
    John M. Hedrick v. The United States. Richard H. Warden v. The Same.
    
      On the Proofs.
    
    
      Hedrick is a supervisor of internal revenue. Warden is his cleric, being at the same time a gauger in the internal-revenue service. . For awhile dual compensation is allowed, at the Treasury. Fay is then withheld. Hedrick brings his action to recover for his ‘‘ expenses” in employing Warden as clerk ; Warden brings his to recover a balance of his pay as gauger; the defendants 'set vp their counter-claim to recover back the dual payments made to Warden as cleric and gauger.
    
    I.The statute requiring every person elected or appointed to any office, whether of honor or profit, to take a prescribed oath (Eev. Stat., j 1756), does not extend to the clerk of a suijervisor of internal revenue. He is not an officer.
    II.There is no privity of contract between the clerk of a supervisor of internal revenue and the government. The supervisor and not the clerk is the proper party to bring an action for the clerk’s salary. Such a salary is an “expense ” under Revised Statutes, § 3160.
    III. A gauger in the internal-revenue service is an officer under Revised
    Statutes, §5 3156 (3267).
    IV. The provisions of Revised Statutes, § 1764, prohibiting extra compensation to departmental clerks, do not extend to the clerk of a supervisor of internal revenue.
    V.Salary is fixed when it is at a stipulated rate for a defined period of time; pay or emolument is fixed when the amount is agreed upon and the service is defined.
    VI.A gauger’s pay being fixed by a general regulation, his case comes within the prohibition of Revised Statutes, 5 1765, and ho cannot receive pay for another service rendered at the same time.
    VII.The Act 20th June, 1874 (18 Stat. L., p. 109, § 3, ch. 328), restricting officers to salary or compensation allowed by law, relates only to civil officers.” It does not- extend to the clerk of a supervisor of' internal revenue; it does extend to the compensation of a gauger.
    VIII.Where a settlement is made at the Treasury between the government and a private party in good faith, though under a mistaken construction of a statute, for services actually rendered at an honest valuation, the settlement cannot be reopened by one party without the consent of the other, and the government cannot recover back the money so paid.
    
      IX. The Revised Statutes, § 1766, 'which direct that no money he paid to any person who is in arrears to the United States until he has accounted for all sums for which he is liable, apply only to-cases where the party is liable to the United States, and cannot he extended to a case of payment in good faith for a service rendered made in mistake of law.
    X. The allowance of the expenditure by the Commissioner of Internal Revenue is absolutely essential to create a liability on the part of" the government for the salary of a supervisor’s clerk, under Revised Statutes, § 3160. But his certificate that the expense has been incurred is not exclusive evidence, and the court may review^ his reasons for refusing it.
    
      The Reporters' statement of the case:
    The following are the facts of these cases as found by the court:
    I. The claimant, Hedrick, acted as and was a supervisor of internal revenue from February, 1871, until June, 1876. On the 14th February, 1871, the Commissioner of Internal Revenue informed him, by an instruction in writing, that he would be-allowed $1,200 per annum for clerk hire. From August 24, 1872, to July, 1873, the Commissioner, by an instruction in writing, allowed him $2,000 a year for that purpose. In July, 1873, the said Commissioner informed him, by an instruction in writing, that the sum of $1,500 per annum would be thereafter allowed him for such clerk hire.
    II. The said Hedrick employed clerks at those rates up to-July 16, 1873, and was allowed for them at the rates named. On the said 16th July he employed the claimant, Richard H. Warden, as such clerk, at a salary of $1,500 per annum, and the said Warden acted continuously in that capacity from that date until June, 1876.
    III. The said Warden held the office of internal-revenue gauger from April 19,1871, to November 11, 1875, and was actually employed in gauging spirits, from time to time, up to- and including September, 1875; but from and after the month of September, 1875, he performed no services as gauger, an$ has made no charges therefor. The fees to which he was entitled in his capacity as gauger were fixed by general regulations fixed by the Commissioner of Internal Revenue, and were graduated according to the amount of spirits gauged, subject to the limit of six dollars per day, as provided by tbe act of June 20, 1874.
    When Hedrick employed Warden as clerk be knew that be was also engaged in tbe defendants’ service as a gauger; and when Warden served as clerk, as aforesaid, be knew that tbe compensation wbicb be was receiving for tbe last-named services was allowed to Hedrick from tbe Treasury.
    IV. Hedrick always included tbe allowances to Warden, as clerk, in tbe accounts wbicb be forwarded to tbe Commissioner ■of Internal Revenue for approval and payment. Tbe amounts so claimed for clerk hire were paid from time to time by Treasury drafts to tbe order of Hedrick, and be in turn from time to time paid Warden’s salary from tbe sums so allowed. All charges for clerk hire were regularly allowed and paid to Hed-rick up to July, 1875, and also tbe amount charged for August, 1875, and tbe amounts thus allowed and paid to Hedrick were by him paid to Warden.
    V. Since June 30,1875, Hedrick lias presented sundry accounts to tbe Commissioner of Internal Revenue, claiming an allowance for clerk hire to Warden, in tbe aggregate to tbe .amount of $1,250, and for expenses incurred by Warden, in the aggregate to tbe amount of $23.50; in all, $1,273.50. Ho part ■of 'the accounts so presented have been allowed or paid. Of tbe said amounts, $826.12 is for services rendered and expenses incurred after November 11, 1875. Since tbe commencement of this suit tbe Commissioner of Internal Revenue has given tbe following official statement of tbe reasons for disallowing a part of these charges:
    
      11 Tbe reason of tbe disapproval by this office of tbe charges Tor clerk hire during tbe fiscal year ending June 30, 1876, for wbicb suit is now brought, was on acccount of duplicate payments already received by Warden as both gauger and clerk, which tbe First Comptroller bad decided was illegal, as shown in tbe letter from this office to Mr. Hedrick dated October 18, 1875.”
    VI. Warden, when employed to perform such clerical services ¡under Hedrick, did not take, nor has be since taken, subscribed, and filed in tbe proper department, tbe oath prescribed in Title XIX of tbe United States Revised Statutes.
    VII. Warden received tbe compensation allowed him by law ,as gauger up to July 31, 1875, amounting in all to $1,784.42.
    
      It is also found, as applicable to Warden’s case only, that in August, 1875, Warden earned as gauger tbe sum of $78.40; and that in September, 1875, be earned as gauger tbe sum of $48.47, amounting in tbe aggregate to $126.87, wbicb bas not been paid.
    VIII. On tbe 18tb October, 1875, tbe Commissioner of Internal Revenue addressed tbe following letter to Hedrick. The amounts therein stated to have been paid to Warden as clerk and to Warden gs gauger are correct.
    “ Treasury Department,
    “Oeeioe oe Internal Revenue,
    “ Washington, October 18,1875.
    “ Sir : Tbe salary of your clerk, R. H. Warden, for July, was at first suspended for tbe revised oath, but subsequently, with tbe salary for September, was suspended again, because after tbe payment of tbe August account it was discovered that Mr. Warden bad been paid from July, 1873, to tbe present time not only as supervisor’s clerk but also as gauger.
    “ The Comptroller bas decided that sections 1764 and 1765 of tbe Revised Statutes prohibit tbe payment to tbe same person compensation for services in two different capacities at tbe same time.
    “Respectfully,
    “D. D. Pratt,
    “ Commissioner.
    
    “J. M. Hedrick,.
    
      u ¡Supervisor, Ottumwa, Iowa?
    
    “ Treasury Department,
    “Oeeioe oe Internal Revenue,
    “ Washington, Dee. 30th, 1875.
    Sir : As per your verbal request, I inclose herewith a memorandum statement showing tbe amount erroneously paid to R. H. Warden as gauger during tbe time be was employed by you and paid an annual salary as clerk, from July, 1873, to July 31, 1875 .. $1,784 42
    There bas been disallowed, in tbe adjustment of your accounts, tbe amounts paid to Mr. Warden as clerk for July, Sept., Oct., & Nov,.,■ 520 70
    Heaving a balanceyet to be refunded of. 1,263 72
    Respectfully,
    “ H. C. Rogers,
    
      “Deputy Commissioner.
    
    “ J. M. Hedrick, Esq.,
    
      “Supervisor Int. Dev., Ottwniva Ioioa.
    
    
      “R. H. Warden was paid in 1873, ’74, and ’75, both as clerk of Supervisor Hedrick and as a gauger of distilled spirits:
    AS cleric: AS GAUGER:
    1873. July ... 74 70 6.5 18 July .
    August 73 21 126 40 August.
    Sept... 75 66 122 20 Sept.
    October . 79 53 126 40 October.
    Nov.' 58 98 122 20 Nov.
    Dec. 83 27 126 40 Dec ...
    1874. January.. 77 47 129 20 Janu’y.
    Feb. 62 79 116 60 Feb..
    March. 61 43 129 20 M’ch.
    April. 68 91 123 60 April.„ .
    May. 55 96 127 80 May.
    June. 67 16 123 60 June...
    July. 74 15 126 40 July..
    August. 73 01 126 40 August.
    Sept. 79 16 122 20 Sept ...
    October. 77 01 126 40 October.
    November 68 51 122 20 November.
    December 74 29 126 40 December.
    1875. January. 76 57 129 20 January .
    February. 62 78-116 60 .February.
    March. 71 14 129 20 .March...
    April. April. 68 18 123 60
    May. May. 67 11 127 80
    June. June.... 76 76 123 60
    July. 76 68
    $2,938 78
    1, 784 42
    “Total duplicate pay received by R. H. Warden from July 1, 1873, to June 30,1875, as per memo. $1 784 42
    .“As a partial offset to this, there has been suspended from the accounts of Super. Hedrick as follows:
    “Salary of R. H. Warden, as clerk— For the month of July, 1875. 126 40
    ~ u . 122 Sept., 20
    “ 126 Oct., 40
    “ .122 Nov., 20
    “ . 23 Expenses 50
    — 520 70
    “Leaving a balance of..$1,263 72 to be accounted for.
    “Oefice INT. Rev. Dec. 30th, ’75.”
    
      
      Mr. George L. Douglas for the claimant:
    Solely out of deference to the theory of the First Comptroller, the Commissioner decided to make Hedrick refund the amount of gauging fees which defendants had paid to Warden; and in pursuance of this purpose the sum of $1,273.50 was disallowed in settlement of claimant’s accounts.
    That the theory upon which this action is grounded was untenable is now conclusively established. It may be plausibly argued, however, in the present case, that the law above quoted vested in the Commissioner the sole power to allow, or refuse to allow, the expenses of a supervisor; and that he having-failed to approve, or at least to certify, the present charge (for what reason it matters not), no other tribunal can review his action. But it is respectfully submitted that this is not the controlling consideration in the present case. The evidence here presents a clear case of contract, duly entered into by an officer acting within the undisputed scope of his lawful authority. One obvious purpose of the law quoted was to vest in the Commissioner of Internal Revenue the entire control over the expenditure of the appropriation for supervisors. But the greater includes the less, and the right to expend carries with it the right to contract for expenditure. (Williams’s Case, 12 C. Ols. E., 192; Paley Ag., 189, 209; United States v. Win-gall, 5 Hill, 16.) And if the Commissioner did so lawfully contract with the present claimant, the fact that he wrongfully refused to carry out his obligation cannot here be set up by way of defense. (Boston Banlc Cases, 10 G. Ols. R., 519.) The authority of the Commissioner over allowances to supervisors was substantially the same as the authority exercised by the Secretary over allowances to collectors, and the latter are contracts. (Patton’s Case, 7 C. Cls. R., 362.)
    There is absolutely nothing in the record showing any intention to cancel the subsisting allowance or even to discountenance the employment of Warden. On the contrary, it was evidently the expectation of the department that Warden would be retained by the supervisor in order that, by serving ■a long period during which his pay would be withheld, he •might in this way “work out” the alleged indebtedness with which he was charged, and thus enable the supervisor to “refund” tbe amount of gauging fees wbieb bad been paid to Warden. And tbe fact that tbe department credited tbe amount of tbe monthly charges for clerk hire in satisfaction,. pro tanto, of tbe alleged indebtedness for tbe “erroneous payments,” is tbe strongest possible recognition of Hedrick’s legal right to tbe amounts withheld, in case the alleged indebtedness were shown to be fanciful or fictitious.
    Tbe only question therefore is, was there any such indebtedness to justify tbe withholding of tbe amounts otherwise legally due under tbe recognized and subsisting contract 1
    
    
      Mr. Assistant Attorney-General Simons (with whom was Mr. George G. Wing) for tbe defendants in tbe case of Richard H. Warden:
    Two questions arise on tbe facts : First, as to tbe claimant’s-right to recover tbe compensation charged as paid to him in Hedrick’s accounts which tbe Commissioner refused to allow and certify after June 30, 1875 ; second, as to bis right to recover tbe fees earned as gauger after July 31, which were retained to offset tbe previous illegal allowance (as claimed) of salary to him as clerk. There is no privity between claimant and defendants in tbe matter of bis demand for $1,273.50, compensation as clerk. Tbe law governing tbe relations of tbe parties at tbe time (but since repealed) was as follows: “Every supervisor shall be entitled to receive, in addition to expenses necessarily incurred by him, and allowed and certified by tbe Commissioner) such salary, not exceeding $3,000 a year, as tbe Commissioner may deem reasonable.” (Rev. Stat., § 3160.) It seems clear by this that tbe supervisor and no other person is entitled to receive from tbe Treasury whatever is claimed to have been incurred by him as a necessary expense under tbe act. There are many reasons of necessity as well as convenience for this which will readily suggest themselves, but it is enough that it is “ so written.” Even if it were proven that there is no-liability to a like claim from tbe supervisor, tbe court would have no right to subrogate this claimant.
    Even supposing that under tbe statute this claimant can have a standing in court, tbe condition annexed by tbe law to the right to receive tbe amount in question as a necessary expense is that it must be allowed and certified by tbe Commissioner, which allowance and certificate that officer, for reasons deemed by Mm satisfactory, declined and still declines to give. It must be conceded tliat Ms action is not ministerial, but is of necessity in tbe nature of a judicial function, and is, therefore, not revisable here. Unless, then, in some way the Commissioner can be compelled to act in opposition to Ms own judgment in the premises there would seem to be no right of action. (Hull v. The United States, 91 U. S. E., 559.)
    If this court, however, will undertake to pass upon the sufficiency of the grounds upon which the Commissioner acted, or may be presumed to have acted, in declining to allow and certify the charge for claimant’s service as a necessary expense in the supervisor’s accounts, a wide field of controversy is opened. As the Commissioner evidently considered that it was not for the advantage of the service that the claimant’s time should be twice paid for, and refused to allow it to be done when discovered, as a practice not contemplated and proper to be discontinued, the decision was in fact reasonable and should be affirmed. If it appears, also, that the claimant was precluded by law from receiving compensation for service as gauger and also as clerk to the supervisor during the same period, the propriety of the Commissioner’s refusal to certify the charge in Hedrick’s accounts is further and conclusively established, as is also the fact that claimant had already received a large sum to which he was not entitled and which might be recovered.
    In discussing the legal aspect of the case, it is not essential to determine what particular view, if any, was entertained by the Treasury officials, and whether it was correct, for if the court undertakes to pass on the validity of their action it must regard every legitimate argument that can be advanced to sustain it. Legislation affecting the compensation of persons in government employ, in various ways, had existed from an early period in our history; but the following enactment, which shortly preceded the disallowance of Hedrick’s accounts, was probably the immediate cause which directed attention to the subject: That no civil officer of the government 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 and payment by the Department of Justice of district attorneys, as now allowed by law, for the performance of services not covered by their salaries or fees.” (§ 3, June 20,1874,18 Sfcat. L., 109.) There can be no doubt that for nearly a year and a half after this enactment Warden was, as gauger, a “civil officer” within its meaning, with a “salary or compensation allowed bylaw” (Rev. Stat., §§ 3156, 3157; 18 Stat. L., 93), and that by it he was precluded from receiving “any compensation or perquisites, directly or indirectly, from the Treasury or property of the United States” beyond that salary or compensation.
    The terms of the act present no ambiguity, nor do they suggest any difficulty or impropriety which should prevent their literal application. Prima facie, the compensation annexed by law to an office is adequate for all service rendered by the officer, and is for the full occupancy of his time in such service as well. Attempts were continually made on various pretexts to escape from the operation of this just principle, and to increase the compensation of official persons, sometimes by claiming that the service was rendered out of official time; again, by alleging that the service, in or out of such time, was of a different nature from the regular duty of the office, and could not be exacted without special reward; or even that it was the duty of a separate office held by the same incumbent. In all this there is a degree of plausibility, and, in particular cases perhaps, of justice, but the liability to abuse, inseparable from such practices, is so great that we should. naturally expect some such legislative correction as this to be applied. Congress evidently was of opinion that the earlier legislation, which will be hereafter discussed, did not furnish a complete remedy for the mischief, and passed this as a broader and more efficient provision. It intended, in substance, to provide that an officer should be confined to his regular official duty by providing that the lawful compensation thereof should be the limit ■of all compensation from the Treasury in any form. That this was to be the rule is shown by the proviso authorizing the' employment and payment of district attorneys as theretofore “for the performance of services not covered by their salaries or fees.” Unless it was intended to prohibit compensation for service of whatever nature not covered by the official compensation there is no pertinence in the legislative exception. JEx-pressio unius exclusio alterius. But it will be contended that this provision was not intended to apply to cases where the same individual claims compensation as of two distinct offices held by him, and tbe Collins Case is cited as decisive. As this statute is confined to civil officers, it was not considered in that case, and good,reason should be shown why this additional act should not, to the full extent of its terms, be applied as the latest expression of the legislative will. Assuming, however, for the sake of argument, that it adds nothing to the statutory restrictions in force at the time of its passage, nor in any manner affects them, we pass to their consideration.
    The earliest act with its amendments survives in section 1765 Eevised Statutes. Under this it was held in Converse v. United States (21 How., 463), with a strong dissent by three justices, that because appropriation was made for compensation of an agent to disburse certain moneys, and the Secretary of the Treasury was authorized by law to appoint such agent, a collector of customs so appointed thereto, and who could not be required for his ordinary compensation to perform the duty of such agent, was not debarred of the compensation by this act. Negatively it was held that “no allowance beyond his fixed compensation can be made except for the performance of certain duties required by law to be performed, for which the law grants a certain compensation to be paid, and which have no connection with the duties of the office he holds’’; and it was shown by the court, by a careful discussion of all the acts bearing on the subject, that the main object of Congress was to take from the heads of executive departments the right to award compensation in such cases in their discretion, and to allow it only when and to the extent prescribed by positive enactment. Tested by this' doctrine, it is clear that no statute has created the agency which this gauger is alleged to have filled by authority of the supervisor nor granted a compensation therefor. Both the employ and its compensation were subject to the absolute discretion of subordinate executive officers, and are so within the subject-matter intended to be remedied by this legislation. But here, again, it will be contended that the positions of gauger and clerk held by Warden are both public offices, and therefore saved from the operation of section 1765 by such inference in favor of certain double office-holders as may be founded upon section 1763 Eevised Statutes. That there is good authority for the view that more than one public office may in certain cases be held by the same person with title to the compensation annexed by law may be admitted, but it certainly is incumbent on one claiming under that title to prove that he did hold more than one office.
    That as gauger Warden held a public office from April, 1871, to November, 1875, is undisputed (§§ 3156,3157, Eev. Stat.); but that as clerk to the supervisor he held no such office seems clear. It is not shown to be created or authority for appointment to it vested in any head of a department as required by the Constitution. It is not shown that he was ever appointed to any such office or ever to ok the statutory official oath. It is not even shown that he was employed as clerk, or did any service as such. It only'appears that the supervisor rendered accounts in which certain“'compensation as for such service by him was charged. If it was not an office within the proper legal signification of that term, he was not an officer, however he may have been assigned to the jdace; if itwasan office he was never legally inducted thereinto. (B%own v. United States, 1 Curtis, 20; United States v. Maurice, 2 Brock, 102; United, States v. Germaine, 99 U. S. B., 508; 11 Opin., 210; §§ 1756-1760, Eev. Stat.)
    The claimant’s only recourse under these conditions would seem to be to maintain the existence of a contract relation which he might hold with title to the stipulated compensation in addition to his office of gauger. Waiving the statute which debars privity with him, and assuming he had been employed as clerk directly by the Secretary, the objection that he is precluded by section 1765 Eevised Statutes, already discussed, applies. It seems clear, however, that Warden never received any promise, express or implied, from defendants, that compensation as clerk would be paid him. The statute on which he has to rely shows this, as also the practice of the department under it. No account was kept with him, nor was there any dealing with him or with any of the parties whose property or services the supervisor had occasion to procure or use. Their existence was known to the Commissioner and accounting officers, only as having received certain compensation from the supervisor, which he claimed to have reimbursed to him as a necessary expense under the law.
    The supervisor had no right, therefore, to bind the defendants by any agreement, or at all events he could make none that was not conditioned on the approval of the Commissioner to be evidenced by liis allowance and certificate, without which the charge could never be recognized as against the defendants. Upon such allowance, and not otherwise, the contract relation alleged will be implied. (Kaufnum’s Gctse, 110. Cls. R., 659.) It may be urged that the claimant is at all events entitled to so much of the amount disallowed as was charged for the period after he ceased to be gauger, on the ground that any objection based on the statutes before cited was obviated by his surrender of the office.
    This is answered, as before, that the supervisor only is in legal privity with defendants. The Commissioner by law was required to examine his accounts of expenses, and was not required to allow and certify the charge for Warden’s salary unless he should be satisfied that it was proper so to do. With his reasons for refusing approval the court is not concerned, unless it is shown that the law gave him no discretion. The court may or may not be fully possessed of those reasons. He was not bound to submit them for revisal. Even if the court is fully advised of them, and they should not be regarded as sufficient, there is no power to correct the error and compel the allowance and certificate necessary to create a lawful charge or right of action. Finally, if he was lawfully entitled to it, it was lawfully withheld if he had unlawfully received and retained the like sum in his previous official relation.
    The right to retain the $126.87 earned as gauger depends on different grounds. It is predicated on the illegality of the charges of the supervisor for Warden’s salary, which had been allowed and certified and paid prior to July 1,1875, amounting to upwards of $3,000.
    If the positions before taken as to privity of the parties and authority of the Commissioner are conceded, the right to withhold the above sum as an offset may be questioned; otherwise, on the ground that the gauger was legally in arrears for the money unlawfully received as clerk, his compensation was required by law to be withheld (§ 1766, Rev. Stat.), as it might also have been of common right.
   Davis, J.,

delivered the opinion of the court:

These cases involve substantially the same transactions. Hedrick was a supervisor of internal revenue from February, 1871, to June, 1876. Being authorized to employ a clerk at a salary of $1,500 per annum, he employed Warden, who was at the same time in the employ of the United States as a gauger. Between June, 1873, and July, 1875, Warden exercised both functions, and was paid his full salary as clerk, $2,938.78, and his full salary as gauger, $1,784.42. After June, 1873, the United States retained from Hedrick’s allowance for clerk hire $1,250 charge^, by him as Warden’s salary as clerk, and $23.50 charged by him as Warden’s expenses as clerk. These items were for services rendered and expenses incurred by Warden as clerk after June, 1875.

Warden now sues to recover these sums and a further sum of $126.87, which he says was earned by him as gauger and is unpaid.

' The Attorney-General requested us to find, and we have found, that Warden, in his capacity of clerk, did not take the oath prescribed in Title XIX of the Revised Statutes. The statute requires that oath to be taken by every person elected or appointed to any office, whether of honor or profit. (Rev. Stat., § 1756.) If a supervisor’s clerk was an “officer,” the defect is fatal, and goes to the root of this branch of the case; but Warden, as clerk, was not an officer and, therefore, was not, in that capacity, subject to the provisions of this section.

The government, on the authority of the case of Herndon v. United States (15 C. Cls. R., 446), resists the payment of the $1,273.50 to Warden on the further ground that there is no privity of contract with him. In that case we decided that where the Secretary of the Treasury had, under the provisions of section 3145 of the Revised Statutes, made an allowance to an internal-revenue collector for the purpose of having it applied to the payment of a deputy collector appointed under the provisions of section 3148 Revised Statutes, there was no privity of contract between the deputy and the United States. The provisions under which Hedrick was authorized to appoint Warden as clerk are not in all respects like those under which Landram appointed Herndon. The language of the statute is: “Every supervisor shall be entitled to receive, in addition to expenses necessarily incurred by him and allowed and certified by the Commissioner, such salary,” &c. (Rev. Stat., § 3160.) TheOom-missioner of Internal Revenue authorized him to appoint and pay a clerk as part of his necessary expenses. An expense necessarily incurred by tbe supervisor was not an expense necessarily incurred by tbe government. Tbe supervisor was primarily liable for it, and tbe government, by tbe statute and through tbe Commissioner, consented to reimburse him to tbe extent of tbe allowance. In this there was no more privity of contract between tbe United States and a supervisor’s clerk than there was between them and a deputy collector, and on tbe authority of Herndon’s Case we bold that Warden cannot recover on that branch of bis case.

Hedrick also sues to recover tbe same sum, and bis counsel contend that bis case is in all respects similar to Landram’s, just decided. (Ante, p. 74.) There is, however, this difference between tbe two cases. Herndon was not an officer of tbe United States; Warden was one. (Eev. Stat.,§ 3156). Ifwebad any doubt that be was made an officer by force of tbe section we have cited, tbe doubt would be removed by tbe language of section 3267, where a gauger is repeatedly styled an ‘‘officer.”

Although an officer of tbe United States while acting as gauger, Warden was not an officer while acting as supervisor’s clerk. Therefore, tbe provisions of section 1763 of the Eevised Statutes, which refer to tbe discharge of tbe duties of two offices by tbe same person, do not refer to bis case.

Nor was be a departmental clerk in either capacity; therefore be is not affected by tbe provisions of section 1764 Eevised Statutes.

Section 1765 relates to an officer or any other person in a branch of tbe public service. As a gauger be was an “ officer,” and as a clerk be was a “ person” in a branch of tbe public service.

Tbe “salary,” “pay,” or “emoluments” of such “officer” or “person” must be “fixed by law or regulation,” in order to bring him within tbe provisions of this section.

A “ salary” is “fixed” when it is at a stipulated rate for a defined period of time. A “ pay” or “ emolument” is “ fixed” when tbe amount of it is agreed upon and tbe service for which it is to be given is defined. A salary, pay, or emolument is fixed by law when tbe amount is named in a statute; and by regulation when it is named in a general order, promulgated under provisions of law, and applicable to a class or classes of persons.

As clerk, Warden enjoyed a “salary” which was “fixed”; but we have already held, inLandram’s Case, that such a salary was not “ fixed by law or by regulation.”

As gauger, Warden did not receive a “salary,” but he received “pay,” or “emoluments,” which the Supreme Court regard as the more comprehensive term. (Hoyt v. The United States, 10 How., 135.) Prior to the Act June 20, 1874 (18 Stat. L., 93), he was entitled to his traveling expenses and such fees, to be determined by the quantity gauged, as might be prescribed by the Commissioner of Internal Revenue. (Rev. Stat., § 3157.) That act fixed six dollars a day a the maximum which a gauger could receive under the provision in the Revised Statutes. The source from whence the pay was to be derived was indicated by the statute; but the “ pay” itself was not “ fixed” by law. That the statute left to be “ fixed” by an act.of executive discretion. This executive act could be done either by special instructions or by general regulation. It appears by the findings that the employment of Warden as gauger, and the rate of his compensation were authorized by a general regulation, and that his case therefore comes within the provisions of section 1765 of the Revised Statutes.

On the 20th June, 1874, in the legislative, executive, and judicial appropriation act of that date, it was enacted—

“That no civil officer of the government shall hereafter receive any compensation and perquisites, directly or indirectly, from the Treasury orproperty of the United States, beyond his salary or compensation allowed by law.” (Act June 20,1874, 18 Stat. L., p. 101, ch. 328, § 3.)

The effect of this provision upon officers within its scope is well described in the words of the Supreme Court respecting another statute with a similar object. They say, “ It is impossible to misunderstand this language, or the purpose and intent of the enactment. It cuts up by the root these claims by public officers for extra compensation on the ground of extra services.” (Hoyt v. The United States, 10 How., 141.) This very language was repeated and affirmed by the court in Shoemaker v. The United States (7 Wall., 338), where we have the authority of Mr. Justice Nelson, who formed one of the majority of the court in Converse v. The United States (21 How., 463), that it was also affirmed in the latter case. (See also Stansbury v. The United States, 8 Wall., 33.)

The act of 1874 relates only to civil officers. As a clerk, Warden did not come within its terms. As gauger be was a ciyil officer, and is forbidden by tbe act to receive from tbe Treasury or property of tbe United States any compensation and perquisites beyond tbe salary and compensation allowed by law to bim as gauger.

No claim is made for “ perquisites”; and it is not maintained tbat any “ salary” is allowed bim by law as gauger. Tbe inquiry under this act is, therefore, narrowed to this: whether a compensation from fees, to an amount to be prescribed by tbe Commissioner of Internal Eevenue, not to exceed six dollars a day, is a compensation allowed by law. We have no doubt tbat it is. ' Tbe amount (within tbe limit) is to be “ fixed” by tbe Commissioner, but tbe Commissioner’s authority to fix it, tbe Comptroller’s authority to pass it, and tbe Treasurer’s authority to pay it are “ allowed by law.”

Thus it appears tbat during tbe whole period during which Warden served as gauger be was subject to tbe provisions of section 1765 of tbe Eevised Statutes, and tbat from tbe 20th June, 1874, be was subject to tbe provisions of tbe act of tbat date. It is therefore clear tbat even if there were a privity of contract between Warden and tbe government for bis services as clerk, Warden could not recover for them. He cannot do indirectly through Hedrick what be might not do directly in bis own person.

He ceased to be a gauger on tbe 11th November, 1875. For a few weeks prior to tbat date be did no work as gauger, and received no pay. But tbe non-receipt of pay was tbe inevitable result of tbe non-performance of work, and does not affect bis statutory disability to take pay for tbe performance of other work for tbe government, so long as be held tbe office of gauger.

Tbe government claims, in tbe form of a counter-claim, to recover back all tbe dual compensation so paid. Some of tbe principles governing tbe right of recovery in such cases have been considered in this court and in tbe court above.

Neither claimant is here seeking to reopen a settlement closed by a payment, as was the case in McKee v. The United States (115 C. Cls. R., 560); McElrath v. The United States (102 U. S. R., 426). “There was nothing contrary to good morals or conscience in tbe payment or receipt of tbe money. Tbe facts were all known. There was no indirection, concealment, or improper purpose on either side.” (McKnight v. The United States, 98 U. S. R., 185,186.) In allowing the payments, the Treasury officers acted strictly within the scope of official authority and discretion. (The United States v. The Bank of the Metropolis, 15 Pet., 401.) The simple question before us is whether a settlement made by parties in good faith under a mistaken construction of the statute can be reopened by one party without the consent of the other, so as to allow money paid under it for services actually rendered, at an honest valuation, to be recovered back. The doctrine governing similar transactions between individuals is thus stated by an elementary writer:

If the plaintiff were merely ignorant of the law or legal effect of all the circumstances under which he paid the money, and had a full knowledge of the facts, or such reasonable means of ascertaining them that he must be supposed to have been acquainted with them or to have been guilty of laches in not acquiring the information, he cannot recover back the money so paid j but if he were mistaken as to a material fact, and were .not possessed of such means of information, he is entitled to a return of money paid by him under or in consequence of such misapprehension.” (Oliitty on Contracts, 627, 628.)

In the present cases it appears that Richard H. Warden, residing in Ottumwa, Iowa, was at the same time and for many months in the employ of the Commissioner of Internal Revenue in the same district in two capacities j and that during all that time his signature passed monthly into the Treasury as vouchers for payments to him in each capacity. There was enough in this to put the government on its guard, and to give the claimants the benefit of payments made with knowledge of the facts, though under mistake of law.

The government invokes the benefit of the provision in section 1766 Revised Statutes, that “no money shall be paid to any person for his compensation who is in arrears to the United States until he has accounted for and paid into the Treasury all sums for which he is liable.” But this provision applies only to cases in which the party is liable to the United States. We hold that neither Hedrick nor Warden is liable to them for moneys paid and received under the circumstances shown in this case, which takes the counter-claims out of the operation of section 1766 of the Revised Statutes.

The Attorney-General in his ingenious argument raises a final objection, which, like the one which he raised in the beginning, goes to the root of the right to recover on account of the services and expenses as clerk.' The statute provides that every supervisor shall be entitled to receive the expenses necessarily incurred by him and allowed and certified by the Commissioner.- It is contended that this language makes the Commissioner the final judge as to what expenses are necessary, and as to what have been incurred; and that without his allowance and certificate no recovery can be had for them here.

The statute contemplates two acts by the Commissioner. The first act is the allowance of the expenditure; that is absolutely essential, and without it the claim could not be paid at the Treasury, or judgment given for the claimant here. In the second finding it appears that that act was done.

The second act contemplated by the statute is the Commissioner’s certificate that the expense was incurred. This we have in the eighth finding as to a large part of it; and it appears by the second finding that they were actually incurred as to the remainder, and the reason for the refusal to pay all appears in the fifth and eighth findings. The Commissioner’s certificate may have been necessary with the accounting officers of the Treasury; but we entertain no doubt of our right to receive other evidence that the work was done, and to sit in review upon the merits of the reasons given for refusing to pay for it.

This objection being disposed of, and the counter-claim being set aside, it follows that Hedrick is entitled to recover for the amount of services rendered by Warden as clerk after the 11th day of November, 1875, when he resigned his office as gauger.

It also follows that Warden in his suit is entitled to recover compensation for his services as gauger for such time as he has not been paid. He claims for August, 1875; but it appears that he was paid for his services during that month as clerk a larger sum than he would have been entitled to receive as gauger. He also claims for September, 1875; it appears that his pay as gauger and as clerk were both refused during that month. He is entitled to recover his compensation as gauger during the month of September only.

The judgment of the court in Warden’s case is that the claimant recover the sum of $48.47, and that the defendants’ counter-claim be dismissed.

The judgment of the court in Hedrick’s case is that the claimant recover the sum of $826.12, and that the counter-claim be dismissed.

Hunt, J., was absent by reason of illness when these cases were tried, and took no part in the decision.  