
    JAMES P. LUSE v. THE UNITED STATES.
    [No. 20983.
    Decided February 26, 1900.]
    
      On the Proofs.
    
    The register of the land office in Sapid City, S. Dak., rents rooms for the transaction of public business, and pays the rent, the janitor, and for fuel. The Interior Department disallows the account.
    I. Where a public officer incurs necessary reasonable expenses in the performance of his official duties there is an implied obligation on the part of the Government to reimburse him, except where the law limits or prohibits the same.
    II. The Circuit Court of Appeals, ninth district, decided {United States v. Swigett, 83 Fed. R., 97) that the compensation of a register should not be diminished by the expenses of his office. The Government did not appeal, and the claimant was paid. This court will not reopen the question. (See Van Duzee’s case, post.)
    
      The Reporters'1 statement of the case:
    The following are the facts of the case as found by the court:
    I. Plaintiff was register of the United States land office at Rapid City, South Dakota, from December, 1890, to November 4, 1893.
    II. During this period he rented rooms for the use of the land office, and paid during this period $296.30.
    
      III. During the winters of 1892 and 1893 plaintiff paid §65 for fuel used in said office.
    IY. From January 1, 1892, to November 4, 1893, plaintiff paid for janitor’s services in connection with said land office the sum of $66.39.
    Y. None of these disbursements (amounting in all to $427.69) have been allowed or paid to plaintiff.
    
      Mr. F. B. Crostlvwaite for the claimant:
    The acts of Congress appropriating money for sundry civil expenses of the Government provide each year “for salaries and commissions of registers of land offices,” and “ foj; clerk hire, rent, and other incidental expenses of land offices,” and it has been the practice, when the amount appropriated has been inadequate to meet all such expenses, for the Interior Department to apportion the money appropriated to the various offices to pay rent, etc., according to the amount of business transacted. An insufficient appropriation may excuse the Department for disallowing expense accounts rendered by its officials, but it does not lessen the liability of the Government to pay the same. Where a register of a land office pays such necessary expenses as rent, etc., and the Secretary of the Interior refuses to make an allowance for the same for any particular office “there is an implied obligation on the part of the Government to reimburse him for moneys so necessarily expended.” (Swiggettv. JJ. S., 78 F. R., 456, affirmed by Cir. Ct. Appeals, 83 F. R., p. 97.)
    Insufficiency of appropriation is a limitation of funds to be distributed by disbursing or accounting officers of the Government, but does not pay the. Government’s debts or defeat the rights of other parties. (Ferris v. TJ. S., 27 C. Cls. R., 542.)
    The absence of an appropriation out of which payment can he made is no defense to a valid claim. (W. <& P. P. B. Co. v. US., 27 C. Cls. R., 494.) (Semmes v. U. S., 26 C. Cls. R. 119.)
    That such expenses as rents for land offices can be paid out of the yearly appropriation acts for sundry civil expenses is evidenced by the fact that the Secretary of the Interior has paid and does pay such expenses from that appropriation. It is further evidenced by the fact that under date of March 21, 1891, the Commissioner of the General Land Office wrote to the claimant to the effect that “it was contemplated, if practicable, to allow a portion of the year’s rent to such offices as paid the same from their own pockets. ”
    It can not, and is presumed will not, be denied that it would be lawful to pay such expenses as are involved in this action if the amount appropriated was sufficient to go around to all offices. If, therefore, the appropriation was made and the payment was lawful, an insufficient appropriation or the absence of an appropriation does not in any degree lessen the liability of the Government of the debt.
    Under sections 3619 and 3132, R. S.,the departments of the Government are limited in their expenditures and on contracts to the appropriations made for each year, but it can not be maintained that said laws apply to that class of implied contracts arising from the acts of public officers in the performance of their duties in carrying on the business of the Government intrusted to them by law in their respective spheres. (Seimnes v. U. S., 26 C. Cls. R., 119,130.)
    The case of Bane v. TI. S. (19 C. Cls. R., 644) can not be cited on the points of law involved in this action for the reason in that case the only question raised was whether Bane, as receiver of the United States land office, had a legal claim against the Interior Department for money expended for rent of his office.
    The case was transmitted by the Secretary of the Interior to the court for a finding, and the court very properly decided that he had not.
    The question as to the liability of the Government for such expenses on an implied contract was not i’aised. The limitations by law of the Government officers, in expending money and entering into express contracts in excess of amounts appropriated, which was no doubt the foundation for the adverse decision in the Bane case, do not apply in any way to the liability of the Government for necessary reasonable expenses incurred by public officers in the transaction of the business of the Government in their respective spheres. (Semmes v. U. 8., 26 C. Cls. R., 119, 130.)
    In the foregoing the item of office rent alone is referred to.
    What has been said as to the liability of the Government for necessary reasonable expenses incurred and paid in good faitb by a public officer in the performance of tbe public business intrusted to him by law will apply with equal force as to the items’ of - expenses for fuel and services of janitor used exclusively for the land office. The amount expended for fuel for the entire period was $65. The expense was necessary in the proper conduct of the public business intrusted to the claimant. The expense was reasonable and was paid in good faith, and the Government is liable, by an implied obligation, to reimburse him.
    
      Mr. F. W. GolUns (with whom was Mr. Assistant Attorney-General Pradt) for the defendant:
    If an employee of the-Government could bind the Government for expenses incurred by him, not expressly authorized by statute, as private agents are accustomed to bind their principals, then there would be no limit to the obligations of the Government and consequent litigation thereon. Such a principle’and such a precedent once established would be pernicious in the last degree.
    The petition nowhere recites that the Secretary of the Interior made an allowance for the amount of money alleged to have been expended by the claimant for rentals, fuel, and janitor hire during the time specified in said petition, and hence the expenditures included in this claim were unauthorized. Being unauthorized, the Government’s contention is that no claim against the United States exists which is cognizable by this court.
    This is in conformity with the well-known principle of law that the Government, or other public authority, is not bound by the acts, declarations, or admissions of its officers or agents unless it manifestly appears that such officers or agents are acting within the scope of their authority. (Story on Agency, section 307; Daviess Gounty v. Dickinson, 117 U. S., 657; Orleans v. Platt, 99 U. S., 676, etc.)
    The authority of a public officer, being fixed by law, is presumed to be known by persons having dealings with him in his official capacity, and they deal with him at their peril so far as the Government is concerned. (Whitside v. United States, 93 U. S., 217; Merchants’’ Bank v. Bergen Gounty, 115 U. S., 384; Ourtis v. United States, 2 C. Cls. JEt., 144.)
    
      Then, again, there is a different rule which prevails with regard to the Government from that which obtains between private parties. The Government is not estopped, as an individual or private corporation would be, to deny the authority of its officers, though they may be acting under an a/pparent authority. (Bishop on Contracts, section 993; Johnson v. United States, 5 Mason (U. S.), 425; United States v. Kwlcpatrich, 9 Wheaton (U. S.), 720.)
    As to. reimbursement and indemnity, it is also a well-settled principle of law that public officers are entitled to be reimbursed for anything reasonable and necessarily disbursed by them in executing the duties of their offices only when said officials act in pursuance of their authority. (Powell v. JSTew-hivrgh, 19 Johns. (U. S.), 284; United States v. Flanders, 112 U. S., 88; Burr v. United States, 2 C. Cls. R., 217; Powell v. United States, 1 C. Cls. R., 400; Mechem’s Public Offices and Officers, 878, 879.)
    In the Swiggett Case (78 Federal Reporter, 456, and 83 Federal Reporter, 97), both the district court and also the circuit court of appeals have proceeded upon the theory and reached the conclusion that (we quote from the language of Judge Knowles)—
    Whenever one person pays out money on account of and for the benefit of another person at his request, there is an implied contract that the last person shall repay to the former the same.
    Under the circumstances presented in this case I think there was an implied request on the part of the United States that petitioner should pay the rent.
    This case was decided in the district court and the decision reaffirmed in the court of appeals upon the theoiy that the relation of the Government to the defendant was that of principal and agent. Such a theory and such a conclusion are not justified by law.
    When a person holds public employment from the Government, and deals with the Government in connection with such employment, he is charged with knowledge of the laws prescribing the powers and authority of his superior officers, as well as the limitations of the liability of the Government in many instances where in the course of private employment a different rule obtains.
    
      In other words, the same rules can not safely and equitably be applied to the one relation as to the other.
    There is a radical difference which exists in the liability of a public officer accountable for public moneys to the Government and of a private agent handling his principal’s money to that principal.
    The authorities are numerous to illustrate the difference between the liability of a public officer to the Government and that of a private agent to his principal. (Mechem on Public Officers, 297 to 301, 912; United States v. Prescott, 3 How., 578; United States v. Morgan, 11 How., 153; United States v. Keeler, 9 "Wall., 83; Boy den v. United States, 13 Wall., 17; United States v. Thomas, 15 Wall., 338.)
    Both the learned judges of the district court and the circuit court of appeals in the Swiggett Case cite with approval the decision of the courts in Andrews v. United States, 2 Story, 202, Fed. Cas. No. 381; United States v. Flanders, 112 U. S., 92.
    This case is not brought by the Government, but against it, and is a legal action for debt or for money paid out and expended for the benefit of the Government. The statute being in derogation of the common law, must be strictly construed, so that the authorities which justify the interposition of an equitable claim as a statutory set-off in an action of a certain character instituted by-the Government can not be held to sanction a recovery in an action of law against the Government of a claim not of a legal nature, but at the most one which may be denominated ex cequo et bono. The learned judge of the district court in the Swiggett Gase (78 Federal .Reporter, 456), in quoting from the case of United States v. Flanders (112 U. S., 93), used the following language:
    The view taken was that if a claim, though not strictly of a legal nature, was ex cequo et bono due to the defendants for moneys expended on account of and for the benefit of the United States, he was entitled to an allowance and compensation therefor upon the footing of a quantum meruit under section 3 of the act of March 3, 1797 (1 Stat., 514).
    The act under which set-offs or credits are allowed under certain classes of cases instituted by the Government has been construed by the Supreme Court in the case of United States v. Wilkins (6 Wheat., 135).
    
      Under the common law the right of set-off did not exist, but the same is founded on the statute of 2 George II, chapter 24, section 24, which in substance provided that where there were mutual debts between plaintiff and defendant one debt may be set off against the other and such matter may be introduced in evidence under the general issue. After the passage of that act set-offs might be made in a proper case between plaintiff and defendant, but these never extended to suits between the Government and individuals, and since the decision in the case of the United Staten v. Giles (9 Oranch, 236) it has never been held that in suits between the United States and individuals any claim for credit is admissible at the trial, without it appears that the claim had been previously presented and disallowed or otherwise brought within the fourth section of the above-mentioned act. Whether the claim for credit' is a legal or equitable claim, if it has been duly presented to the accounting officers, and bjr them has been disallowed, it is the proper subject of set-off under that act, but it can not be adjudicated in a Federal court unless it has been so presented and disallowed. (United States v. Wil-lems, 6 Wheat., 135; United States v. McDaniel, 7 Pet., 11; United States v. Ripley, 7 Pet., 25; United States v. FiUe-brown, 7 Pet., 48.)
    Questions of set-off in the Federal courts arise exclusively under the acts of Congress, and no local law or usage can have any influence in their determination. (United States v. Robeson, 9 Pet., 324; Gratiot v. United States, 15 Pot., 370.)
    In the case of United States v. McDonald (72 Federal Reporter, 898), a very strong case was presented against the Government, wherein the Attorney-General had authorized the employment of one McDonald as a necessai\y assistant district attorney for Montana, his compensation to be paid from that officer’s emoluments; yet the majority of the court held that there was no implied contract with McDonald for the payment by the United States of his salary, which had been previously agreed upon; also the same ride was held in the case of United States v. Gunnison (155 U. S., 389). See also Yates v. The United States (25 C. Cls. R., 296), where the same rule prevails.
    
      Ferris v. The United States (25 C. Cls. R., 542) and Semines v. The United States (26 C. Cls. R., 119), cited by claimant’s counsel in his brief, are on an entirely different footing- from the case at bar, as an examination of the same will • clearly convince the court.
    There is a case, however, which has been decided by this court which is exactly in point and seems to be conclusive of the questions in controversy. We refer to Bane v. The United States (19 C. Cls. R., 644).
   Davis, J.,

delivered the opinion of the court:

Plaintiff, while register of the land office at Rapid City, S. Dak., rented office rooms, paid the rent, the cost of fuel, and the janitor’s wages; he occupied the rooms in the transaction of Government business. As his accounts for these expenses were not allowed by the Department of the Interior, he now claims $427.69 for this rent, fuel, and janitor service.

There is no question in the case except as to the authority, in law, of the plaintiff to bind the United States for these expenses. It is urged that what is properly done by the agent in the performance of the duty intrusted to him by his principal is a proper charge against the latter (3 Wall., 114), and that the agent is entitled to reimbursement for his reasonable expenses and advances made for the benefit of the principal (Mechem on Agency, sec. 652); hence the plaintiff, finding it necessaiy to rent rooms for Government business (it is argued), should be reimbursed for his expenditure.

Plaintiff’s duties and compensation are all defined in sections 2238, 2295,2325, 2361,2237,2241, Revised Statutes; these statutes fix his compensation .at $500 (per annum) salary, plus “fees and commissions,” $3,000 a year being the maximum, the surplus fees to be paid into the treasury.

It is urged that plaintiff should receive $3,000 per annum if so much be earned by him, and that the compensation should not be diminished by the expenses of his office (citing Swiggett v. The United States, 78 Fed. Rep., 456; and 83 ib., 97); further, that insufficiency or absence of appropriation does not pay the Government’s debts (Semmes v. United States, 26 G. Cls. R., p. 119; W. & P. R. R. Co. v. United States, 27 C. Cls. R., p.494; Ferris v. United States, ib.,p. 542); finally, it is urged that this court decide “where a public officer incurs necessaiy reasonable expenses in the conduct of his official duties intrusted to him by law, there is an implied obligation on the part of the Government to reimburse him for the amount of said expenses, except where the law expressly limits or prohibits the same. ”

The point now under consideration was decided in the Circuit Court of Appeals, ninth circuit, October 4, 1897 (83 Fed. Rep., p. 97, U. S. v. Swiggett), in favor of the plaintiff. From that decision defendants did not see reason to appeal, and the plaintiff therein was paid by the Congress. Under these circumstances we are not now disposed to reopen the question, and judgment will be entered for plaintiff in the sum of $427.69.  