
    JOHN THOMAS WENTZ v. THE UNITED STATES.
    [No. 22829.
    Decided May 1, 1905.]
    
      On the Proofs.
    
    A special agent to make allotments of lands in severalty to Indians is appointed with compensation at the rate of $8 per day. While in the field he is suspended by the Secretary of the Interior “pending an investigation of your work anil conduct.” Subsequently he is directed to return to his home, and it is stated that he will he allowed pay up to the day of his arrival, but that his pay will cease on and after the day of his arrival. The general usage prescribed by the Secretary for such agents is to make semiweekly and other reports. The claimant continues to do so, and repeatedly makes inquiries concerning the investigation of his work and conduct. No answer is returned to his inquiries. He remains expecting reinstatement and has no other employment. It appears that the investigation discloses nothing which the Department deems worthy of his discharge.
    I.When the compensation of an officer is by the day the Government is liable only -for the days when the officer is actually employed, or for days only when the officer is required to hold himself in readiness for employment or is constructively employed, awaiting work to be furnished him, or when his superior officers allow him to hold himself in readiness in the belief that his service is required, or to render service in the belief- that it is necessary and proper for him to do so.
    II.The power to suspend an officer without compensation is incidental to the power to appoint and discharge. The exercise of this power enables the head of a Department to retain an officer whom otherwise it would discharge.
    III. An order directing an officer appointed by the President to proceed to his home, notifying him that his daily pay will cease from and after the date of his arrival, does not discharge him from the service. 1-Iis status is that of an officer awaiting employment and not entitled to his per diem compensation until employed.
    IV. An officer who is allowed to make semiweekly reports and is required to furnish evidence of the sufficiency and solvency of the sureties upon his official bond is entitled to his per diem for the days on which he made such reports, etc.
    
      
      The Ref otters’ statement of the case:
    The following are the facts of the case as found, by the court:
    I. July 21, 1897, the -President appointed. John T. Wertz to be a special agent to make allotments of lands in severalty to Indians on the Wind River or Shoshone Reservation, in Wyoming, under the provisions of the act of February 8, 1887 (24 Stat. L., 388), as amended by the act of February 28, 1891 (26 Stat. L., 794), with compensation at the rate of $8 per da}*- and actual and necessary traveling expenses, exclusive of subsistence, vice John W. Clark.
    II. On the 27th day of July, 1897, claimant ivas appointed special disbursing agent by the Secretary of the Interior.
    III. On the 27th day of July, 1897, claimant was required by the Secretary of the Interior to give a bond in the sum of $2,000 for the faithful performance of his duties, which bond he gave to the satisfaction of the Secretary of the Interior, and thereupon entered upon the discharge of his duties, he being ordered and sent to the Shoshone or Wind River Reservation, in Wyoming.
    IV. On the 15th day of May, 1900, the Secretary of the Interior suspended claimant from active duty as special allotting agent by letter, as follows:
    “ You are hereby suspended from duty, to take effect on receipt of this letter, pending an investigation of your work and conduct. You will immediately turn over to the agent for the Indians of the Shoshone Agency all official papers and Government property in your possession, taking his receipt therefor in detail.
    “ Please acknowledge receipt of this letter.
    “ Respectfully,
    “ E. A. Hitchcock, Secretary.”
    Y. Inspector William J. McConnell was instructed, May 24, 1900, to investigate the work of Special Allotting Agent Wertz. He did so, and on June 26,1900, the Office of Indian Affairs made report to the Department on the allotment work of Special Allotting Agent Wertz, based upon the report of Inspector McConnell under instructions from the Department.
    
      YI. Claimant, on July 3,1900, received from the Commissioner of Indian Affairs a telegram, as follows:
    “ By direction of the Secretary you are directed to immediately return to your home at Omaha, Nebn. You will be allowed pay up to and including the day of your arrival, with actual necessary traveling expenses en route, exclusive of subsistence. Your pay will cease from and after the date of your arrival at home. Beport to this Office the date of your arrival.”
    Claimant arrived at Omaha July 7,1900.
    VII. The Secretary of the Interior required reports from allotting agents as follows, to wit: Every week, two weekly reports; every month, one monthly report; and every quarter, one quarterly report; and one of the weekly reports was required to be in duplicate and all monthly and quarterly reports were required to be made in duplicate. All the foregoing reports and duplicates were made and sent to the Department by the claimant; and upon each of such reports, and duplicates thereof, was plainly written the following words:
    “At Omaha, Nebr., under telegraphic orders of July 3 from the Hon. W. A. Jones, Commissioner of Indian Affairs.”
    Claimant applied to the Interior Department to be advised if there were any charges against him or his work or conduct, and the Department refused to advise him as to whether or not there were any such charges before the Department.
    VIII. It is the custom of the Department, while officers are under bond, to require a new bond, or else evidence of the sufficiency and solvency of the old bond, once in three years, and long after July 7, 1900, to wit, August 29, 1900, and while he was suspended and at Omaha under the orders of the Secretary of the Interior, claimant was required by the Secretary of the Interior to furnish evidence of the sufficiency and solvency of the bond first executed by him, which evidence was duly furnished as required.
    IX. Claimant was removed from ' the office of special allotting agent by the President of the United States by his letter of April 12, 1901, received by claimant April 27, 1901,. at Omaha, Nebr.; and claimant had been at Omaha, Nebr., from July 7, 1900, to April 27, 1901, under direct orders from the Interiof Department and subject to the further orders of said Department.
    X. Claimant’s removal by the President was without any cause whatever so far as claimant was concerned, and on May 13, 1901, the Commissioner of Indian Affairs wrote petitioner as follows:
    “ You are advised that this Office is of the opinion that you were removed because this Department had no further use for your professional services.”
    Notwithstanding this statement, the work of allotting lands in this reservation has since been carried on by H. G. Nickerson, who was Indian , agent on said reservation and to whom petitioner was ordered to turn over all Government property.
    
      Mr. M.^A. Ballinger for the claimant.
    
      Mr. John Q. Thompson (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court:

Upon the facts existing in this case the court has reached the following conclusions:

1. When the compensation of an officer is by the day the Government is entitled to the exemption of an ordinary employer, viz, that of being liable only for the days when the officer is actually employed. But, conversely, the Government, like an ordinary employer, is liable for days when its officers have required the employee to hold himself in readiness for employment or when he is constructively employed by being -placed in circumstances where he can not find other employment and is awaiting work to be furnished to him by the Government officers, or when they allow him to hold himself in readiness in the belief that his service is required or to render service in the belief that it is necessary and proper for him to do so.

2. The power to suspend an officer without compensation ■is incidental to the power to appoint and discharge; that is to say, if the head of a Department, or other appointing power, lias an unlimited power to discharge an officer with or without cause and an unlimited power to reappoint him after an interval of weeks or months, the appointing power can reach the same result by suspending the officer without pay, the modification of means being really for the benefit of the officer. If he objects to this, he must resign; if he remains suspended without resigning, thereby retaining the chance of restoration to the service, he must remain subject to the condition imposed. It is believed that if the court should lay down a rule in such cases which would compel the appointing power to dismiss an officer whose conduct needs investigation it will operate to the disadvantage of the officers and employees in the .civil service. (Howard v. United States, 22 C. Cls. R., 305; United States v. Murray, 100 U. S. R., 536, 538.)

8. In this case the Secretary of the Interior, representing the President, “ suspended ” the claimant “ from duty,” “ pending an investigation of his work and conduct,” on the 15th of May, 1900. Between the 15th of May and the 3d of July, 1900, the Department received a report from the investigating officer which showed that the claimant had been guilty of no graver mistake than following a line of allotments begun by his predecessor in office. On the 3d of July, 1900, the claimant still being in the field, the Secretary of the Interior directed him to return to his home at Omaha, and alloAvecl him pay up to and including the day of his arrival. The order then notified him “ Your pay will cease from and after the date of your arrival at home. Report to this office the date of your arrival.” It is plain that this order did not discharge the claimant from the service or remove him from his office. If it had been so intended, it would have been unnecessary to notify him that his pay was to cease; his pay would, certainly cease when removed from office. His status then was that of an officer awaiting employment and not entitled to his per diem compensation until employed.

4. But between the 3d of July, 1900, and the 12th of April following the claimant made semiweekly reports pursuant to the ordinary routine, and was instructed by the Auditor of the Treasury for the Interior Department that it was his duty so to do. He also made monthly and quarterly reports and weekly reports in duplicate and monthly and quarterly reports in duplicate, and on all of such reports placed the memorandum “At Omaha, Nebr., under telegraphic orders of July 3, from the Hon. W. A. Jones, Commissioner of Indian Affairs.” He also made repeated applications to be informed with regard to the charges against him, without receiving a reply from the Department; and he also wrote to the President of the United States stating the circumstances of his case and that he could obtain no action from the Department. He also was notified in August, 1900, to furnish evidence of the sufficiency and solvency of the sureties upon the official bond which he had executed to the United States.

5. It is plain that if the Interior Department was not satisfied with the report of the investigating agent relating to the claimant’s “ work and conduct,” the order of the 3d of July, 1900, was a mistake. It is plain that it should have explicitly informed the claimant that he was removed from office. It is also plain that the officers to whom his reports were sent allowed him to remain week after week in the belief that he was still an officer acting under his appointment and entitled to employment. An ordinary employer, a railroad or manufacturing company or municipal corporation, in such a case would certainly be held responsible on these facts. But the extent of the claimant’s employment must be limited to the clays on which he was required or allowed to do something, to wit, the days on which he was making out reports and accounts; and these must be limited to two days a week between the 3d of July, 1900, and the 12th of April, 1901, amounting to eighty-one days, at $8 per clay, $648.

The "judgment of the court is that the claimant recover $648.  