
    TIMOTHY J. BUTLER v. THE UNITED STATES.
    [No. 29917.
    Decided December 4, 1911.]
    
      On the Proofs.
    
    A general rule of tbe Isthmian Canal Commission provides that “ when a lea/oe of absence with pay of an errvployee is granted the salary for the period of leave shall not be considered as due and payable until such employee has returned and resumed his duties.” If he resigns while on leave, “ he shall not be entitled to pay during the period of such leave." But the claimant’s appointment provides, “ you will be granted six loeelcs’ leave of absence on full pay during each year of service," and contains no qualification whatever. The claimant has increases of salary by way of promotion, but receives only one appointment, and during his entire service acts as a clerk in the office of the Chief of Engineers. He. and a clerk in the Interior Department are allowed, both by the Chief of Engineers and the Secretary of the Interior, to exchange places; so the claimant does not return to the Isthmus.
    1. Where a clerk tákes but one oath of office, receives but one letter of appointment, and during his whole period of service acts as a clerk in the same office, promotions, so called, are but increases in pay and in no sense are a promotion to a different office.
    2. The failure of a clerk to return at the end of his leave of absence because he exchanged places with another clerk in Washington, this being done with the approval of their superior officers, takes his case out of the general rule of the Canal Commission; and failure to return must be attributed not to his independent action, but to that of his superior officers.
    3. This case is clearly distinguishable from that of Vaughns (45 C. Cls. R., 525), where the claimant resigned his position before the expiration of his leave, and where there was no consent of his superiors to an exchange of position. In this ease the claimant did not leave the Government service.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. Timothy J. Butler is a citizen of the United States and was such citizen on October 15, 1904, on which date he was duly appointed a copyist, at the compensation of $75 per month, on the engineering staff of the Isthmian Canal Commission, and was assigned to duty on the Isthmus of Panama, and he accepted the said appointment and reported for duty thereunder on the Isthmus of Panama on or about the 25th day of October, 1904.
    His letter of appointed contained a provision as follows:
    “ You will be granted, at the convenience of the commission, six weeks’ leave of absence on full pay during each year of service.”
    Circular No. 3 of the Isthmian Canal Commission, promulgated and dated November 3,1904, contains the following provision:
    “When a leave of absence with pay is granted an employee the salary for the period of leave shall not be considered as due and payable until such employee has returned to the Isthmus and resumed his duties. If such employee while on leave resigns, he shall not be entitled to pay during the period of such leave.”
    Circular No. 14 of the Isthmian Canal Commission, promulgated and dated May 6, 1905, contains the following provision:
    “ They [employees] may be granted, in the discretion of the head of the department in which employed, leave of absence at the rate of six weeks for each twelve months of service rendered, or at the rate of three and one-fourth days for each full month’s service actually rendered, such leave to be accumulative for a period of two years. * * * This grant of a leave of absence is not to be considered a vested right, but is made to promote the welfare and interests of the service, and compensation for the period of their leave will not be paid until after their return to duty.”
    II. The claimant received increases of salary from time to time by way of promotion, but during his entire service his name was carried on the rolls as a clerk in the office of the chief of engineers and his duties were confined to such office during his entire service, except the brief period during which by detail he acted as municipal judge, but receiving during such detail service his salary as such clerk only. The claimant took but one oath of office as such clerk and never received but the one appointment to office referred to in Finding 1.1
    
      III. August 1, 1905, the claimant was granted a leave of absence with pay for sis weeks, extending from August 8 to, September 18, 1905, and thereupon returned home.
    IY. During said leave of absence the claimant wrote to, the chief of engineers of the Isthmian Canal Commission, at Panama, expressing a desire to be transferred to the Interior Department in Washington in place of one F. Patrick Machler, then employed in the Land Office in the Interior Department, the said Machler to be transferred to the Isthmian Canal Commission in his place. September 7, 1905, the chief of engineers aforesaid wrote to the assistant chief here in Washington referring to said request of the claimant and requesting that, if it could be effected under the civil-, service regulations, such change be made. September 13, 1905, Hon. Thomas Ryan, the then Acting Secretary of the Interior, addressed a letter to the Civil Service Commission requesting its approval of the transfer of the claimant from the position of clerk in the Isthmian Canal Commission to the position of clerk in the General Land Office in exchange with said F. Patrick Machler. September 19, 1905, the Civil Service Commission addressed a reply to this request of the Acting Secretary of the Interior stating that the claimant was not eligible for the transfer proposed because he had not served the two years required therefor, but stating that such requirement might be waived in specially meritorious cases. September 22, 1905, the assistant chief of the Isthmian Canal Commission addressed the following letter to the Civil Service Commission:
    “IsthmiaN Canal Affaies,
    “ Office of Administeation, Panama Canal Building,
    “ Washington, D. O., September ££,1905.
    
    “Gentlemen: I have the honor to acknowledge the re-, ceipt of your communication under date of the 21st instant, in the matter of the mutual exchange of Mr. T. J. Butler, a clerk in the department of engineering and construction, Isthmus of Panama, at $1,500.00 per annum, and Mr. Francis P. Machler, a clerk in the General Land Office, Washington, D. C., at $1,000.00 per annum, stating that Mr. Butler is not eligible for transfer to the United States civil service unless it is shown that his case is specially meritorious.
    
      “In reply you are respectfully informed that Mr. Butler is now within the United States on six weeks’ leave of absence, having been forced to leave the Isthmus on account of ill health. His services there were highly satisfactory, and, while it is regretted that the commission will lose his services, it is desired that his wish to secure a position in the Interior Department be complied with as a recompense for faithful service rendered. Mr. Butler’s death is such that he has stated he will not go back to the Isthmus, and, if transfer is not effected, that he will be forced to resign.
    “ It is earnestly hoped and requested that Mr. Butler’s ease be considered meritorious, and that the mutual exchange and transfer in question be authorized, such exchange being satisfactory to the two heads of department and two employees concerned.
    “ Very respectfully,
    “W. LeoN PeppermaN,
    
      Assistant 0Thief.
    
    “The Civil Service CommissioN,
    “ Washington, D. G
    
    September 25,1905, the Civil Service Commission, in view of the statements contained in the above letter, recommended that the requirement of two years’ service on the Isthmus be waived to permit the transfer of the claimant as requested.
    Y. In accordance with the foregoing communications the claimant was transferred from his employment as clerk in the service of the Isthmian Canal Commission to a position as clerk in the General Land Office in the Department of the Interior in exchange for said F. Patrick Machler, who Was transferred to the position formerly held by the claimant with the Isthmian Canal Commission. . The claimant never returned to Panama and began his said duties in the General Land Office on or about September 28, 1905.
    YI. The salary of the claimant from August 8 to September 18, 1905, was $170.83, and for commutation of quarters during the same period $25.62, making in all the sum of $196.45, which sum the claimant never has been paid, and payment thereof has been refused by the Treasury Department.
    
      Mr. Pat-rich H. Loughran for the claimant.
    
      Mr. S. S. Ashbaugh (with whom ivas Mr. Assistant Attorney General Thompson) for the defendants.
   BaeNey, J.,

delivered the opinion of the court:

October 15, 1904, the plaintiff in this suit was appointed to a clerkship in the service of the Isthmian Canal Commission at a salary of $75 per month and assigned to service in the office of the chief of engineers at Panama, on the Isthmus of Panama. His appointment contained a provision that he would “ be granted at the convenience of the commission six weeks’ leave of absence on full pay each year of service.” He received an increase of salary from time to time by way of promotion, but during his entire service his name was carried on the rolls as a clerk in the office of the chief of engineers, and his duties were confined to such office during all of that time, except a brief period during which by detail he acted as municipal judge, but receiving during such detail service his salary as such clerk only. It also appears that the plaintiff never took but one oath of office as such clerk and never received but one appointment to office, which was the one already referred to. August 1,1905, the plaintiff was granted a leave of absence with pay for six weeks, extending from August 8 to September 18, 1905, and thereupon returned home. September 7, 1905, the chief of engineers of the Isthmian Canal Commission at Panama wrote to the assistant chief here in Washington saying that the plaintiff had expressed a desire to be transferred to the Interior Department in Washington in place of one Machler, then employed therein, the said Machler to be transferred to the Isthmian Canal Commission in his place, and said that there was no objection to this request if it could be effected under the civil-service regulations. Thereupon, under date of September 22, 1905, the Acting Secretary of the Interior addressed a letter to the Civil Service Commission requesting that such exchange be approved. The Civil Service Commission replied that the claimant was not eligible for the proposed transfer by reason of the fact that he had not been in the service two years, but stating that such requirement might be waived in specially meritorious cases. September 22, 1905, the assistant chief of the Isthmian Canal Commission addressed a letter to the Civil Service Commission highly commendatory of the services of the plaintiff while at Panama and requesting “that the mutual exchange and transfer in question be authorized, such exchange being satisfactory to the two heads of department and two employees concerned.” The Civil Service Commission then recommended the waiving of the two years of service so as to permit the transfer as requested.

In accordance with the foregoing the claimant was transferred from his employment as clerk with the Isthmian Canal Commission to a position in the Land Office in exchange for said Machler, who was transferred to the position formerly held by the plaintiff with the Isthmian Canal Commission.

The Treasury Department having refused payment to the plaintiff for his salary and commutation of quarters during his leave of absence, he brings this suit to recover for the same.

It is contended by the defendants that the plaintiff can not recover in this suit because of the effect of the orders of November 3, 1904, and May 6, 1905, quoted in Finding I, which provide that no compensation shall be allowed to employees granted leave of absence unless they return after leave to their work. On the other hand, it is contended by the plaintiff that these orders do not affect his right to compensation during such period for the reason that his letter of appointment contained a provision that he would be allowed leave of absence for six weeks in each year with pay, without limitation as to his return, and that the orders of November 3,1904, and May 6, 1905, having been issued after his appointment, did not affect his status in the service. In other words, that his duties and rights are to be determined by the terms of his letter of appointment and that such terms can not be modified by subsequent orders to which he never consented.

Apparently conceding this general proposition, the defendants contend that the several promotions of the plaintiff amounted to new appointments, and as some of them were made after November 3, 1904, and May 6, 1905, that the orders of those dates are binding upon him.

The findings show that the plaintiff took but one oath of office, never received but one letter of appointment, and dur-mg bis whole period of service was acting as a clerk in the office of the chief of engineers of the Panama Isthmian Canal Commission, to which office he was appointed. It appears that these so-called promotions were but increases in pay from time to time for good service, and were in no sense a promotion to a different office.

It would then seem to follow from the foregoing that all of the services of the plaintiff were rendered under his one letter of appointment, which provides for six weeks’ leave of absence on full pay during each year of service, without qualification.

We also believe that the plaintiff is entitled to recover in this suit upon another ground. As before stated, the findings show that the failure of the plaintiff to return to Panama was because of an exchange of places in the Government service between him and an employee in the Land Office, by the terms of which he took a position in the Land Office and Mr. Machler went to Panama and took up his duties there.

This mutual exchange and transfer was approved, and in fact requested, both by the Acting Secretary of the Interior and the chief of engineers of the Isthmian Canal Commission. It will thus be seen that the failure of the plaintiff to return to Panama was brought about by. the action of his superior officers in both branches of the Government service to which during the period under consideration he was attached.

In view of these facts we do not think that the orders of the Isthmian Canal Commission above referred to can be invoked to deprive the plaintiff of pay during his leave of absence for his failure to return at or after its expiration.

This case is clearly distinguishable from that of Vaughn v. United States (45 C. Cls. R., 525), for in the latter case the claimant was appointed after the promulgation of the later regulations quoted and resigned his position before the expiration of his leave. In the Vaughn case also there was no recommendation and consent to mutual exchange of positions, as in the case at bar.

Judgement is ordered for the plaintiff in the sum of $196.45.  