United States v. King, 628

CourtUnited States Supreme Court
Citation37 L.Ed. 328,13 S.Ct. 439,147 U.S. 676
Docket NumberNo. 628,628
Decision Date06 March 1893

Sol. Gen. Aldrich, for the United States.

C. C. Lancaster, for appellee.

Mr. Justice BROWN delivered the opinion of the court.

The agreed statement of facts shows that petitioner was appointed clerk on March 17, 1888, and has continued to hold that office until the present time; that his accounts were duly presented and approved by the court; that the accounting officers disallowed some of the items charged; that the claimant made up an account for these disallowances from the date of his appointment, including therein similar items for services rendered, which had not been included in his accounts because of adverse rulings upon the legality of the charges. This account was presented and sworn to in open court for the purpose of bringing this suit. The several items, the allowance of which is assigned by the government as error, will be considered in their order.

1. Per diem charges of five dollars for services as clerk in selecting juries in connection with the jury commissioner are objected to, upon the ground that no compensation is provided by law for such services.

Prior to 1879, juries to serve in the courts of the United States were, under Rev. St. § 800, designated by ballot, lot, or otherwise, according to the mode of forming such juries practiced in the several states, and the courts were authorized to adopt rules conforming the method of designating and impaneling juries to the laws and usages of the state. By the act of June 30, 1879, however, (21 St. p. 43,) a new system was inaugurated, and it was provided, in substance, that the names of not less than 300 persons should be placed in the jury box by the clerk of the court, and a commissioner to be appointed by the judge, who should be of opposite politics to the clerk, and that the clerk and commissioner should each place one name in the box alternately, without reference to party affiliations. The clerk was not by this statute made a jury commissioner, but a new duty was imposed upon him as clerk, and no provision was made for his compensation. That congress has the right to impose additional duties upon a public officer without additional compensation is not denied, but it is insisted that under the sundry civil appropriation bill of March 3, 1885, (23 St. pp. 478, 511,) and under subsequent appropriation bills, a provision for 'compensation for jury commissioners, five dollars per day, not exceeding three days for any one term of court.' Should be equitably held to include the clerk, who performs the same duties as a jury commissioner. As the clerk is not a jury commissioner eo nomine, it is difficult to see how he could be paid out of an appropriation for jury commissioners, or how these appropriation bills enlarge his rights, and, unless he is entitled to extra compensation as clerk for these duties, there would seem to be no appropriation from which he could be paid. While the duties of the clerk are similar to those of the commissioner, there is nothing in the language to indicate that the clerk did not act as clerk in performing such duties, or that he became ex officio a jury commissioner.

The question of compensation for extra services has been the subject of considerable discussion in this court, and of some legislation by congress. The ordinary rule, in the absence of legislation, is that, if the statute increases the duties of an officer by the addition of other duties germane to his office, he must perform them without extra compensation; but if he is employed to render services in an independent employment, not incidental to his official duties, he may recover for such services. Mechem, Pub. Off. § 862, 863. Acting upon this principle, it was held by this court in 1833 that, in an action brought by the United States against a public officer, the court might allow, by way of offset, an equitable claim for the disbursement of public moneys and other services rendered to the government under orders of the head of a department, though there were no act of congress providing for the case. U. S. v. McDaniel, 7 Pet. 1; U. S. v. Ripley, Id. 18; U. S. v. Fillebrown, Id. 28, See, also, Gratiot v. U. S., 15 Pet. 336, 4 How. 80.

Apparently, in consequence of these decisions, congress, on March 3, 1839, passed an act (5 St. p. 349) which, as amended August 23, 1842, (5 St. pp. 508, 510,) provided 'that no officer in any branch of the public service, or any other person whose salary, pay, or emoluments is or are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatsoever, unless the same shall be authorized by law, and the appropriation therefor explicitly set forth that it is for such additional pay, extra allowance, or compensation.' This provision was subsequently carried into the Revised Statutes, (section 1765.) Of this statute it was said by this court in Hoyt v. U. S., 10 How. 109, 141: 'It cuts up by the roots these claims by public officers for extra compensation, on the ground of extra services. There is no discretion left in any officer or tribunal to make the allowance, unless it is authorized by some law of congress. The prohibition is general, and applies to all public officers, or quasi public officers, who have a fixed compensation.' This language was somewhat limited by Chief Justice Taney in Converse v. U. S., 21 How. 463, 471, wherein he says of these provisions: 'They can by no fair interpretation be held to embrace an employment which has no affinity or connection, either in its character or by law or usage, with the line of his official duty, and where the service to be performed is of a different character and for a different place, and the amount of compensation regulated by law.' An allowance was made by the court in this case (three of its members dissenting) to a collector of customs as commission for the purchase of supplies for the lighthouse service throughout the United States, so far as such purchases were made for lighthouses outside of his district, and beyond the limits to which his duties extended. See, also, U. S. v. Brindle, 110 U. S. 688, 4 Sup. Ct. Rep. 180.

Further construing this statute, it was held in U. S. v. Shoemaker, 7 Wall. 338, that a collector of customs was not entitled to offset, in a suit against him by the United States, compensation for disbursements made for building a customhouse and marine hospital at the port where he was collector. See, also, Hall v. U. S., 91 U. S. 559, wherein items for set-off for extra services and expenses were excluded; and Badeau v. U. S., 130 U. S. 439, 9 Sup. Ct. Rep. 579, in which a retired army officer accepting pay under an appointment in the consular service was held to be precluded from receiving salary as an officer in the army.

In U. S. v. Saunders, 120 U. S. 126, 7 Sup. Ct. Rep. 467, it was held that this act had no application to two distinct places, offices, or employments, each with its own duties and compensation, but both held by one person at the same time. In delivering the opinion of the court in this case, Mr. Justice Miller observed that 'the purpose of this legislation was to prevent a person holding an office or appointment, for which the law provides a definite compensation by way of salary of otherwise, which is intended to cover all the services which, as such officer, he may be called upon to render, from receiving extra compensation, additional allowances, or pay for other services which may be required of him either by act of congress or by order of the head of his department, or, in any other mode, added to or connected with the regular duties of the place which he holds.'

We think that the coustruction given to this section in these cases is conclusive against the claim of the clerk for per diem services in the drawing of juries, or for such services as are not...

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