Miller v. United States

103 F. 413, 1900 U.S. App. LEXIS 4817

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: April 26, 1900
• Status: Published

Opinion

LACOMBE, Circuit Judge.

I concur in the of the dissentients of the court of claims in Glavey v. U. S., 35 Ct. Cl. 242. The statute under which the appointment was made (22 Stat. 346) reads as follows;

“Sec. 2. That for the purpose of carrying into effect the provisions of this act the secretary of the treasury shall appoint officers to be designated as special inspectors of foreign steam-vessels, at a salary of two thousand dollars per annum each, and there shall be appointed of such officers at the port of New York, six; at the port of Boston, two; at the port of Baltimore, two; at the port of Philadelphia, two; at the port of New Orleans, two; and at the port of San Francisco, two.”

It may be that the secretary of the treasury differed from congress as to the wisdom of this statute; that, in bis opinion, the required services could be obtained more economically than by the payment of the salaries fixed by congress; that be felt sure that, if be should appoint some subordinate officer of bis department to the office of special inspector, notifying Mm at the same time that be would not be paid the salary, be would find sucb appointee silently or affirmatively acquiescent, lest by declining be should risk discharge from the office sucb subordinate already held. Nevertheless, when congress has not only created the office, and directed the secretary to appoint some one to it, but has also fixed the salary at a specific sum, surely the executive officer has no power, however meritorious bis motives may be, to overrule the decision of congress, and reduce the salary. Any bargain whereby, in advance of his appointment to an office with a salary fixed by legislative authority, the appointee attempts to agree with the individual making the appointment that he will waive all salary or accept something less than the statutory sum, is contrary to public policy, and should not be tolerated by the courts. It is to he assumed that congress fixes the salary with due regard to the work to he performed, and the grade of man that such salary may secure. It would lead to the grossest abuses if a candidate and the executive officer who selects him may combine' together so as entirely to exclude from consideration the whole class of men who are willing to take the office on the salary congress has fixed, but will not come for less. And, if public policy prohibit such a bargain in advance, it would seem that a court should be astute not to give effect to such illegal contract by indirection, as by spelling-out a waiver or estoppel. Plaintiff may taire judgment for the full amount claimed.