
    Joshua P. Arthur v. The United States.
    
      On the Proofs.
    
    
      The Army Regulations provide that eontraet-surgeons he limited to a specified compensation. Surgeon-Generals for many years disregard the regulations,and Secretaries of War approve many contracts in excess of the limit prescribed. The claimant is employed for several years under contracts which assure to him higher pay, and also quarters or commutation. Notheing furnished with quarters he brings his action for the commutation. The defendants seelc to recover bach payments already made in excess of the regulation limit.
    
    I.The Army Regulations (1304, 130ó, App. B, 71) which prescribe and limit the compensation of contract-surgeons are obligatory upon the Surgeon General, and a contract made by him in excess of the compensation allowed does not bind the defendants.
    II.The fact that surgeon-generals for many years disregarded the regulations with the acquiescence of Secretaries of War does not constitute a legal custom, and cannot operate to annul the regulations.
    III. The Secretary’s approval of a contract varying from the regulations may supersede them as to that contract, but no matter how often repeated this will not operate, beyond the individual cases, to repeal the regulations.
    IV. An Army regulation which restrains the Surgeon-General from making a contract precludes the court from implying one. If nothing had been paid for services because the express contract under which they were rendered was void, the court might imply a contract from the services within the limit prescribed by the regulations.
    
      Y. Where a oontiacfc-surgeon is paid in excess of the Army Regulations, hut in good faith, and with a full knowledge of the facts, though in mistake of law, the piayments are binding upon the government and cannot be recovered back as a counter-claim, though the action be upon the contract upon which the over-payments were made.
    
      The Reporters’ statement of tbe case:
    The following are the facts of this case as found by the court:
    I. The following regulations from the Revised Army Regulations, printed in 1SC3, were in force when the contracts hereinafter set forth were made, and when the services performed by the claimant under said contracts, as hereinafter set forth, were performed:
    “ 1304. When it is necessary to employ a private physician as medical officer, the commanding officer may do it by written contract, conditioned as in Form 18, at a stated compensation, not to exceed $50 a month, when the number of officers and men with authorized servants and laundresses is 100 or more; $40 when it is from 50 to 100, and $30 when it is under 50.
    “FORM 18.
    “ Contract with a private physician.
    
    “ This contract, entered into this-day-, 18 — , at -, State of-, between-, of the United States Army, and Dr.-, of-, in the State of -, witnesseth:
    “That for the consideration hereafter mentioned, the said Dr.-promises and agrees to perform the duties of a medical officer agreeably to the Army Regulations at-{and to furnish the necessary medicines).
    
    “And the said-promises and agrees on behalf of the United States to pay or cause to be paid to the said Dr.the sum of - - - - dollars for each and every month he shall continue to perform the services above stated, which shall be his full compensation, and in lieu of all allowances and emoluments whatsoever (except that for medicines furnished, which shall be at the rate of-per cent, on his monthly pay, to be determined by the Surgeon-General).
    
    “This contract to continue till determined by the said doctor, or the commanding officer for the time being, or the Surgeon-General.
    “1305. But when he is required to abandon his own business, and give his whole time to the public service, the contract may be not to exceed $80 a month, and not to exceed $100 besides transportation in kind, to be furnished by the Quartermaster’s Department, where be is required to accompany troops on marches or transports. But a private physician will not be employed to accompany troops on marches or transports except by orders from the War Department, or in particular and urgent cases, by the order of the officer directing the movement, when a particular statement of the circumstances which make it necessary will be appended to the contract.
    “Appendix B, 71. Paragraph 1305 Army Regulations is hereby so modified that private physicians employed as medical officers with an army in the field in time of war may be allowed a sum not to exceed $125 per month besides transportation in kind.”
    II. An examination of the records of the Surgeon-General’s office shows no fixed rate of pay of contract-surgeons to have been strictly adhered to during the last forty years, the salary varying according to the hardship, danger, or value of the services required to be performed, and the Surgeon-General has exercised the right to fix the rate of pay of contract-surgeons, both generally and in particular cases; this action has uniformly been acquiesced in by the Secretary of War, and by the accounting officers of the Treasury, and has been the custom of the service for many years. Paragraph 1305, Revised Army Regulations, 1863, although never revoked by general orders, has long been disregarded by action of the authority that framed it.
    III. On the 1st day of September, 1871, the claimant entered into the following contract with L. A. Edwards, surgeon, U. S. A., and medical director, representing the United States, viz:
    “This contract, entered into this 1st day of September, 1871, at San Antonio, in the State of Texas, between Surgeon L. A. Edwards, of the United States Army, and Dr. J. P. Arthur,, of Philadelphia, in the State of Pennsylvania, witnesseth: That for the consideration hereinafter mentioned the said Dr. J. P. Arthur promises and agrees to perform the duties of a medical officer, agreeably to Army Regulations, in the Department of Texas; and the said surgeon L. A. Edwards promises and agrees, on behalf of the United States, to pay, or cause to be paid, to the said Dr. J. P. Arthur the sum of one hundred and twenty-five (125) dollars for each and every month he shall continue to perform the services above stated [and if he serve west of the Mississippi River, or at a small-pox hospital, or on quarantine duty, or with troops on marches or on transports, be shall receive one hundred and twenty-five dollars per month (3*) ]. He shall also receive the fuel and quarters of an assistant surgeon of the rank of first lieutenant, and mileage when travelling under orders and not with troops; and when serving-west of the Mississippi Eiver he shall receive one daily ration in kind.
    “And it is furthermore agreed that, at the expiration of his term of service, the said Dr. J. P. Arthur shall receive mileage to Washington, D. 0., the place of making the former contract; provided said contract is not annulled for misconduct or neglect of duty, in which case no mileage will be furnished. All of which shall be his full compensation, and in lieu of all allowances and- emoluments. This contract to continue at least three months, if not sooner determined by the general commanding the military division or department, the medical director, or the Surgeon-General.
    “In this contract (1*) (2*) (4*) have been stricken out. (Signed) “L. A. Edwards, [seal.]
    
      “Surgeon U. 8. A., Medical Director. (Signed) “ J. P. Arthur, M. D. [seal.]
    “ Signed, sealed, and delivered in the presence of— “Thomas B. Dick.
    “H. B. Chamberlain,
    
      “Lieutenant 10th Infantry.”
    ' This contract was approved by the Surgeon-General of the United States Army on the 4th day of October, 1871.
    The claimant performed the duties of a medical officer of the United States Army under said contract, at the post of Fort McIntosh, in the Department of Texas, from the 1st day of September, 1871, to the 1st day of January, 1877, and received the monthly pay provided in the contract. But the defendants did not furnish him the quarters of an assistant surgeon of the rank of first lieutenant, or any other quarters, from the 15th day of December, 1873, to the 1st day of January, 1877— a period of three years and fifteen days — during which period the claimant furnished his own quarters.
    IV. On the 1st day of January, 1877, the claimant entered into the following contract with defendants, viz :
    “This contract entered into this 1st day of January, 1877, at San Antonio, in the State of Texas, between Surgeon J. Moore, of the United States Army, and Dr. J. P. Arthur, of Philadelphia, in the State' of Pennsylvania, witnesseth: That for the consideration hereinafter mentioned tbe said Dr. J. P. Arthur promises and agrees to perform the duties of medical officer, agreeably to Army ftegulations, in the Department of Texas ; and the said Surgeon J. Moore promises and agrees, on behalf of the United States, to pay, or cause to be paid, to the said Dr. J. P. Arthur the sum of one hundred (100) dollars for each and every month he shall continue to perform the services above stated. He shall also receive the fuel and quarters of an assistant surgeon of the rank of first lieutenant, if such can be furnished, and when travelling under orders the same travel-ling allowances prescribed for commissioned officers of the Army by laws and regulations in force for the time; and when serving west of the Mississippi Biver he shall receive one daily ration in kind.
    “And it is furthermore agreed that, at the expiration of his term of service, the said Dr. J. P. Arthur shall receive travel-ling allowances as aforesaid, for actual travel only to Washington, D. 0., the place of making the former contract; provided said contract is not annulled for misconduct or neglect of duty, in which case no travelling allowances will be furnished. All of which shall be his full compensation, and in lieu of all allowances and emoluments. This contract to continue at least three months, if not sooner determined by the general commanding the military division or department, the medical director, or the Surgeon-G-eneral.
    “ It is furthermore expressly agreed and understood that, in conformity to the requirements of section 3741 of the Bevised Statutes, no member of Congress shall be admitted to any share or part in this contract, or to any benefit to arise therefrom. ' •
    “In this contract (1*) (2*) (3*) have been stricken out. (Signed) “Jno. Moore, [seal.]
    “ Surgeon 77. S. Army, Med. Dir., D. T. (Signed) “J. P. Arthur, M. D. [seal.]
    “(Signed, sealed, and delivered in the presence of—
    (Signed) “E. S. Blair,
    
      “llostfl Stew’d, U. 8. A.”
    
    This contract was approved by the Surgeon-General of the United States Army on the 25th day of January, 1877.
    The claimant discharged the duties required by said contract according to the terms thereof, from the 1st day of January to the 1st day of July, 1877, at the said post of Fort McIntosh, which is in the Department of Texas; and the defendants paid him the monthly salary as provided in the contract, but did not furnish him the quarters provided for by the contract, during any portion of said period.
    Y. On the first day of July, 1877, the claimant entered into the following contract with defendants:
    “ The former contract under which Dr. J. P. Arthur was serving was annulled July 1, 1877, on account of absence of appropriations for tbe support of the Army, and he having rendered voluntary service as a medical officer since that date, this contract is therefore made to take effect on that date.
    “ This contract, entered into this 1st day of July, 1877, at San Antonio, in the State of Texas, between Surgeon Jno. Moore, of the United States Army, and Dr. J. P. Arthur, of Philadelphia, in the State of Pennsylvania, witnesseth : That for the consideration hereinafter mentioned the said Dr. J. P. Arthur promises and agrees to perform the duties of a medical officer, agreeably to Army Regulations, in the Department of Texas; and the said Surgeon Jno. Moore promises and agrees on behalf of the United States, to pay, or cause to be paid, to the said Dr. J. P. Arthur, the sum of one hundred (100) dollars for each and every month he shall continue to perform the services above stated. He shall also receive the fuel and quarters of an assistant surgeon of the rank of first lieutenant, if such can be furnished, and when travelling under orders the same travel-ling allowances prescribed for commissioned officers of the Army by laws and regulations in force for the time; and when serving-west of the Mississippi River he shall receive one daily ration in kind.
    “And it is furthermore agreed that at the expiration of his-teria of service, the said Dr. J. P. Arthur shall receive travel-ling allowances as aforesaid, for actual travel only to Washington, D. C., the place of making the former contract; provided this contract is not annulled for misconduct or neglect of duty, in which case no travelling allowances will be furnished. All of which shall be his full compensation, and in lieu of all allowances and emoluments. This contract to continue at least three-months, if not sooner determined by the general commanding the military division or department, the medical director, or the Surgeon-General. ■
    “It is furthermore expressly agreed and understood that, in conformity to the requirements of section 3741 of the Revised Statutes, no member of Congress shall be admitted to any share- or part in this contract, or to any benefit to arise therefrom.
    “In this contract- (1*) (2*) (3*) (4*) have been stricken out. (Signed) “Jeto. Moore, [seal.]
    “ Surgeon 77. S. A., Medical Director. (Signed) “J. P. Arthur, M. D.- [seal.]
    “Signed, sealed, and delivered in the presence of—
    (Signed) “E. S. Blair.”
    This contract was approved by the Surgeon-General of ‘the United States Army January 18,1878.
    The claimant performed the service required by the contract at the said post of Fort McIntosh, Texas, from the 1st day of July, 1877, to the 1st day of November, 1879, when said contract was annulled by the commanding general Department of Texas, at claimant’s request.
    The claimant has received the monthly pay provided for in the contract, but the defendants did not furnish him the quarters provided for during said period of time, or any part of it.
    VI. Claimant’s place of duty was Fort McIntosh, Tex., at which post there were quarters, but insufficient in quantity to fully supply those entitled. It does not appear that claimant •either upon arriving at his station or at any time subsequent thereto made written requisition upon the quartermaster for ■quarters, nor does it appear that a pro rata reduction was made when the requisition for quarters by those entitled cannot be supplied in fall.
    VII. It does not appear that at any time during the operation of said contracts claimant was employed with an army in the field in time of war, or that during said period he was ordered by the Secretary of War to accompany troops on marches or ■transports, or that as a fact he was so employed.
    VIII. The town of Laredo, Tex., is so near the military post of Fort McIntosh, that claimant occupied quarters in the town for the entire period during which he performed the duties of post surgeon at Fort McIntosh. Quarters could have been furnished ■claimant in the town by.the defendants.
    IX. From the 15th day of December, 1873, to the 19th day of ■June, 1878, a lieutenant in the Army serving west of the 100th meridian was entitled to commutation of quarters at the rate of $18 per month per room. He was entitled to two rooms.
    From the 19 th day of June, 1878, to June 30, 1879, the commutation price per room was fixed at $10 per month per room, and from June 30 to November 1, 1879, at $12 per month per room.
    The commutation of quarters for a lieutenant of the Army stationed at Laredo, Tex., during the period covered by claimant’s demand, would amount to $2,292.13.
    
      Messrs. Paine, Grafton & Ladd for the claimant:
    The defendant is liable to claimant for breach of contract. The measure of damages is the rental value of two rooms at the place where defendant required claimant to live during the period he performed the duties of medical officer at the post ■of Fort McIntosh, Texas, under the contracts.
    
      
      Mr. Assistant Attorney-General Simons (with, whom was Mr. George G. Wing) for tlie defendants.
    The agent of the government exceeded his authority in agreeing to furnish quarters, and the defendants are accordingly not liable in this action.
    The Army Regulations prescribe explicitly under what circumstances, by what officer, at what rate of pay, and the precise form in which a contract with a civilian surgeon is to be made.
    These regulations have the force of law (United States v. Freeman, 3 How., 567; Gratiot v. United States, 4 How., 107),. and to these must we look for the authority of the medical director to execute the contracts in question and for the extent of his power to bind the government. (Floyd Acceptance Gases, 7 Wall., 677; Lee v. Monroe & Thornton, 7 Cranch, 366; Bennett v. United States, 6 O. Ols., 110.)
    The Army Regulations constitute the only authority by which the agent of the government could'bind the defendants in this case. An examination of them and general orders, however, shows, as above, that during the last twenty years the President and Secretary of War have exercised the right to .fix the price — and even had the President tlie power to allow the Surgeon-General to depart from the Regulations he has not so done, but has in the legal manner himself established the only condition when $125 per month can be paid.
    The plea that usage to the contrary effected an alteration in the powers granted to the medical director to contract thus cannot avail, as no custom has been sufficiently shown.
    An authority by usage will justify when the customary acts have been necessary to execute the power generally conferred by a law, but when a law or that which has the force of law itself undertakes to prescribe the methods of its exercise, it does not belong to the subordinate executive to vary from such methods and thus create a usage to be substituted for the law.
    The government was bound, and the contract was valid, but to the extent of $80 per month. (Story, § 170; Gelpeckev. City of Dubuque, 1 Wall., 222; United States v. Bradley, 10 Pet., 360.)
    Even if the agent could insert a condition, additional to those prescribed in the regulations, which would bind the government, the clause sued on here was plainly intended merely to guarantee contract surgeons wlio actually perforin tlie same duty, the same treatment, respecting’ quarters, as assistant surgeons. It certainly will not be construed as intending to confer rights and foundation, for damages not possessed by assistant sur.geons. But the law as to assistant surgeons and every officer of the Army at the time each of these contracts was made was simply that when there were quarters owned or leased by the government such might be apportioned by the quartermaster, according to rank, among the officers.
    The facts and arguments above suggested make inevitable and support the counterclaim. The defendant’s agent had authority to contract to pay a sum not to exceed $80 per month. (MoKee’S Case, 12 C. Ols. R., 504; McElrath’s Case, ib., 201.)
    
      Messrs. Paine, Grafton <& Ladd for the claimant, in reply:
    If the Secretary of War has no right to modify the Army Regulations, then each and every contract under which contract surgeons have been employed and paid in excess of the amounts named in said paragraphs have been unlawful contracts, and the Surgeon-General and other officers who made them are liable to the United States for the amount of money improperly disbursed thereunder, and.it would seem proper for the United States so pursue its remedy in each and every case, to the end that even justice may be done. True, it may fall hard on honored, deserving public servants, but the remedy should be applied to all alike. The statutes give a large discretion to officers of the Army charged with its government and care. In the very nature of military, operations, this must be so. The Surgeon-General having exercised the right to fix the rate of pay of contract surgeons according to the hardship, danger, or value of the services required to be performed for a period of forty years last past, and this action having been acquiesced in by the Secretary of War and the accounting officers of the Treasury, and it having become an established custom of the service, and large sums of money having been disbursed under such contracts, the court should not “interfere at this late day with a rule that has been acted upon by the Court of Claims and the Executive for •so long a time.” (United, States v. Pugh, 99 U. S. R., 265; Ed-, wards Lessee v. Dailey, 12 Wheat., 210; Kahn v. United States, 14 C. Cls. R., 318, 319.)
   Davis, J.,

delivered the opinion of the court:

In the Army Regulations (edition of 1863) it is provided as follows:

“1304. When it is necessary to employ a private physician as medical officer, the commanding officer may do it by written contract, conditioned as in Form 18, at a stated compensation not to exceed $50 a month when the number of officers and men, with authorized servants and laundresses, is 100 or more; $40 when it is from 50 to 100, and $30 when it is under 50. (Page 333.)
“ 1305. But when ho is required to abandon his own business, and give his whole time to the public service, the contract may be not to exceed $80, and not to exceed $100, besides transportation in kind, to be furnished by the Quartermaster’s Department, when he is required to accompany troops on marches or transports. (Page 314.)
“Appendix B, 71. Paragraph 1305 Army Regulations is hereby so modified that private physicians, employed as medical officers with an army in the field in time of war, may be allowed a sum not to exceed' $1.25 per month, besides transportation in kind. (Page 518.)”

These regulations have been in practice disregarded for many years by the Surgeon- General. Contracts have been made with private physicians in which salaries have varied according to the hardship, danger, or value of the services to be performed. The Surgeon-General has for many years exercised the right to fix the pay of contract surgeons both generally and in particular cases, and his action has been uniformly acquiesced in by' the Secretary of War, and by the accounting officers of the Treasury.

Among the contracts in which this claim of right was exercised were three written contracts made with the claimant to perform the duties of a medical officer in Texas, in the first of which it was agreed that his pay should be $125 a month, and in the second and third, $100 a month. In the first contract it was further agreed that he should have the fuel and quarters of an assistant surgeon of the rank of first lieutenant; in the second and third, that he should receive such fuel and quarters if they could be furnished. Each of the three contracts was approved by the Surgeon-General. The combined term of service extended from September, 1871, to November, 1879.

The claimant was paid for such service at the rate of the money compensation named in each contract for tbe period of service done under each; but no quarters were furnished to-him after December 15,1873, and he has received no commutation or allowance therefor. In this suit he demands $2,292.13,. as the commutation price of quarters during' the period that they were not furnished. The defendant denies the authority of its agents to contract to furnish quarters; and further sets up a counterclaim of $3,635, being- the aggregate of the sums paid to the claimant in excess of the amounts allowed by the regulations.

As to the claimant’s demand, it is clear that the agreement to furnish quarters was contrary to regulation. The restraining effect of a regulation upon subordinates of the Secretary of War was thus described by the Supreme Court many years since:

“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 promulged 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 cannot 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-Ohief; its consequences, if tolerated, would be a complete disorganization of both the Army and Navy. In the present instance the order was adopted by the proper authority, and by the same authority promulged to every officer through the regular official organ; and the question propounded to the circuit court was neither more nor less than this, whether a subordinate officer of the Army, insisting upon a prior regulation, which he thiuks either 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 question can need no argument for its solution.” (United States v. Eliason, 16 Pet.,. 302.)

It is contended that the custom which has obtained for the Surgeon-General to disregard the regulation in fixing the pay of contract-surgeons, and the uniform acquiescence of the Secretary of War in his doings, amount to a revocation of the regulation. It may be that the Secretary’s approval of a contract varying from a regulation supersedes the regulation as to that contract. We will decide that question when it arises. We have no doubt, however, that, no matter how often repeated, it does not operate beyond the individual case, and does not repeal a general regulation.

It is also contended that although the express contracts may be annulled, yet that the claimant, having performed the services, is entitled to be paid what they are reasonably worth, and, on the authority of Clark's Oase (95 U. S. R., 539), that “their value may be fairly assumed at what wa,s stipulated for in the contracts.” The answer to this contention is that the same regulation which restrained the Surgeon-General from making these contracts denies to this court the power to imply them. If the government had paid the claimant nothing for his services, the court, while setting aside the special contracts, could have inferred a contract to pay the amount authorized by the regulation; but it has no j>ower to work by implication a contract which the Surgeon-General is in terms forbidden to make. As the claimant has already received for his services more than the regulation price, he is not entitled to judgment.

As to the counterclaim, the payments which are sought to be recovered back were all made in good faith, with no improper purpose on either side, with full knowledge of the facts, but under a mistaken construction of the law. It is quite clear that if the controversy were between private parties the money, under such circumstances, could not be recovered back. (Chitty on Contracts, 627,628.) The fact that the transactions took place with an agent of the government does not change the rule. (Warden’s Case, ante p. 86.) “With a few exceptions, growing out of considerations of public policy, the rules of law which apply to government and to individuals are the same.” (McKnight’s Case, 98 U. S. R., 186.) See also United States v. Freeman (3 How., 564) where the court say that payment erroneously made, in good faith, “is binding upon the government and cannot be recalled.”

The judgment of the court is that the claimant’s petition be dismissed, and that the defendants’ counterclaim be dismissed.  