alleged modification of this regulation are as follows: December 15, 1910, the Quartermaster General addressed a letter to the Secretary of War calling his attention to the fact that some of the men assigned to temporary duty in his department had so remained for some time and that “the charge on account of their personal expenses against the appropriation for the Quartermaster Department is in the aggregate very large ” and recommended that payment for such subsistence be limited to 30 days. This letter was returned to the Quatermaster General with this indorsement: “Eespectfully returned to the Quartermaster General, approved as within recommended.” March 23, 1911, the Quartermaster General addressed another letter to the Secretary of War calling his attention to the fact that the foregoing correspondence and approval only applied to the Quartermaster’s Department and recommended that it be extended to the other departments of the military service, and closed his letter by saying: “ The balance of the appropriation available for payment of traveling and per diem expenses of civilian employees for the current fiscal year is barely sufficient to pay such expenses for more than the first 30 days.” This letter received the concurrence of Maj. Gen. Wood, and was indorsed by the Secretary of War, “Approved.”

No statute is involved. A regulation of the Army alone is the issue. The main point upon which the case hinges is, Did the Secretary of War act within the scope of his authority under the acts of Congress when he changed the regulatipns of his department relative to civil-service clerks under his control, who were by him, or by his orders, assigned to temporary duty at points other than their regular places of business, or whether such change must be made by an individual or personal order of the President, who is the commander in chief of the Army? And did the change in the Army Eegulations made by the Secretary of War, as shown by the findings, comply with the acts of Congress relating to this and similar cases?

It is insisted by counsel for plaintiff that the President can not delegate to a subordinate, who in this case was the Secretary of War, the power conferred upon him by an act of the Congress to make or amend Army Eegulations, as was herein done. In other words, the contention is that the issuing of such regulations must be distinctively the personal act or order of the President, and therefore the Secretary of War, through the channels followed in this case, did not possess the. power or authority to suspend, modify, amend, or change the Army Eegulation relating to traveling allowances of civilian employees in the various branches of the public service in his particular department when they were under assignment by his orders to temporary duty at places other than where they were regularly employed.

Section 161, Revised Statutes, authorizes the head of each department to prescribe regulations, not inconsistent with law, for the government of his department, and section 216 is to the same practical effect. Smith's case, 23 Cl Cls., 452, 460. It is also well and, we think, conclusively settled that the acts of the heads of departments, within the scope of their respective duties, are treated as the acts of the President. Wilcox v. Jackson, 13 Pet., 266; Wolsey v. Chapman, 101 U. S., 755, 769; Jones v. United States, 137 U. S., 203, 217; Truitt v. United States, 38 C. Cls., 398, 403; Brodie's case, 128 Fed., 665, 669.

It has been often determined by this court and also by the Supreme Court that the President may legally act through the head of a department. The early case of United States v. Eliason, 16 Pet., 291, 302, which has never been changed by the Supreme Court, is conclusive of the point at issue in the case at bar, because in that case, as in this, an Army Regulation had been changed by order of the Secretary of War affecting certain allowances claimed by Eliason. In passing upon that case the court said, inter alia, that—

“ The Secretary of War is the regular constitutional organ of the President for the administration of the military establishment of the Nation, and rules and orders publicly promulgated through him must be received as the acts of the Executive, and as such be binding upon all within the sphere of his legal and constitutional authority.
“ Such regulations can not be questioned or defied because they may be thought unwise or mistaken. The right of so considering and treating the authority of the Executive, vested as it is with the command of the military and naval forces, could not be intrusted to officers of any grade inferior to the commander in chief; its consequences, if tolerated, would be a complete disorganization of both the Army and Navy.”

In the later case of Runkle v. United States, 122 U. S., 543, 557, it was held that—

“There can be no doubt that the President, in the exercise of his executive power under the Constitution, may act through the head of the appropriate executive department. The heads of departments are his authorized assistants in the performance of his executive duties, and their official acts, promulgated in the regular course of business, are presumptively his acts. That has been many times decided by this court.”

Confirmatory of the above principles so clearly expressed by the highest court, which long since has been accepted as the law of this country, is the case of the United States v. Ormsbee, 74 Fed., 207.

If, therefore, as above shown, the Secretary of War, as the head of one of the great departments of the Government, was clothed with the power to make proper regulations, not inconsistent with the acts of the Congress, for the government of his department, it can not properly be contended that he can not suspend, alter, amend, or abrogate them when necessary so to do in the interest of the public service. Savings Bank v. United States, 16 C. Cls., 358, 349. In Brodie's case, supra, it was held, on page 669, that—

“ Paragraph 940 of the Army Eegulations, before quoted, is a rule or regulation promulgated by the Secretary of War, under authority of the President, and is not a statute. As has been shown, it was subject to modification by the authority which made it, and its modification would be completely effected and shown by the promulgation of a new or different rule or regulation upon the subject by the Secretary of War, acting under the presumed approbation and direction of the President.”

There is no controversy over the facts in this case. Plaintiff was a civilian civil-service clerk of class 1 in the Subsistence Department of the United States Army, stationed at Fort Eiley, Kans., as hereinbefore stated, where he had been serving for about two years. By an order of the Secretary of War he was transferred to San Antonio, Tex., for temporary service. He reached said city the evening of the next day. Under section 744, Army Eegulations, his traveling expenses were allowed and paid, and he was reimbursed for hotel board and other expenses at the rate of $3.50 per day for the first 30 days of his stay at San Antonio. Before the expiration of said 30 days he was officially notified that the Secretary of War had caused section 744 of the Army Eegulations to be amended to the effect that after the expiration of said 30 days be (plaintiff) would be required to pay for his subsistence, which he accordingly did at the rate of a little less than $1 per day during the remaining three months of his stay at San Antonio, and to recover that board bill this suit was instituted.

Our conclusion is, the fixing of 30 days as the limit of temporary duty in his case was wholly within the discretion of the Secretary of War, and consequently plaintiff has no legal claim against the United States in this suit, and his petition should accordingly be dismissed.

Petition dismissed and judgment is rendered in favor of the defendants.  