U.S.
Supreme Court
GLAVEY v.
U S, 182 U.S. 595 (1901)
182 U.S. 595
JOHN GLAVEY, Appt.,
v.
UNITED STATES.
No. 235.
Argued April 11, 12, 1901.
Decided May 27, 1901.
[182 U.S. 595, 596] Messrs. R. D. Benedict and E. S. Mussey for appellant.
Assistant
Attorney General Pradt and Mr. Felix Brannigan for appellee.
Mr. Justice Harlan delivered the
opinion of the court:
This action was brought May 22d,
1897, to recover from the United States the sum of $6,011.98, which amount the
plaintiff Glavey, who was formerly a local inspector
of vessels at New Orleans, alleged that he was entitled to receive for services
performed by him as a special inspector of foreign steam vessels at the same
city, at the rate of $2,000 per annum from May 25th, 1891, to May 27th, 1894
The court of claims dismissed the
petition. The majority of that court were of opinion
that under the terms of his appointment the plaintiff was precluded from
demanding compensation for any services performed by him as special inspector
of foreign steam vessels. The minority were of opinion that the statute having
fixed the salary of a special inspector of foreign steam vessels, it was beyond
the power of the Secretary, in whom was vested the power of appointment, to
prescribe as a condition of the plaintiff's appointment that he should serve as
such special inspector without compensation beyond that received by him as a
local inspector. 35 Ct. Cl. 242.
By 4400 of the Revised Statutes of
the United States, title 'Regulation of Steam Vessels,' as the revision stood
prior to August 7th, 1882, it was provided: 'All steam vessels navigating any
waters of the United States which are common highways of commerce, or open to
general or competitive navigation, excepting public vessels of the United States,
vessels of other countries, and boats propelled in whole or in part by steam
for navigating canals, shall be subject to the provisions of this title.'
Section 4415 of the same title
relates to local boards of inspectors and the appointment of local inspectors.
Section 4400 was amended and
enlarged by the act of Congress approved August 7th, 1882, chap. 441, by adding
at the end of [182
U.S. 595, 597] that
section these words: 'And all foreign private steam vessels carrying passengers
from any port of the United States to any other place or country shall be
subject to the provisions of 4417, 4418, 4421, 4422, 4423, 4424, 4470, 4471,
4472, 4473, 4479, 4482, 4488, 4489, 4496, 4497, 4499, and 4500 of this title,
and shall be liable to visitation and inspection by the proper officer, in any
of the ports of the United States, respecting any of the provisions of the
sections aforesaid.' 22 Stat. at L. 346.
By that act it was further provided
that for the purpose of carrying into effect its provisions '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,' 2; that 'the special inspectors of foreign steam vessels shall
perform the duties of their office and make reports thereof to the Supervising
Inspector General of Steam Vessels, under such regulations as shall be
prescribed by the Secretary of the Treasury,' 3; that 'each special inspector
of foreign steam vessels shall execute a proper bond, to be approved by the
Secretary of the Treasury, in such form and upon such conditions as the
Secretary may prescribe, for the faithful performance of the duties of his
office,' 4; that 'the Secretary of the Treasury shall procure for the several
inspectors heretofore referred to such instruments, stationery, printing, and
other things necessary, including clerical help, where he shall deem the same
necessary for the use of their respective offices, as may be required therefor,' 5; and that 'the salaries of the special inspectors
of foreign steam vessels and clerks provided for, together with their traveling
and other expenses, when on official duty, and all instruments, books, blanks,
stationery, furniture, and other things necessary to carry into effect the
provisions of this act, shall be paid for by the Secretary of the Treasury, out
of any moneys in the Treasury not otherwise appropriated.' 22
Stat. at L. 346, chap. 441, 6. [182 U.S. 595, 598] The judgment of the court of claims was based upon a finding
of facts which is here given in full:
'I. The claimant, a citizen of the
United States, residing at New Orleans, La., was, on the 17th day of April,
1891, duly appointed, pursuant to Revised Statutes, 4415, to the office of
local inspector of holls of steam vessels, for the
district of New Orleans, La., and on April 21st, 1891, he accepted said
appointment and duly qualified by taking the prescribed oath of office and by
forwarding the same together with the official bond prescribed by law therefor to the Treasury Department. He then and there
entered upon the discharge of his duties, and continued to discharge the same
until May 27th, 1894. During the claimant's incumbency of said office he
claimed each month the salary thereof by rendering his accounts therefor, which were promptly paid by the defendants.
'II. The report of the supervising
inspector general for the fiscal year ending June 30th, 1889, recommended:
"That 2 to 6, inclusive, of the
amendment to 4400, Revised Statutes, which provides a separate set of officers
and clerks for the inspection of foreign steam vessels, be repealed, the
reasons for the creation of such offices having ceased to exist upon the
passage of the act approved June 19th, 1886, which abolished the fees formerly
collected from domestic steam vessels and their licensed officers, which fees
were permanently appropriated previously for the support of the domestic
inspection service, and which could not legally be diverted therefrom
for the support of officers and clerks inspecting foreign steam vessels, from
whom no fees could legally be collected for such support. The action of
Congress in the matter of creating the separate offices was based on the
reasons given in the following extract from the special report of the
supervising inspector general, dated January 21st, 1882: '. . . Authority
should be given the Secretary of the Treasury to appoint these special
inspectors and to pay their salaries, . . . per annum, and necessary traveling
expenses, from funds appropriated from moneys in the Treasury not otherwise
appropriated, as it would seem obviously improper that such special officers
should be paid from the appropriation for the salaries and expenses of
steamboat inspection from funds collected by a tax on American steam- [182 U.S. 595, 599] boat owners and the licensed officers of such vessels.' As
the officers and clerks of both services are now paid from funds in the general
Treasury, the advantage of uniting the two services must be clearly obvious,
both as to public interests and economy in conducting the service. In the
latter respect a saving can be made of all the salaries now being paid, except
at the port of New York, where two of the officers and the clerk might be
retained by transfer to the domestic service, dispensing with the services of
the other two now employed. The inspectors at San Francisco, Boston,
Philadelphia, Baltimore, and New Orleans could be dispensed with altogether,
thereby saving to the government the sum of $14, 000 annually, the total of
salaries now paid those officers. The additional work that would fall upon the
domestic service by such dispensation would be as follows: At New York, 138
steamers; San Francisco, 11; Boston, 18; Portland, Me., 7; Philadelphia, 8;
Baltimore, 10; Port Huron, 3; Marquette, 11; Buffalo, 8; Oswego, 22;
Burlington, Vt., 3; Detroit, 2,; New Orleans, 16. Total
steamers, 257.'
'III. By the finance report of the
Secretary of the Treasury to the Speaker of the House of Representatives, first
session Fifty-first Congress ( 1889), it was
recommended 'that all laws be repealed which provide a separate establishment
for the inspection of foreign steam vessels, and that the inspectors of
domestic steam vessels be authorized and required to perform all necessary
services in connection with the inspection of foreign steamships. The offices
proposed for abolition are virtually sinecures, and until they are abolished
the Executive will remain subjected to importunity to fill them. The services
of three of these officers have been dispensed with.' The three offices
disposed of were those at San Francisco, Cal., New Orleans, La., and
Philadelphia, Pa.
'IV. While the claimant was holding
the office aforesaid, to wit, May 25th, 1891, he received from the Secretary of
the Treasury a communication, of which the following is a true copy, viz.:
'Treasury Department,
Office of the Secretary,
Washington, D. C., May 15, 1891.
Mr. John Glavey,
New [182 U.S. 595, 600] Orleans, La. Sir: --
Under the provisions of an act of
Congress approved August 7th, 1882, entitled 'An Act to Amend Section 4440 of
title LII. of the Revised Statutes of the United
States, Concerning the Regulation of Steam Vessels, you are hereby appointed to
serve in connection with your appointment as local inspector of hulls of steam
vessels, as a special inspector of foreign steam vessels, without additional
compensation, for the port of New Orleans, Louisiana, the appointment to take
effect from date of oath. Respectfully yours, Charles Foster,
Secretary.'
'V. May 25th, 1891, the claimant
took the oath therein referred to, which was in the usual form of an oath of
office, and transmitted the same to the Secretary of the Treasury on that date.
He was not required to, and did not, give or offer to give the bond prescribed
by statute for the office of special inspector of foreign steam vessels. From
the time of taking the oath aforesaid until May 27th, 1894, the claimant
performed the duties of a special inspector of foreign steam vessels at said
port.
'VI. During the time the claimant was performing
the duties of special inspector of foreign steam vessels, as aforesaid, he made
no request or demand upon the Secretary of the Treasury or any other officer of
the defendants, to be paid the salary prescribed by law for the incumbent of
the office of special inspector of foreign steam vessels at said port, nor did
he when he subscribed the oath as aforesaid; nor did he at any time thereafter
while he held said office of local inspector of hulls of steam vessels, for
which he was paid as aforesaid, make to the Secretary of the Treasury or to any
other officer of the government any protest or objection whatever to the
performance of the duties of special inspector of foreign steam vessels in
connection with his appointment as local inspector of hulls of steam vessels at
said port without additional compensation.
'VII. Prior to the time the claimant ceased to
perform the services aforesaid he received from the acting Secretary of the
Treasury a communication of which the following is a true copy:
'Treasury Department, Office of the
Secretary, Washington, D. C., December 15, 1893. Mr. John Glavey,
Inspector of Hulls of Steam Vessels, New Orleans, La. Sir:-- Department [182 U.S. 595, 601] letter of the 7th instant requesting you to tender your
resignation as inspector of hulls of steam vessels for the tenth district is
hereby revoked, and you are requested to tender your resignation as inspector
of hulls of steam vessels for the district of New Orleans, La., also as special
inspector of foreign steam vessels for the port of New Orleans, La ., to take
effect upon the appointment and qualification of your successor. Respectfully yours, W. E.
Curtis, Acting Secretary.' Thereafter he received from the acting
Secretary another communication, of which the following is a copy: 'Treasury
Department, Office of the Secretary, Washington, D. C., April
14, 1894. Mr. John Glavey, Inspector of Hulls of
Steam Vessels, New Orleans, La. Sir: Your services as
inspector of hulls of steam vessels for the district of New Orleans, La., are
hereby discontinued, to take effect upon the appointment and qualification of
your successor. Respectfully
yours, S. Wike, Acting Secretary.' And,
thereafter, May 28th, 1894, the claimant's duly appointed and qualified
successor as local inspector of hulls of steam vessels entered upon the
discharge of the duties of said office, after which the claimant ceased to
perform the duties of said office. The claimant performed the duties of said
office as special inspector of foreign steam vessels until said May 26th, 1894,
a period of three years and two days.'
The learned Assistant Attorney
General admits it to be a general principle that when an office with a fixed
salary has been created by statute, and a person duly appointed to it has
qualified and entered upon the discharge of his duties, he is entitled during
his incumbency to be paid the salary prescribed by statute. He insists,
however, that this principle is not applicable in the present case because, he
contends, the Secretary of the Treasury did not mean, by his letter or
communication of May 15th, 1891, to appoint Glavey to
the office of special inspector of foreign steam vessels at the port of New
Orleans.
We cannot sustain this contention.
Section 4400 of the Revised Statutes was so amended by the act of August 7th,
1882, as to bring foreign steam vessels within the provisions of certain other
specified sections; and by the same act, and for the purpose of carrying its
provisions into effect, the Secretary of the [182 U.S. 595, 602] Treasury was directed to appoint special inspectors of foreign steam
vessels at designated ports, one of which was the port of New Orleans. In view
of the express words of the act, his failure or refusal to appoint might have
been regarded as a failure or refusal to discharge a duty distinctly imposed
upon him by statute. And that seems to have been the view of that officer, for
although he had officially declared to Congress that the office of special inspector
of foreign steam vessels was virtually a 'sinecure,' he shows by his
communication of May 15th, 1891, that he regarded the act of August 7th, 1882,
as mandatory, and that he appointed Glavey in
obedience to its provisions. As he had no authority to appoint Glavey except in virtue of that act, we cannot assume that
he proceeded or intended to proceed outside of its provisions. We must take it
that he meant just what he plainly and expressly declared, and consequently
that he intended, in virtue of the authority given by the act of 1882, to
appoint Glavey to the office of special inspector of
foreign steam vessels at New Orleans.
The next contention of the
government is that if the communication of May 15th, 1891, is to be taken as
showing a valid appointment to the office in question, Glavey
did not legally qualify as special inspector in that he did not give or tender
the bond prescribed by 4 of the act of 1882; consequently, it is argued, he was
at most only an officer de facto.
Is it true that the execution of the
required bond was necessary in order that Glavey
could lawfully proceed in the discharge of the duties of the office to which he
was appointed?
Some light is thrown upon this
question by United States v. Bradley, 10 Pet. 343, 357, 364, 9 L. ed. 448, 453,
457. That was an action upon a bond of one who acted as paymaster in the army.
The act under which the bond was taken provided that 'all officers of the pay,
commissary, and quartermaster's department shall, previous to their entering on
the duties of their respective offices, give good and sufficient bonds to the
United States, fully to account for all moneys and public property which they
may receive, in such sum as the Secretary of War shall direct.' 3 Stat. at L. 298, chap. 69, 6. This court, speaking by Mr.
Justice Story, after observing that the proper officers of a department to
which the [182 U.S. 595, 603] disbursement of public moneys was intrusted
could take a valid bond to secure the government in respect of such moneys, said:
'Before concluding this opinion, it may be proper to take notice of another
objection raised by the third plea, and pressed at the argument. It is that
Hall was not entitled to act as paymaster until he had given the bond required
by the act of 1816, in the form therein prescribed; and that, not having given
any such bond, he is not accountable as paymaster for any moneys received by
him from the government. We are of a different opinion. Hall's appointment as
paymaster was complete when his appointment was duly made by the President and
confirmed by the Senate. The giving of the bond was a mere ministerial act for
the security of the government, and not a condition precedent to his authority
to act as paymaster. Having received the public moneys as paymaster, he must
account for them as paymaster.'
The doctrine announced in that case
was reaffirmed in United States v. Linn, 15 Pet. 290, 313, 10 L. ed. 742, 751,
which was an action upon a writing obligatory given by a receiver of public
moneys in a certain land office. The case came before this court upon questions
in respect of which the judges of the circuit court were divided. Those
questions were: 1. Whether the obligation of the receiver and his sureties,
being without seal, was a bond within the act of Congress of May 10th, 1800,
which provided that a receiver of public moneys for lands of the United States
'shall, before he enters upon the duties of his office, give bond, with
approved security . . . for the faithful discharge of his trust.' 2 Stat. at L. 73, 75, chap. 55, 6. 2. Whether such an
instrument was good at common law. The court, speaking by Mr. Justice Thompson,
and referring to the emoluments which the receiver was entitled to have, said:
'These emoluments were the considerations allowed him for the execution of the
duties of his office; and his appointment and commission entitled him to
receive this compensation, whether he gave any security or not. His official
rights and duties attached upon his appointment. This was so held by this court
in the case of United States v. Bradley, 10 Pet. 364, 9 L. ed. 456.' After
stating what had been decided in that case, the court proceeded: 'Accor- [182 U.S. 595, 604] ding to this doctrine, which is undoubtedly sound, Linn was
a receiver de jure, as well as de facto, when the instrument in question was
given.'
In United
States v. Le Baron, 19 How.
73, 78, 15 L. ed. 525, 527, the question was as to the time when a person
nominated and confirmed as a deputy postmaster, and whose commission was put
into the hands of the Postmaster General for delivery to the appointee, was to
be deemed to have been invested with such office. This court, speaking by Mr.
Justice Curtis, said: 'When a person has been nominated to an office by the
President, confirmed by the Senate, and his commission has been signed by the
President, and the seal of the United States affixed thereto, his appointment
to that office is complete. Congress may provide, as it has done in this case,
that certain acts shall be done by the appointee before he shall enter on the
possession of the office under his appointment. These acts then become
conditions precedent to the complete investiture of the office; but they are to
be performed by the appointee, not by the Executive; all that the Executive can
do to invest the person with his office has been completed when the commission
has been signed and sealed; and when the person has performed the required
conditions, his title to enter on the possession of the office is also
complete.'
It may be here observed that the
above cases are stronger than the present case in that the act of 1882
contained no provision requiring a special inspector of foreign steam vessels
to execute a bond before entering on the duties of his office. We observe also
that the principles announced in the Bradley and Linn Cases were recognized in
United States v. Eaton, 169
U.S. 331 , 42 L. ed. 767, 18 Sup. Ct. Rep. 374.
In view of the former decisions of
this court, it cannot be held that the execution by Glavey
of the bond required by the act of 1882 was a condition precedent to his right
to exercise the functions of the office to which he was appointed by the
Secretary of the Treasury. Congress did not so direct. His appointment was
complete, at least, when he took the required oath and transmitted evidence of
that fact to the Secretary. After taking the oath, evidencing thereby his
acceptance of the [182
U.S. 595, 605] appointment,
he was entitled to proceed in the execution of the duties of his office and
became liable for any failure to properly discharge them.
It remains to inquire whether, by
reason of the statement in the Secretary's letter or communication of May 15th,
1891, that the appointment in question was 'without additional compensation'
beyond that received by the appointee as local inspector of hulls of steam
vessels, Glavey was estopped
to demand the salary fixed by the act of 1882 for special inspectors of foreign
steam vessels.
In United States v. Symonds, 120
U.S. 46, 49 , 30 S. L. ed. 557, 558, 7 Sup. Ct.
Rep. 412, the question was whether certain services were performed 'at sea'
within the meaning of 1556 of the Revised Statutes fixing the pay of
lieutenants in the navy when at sea, or when on shore duty, or when on leave or
waiting orders. Symonds claimed that the services for which he sued were
performed 'at sea,' and that he was entitled to the compensation fixed by the
statute for services of that kind. This court said: 'If the regulations of 1876
had not recognized services 'on board a practice ship at sea' as sea services,
the argument on behalf of the government would imply that they could not be
regarded by the courts, or by the proper accounting officers, as sea services;
in other words, that the Secretary of the Navy could fix, by order and
conclusively, what was and was not sea service. But Congress certainly did not
intend to confer authority upon the Secretary of the Navy to diminish an
officer's compensation, as established by law, by declaring that to be shore
service which was in fact sea service, or to increase his compensation by
declaring that to be sea service which was in fact shore service. The authority
of the Secretary to issue orders, regulations, and instructions, with the
approval of the President, in reference to matters connected with the naval
establishment, is subject to the condition necessarily implied, that they must
be consistent with the statutes which have been enacted by Congress in
reference to the navy. He may, with the approval of the President, establish
regulations in execution of or supplementary to, but not in conflict with, the
statutes defining his powers, or conferring rights upon others. The contrary
has [182 U.S. 595, 606] never been held by this court. What we now say is entirely
consistent with Gratiot v. United States, 4 How. 80,
11 L. ed. 884, and Ex parte Reed, 100
U.S. 13 , 25 L. ed. 538, upon which the government
relies. Referring in the first case to certain army regulations,
and in the other to certain navy regulations, which had been approved by
Congress, the court observed that they had the force of law. See also Smith v.
Whitney, 116
U.S. 181 , 29 L. ed. 605, 6 Sup. Ct. Rep. 570. In neither case, however, was it held that
such regulations, when in conflict with the acts of Congress, could be upheld.
If the services of Symonds were in the meaning of the statute performed 'at
sea,' his right to the compensation established by law for sea service is as
absolute as is the right of any other officer to his salary as established by
law.' To the same effect was United States v. Barnette,
165
U.S. 174, 179 , 41 S. L. ed. 675, 677, 17 Sup. Ct. Rep. 286.
In People ex rel. Satterlee v. Board of Police, 75 N. Y. 38, 42, the question
was whether the compensation of a police surgeon was that fixed by statute or
that named in a resolution of a board of police under which he was appointed.
He accepted the appointment and performed the duties of the office for more
than two years, drawing only the salary fixed by the resolution and which was less than that fixed by statute. The court of appeals of
New York, speaking by Judge Miller,-all the members of the court
who voted in the case concurring,-said: 'As the statute gave the salary, I
think fixing the amount at a less rate by resolution could not make it less
than the statute declared. There is no principle upon which an individual
appointed or elected to an official position can be compelled to take less than
the salary fixed by law. The acceptance and discharge of the duties of the
office after appointment is not a waiver of the statutory provision fixing the
salary therefor, and does not establish a binding
contract to perform the duties of the office for the sum named. The law does
not recognize the principle that a board of officers can reduce the amount
fixed by law for a salaried officer, and procure officials to act at a less sum
than the statute provides, or that such official can make a binding contract to
that effect. The doctrine of waiver has no application to any such case, and
cannot be invoked to aid the respondent.' [182 U.S. 595, 607] The
ruling in that case was reaffirmed in Kehn v. State,
93 N. Y. 291, 294, which involved the claim of a fireman whose compensation had
been reduced by his superior officer below that fixed by law. The court,
speaking by Judge Rapallo, reaffirmed the principles of the Satterlee
Case, and approved the decision in Goldsborough v. United States, Taney Dec.
80, 88, Fed. Cas. No. 5,519,
saying: 'The present case, however, is stronger than either of those cited. At
the time the appellant entered into the service his pay was fixed by law, and
there is no evidence that he ever consented to a change. It was reduced by the
superintendent, and for a portion of the time the appellant took the reduced
pay, but that does not estop him from claiming his
full pay if he was legally entitled to it.'
In the Goldsborough Case referred
to, Chief Justice Taney said: '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 Adams v. United States, 20 Ct.
Cl. 115, which involved the compensation due to one who had performed the
duties of an inspector and also of deputy collector of customs, the court said:
'The law creates the office, prescribes its duties, and fixes the compensation.
The selection of the officer is left to the collector and Secretary. The
appointing power has no control, beyond the limits of the statute, over the
compensation, either to increase or diminish it.' In the same case it was also
said: 'Monthly vouchers were drawn up, reciting the number of days the claimant
was employed during the month and the amount of compensation allowed by the
collector and Secretary, ending with a receipt 'in full for compensation for
the period above stated,' which the claimant signed. We do not think he thereby
relinquished his right to claim the further compensation allowed by law. If the
appointing officer has no power to change the compensation of an inspector,
certainly the paying officer has not. He had no right to exact such a receipt
and the claim -- [182
U.S. 595, 608] and lost
nothing by signing it. Fisher's Case, 15 Ct. Cl. 323; United States v. Bostwick, 94
U.S. 53 , 24 L. ed. 65.'
We are of opinion that as the act of
1882 created a distinct, separate office-special inspector of foreign steam
vessels-with a fixed annual salary for the incumbent, to be paid by the
Secretary of the Treasury out of any moneys in the Treasury not otherwise
appropriated; as the plaintiff was legally appointed by the Secretary a special
inspector under any by virtue alone of that act; and as he entered upon the
discharge of the duties appertaining to that position, he was entitled to
demand the salary attached by Congress to the office in question.
It is said that the Secretary,
before appointing the plaintiff, had reached the conclusion that the office of
special inspector of foreign steam vessels was unnecessary, and that all laws
providing a separate establishment for the inspection of foreign steam vessels should
be repealed. Such undoubtedly was the opinion expressed by the Secretary in his
report to the Speaker of the House of Representatives at the first session,
1889, of the Forty-first Congress. But Congress did not immediately heed his
recommendation on that subject, and there was no repeal of the act of 1882
until the passage of the statute of March 1st, 1895 (28 Stat. at L. 699, chap.
146 1). During the entire term of his service as special inspector the act of
1882 was in force. If the Secretary, having become convinced that the special
inspectors of foreign steam vessels were not needed and the public interests
did not require the appointment of such officers, could properly, for such
reasons, have withheld any action under the statute of 1882 until he again
communicated his views to Congress, it does not follow that he could make an
appointment under that statute conditioned that the appointee should accept a
less salary than Congress prescribed. Whether a local inspector should be
required to inspect foreign steam vessels without additional compensation, or
whether the visitation and inspection of such vessels should be done by an
officer acting under an appointment for that particular purpose, was a matter
for the determination of Congress. The purpose of Congress, as indicated by the
act of 1882, was to compensate the services of a special inspector of foreign
steam vessels by an annual salary [182 U.S. 595, 609] of a
specified amount. It was not competent for the Secretary of the Treasury,
having the power of appointment, to defeat that purpose by what was, in effect,
a bargain or agreement between him and his appointee that the latter should not
demand the compensation fixed by statute. Judge Lacombe,
speaking for the circuit court of the United States for the southern district
of New York in Miller v. United States, 103 Fed. 413, 415, well said:
'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 be assumed that Congress fixes the salary
with due regard to the work to be 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.' If it were
held otherwise, the result would be that the heads of executive departments
could provide, in respect of all offices with fixed salaries attached and which
they could fill by appointments, that the incumbents should not have the
compensation established by Congress, but should perform the service connected
with their respective positions for such compensation as the head of a
department, under all the circumstances, deemed to be fair and adequate. In
this way the subject of salaries for public officers would be under the control
of the executive department of the government. Public policy forbids the
recognition of any such power as belonging to the head of an executive
department. The distribution of officers upon such a basis suggests evils in
the administration of public affairs which it cannot be supposed Congress
intended to produce by its legislation. Congress may control the whole subject
of sal- [182 U.S. 595, 610] aries for public officers; and when it declared that for the
purpose of carrying into effect the provisions of the act of 1882 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,'
it was not for the Secretary to make the required appointments under a
stipulation with the appointee that he would take any less salary than that
prescribed by Congress. The stipulation that Glavey,
who was local inspector, should exercise the functions of his office of special
inspector of foreign steam vessels 'without additional compensation' was
invalid under the statute prescribing the salary he should receive, was against
public policy, and imposed no legal obligation upon him. And the mere failure
of the appointee to demand his salary as such officer until after he had ceased
to be local inspector, was not in law a waiver of his right to the compensation
fixed by the statute.
The judgment of the Court of Claims
is reversed and the cause is remanded for further proceedings consistent with
this opinion. Reversed.
The Chief Justice, Mr. Justice Brown, Mr. Justice Peckham, and Mr. Justice McKenna, dissented.