
    GEORGE A. BARTLETT v. THE UNITED STATES.
    [No. 16640.
    Decided, May 19, 1890.]
    
      On the Proofs. ■
    
    The claimant is appointed “ a disbursing clerk in the office of the Secretary of the Treasury with compensation at the rate of $2,500 per anmn." He is ordered “ to pay such vouchers as may be presented ” for public buildings as the Secretary thinks can be best paid in Washington. These buildings are in different parts of the country, and at each place is a collector of customs or disbursing agent.
    I. The Act 7th August, 1882 (22 Stat. L., p. 306), which provides that “any disbursing agent" appointed to disburse an appropriation for a public building not within the city of Washington shall be ■ entitled to the compensation allowed to collectors of customs, does not extend to one of the disbursing clerks in the office of the Secretary of the Treasury.
    II. The Secretary of the Treasury can not designate an officer in the city of Washington to be a disbursing agent in another place under Revised Statutes, § 255, nor where there is a collector of customs, ■ under § 3658.
    ¡HI. A disbursing officer holding an office created by statute having an annual, salary but no prescribed specific duties, is bound to disburse .such money and in such manner as the Secretary may direct.
    
      IV. A disbursing clerk in the office of the Secretary of the Treasury who makes payments by direction of the Secretary which should he made by a collector of customs or local disbursing agents comes within the prohibition as to extra compensation of the Revised Statutes, § 1763, 1764, 1765, and the Act 20th June, 1874 (18 Stat. L., p; 101, § 3; Supp. to R. S., p. 74).
    The Reporters7 statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant was appointed May 28, 1881, disbursing clerk in the office of the Secretary of the Treasury, by written appointment, and gave bonds, of which the following are copies:
    “ Treasury Department,
    . “ OEEIOE OE THE SECRETARY,
    “ JDiv. of Appointments, Washington, I). G., May 28,1881..
    “ Mr. G-eorcíe A. Bartlett,
    “ Olerlc of Glass Four :
    
    “ Sir : You are hereby promoted and appointed a disbursing* clerk in the office of the Secretary of the Treasury with compensation at the rate of $2,500 per annum, the appointment to take effect from the 1st proximo, vice Bushrod Burch.
    “ Respectfully yours,
    “WILLIAM WlNDOM,
    “ Secretary.
    
    “ Know all men by these presents, that we, George A. Bartlett as principal and Chapin Brown, Henry K. Simpson, Margaret E. Foster, and Samuel L. Mattingly, of Washington City, District of Columbia, as sureties, are held and firmly bound unto the United States of America in the sum of $10,000 lawful money, to be paid to the said United States; which payment, weil and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents.
    “ Sealed with our seals and dated this 1st day of June in the year of our Lord 1881.
    “The condition of the foregoing obligation is such, that whereas the Secretary of the Treasury has, pursuant to law, constituted and appointed the said George A. Bartlett a disbursing clerk for the Treasury Department:
    “Now, therefore, if the said George A. Bartlett shall well and truly execute and discharge all the duties of said office of' disbursing clerk according to the laws of the United States, and the regulations of the Treasury Department made in conformity therewith, safely keeping and correctly paying out all sums of public money advanced to him on coming into his hands from time to time, without loaning', using, depositing in bank, or exchanging for other funds than as allowed by law, then this obligation to be void and of none effect; otherwise to remain in full force and virtue.
    Signed and sealed in presence of
    
      “[Duly signed and sealed by the parties.] ”
    II. He has continued ever since said appointment to discharge the duties of the office without receiving any other appointment, or giving any other bond as a disbursing officer, ile has been paid at the rate of $2,500 a year and no more.
    III. On the 11th of July, 1889, the Secretary of the Treasury addressed to the claimant a letter of which the following is a copy:
    “ Treasury Department,
    “ Oeeice oe the Secretary,
    “ Washington, D. G., July 11,1889.
    “ Mr. Geo. A. Bartlett,
    “ Disbursing Cleric, Treasury Department:
    
    u Sir : You are hereby authorized to pay such vouchers as may be pn-sented to you, payable from the various appropriations for public buildings, out of any funds that may be available therefor, the amounts so advanced to be repaid to you upon settlements made monthly by the accounting officers.
    “ This action will be understood as approving your action in making payments heretofore of this class of vouchers.
    <£ Respectfully yours,
    “Wi. Windom,
    “ Secretary.”
    From the time of the appointment of the claimant up to the date of said letter the practices therein authorized had existed, and it was continued thereafter in the same manner. During the time of claimant’s service “ the bulk of the appropriations made for public buildings has been paid by local disbursing officers,” and the claimant has “ only disbursed such parts of them as the Secretary thought could be better and more expeditiously disbursed” at the Treasury in Washington, “ with a view to the convenience of the public creditors and the safety of the Government.” In each case of making payments under many different appropriations for a great number of public buildings the claimant received an order or authorization to pay the vouchers inclosed therewith, filled out in the office of the Supervising Architect (which is a division in the office of the Secretary of the Treasury) on a printed blank form, two specimens of which, taken from many hundreds of like kind as filled up, with the written part put here in italics, the remainder being in print, are as follows :
    “ Tbeasuky Department,
    i. ERICE OR THE SECRETARY,
    “ Washington, D. 0., May 29,1889.
    “ Mr. George A. Bartlett,
    “ Disbursing Olerlc, Gustom-House, Richmond, Va.,
    
    “ Treasury Department :
    
    “ Sir : In view of the request and recommendation contained in the letter of the 25th instant, from the superintendent of the United States custom-house, &c., at Richmond, Va., the Department this day authorized him to employ, subject to section 19 of the printed ‘ Instructions to Superintendents,’ approved May 8, 1886, during’ the month of June, 1889, J. F. Powell as cleric at $3.50 per day, Sundays excepted, and to certify and issue vouchers for payments for said services in accordance with the requirements of the printed‘instructions’named. (See section 36.) Said section is hereby approved, and you are hereby authorized to make payments of said vouchersin accordance therewith, and the requirements of the printed ‘ instructions to Disbursing' Agents,’ approved July 31, 1884, from funds remitted you on account of the appropriation for the bmlding.
    
    “ Respectfully, yours,
    “Geo. 0. Tichenor,
    
      “Acting Secretary.”
    “Treasury Department,
    Orrice or the Secretary,
    “ Washington, D. 0., May 9,1889.
    “ Mr. George A. Bartlett,
    “ Disbursing Agent, United States Custom-House, etc.,
    
    “ Richmond, Va. :
    
    “ Sir : In view of the request and recommendation made by the superintendent of the custom-house, etc., R.ichmoud,Ya., in letter of the 18th ultimo, and the public exigency requiring the immediate delivery of the articles and performance of the work, the Department has this day authorized him toincurau expenditure not exceeding $340, in accepting the bid of Hutcheon & McDonald, the lowest received, under circular letter, for labor and materials for properly shoring up and underpinning two columns in basement of said building, $340, and to certify and issue vouchers therefor for payment in accordance with the requirements of the ‘ printed instructions to superintendents,’ approved May 8, 1886 (see sections 34 to 43 inclusive). Said action is hereby approved, and you are authorized to make payment of said vouchers in accordance therewith and the requirements of the printed instructions to disbursing agents approved July 31,1884, from funds remitted you on account of the appropriation for the building.
    
    “ Kespectfully, yours,
    “ Geo. G. Tichenor,
    
      “Assistant Secretary.”
    IV. Upon such orders the claimant made disbursements for buildings for court-house, post-office, etc., at Abingdon, Va. (22 Stat. L., 153; 24 Stat. L., 444); post-office, court-house, etc., at Binghamton, N. Y. (24 Stat. L., 487); marine hospital at Chicago, Ill. (25 Stat. L., 505); post-office, court-house, etc., at Charleston, S. C. (24 Stat. L., 393, 394); custom-house, post-office, and court-house, at El Paso, Tex. (24 Stat. L., 107, 222, 510); post-office, etc., at Houston, Tex. (24 Stat. L., 416, 511); post-office, etc., at Owensborough, Ky. (24 Stat. L., 403, 404); mint building, Philadelpnia, Pa. (25 Stat.L., 507); post-office, -custom-house, etc., at Wilmington, N. O. (24 Stat. L., 378,511), and at other places outside the city of Washington. At each of the places where said.buildings were located there was a collector of customs for the district in which they were situated, or a disbursing agent tor the payment of all moneys appropriated for the construction of the same, appointed by the Secretary of the Treasury. It does not appear that demand for payment of any part of the present claim has at any time been made upon the Secretary of the Treasury or other officer charged with the erection of said buildings. The amount of money so disbursed by the claimant during the six years immediately before the commencement of this action, that is, from August 1, 1883, to July 31, 1889, was- $1,833,287.97. Prior to that time he disbursed in like .manner the sum of $344,841.70. His accounts were received, examined, certified, and paid at the Treasury of the United States, monthly, and he received from the First Comptroller a certificate duly signed, of which the following is a specimen:
    ' “Treasury Department,
    “First Comptroller’s Oeeioe, “Washington, T). O., April 18, Í890.
    “Geo. A. Bartlett, Esq.,
    
      “Disbursing Olerlc, Treasury Department :
    
    “ Sir : Your account with the United States of disbursements for the office of the Supervising Archiieet during the month of February, 1890, has been examined and adjusted in this office, per First Auditor’s report, No. 274757, and a balance found due from the United States of $24,881.03, agreeing with, your statement of the same, which has been certified for payment to you.
    I am, very respectfully,
    
      u >
    “ First Comjptroiler.”
    Y. Since the passage of the act of March 3, 1875 (18 Stat. L., 415), the compensation paid at the Treasury of the United States to collectors of customs and disbursing agents appointed for that purpose, who have disbursed money appropriated for and expended in the construction of public buildings, has been in all instances three-eighths of one per centum on the amount disbursed. The only sum paid to the claimant, beyond his salary, during the period of his services, was $65.22 on account of traveling expenses in going to East Bluehill, Me., by direction of the Secretary of the Treasury, to make disbursements from the appropriation for the court-house and post-office building at Pittsburg, Pa.
    
      Mr. Robert A. Howard, for the claimant.
    The positions assumed by claimant in this case are few and simple. He will confidently submit that the right of recovery has been fixed upon principle by this court and the Supreme Court of the United States.
    It has always been the policy of the Government to pay its-officers making disbursements and collections of public funds by commission. Collectors of duties, consuls, superintendents of lights, marshals, are instances. Statutes making these provisions have been in force from the commencement of the Government. And when at times it has been enacted that these responsible duties should be performed without compensation that has been quickly repealed. (1 Stat. L., 138,172,255,275: 5 Stat. L., 242 ; 9 Stat. L., 365-367.)
    This is applicable as well to clerks in the Departments as to other persons, if they can reasonably be brought within the terms of any law; for all laws referring to these subjects must be construed in harmony with the established principle. The usage is well known historically for clerks to be detailed to perform duties away from the Departments, and duties different from those strictly belonging to their positions. And Congress. lias recognized this. (Rev. Stat., §§ L83, 2067; Ddwards’ Lessee-v. Darby, !2 Wheat., 210.)
    The regular duties of disbursing clerks in the Treasury Department, according to the personal ledger, are as follows: Salaries in the different bureaus (including Bureau of Engrav-ng and Printing); Steamboat Inspection Service; Supervising Surgeon-General Marine Hospital Service; Special Inspectors of Foreign Steam Vessels, etc.; also the various contingent expense accounts of the Treasury Department. (3 Lawrence’s Decis., 412.)
    Without stopping to inquire whether some of these matters may not be extra-official, it is clearly seen that the duties performed by claimant in disbursing moneys for public buildings, nowhere are classed among his official duties.
    Having appointed Bartlett, the question arises what, if any,, compensation he is entitled to. In reciting the sections of the statutes we desire to ask attention to the propositions heretofore announced, as they receive strength and confirmation in all.
    See Revised Statutes, §§ 255, 3657, 3614.
    These are the provisions of the statutes, authorizing and recognizing the appointment of officers and agents to disburse public moneys for the construction of public buildings. Section 255-is not mandatory; nor. is the Secretary of the Treasury limited in sections 3657, 3658, to appoint as such agents the-officers therein named. This is well-settled doctrine. (Converse-v'. United, States, 21 How., 463; United States v. McDaniel, 7 Pet., 1; United States v. Ripley, id., 18; United States v. Mllebrown, id., 28.
    The claimant comes within all the requirements of the statutes, although, under the sanction of the above decisions, it is not necessary he should do so. He derives his special appointment from the Secretary of the Treasury and is at all times, under bonds.
    But, in addition to all this, by Act of Congress approved August 7,1882 (22 Stat. L., 306), it is provided:
    “And any disbursing agent who has been or may be appointed to disburse any appropriation for any United States court-house and post-office or other building or grounds not located within the city of Washington shall be entitled to the condensation allowed by law to collectors of customs for such, amounts as have been or may be disbursed.”
    
      This is general legislation in an appropriation bill. It is of the character of the language of acts of Congress referred to and construed in Converse v. United States (supra).
    I am aware that an action was brought in this court by one Meriwether under this statute and his petition dismissed. But the only question decided in that case was that the law could not be so far retroactive as to fix a compensation for former disbursing officers in all the past transactions of the Government. Meriwether sued for commissions on disbursements made in the years 1853 to 1857. This court logically held that it was not the intention of Congress to trip up settlements made of such transactions. The history of the legislation is historically known. Huidekoper, postmaster at Philadelphia, was appointed to disburse funds appropriated for construction of a court-house and post-office building at Philadelphia. The Comptroller refused to allow commissions. This statute was .passed and the Comptroller passed the accounts. But the retrospective feature scarcely appears in this case. The query suggested by the court in Meriwether we submit is answered by the reasoning of the court in the cases cited supra. And this court very clearly laid down the rule under precisely similar circumstances in a very recent case. (Faris vs. United States, 23 Ct. Cls. JR., 384.)
    It will scarcely be contended that this claimant comes within the prohibitions of section 1765. As it is the intention of counsel to present their views on oral argument, I will in this brief refer the court to the elaborate opinions, covering every view of this question, in the following cases: Collins v. United States, 15 0. 01s. B., 22; Saunders v. United States, 21 0. 01s. B., 408; and also Converse v. United States {supra); United States v. Brindee, 110 United States, 688; United States v. Saunders, 120 United States, 126 ; United States v. Evans, 4 Mackey, 489.
    
      Mr. Felix Brannigan (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
   Bichardson, Oh. J.,

delivered the opinion of the court:

The claimant, a disbursing clerk in the office of the Secretary ■of the Treasury, alleges in his petition that at divers times since •his appointment as such he was appointed and directed, by au-tboritv in writing by the Secretary of the Treasury, to be disbursing agent 1 o disburse appropriations for public buildings and grounds; and that as such disbursing agent he disbursed and paid out large sums of money, for which he claims a commission of three-eighths of 1 per cent.

He relies mainly, if not wholly, upon 'the following provision contained in the sundry civil appropriation act of August 7, 1882, chap. 433 (22 Stat. L., 306).

“ For repairs and preservation of public buildings ; for repairs and preservation of custom-houses and post-offices and other public buildings under control of the Treasury Department, one hundred and forty thousand dollars. And any disbursing1 agent who has been or may be appointed to disburse any appropriation for any United States court-house and post-office, or other building or grounds not located within the city of Washington, shall be entitled to the compensation allowed by law to collectors of customs for such amounts as have been or may be disbursed.”

To bring himself within the terms of this provision he urges that each of the many hundred orders or authorizations to pay the vouchers inclosed therewith was an appointment as a disbursing agent pro hac vice.

In our opinion this statute contemplates only those disbursing agents whose appointments or designations are specially made as such under authority of laws for the disbursement of appropriations for public buildings, and does not apply to the ordinary disbursing clerks of the Treasury Department, who occasionally, though frequently, disburse, on special orders of the Secretary in each case, only such parts of the appropriations as canbetter and more expeditiously be disbursed attheTreasury Department with a view to the convenience of the public creditors and the safety of the Government.

The following are all the statutes authorizing such appointments or designations:

“ Seo. 255. The Secretary of the Treasury may designate any officer of the United States who has given bonds for the faithful performance of his duties to be disbursing agent for the payment of all moneys appropriated for the construction of public buildings authorized by law within the district of such officer.
“ Seo. 3657. The collectors of customs in the several collection districts are required to act as disbursing agents for the payment of all moneys that are or may hereafter be appropriated for the construction of custom-houses, court-liouses, post-offices, and marine hospitals; with such compensation, not exceeding one-quarter of one per centum, as the Secretary of the Treasury may deem equitable and just.
“ Sec. 3658. Where there is no collector at the place of location of any public worlc specified in the preceding section, the Secretary of the Treasury may appoint a disbursing agent for the payment of all moneys appropriated for the construction of any such public work,.with such compensation as he may deem equitable and just.”

The claimant was precluded from appointment under section 255, because, not being attached to any district, the buildings for which his disbursements were made were not within Ms district, and he could not have been appointed under section 3658, by special designation in each case, to disburse part of the money appropriated, because there was a collector in the place of location of each of the several buildings, or a disbursing agent, other than the claimant, previously appointed •‘‘for the payment of all moneys appropriated for the construction of any such public work.”

But the findings throughout show that there was no intention of appointing the claimant as such disbursing agent. His appointment was “disbursing clerk in the office of the Secretary of the Treasury,” an office created by statute and for which an annual salary, of $2,500 was appropriated. For such a clerk the statutes prescribe no specific duties, and he is bound to disburse such money and in such manner as the Secretary directs.

The Supervising Architect is at the head of one of the divisions in the “ office of the Secretary of the Treasury,” according to departmental organization and language. It was therefore within the ordinary duties of the claimant, as such disbursing clerk, to pay the vouchers approved by the Supervising Architect when so ordered by the Secretary.

In filling the printed blanks authorizing the payment of particular vouchers it was natural that the Supervising Architect should style the claimant disbursing agent or disbursing clerk of the building to which the vouchers related, and that the Assistant Secretary should sign the order so printed and written, without intending to recognize his appointment as such. The Secretary of the Treasury in his letter of July 11, 1889, set out in Finding III, addresses the claimant merely as “ Disbursing Clerk, Treasury Department.” and authorizes him to pay such vouchers as might be presented to him payable from the various appropriations for public buildings, and approves his action in making payments theretofore of this class of vouchers.

The First Comptroller, in certifying to the monthly settlement of the accounts of the claimant, addresses him as “ Disbursing Clerk, Treasury Department,” and informs him that “your account with the United States of disbursements for the office of the Supervising Architect during the .month has been examined and adjusted.” Thus he was always treated in the Treasury Department as performing his ordinary duties as disbursing clerk in the office of the Secretary when paying vouchers from the office of the Supervising Architect on the order of an Assistant Secretary. We have no doubt that he himself so regarded his appointment and duties, for he performed the duties for a period of eight years without objection and without claiming compensation beyond the salary appropriated by law, and this, too, when the acts authorizing the construction of each building limited the cost to a prescribed amount, as may be seen by references to the acts mentioned in the findings, and that limit would be exceeded in many cases of completed buildings if the present claim were allowed. Moreover when he went to Maine to make disbursements he did so not at his own expense, but at the expense of the Government, like any other clerk of the Department traveling on public business.

If these disbursements were part of his duties as disbursing clerk in the office of the Secretary of the Treasury7, then he has been paid in full according to the terms of the several acts under which appropriations for his office were made, as follows:

uBe it enacted, etc., That the following sums be, and the same are hereby appropriated, out of any money in the Treasury not otherwise appropriated, in full compensation for the service of the fiscal year ending Juue thirtieth, eighteen hundred and eighty-three, for the objects hereinafter expressed, namely:
# # # * # # #
“Treasury Department.
“ Secretary’s Office, * * * two disbursing clerks, at two thousand five hundred each.” * * * [Act of 1882, August 5, 389,22 Stat. L., 219,225, and each subsequent appropriation act.]

If the duties did not properly belong to the claimant as such disbursing clerk, but were part of the duties of some other-officer, then he encounters the following provisions of the Revised Statutes and subsequent act:

“ Sec. 1763. Ro person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand hve hundred dollars shall receive compensation for discharging the duties of any other office unless expressly authorized by law.
“Sec. 1764. Uo allowance or compensation shall be made to any officer or clerk, by reason of the discharge of duties-which belong to any other officer or clerk in the same or any other Department; and no allowance or compensation shall be made for any extra services whatever which any officer or clerk may be required to perform unless expressly authorized by law.
“ Sec. 1765. 2To officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public-money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.
“ Uo civil officer shall hereafter receive any compensation or perquisites, directly or indirectly, from the Treasury or property of the United States beyond his salary or compensation allowed by law: Provided, That this shall not be construed to-prevent the employment or payment by the Department of Justice of district attorneys as now allowed by law for the performance of services not covered by the salaries or fees.” [Act of 1874, June 20, Oh. 328, sec. 3, Supplement to Li. S., 477.]

It has been held by this court and by the Supreme Court that these provisions do not apply where one person holds two-distinct compatible offices to each of which there is a salary-attached, but only where a person holding one office, by assignment or request- of his superior officer or otherwise, performs the duties of another office held by some other person (Collins’ Case, 15 C. Cls. R., 22, and numerous cases there cited; Badeau’s Case, 130 U. S. R., 439).

The claimant’s case is exactly within these prohibitions. He held an office the salary of which was $2,500 a year, and while being paid that salary he performed duties by direction or request of the Secretary of the Treasury which, if they did not-appertain to his own office, were part of the duties of several offices held by other persons, the collectors in districts where there were collectors, and by regularly appointed disbursing agents where there were no collectors.

It must be observed that during the time of the service of the claimant, as set out in the findings in words quoted from his own deposition, the bulk of the appropriations made for public buildings was paid by local disbursing officers, and that he only disbursed such parts of them as the Secretary thought could be better and more expeditiously disbursed at the Treasury Department, in Washington, with a view to the convenience of the public creditors and the safety of the Government.

The claimant has no cause of action and his petition must be dismissed.  