United States v. McDonald, 128 U.S. 471 (1888)

U.S. Supreme Court

United States v. McDonald, 128 U.S. 471 (1888) United States v. McDonald

No. 1161

Submitted November 5, 1888

Decided November 26, 1888

128 U.S. 471

APPEAL FROM THE COURT OF CLAIMS

Syllabus

The claim of a navy officer for his expenses when traveling under orders rests not upon contract with the government, but upon acts of Congress, and when part of such a journey is performed when one statute is in

Page 128 U. S. 472

force and the remainder after another statute takes effect providing a different rate of compensation, the compensation for each part is to be at the rate provided by the statute in force when the traveling was done.

The case is stated in the opinion.

MR. JUSTICE LAMAR delivered the opinion of the Court.

This is an appeal by the United States from a judgment of the Court of Claims. The appellee, Joseph McDonald (plaintiff below), a boatswain in the navy, on the 21st of June, 1876, was ordered by Rear-Admiral Werden, commanding at Callao, Peru, "to proceed to your home in the United States, and, upon your arrival, report to the honorable, the Secretary of the Navy." Pursuant to said order, McDonald traveled from Callao to Washington via Panama and reported as directed.

By the Act of June 16, 1874, 18 Stat. 72, "only actual traveling expenses" were "allowed to any person holding employment or appointment under the United States." By the Act of June 30, 1876, 19 Stat. 65, so much of the preceding act as was "applicable to officers of the navy" was repealed, "and the sum of eight cents per mile" was "allowed such officers" "in lieu of their actual expenses."

The journey from Calloa to Panama was made prior to June 30, 1876, and from Panama to Washington after that date. He was paid his actual traveling expenses for the whole distance, to-wit, $256.60, under the first section of the Act of June 16, 1874. McDonald claimed that he should have received eight cents per mile for the distance actually traveled, under the Act of June 30, 1876, which would have been $368, or $111.40 in excess of the amount received by him.

The Treasury Department having refused to accede to his

Page 128 U. S. 473

demand, he brought suit in the Court of Claims against the United States to recover said sum of $111.40. That court held that McDonald should receive only his actual expenses for that part of his journey performed prior to the passage of the Act of June 30, 1876, to-wit, from Calloa to Panama, and mileage for that portion performed after the passage of said last-mentioned act, to-wit, from Panama to Washington, and rendered judgment in his favor accordingly for $74, that amount being the excess of such mileage from Panama to Washington over and above his actual traveling expenses for that portion of his journey. An appeal by the United States from this judgment brings the case here.

It is contended on behalf of the United States that the order was made and the travel undertaken while the law of 1874 was in force, and therefore with the understanding that only actual traveling expenses should be paid, and that the rule as to payment under a contract is that the terms under which the contract is undertaken shall control the amount to be paid. The reply to this is that the claim of this officer rests not upon any contract, expressed or implied, with the government, but upon the acts of Congress, which provide for his compensation. The case cited by the assistant Attorney General in support of his contention, Washington &c. Packet Company v. Sickles, 10 How. 149, was a suit upon a special contract between private parties.

The compensation paid to public officers of the United States for their services, or for traveling expenses incidental thereto, is always under the control of Congress except in the cases of the salaries of the President and the judges of the courts of the United States. As said by this Court in Embry v. United States, 100 U. S. 685:

"All agree that Congress has full control of salaries, except those of the President and judges of the courts of the United States. The amount fixed at any one time may be added to or taken from at will. No officer except the President or a judge of a court of the United States can claim a contract right to any particular amount of unearned compensation."

The Act of June 30, 1876, having repealed that of June

Page 128 U. S. 474

16, 1874, so far as it applied to the traveling expenses of officers of the navy, became operative upon the date of its approval, and thereafter the traveling expenses were regulated and defined by its provisions. Had the court decided in favor of the contention of the appellants that the claimant was entitled to his traveling expenses only, it would have enforced a repealed statute, and would have disregarded the provisions of existing law. The judgment of the Court of Claims is

Affirmed.