Goldsborough v. United States

10 F. Cas. 560

• Court: U.S. Circuit Court for the District of Maryland
• Decided: April 15, 1840
• Status: Published

Opinion

TANEY, Circuit Justice.

This cause is brought here by writ of error from the district court The point to be determined is, whether an acting purser in the navy, who held no other naval office at the time, is entitled to 2]4 per cent, commission, upon the money disbursed by him for the government. It is admitted, that this allowance is not given by any act of congress. It is claimed under a regulation of the navy department; it is, in express and positive terms, allowed in a regulation issued by the secretary of the navy in 1832; and this regulation is repeated, so far as concerns acting pursers holding no other naval office, in a circular instruction from the navy department, dated April 1, 1833. The services in question were performed in 1835-1830, and no regulation or order has ever been issued from the navy department revoking the allowance before mentioned; if, therefore, the department had the power to make these regulations, it is very clear that the plaintiff in error is entitled to the allowance he claims.

There are, certainly, cases in which the compensation to a person employed in a public service may be determined by the president or the head of a department; several cases of this description are mentioned in the opinions of the supreme court, in the cases of U. S. v. Macdaniel [7 Pet (32 U. S.) 1], U. S. v. Ripley [Id. 18], and U. S. v. Fillebrown [Id. 28], which have - been referred' to in the argument In some ' instances, the power is expressly given by act of congress, as for example, in the act of March 3, 1809, c. 95 [2 Stat. 535, c. 28], and in the act of April IS, 1814, c. 143 [3 Stat. 136, c. 84], both of which have been cited in this discussion. But where an- act of congress declares that an officer of the government or public agent, shall receive a certain compensation for his services, which is specified in the law, undoubtedly, that compensation can neither be enlarged nor diminished, by any regulation or order of the president, or of a department, unless the power to do so is given by act of congress.

In the case before me, the commission is claimed as a part of the compensation, to which the deceased was entitled as acting purser, for services rendered in the ordinary line of his official duty. Nowthecompensation to a purser for services of that description, is fixed by the act of congress of April 18, 1814, c. 143 [3 Stat. 136, c. 84], which declares that a purser shall receive $40 per month, and two rations a day; it is the same compensation which was given by the acts of March .27, 1794, c. 12, § 6 [1 Stat 351], and July 1, 1.797, c. 7 [1 Stat. 524]. And when the law declares that, for certain services, he shall receive $40 per month and two rations per day, by what authority can the head of a department allow him more? The same act of congress, and the same section, that fixes the compensation of a purser, fixes also the compensation of lieutenants, chaplains, sailing masters, surgeons and various other officers in the navy, by giving them a certain sum per month, and a certain number of rations per day. It never has been supposed, that the secretary of the navy was authorized to increase the compensation of these officers, by enlarging their monthly allowance, or adding to the number of their daily rations; and when the compensation to the purser is fixed by the same law, and in language precisely the same, how can his case be distinguished from that of the other officers named in the law? How can the secretary increase his compensation by enlarging his monthly allowance, or adding to the number of his daily rations? And if he cannot do it in this mode,' by what authority, or upon what-distinctions, can he do it, in the shape of commissions, when no such commissions are given by law? The court can see no ground whatever for distinguishing the case of a purser from that of any other officer mentioned in the act of congress; and as the department is bound by the allowance fixed for them, it is equally bound by that fixed for a purser.

Indeed, the objection to the allowance is made still stronger, by the provisions of the second section of the act of 1814, which authorize the president to make an addition, not exceeding twenty-five per cent., to the pay of the officers, petty officers, midshipmen, seamen and marines engaged in any service, the hardships or' disadvantages of which shall, in his judgment, render such an addition necessary. The power given to make this addition, by necessary implication, excludes the power of making any other or greater addition, or under any other circumstances, than those mentioned in this section; and, if such a power could have been supposed to exist, in cases where the law merely fixes the compensation, and says nothing further, yet the well-established rules for the construction of statutes, would exclude it in the present case. • ■'

. It has, however, been argued, that a. purser is neither a commissioned officer nor a warrant officer, and is not so regarded in the. navy, and that, therefore, the ^provisions in the second section of the act of 1814, do not apply to him. In other words,'! it' is in- ' sisted, that the purser does not come within .the description of an “officer,” and, conse•quently, is not included in the number of persons to whom the president is authorized to • make the limited increase .of compensation ■ specified in the section.

It would be a sufficient answer to this argument to say, that the compensation of the .purser is, undoubtedly, specified in the law, and he is, therefore, within the general, principle before stated. But the second section, applies to the allowance claimed in this suit, ■with as much force as it would to the in- ' •crease of the pay and emoluments of any. .'other officer mentioned in the first section;;. for, whether a purser is regarded in the navy! as a commissioned officer, or a warrant of-: fleer, or neither, it is very certain,- that he is; ’alw-vs included under -the description of: an -officer,” in the acts of congress whfch! fix his compensation. Thus, in the act of¡ March 27, 1794, c. 12, the sixth section de- \ •Clares, “that the pay' and subsistence of ,the ' respective commissioned and warrant' of- ■ fieers, be as follows;” it then proceeds to specify their compensation, from the captain ' down, and the purser is mentioned among them. ‘

The same language is used in the act of ■July 1, 1797, c. 7, § 5, and again in the act of 1814 itself, showing clearly that the purser is embraced in the law, under the description of an “officer,” and consequently, that the restricted power given to the- president, to increase the pay of an officer to a certain extent, under certain circumstances, applies to him as well as to the other officers named in the law, and therefore, carries with it the implied prohibition already mentioned, in his case, as well as in that of other officers. It is, by necessary implication, an implied prohibition to the executive, to add anything to the purser’s compensation, greater than the amount specified, or under different circumstances, from those mentioned in the law.

It has been urged, that Mr. Goldsborough was an acting purser only, appointed by the commander of the ship, when abroad, to supply the place of the regular purser, who. died when the ship, was1 in a foreign port, and that the case of an acting purser is not provided for by any act of congress, nor Ms compensation fixed. The regulation of the navy department of April 1, 1833, herein-before mentioned, would seem to countenance this distinction; but it can have no solid foundation. By the established usage and practice of the navy, sanctioned by the inferences which may justly be drawn from the legislation of congress upon this subject, the commanding officer may appoint-a purser to his ship, when the.purser regularly -appointed dies while the ship is abroad. The party thus appointed is lawfully in office, and authorized to perform the duties . which belong to it, until the ship returns to this country, unless he is superseded by the appointment of some other -person. Being lawfully in the office, and authorized to perform its duties, he is entitled to the. compen- ; sation which the law has provided for such -service, and to nothing more. This is-the case of all appointments ad interim to .offices on shore;, and there is no reason, why ■ there should be a different rule in relation to the navy, nor a special rule in relation to a purser; the acting purser is nothing more than a purser ad interim, holding .the.office • by an appointment wMch is temporary in its' nature, and intended only to.last until -the office is regularly filled by a permanent appointment, made by the president.. :

. If }t should be said, that the eommandlhg .pfficer of the ship had no lawful, authority •to make an appointment ad interim, and •that.Mr. Goldsborough, therefore, was never .regularly and lawfully in the office of pur•ser, it would not strengthen the claim of the .plaintiff in error to the allowance in ques.tion; for if he was not regularly .in office, .and rendered public service without any lawful authority to do so, then he must look to congress for remuneration, and not to the department. ...

It is true, .that at the time these services were performed, the navy.department claim,-ed the right to make this allowance; this -is abundantly proved by the regulations of ■1832 and 1833, hereinbefore referred to; and at the time the appointment in question was accepted, and the services performed, Mr. Goldsborough, undoubtedly, supposed that he was entitled to the commission now claimed, in' addition to the compensation mentioned in the act of congress. But the mistake of the secretary of the navy, or of the party interested, cannot alter- the law upon the subject ■ ■ .

The construction given, to the act of.congress by the navy department; and the long and uninterrupted practice conforming to that construction,- must certainly be considered and respected by the court; yet, the construction of. the ■ navy department, and the practice under it,..cannot be allowed to alter the law,:nor.t.o control .its construction in a court of justice. But in this case It is not suggested, that there is any act of congress which can be construed to sanction this allowance of 2% per cent.; and the power is claimed under the authority of usage, independently of any legislation upon the subject. Now, a usage, which would authorize the secretary of the navy to allow this commission, would, in effect, be a power not to expound, but to repeal the act of congress; for it would allow him to dispose of-the public money in opposition to the true construction and meaning of the act, by giving the officer a higher salary than the law authorized; no usage or practice can warrant such a principle. As the case now stands, it is the duty of the court to expound the law, and to disallow the credit in question, unless Mr. Goldsborough is lawfully entitled to it; and in performing this duty the court can recognise no right which is in opposition to the true construction of the act of congress; if the mistake of the department, and the expectations and belief of Mr. Golds-borough as to the extent of his compensation, at the time he accepted the office, furnish any equitable grounds for the allowance of this commission, it is an equity, upon the sufficiency of which congress must judge, and not the court. The exercise of a pdwer, not warranted by law, by the head of a department, cannot create such an equity against the United States, as will be recog-nised and enforced in a court of justice. _,-

The act of congress of March 3, 1809, c. 95’ E2 Stat. c. 28], is supposed, by the district at- • torney,to bear upon this subject, and its construction has been much discussed in the argument of the case. The district court was of opinion that the. office of purser was embraced in the provisions of this law, and that Mr. Goldsborough, under it, was' entitled to a commission of one per cent, upon the payments made by him for the United States, and he received that credit in the judgment pronounced by the district court; but after a very careful examination of that law, I am satisfied that it does not apply to the office of pursuer, and on this point I must differ from the court below. Entertaining this opinion, it is unnecessary to speak of the construction of the act of congress in relation to the cases embraced by it.

In my judgment, Mr. Goldsborough, while he acted as purser, was not entitled to any per-centage upon the money disbursed for the government; his compensation from the public was $40 per month and two rations per day, and nothing more; but in addition to this, he had a right, in his transactions with individuals, to the profits and advances authorized by the regulations of the navy department. These last-mentioned regulations are, unquestionably, consistent „with the law creating the office of purser, and warranted by it, and were, therefore, lawfully issued by the secretary, and are binding upon the-parties concerned.

In this view of the subject, the plaintiff in error has obtained in the district court a credit of one per cent on his disbursements for the public, to which he is not entitled; but the United States acquiesced in the decree, and no writ of error has been brought on their part The judgment of the district court must, therefore, be affirmed.