
    NEIL F. GRAHAM v. THE UNITED STATES.
    [No. 15360.
    Decided June 4, 1894.]
    
      On the Proofs.
    
    An assistant medical referee in the Pension Bureau, receiving a salary, sues to recover fees for services rendered as a member of an examining board.
    I. An assistant medical referee, appointed under Revised Statutes, §4776, is not entitled, in addition to Ms salary, to the fees of an examining surgeon while serving on an examining board under § 4775. Such fees are intended to be the compensation of examining surgeons who are not in the service of the Government.
    II. The duties of an assistant medical referee in the Pension Bureau are not compatible with those of an examining surgeon, and payment for both services are therefore prohibited by Revised Statutes, §§ 1763, 1764, 1765. Neither were the two positions distinct offices. The nature of each examined and stated and the authorities on dual compensation reviewed.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. The claimant was, at the time of rendering the services hereinafter found and ever since has been and now is, a citizen of the United States, residing in the city of Washington, District of Columbia.
    II. On the 22d day of January, 1873, he was appointed by the Commissioner of Pensions an examining surgeon of the United States in the Pension Bureau; that on said date he was also appointed by the Secretary of the Interior a clerk in said Bureau; thereafter, to wit, on August 17, 1883, he was appointed by the Secretary of the Interior assistant medical referee of said Bureau, at a salary of $2,250 per year, which office he held and received the salary thereof until June 15, 1885, and during which time he rendered the services hereinafter set forth.
    III. On the 10th day of November, 1883, at Shelby ville, in the State of Illinois, the Commissioner of Pensions constituted a special board of duly qualified examining surgeons, composed of Drs. Badger and Deming, of that place, who were duly appointed and commissioned., and the claimant, as such assistant medical referee, was made a member of said board by order or by detail from the Commissioner of Pensions. The board as thus constituted was authorized to review and reexamine all cases of pensioners and pension applicants who had been in the military or naval service of the United States appealed from medical boards before which such persons had been previously ordered for physical medical examination, and who were aggrieved and had made complaint to the Commissioner of Pensions at the action taken in their cases by said medical boards in such original examinations, and to make due written reports thereof to the Commissioner of Pensions for his approval. That said special board of examining surgeons organized with the claimant as president of the same, and made physical medical reexaminations and reviewed the cases of 287 persons, as alleged in the petition.
    Beports in all such cases were drafted by the claimant on behalf of said board, who acted as secretary thereof, and the same were submitted by him in person to the Commissioner of Pensions, who approved the same without further examination or revision in the Pension Office.
    IV. On January 5,1884, at Knoxville, in the State of Tennessee, the Commissioner of Pensions constituted a special board of duly qualified examining surgeons, composed of Drs. Boyd and Carle, of that place, who were duly appointed and commissioned, and the claimant as such assistant medical referee was made a member of said board by order or by detail from the Commissioner of Pensions. The board, as thus constituted, was authorized to reexamine all pensioners and pension 'applicants who had been in the military or naval service of the United States who were aggrieved and had made complaint to the Commissioner of Pensions at the action taken in their cases by the medical boards before which they had been previously ordered for medical examination, and for the review of all such cases which might come before said special board on appeal thereto, and to report in writing the action of said special board to the Commissioner of Pensions for his approval. That said special board organized at said time and place with the claimant as president thereof, and made physical medical reexaminations and reviewed the cases of423 persons, as alleged in the petition.
    Reports in all such cases were drafted by the claimant on behalf of said board, who also acted as secretary thereof, and the same were submitted by him in person to the Commissioner of Pensions, who approved the same without further examination or revision in the Pension Office.
    Y. On the 10th day of May, 1884, at Macon City, in the State of Missouri, the Commissioner of Pensions constituted a special board of duly qualified examining surgeons, composed of Drs. Buck and Burton, of that place, who were duly appointed and commissioned, and the claimant, as such assistant medical referee, was made a member of said board by order or by detail from the Commissioner of Pensions. The board, as thus constituted, was authorized to physically reexamine all pensioners and pension applicants who had been in the military or naval service of the United States, and who were aggrieved and had made complaint to the Commissioner of Pensions at the action taken in their cases by the medical boards before which they had been previously ordered for medical examination, and to reexamine and review all such cases which might come before said special board at said place on appeal thereto, and report in writing the action of said special board to the Commissioner of Pensions for his action and approval. That said special board organized at said time and place with the claimant as president thereof, and reexamined, by physical examination, and reviewed the cases of 520 persons, as alleged in the petition.
    Reports in all such cases were drafted by the claimant on behalf of said board, who acted as secretary thereof, and the same were submitted by him in person to the Commissioner of Pensions; wbo approved the same without farther examination or revision in the Pension Office.
    VI. While the claimant was absent from the Pension Office, in the performance of his duties as a member of said board, his actual expenses were paid by the defendants, in addition to his salary of $2,250.
    
      Mr. John O. Ohaney for the claimant.
    It is respectfully submitted that section 1763 B. S. refers to double salaries, and does not therefore apply to this ease (Con-veerse v. United States, 21 Howard, 463). Besides, the salary of an assistant medical referee was under $2,500 per year. Sections 1764 and 1765 refer to extra allowances for extra services, which apply to cases where a person holds but one office and also performs the duties of another, but not commissioned as such.
    These sections could not apply to the claimant, for he held the appointment and commission of assistant medical referee, and also the appointment and commission of a member of these special boards of surgeons. Again, these sections say that an officer shall not receive compensation for performing the duties of another office, or for the performance of extra services, “unless the same is authorised by law.”
    The compensation of a member of a special board of examining surgeons is fixed and authorized bylaw. Section 4775 says it shall be $3 for each review and examination made, to each member of such boards. So that, whether claimant held two distinct compatible offices, or merely performed extra services, he is entitled to the price fixed and “authorized by law” for the same, so far as those sections are concerned.
    The services were required by law; the fees are fixed by law; and they are to be paid out of the appropriations made for the payment of the fees of examining surgeons; and they are not an allowance for extra services in the discretion of any officer. A construction is given these sections of the statute in 15 Attorney;s-General Opinions (pp. 306, 708), and 16 Opinions Attorney’s-General, (p. 7), which support us in the position we have taken.
    See also 5 Lawrence, First Comptroller United States Treasury, see page 253; and as to the right of the claimant to recover bis compensation, see United States v. Brindle, 110 U. S. 688; Meigs v. United States, 19 C. Gis. B., 497; Saunders v. United States, 21 C. Gis. B., 408; Collier v. United States, 22 C. Cls. B., 125.
    It is regarded, as settled now that one person may bold two compatible offices and draw tbe salary attached to eacb. It is also settled tbat so far as compensation is concerned, whether the employment or appointment constitutes an office; as defined by tbe Constitution, just so tbe position exists under a constitutional law, has a certain tenure, certain duties, and a certain salary or compensation for its payment, tbe person duly appointed to the place, filling such position, and performing the duties thereof, is entitled to the compensation provided by lawforthe same. Thequestionis, was the person dulyappointed to a lawful position, tbe pay of which is fixed and authorized by law ? And is there an appropriation from which tbe compensation may be paid?
    A party may lawfully hold two positions and draw the salary or compensation of eacb. Each position must be authorized by law, tbe salary or compensation for each must be fixed by law, and there must be an appropri ation to pay tbe same.
    
      Mr. Samuel A. Putnam (with whom was Mr. Assistant Attorney- General Podge) for the defendants.
   Peelle, J.,

delivered tbe opinion of the court:

This action is prosecuted to recover for services renderea by tbe claimant as a member of examining boards of surgeons under Bevised Statutes, section 4775, while at the same time bolding and receiving the salary of the office of assistant medical referee in tbe Pension Bureau.

Bevised Statutes, section 4775, is as follows:

u Examining surgeons duly appointed by the Commissioner of Pensions, and such other qualified surgeons as may be employed in the Pension Office, may be required by him, from time to time, as he deems for the interests of the Government to make special examinations of pensioners, or applicants for pension, and such examinations shall have precedence over previous examinations, whether special or biennial; but when injustice is alleged to have been done by an examination so ordered, the Commissioner of Pensions may, at bis discretion, select a board of three duly appointed examining surgeons, who shall meet at a place tq be designated by him, and shall review such cases as may be ordered before them on appeal from any special examination, and tbe decision of sncb board shall be final on tbe question so submitted thereto, provided tbe Commissioner approve tbe same. Tbe compensation of each of such surgeons shall be three dollars, and shall be paid out of any appropriations made for tbe payment of pensions, in tbe same maimer as tbe ordinary fees of appointed surgeons are or may be authorized to be paid.”

It was conceded by both parties on tbe trial of this case, and is so set forth in their respective briefs, that tbe duties of tbe assistant medical referee are to assist tbe medical referee,whose duties are defined in Eevised Statutes, section 4776, as follows:

“ Tbe Secretary of tbe Interior is authorized to appoint a duly qualified surgeon as medical referee, who, under the control and direction of tbe Commissioner of Pensions, shall have charge of tbe examination and revision of tbe reports of examining surgeons and such other duties touching medical and surgical questious in tbe Pension Office as tbe interests of tbe service may demand, and bis salary shall be two thousand five hundred dollars per annum. And tbe Secretary of tbe Interior is further authorized to appoint such qualified surgeons (not exceeding four) as tbe exigencies of the service may require, who may perform tbe duties of examining surgeons when so required, and who shall be borne upon tbe rolls as clerks of tbe fourth class; but such appointments shall not increase tbe clerical force of said Bureau.”

Tbe theory and contention of tbe claimant is that be was bolding two distinct offices with compatible duties, each duly authorized by law, with fixed compensation, while tbe defendants contend that tbe claimant was not appointed or commissioned on tbe several boards of examining surgeons, but was ordered or detailed by the Commissioner of Pensions as assistant medical referee, to render assistance to such boards within tbe line of bis official duties, and that payment for such services is prohibited by Eevised Statutes, sections 1763, 1764, and 1765. Assuming, as contended by tbe claimant, that be was acting under tbe provisions of section 4775 instead of under section 4, Act of Juhj 25,1882 (22 Stat. L., 175), what was bis status 1 Under tbe first clause of Eevised Statutes, section 4775, tbe claimant, as assistant medical referee, could have been required by the Commissioner of Pensions to make special examination of pensioners, or applicants for pension, without other compensation than bis regular salary; and it is only where injustice is alleged to have been done by such special examinations that tbe Commissioner of Pensions may within bis discretion select a board of three duly appointed examining surgeons to review such cases. The language of the section is that “the Commissioner of Pensions may, at his discretion, selecta board of three duly appointed examining surgeons.” This clearly means that the board selected shall be from the duly appointed examining surgeons outside of the Pension Office, .and not from the qualified surgeons who may be employed in the Pension Office, so that it is questionable whether the claimant could, under that section, have been made a member of such board, except in the line of his official duty, and especially since it is the duty of the medical referee and the assistant, under Revised Statutes, section 4776, to examine and revise the reports of such examining surgeons; and clearly Congress never intended that the medical referee or his assistant should sit in review orrevision of their own examinations and reports; so that, whatever connection the claimant may have had with said board as a member thereof or otherwise, must have been within the line of his official duty.

The findings show that the claimant was not only the president and acting secretary of the several examining boards, but that he drafted all the reports of such reexaminations and personally submitted them to the Commissioner of Pensions, who approved the same without further examination or revision in the Pension Office, thereby showing that the services which the claimant rendered were within the line of his duties as assistant medical referee, otherwise such reports would, under section 4776, have undergone examination and revision in the medical referee’s office before being approved by the Commissioner.

The authority conferred on the Commissioner of Pensions by the first clause of section 4775, to require examining surgeons appointed by him or other qualified surgeons in the Pension Office to make special examinations as there set forth, was evidently given for the purpose of guarding against fraud or mistake in the examinations of pensioners, and that fraud or mistake may be inquired into and guarded against the medical referee or the assistant may be required by the Commissioner of Pensions from time to time to make special examinations of pensioners or applicants for pensions; and it is provided that “ such examinations shall have precedence over previous examin ations, whether special or biennial; ” “ but when inj ustice is alleged to bave been done by an examination so ordered, tbe Commissioner of Pensions may, at bis discretion, select a board of three duly appointed examining surgeons,” etc., to review such cases. Tbe first clause of tbe section seems to be for tlie protection of tbe United States, while tbe second is clearly for the benefit aud protection of the' pensioner.

Tbe findings show that tbe claimant, as “ assistant medical referee,” was made a member of three separate examining boards by order or by detail from tbe Commissioner of Pensions; but conceding that be could lawfully be made a member of said boards, under said section, by such order or detail, it does not follow that be would be entitled to recover, as tbe duties performed by him as a member of said examining boards were within tbe line of bis official duties as assistant medical referee within tbe meaning of section 4776, wherein it is provided that he “shall bave charge of tbe examination and revision of the reports of examining surgeons and such other duties touching medical and surgical questions in tbe Pension Office as tbe interests of tbe service may demand.” And being “under tbe control and direction of tbe Commissioner of Pensions,” tbe Commissioner, when be ordered or detailed tbe claimant as a member of said boards, thereby determined that it was for tbe “interest of tbe service” that be should act with said examining boards.

Tbe examinations and review of cases by said boards, for which compensation is sought, were of pensioners, or applicants for pension, who bad previously been examined and who were aggrieved and bad complained to tbe Commissioner of Pensions, as set forth in tbe findings, in conformity with section 4775; so that tbe services to be and that were thereafter performed by tlie claimant thereby became “other duties touching medical and surgical questions in tbe Pension Office” which be could be required to perform in “tbe interest of tbe service” without additional compensation.

' Tbe reports of tbe examining surgeons, together with complaints made by those examined, were presumably before tbe Commissioner of Pensions, and it was made tbe duty of tbe medical referee and tbe assistant to examine and revise such reports. That tbe claimant might tbe better perform bis duties “touching medical and surgical questions” which bad arisen .in tbe Pension Office over such reports, he was, as assistant medical referee, by order or by detail from tbe Commissioner of Pensions, made a member of said examining boards. The claimant performed the services for which he was detailed or ordered, and his actual expenses were paid by the defendants in addition to his fixed salary of $2,250 per year.

Such expenses are only paid, as the court is advised, to those who receive fixed salaries, so that the claimant, by accepting his actual expenses, correctly interpreted the law against his right to recover in this action. The claimant was not holding-two distinct offices, as contended by him, but he was holding merely the office of assistant medical referee, and.as such officer performed, without other appointment or commission, the additional service required of him by the Commissioner of Pensions, for which no additional or extra compensation is provided by law, and the case therefore comes within the inhibition of Eevised Statutes, sections 1764 and 1765, as well as section 3, Act June 20, 1874 (1 Supp. Rev. Stat., 2d ed., p. 18).

In speaking of section 1765, it was said in Hoyt v. United States (10 How., 109, 141), “ It cuts up by the roots these claims by public officers for extra compensation on the ground of extra service. There is no discretion left in any officer or tribunal to make the allowance unless it is authorized by some law of Congress. The prohibition is general, and applies to all public officers, or quasi public officers, who have a fixed compensation.” In United States v. Saunders (120 U. S., 126, 129), it was said concerning these sections, “ the purpose of this legislation was to prevent a person holding an office or appointment, for which the law provides a definite compensation by way of salary or otherwise, which is intended to cover all the services which, as such officer, he may be called upon to render, from receiving extra compensation, additional allowances, or pay for other services which may be required of him either by act of Congress or by order of the head of his Department, or in any other mode, added to or connected with the regular duties of the place which he holds; but that they have no application to the case of two distinct offices, places, or employments, each of which has its own duties and its own compensation, which offices may both be held by one person at the same time.”

It would be difficult to formulate stronger or more explicit language in tbe interpretation of statutes than that used in the two cases cited.

It was certainly never intended by Congress, when they enacted sections 4775 and 4776, that the medical referee or his assistant, whose salaries are fixed by law, should be entitled to “ receive any additional pay, extra allowance, or compensation in any form whatever” for services rendered by them within the line of their official duties. It is nowhere expressly provided by law that the assistant medical referee shall receive any compensation additional to his regular salary for services rendered by him on an examining board of surgeons, and without such express provision of law no compensation can be allowed, as was held in the case of Gibson v. Peters (150 U. S., 342, 347).

The claimant has cited the cases United States v. Brindle (110 U. S., 688); Meigs v. United States (19 C. Cls. R., 497); Saunders v. United States (21 C. Cls. R., 408); Collier v. United States (22 C. Cls. R., 125); but inasmuch as they are to the effect that where the duties of two distinct offices, authorized by law, with fixed compensation, are not incompatible, they may be held by the same person, as held in United States v. Saunders (supra), we need not examine them further, as the claimant in this case did not hold two distinct offices,, but the duties performed by him as a member of the examining boards was as assistant medical referee, under the order or detail of the Commissioner of Pensions, and such duties were within the line and scope of his official duties and incident thereto, however he may have acted on said boards, for which he was paid his actual expenses and his salary as such assistant medical referee, and therefore he is not entitled to any additional compensation or extra pay for such services.

This question was fully considered in- the Perry Case (28 C. Cls. R., 483), where the authorities are collected and considered, and also in the succeeding case of Cole (id., 501).

The petition is dismissed.  