bition substantially as in this section, with an exception in these words: "unless the said extra allowance or compensation be authorized by law." The act of 1842 substantially re-enacted the whole provision, but quali fied and limited the exception by adding the words:

"And the appropriation therefor explicitly set forth that it is for such additional pay, extra allowance, or compensation."

The purpose is manifest, to reserve to Congress the right to determine by an appropriation-act, or (it may be admitted) by other statutory provision, when a salaried officer should be entitled to compensation beyond his salary for service, whether connected with his office or otherwise; and not to leave to the determination of executive discretion, exercised without restraint, the stupendous and dangerous power of giving compensation in addition to fixed salaries.

In support of the right to the compensation in question, reference is made by the Attorney-General to the case of Converse v. The United States (21 How., 463), and to the opinion in Pierce's case (15 Op. Att.Gen., 608); and it is said:

"In each of these cases the claim of the officer who performed the service was upheld upon facts analogous to those of the case in hand.”

I do not so understand these cases. It is very properly said that, in the Converse case, the officer who claimed compensation in addition to his salary" was the superintendent of a Light House District, and also was employed by the Secretary of the Treasury to purchase all the supplies for the Light House Service throughout the United States, and to make the necessary disbursements therefor." The court held that he "was entitled to the compensation provided by law for this service, as well as to his salary as superintendent." It is important to notice the expression, "compensation provided by law." The court in that case, in tracing the practice of making extra allowance to officers for extra services, and the history of the legislation upon the subject, says:

"These extra allowances in some instances amounted to very large sums; and it appears that the attention of Congress was at length attracted to this subject, and it was deemed right, and more consistent with the nature and character of our institutions, to fix by law the compensation for these services, and not leave it in every case to depend upon the discretion of the Secretary."

In that case the statute expressly fixed the amount to be paid for the services; and it is in view of this, that the court says of the agent who performed the service:

"And as the Department appointed him [1] to perform a duty required by law, [2] for which the compensation was fired by law, and [3] the money appropriated to pay it, he is entitled to the compensation given by law, if he has performed the duty."

And the court further says:

"The just and fair inference from these acts of Congress, taken together, is, that no discretion is left to the head of a Department to allow an officer who has a fixed compensation any credit beyond his salary, unless

the service he has performed is required by existing laws, and the remuneration for them fixed by law.".

And this principle is incorporated in the syllabus of the case, as follows:

"A compensation for extra services where no certain compensation is fixed by law cannot be allowed by the head of a Department to any officer of the Government who has by law a fixed or certain compensation for his services in the office he holds.”

The case, then, holds that additional compensation can only be allowed to an officer with a fixed salary for services other than official, when the amount of such compensation is "fixed by law," and not when it is prescribed by the discretion of the head of a Department.

The compensation now in question was not "fixed by law;" it was fixed by the discretion of the head of a Department. I am constrained to regard the Converse case as a direct authority against the claim in question.


I am unable to perceive in Pierce's case (15 Op. Att. Gen., 608) any authority in favor of the claim. The act of June 23, 1874, section 4 (18 Stat., 246), expressly provided that the Court of Commissioners of Alabama Claims "shall be allowed necessary incidental expenses," which expenses were to be "certified by the presiding judge of said court, and to be audited and paid under the direction of the Secretary of State;" and, in section 15, an appropriation was made" for the payment of the expenses of the said court."

Mr. Pierce was appointed by the court to represent it and act for it in the capacity of assistant counsel in the taking of testimony to be used before the court. United States attorneys are sometimes similarly employed by the Department of Justice to supervise the taking of testimony in cases in the Court of Claims, and they are compensated therefor; but this is done by express exception in the statute (act June 20, 1874-18 Stat., 109, sec. 3; Bliss's case, 5 Lawrence, Compt. Dec., 38).

The Attorney-General properly regarded the compensation allowed by the court to Mr. Pierce as a necessary incidental expense, and properly held that it might be paid to him, notwithstanding the fact that the latter was, at the time of taking the testimony, an officer whose salary was fixed by law. The conclusion in that case is concurred in for the reason herein stated, [though not stated in that opinion]. The "any other service or duty" referred to in section 1765, is one rendered for the United States. The taking of testimony for the Court of Commissioners of Alabama Claims was not, within the meaning of that section, such a service. The claims, in reference to which testimony was taken, were not claims against the United States. They were claims against a fund, of which the United States was trustee, and in which the United States was not an interested party. This view is supported by United States v. Brindle (110 U. S., 693) and Meigs's case (4 Lawrence, Compt. Dec., 633. Pierce's case is different from one for the disbursement of public

money, or the superintendence of the construction or repair of a building, in which the service rendered is of an official, or quasi official, character. Solicitor-General Phillips wrote the opinion in Pierce's case. He also wrote the opinion in the Marshal's Fees case, which is published in the same volume of opinions. (15 Op. Att. Gen., 533.) The United States Marshal for the District of Columbia claimed for serving writs for the same court [Court of Commissioners of Alabama Claims] compensation which had been allowed by the court as an incidental expense; and the question was, whether the Marshal could be paid the same as extra compensation for extra service. The Solicitor-General held that, as the Marshal was, by the act which created the Court of Commissioners, required to execute its process, he was, in the performance of that service, discharging the duties of his office, aud that, therefore, in the absence of an appropriation explicitly authorizing such payment, the extra compensation was within the prohibition of section 1765. Had there been no statutory provision making the service of the writs, in effect, a service rendered for the United States, the opinion would, according to the view taken in Pierce's case, have been in favor of the payment to the Marshal of the allowance made by the court. The principle of this latter case when applied to the claim of Mr. Eveleth is against the payment thereof. Eveleth's case is in many, perhaps in all, essential respects parallel with that of the Marshal's Fees case. Mr. Eveleth was the superintendent of Winder's Building, and the salary for that office was fixed by law. When the Secretary of War imposed upon him the duties of superintending the construction of a new roof for that building, and of disbursing the money therefor, these became duties additional to, but, nevertheless, properly pertaining to, his office as superintendent; and, therefore, in the absence of an appropriation explicitly setting forth that it was made for additional pay, or extra compensation, such pay or compen sation came within the prohibition of section 1765 of the Revised Statutes. There is no declaration of a purpose in the opinion in Pierce's case to overrule the opinion in Whiting's case (10 Op. Att.-Gen., 436), which is a clear and forcible declaration against the claim now under consideration. Whiting was a clerk in the Interior Department, with an annual salary; and it was held that he could not be paid compensation fixed in the discretion of the Secretary of the Interior for services in taking charge of the records and correspondence under the act of March 2, 1861 (12 Stat., 218), for the suppression of the slave trade, although it authorized the services and made an appropriation for their payment.

The Attorney-General said of the compensation claimed by Whiting under the act of March 2, 1861:

"But it was remuneration fixed by the Secretary of the Interior himself, in the exercise of what he doubtless deemed a lawful discretion, and it is precisely this discretion which, according to the court in Converse v. The United States [21 How., 473], these statutes have forbid

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den the head of a Department to exercise. It was perfectly competent for the Secretary of the Interior to employ a person to perform the du ties in question, and to agree that he should be paid therefor out of the fund appropriated for the Capitol extension the amount which he agreed that Mr. Whiting should receive. But since no office was created by law for the performance of those duties, and no remuneration therefor fixed by law, it was not competent for the Secretary to add them to the other duties of an officer receiving a fixed compensation therefor, and pay him an additional sum for performing the additional duties. This is the very thing which these statutes, as construed, not only by the majority of my predecessors, but by the Supreme Court, were passed to prohibit."

In 4 Opinions, 251, the Attorney-General, referring to a similar statute, said:

"The object in view was, to guard against the exercise of executive discretion on the one hand, and the claims arising by implication, and thus asserted by public officers, on the other."

Upon the language of section 1765 of the Revised Statutes, and the authority of the Supreme Court and former opinions of Attorneys-General, I cannot perceive any sanction for the claim of the agent in ques tion. Section 1765 must be so construed as to have some purpose. It could not have been designed to prohibit the payment of compensation for services required or rendered without authority of law, because a statute is not necessary for that purpose. That which is unauthorized can give no right (3 Op. Att.-Gen., 17). If this section was not designed to prohibit such compensation as that now claimed, to what cases can it apply? I feel constrained to hold, then, that an officer, whose salary is fixed by law, canaot, for any other public service which he may perform in addition to his proper official duty, receive, in addition to his salary, compensation for such service fixed in the discretion of the officer who may assign him to the performance thereof.

IV. In the opinion referred to me, it is said in relation to the compensation in question:

"Third, This case is not within section 1765, because there was no additional pay, extra allowance, or compensation.

During the period for which Eveleth was paid $300 per month, he held no other position than that of agent to oversee the construction of the roof and to disburse the fund appropriated for that work.

His duties as clerk, &c., as well as his pay had been suspended; and having accepted the terms of his employment as agent, he has no claim upon the Government for compensation as clerk. He has received pay but for one service, and is entitled to pay for no other service. The pay he has received is not, therefore, additional to any other compensation, nor an extra allowance.

Upon each of the grounds above stated, I conclude that the United States has no claim upon Mr. Eveleth for the money allowed him by the Secretary of War."

If Mr. Eveleth "held no other position than that of agent" during the period for which compensatian was claimed, a question very different from that on which the disallowance was made, would be presented.

The evidence on which the Comptroller acted showed that during the continuance of the agency Eveleth did hold two other positions, namely: the offices of clerk in the War Department, and superintendent of Winder's Building. Admitting that the salaries and duties of these offices were suspended, can it be held that such suspension and Mr. Eveleth's acceptance of "the terms of his employment as agent" operated as a vacation of the offices referred to? Neither the Secretary of War nor Mr. Eveleth seems to have regarded the offices as having been vacated. There was no resignation of, nor discharge from, office. The agency was not an office or employment, the acceptance of which would operate as a vacation of either of the offices held by Mr. Eveleth. Its duties were, certainly not incompatible with those of superintendent of the building being repaired; and since, by long practice, and the approval of the practice by Congress which is implied by annual appropriations, the office of superintendent is not considered as one incompatible with that of clerk, the agency must also be considered as not being incompatible with the latter office. The letter of the Secretary of War of July 21, 1880, addressed to Mr. Eveleth, stated that his duties as agent would probably leave him "but little time, during the progress of that work, for attention to [his] duties as clerk in the office of the Chief of Engineers." This language implies an incumbency of office, and that the incumbent would give some time to his duties. It does not appear that Mr. Eveleth was relieved from any of the duties of his office of "superintendent of Winder's Building"; and, on legal principles, it is to be presumed that he fully performed them. While Mr. Eveleth held the offices, he was by law entitled to the salaries incident to them, and could not be deprived of any portion of said salaries without his consent, even though he did not perform the duties. This official right to salary was ruled in Reinhard's case (10 Ct. Cl., 282). There are many authorities to the same effect, and it is impliedly recognized in the Revised Statutes, sections 40, 41, 171, 1265, 1742. The agent continued to be an incumbent of both offices. No other person could have been appointed to fill either of them. His salary in each office was still "prescribed by law." He came within every description of section 1765 of the Revised Statutes: he was an "officer in * the public service, whose salary or emoluments are fixed by law." With the highest respect for the opinion referred to me, I am unable to conceive how his [Eveleth's] consent to a suspension of the salaries could except him from the prohibition of this section.

1. A suspension by agreement of the salary of an officer does not, by any statute, exempt the incumbent from the general prohibition of section 1765 of the Revised Statutes. An officer who claims to be excepted from the prohibition should show how he becomes so (L. L. and G. R. R. Co. v. United States-92 U. S., 740; Devens, Attorney-General, September 4, 1877-15 Op. Att. Gen., 362). This section, after making in general terms the general prohibition against compensation beyond

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