Under the joint resolution of February 28, 1867, increasing by
20 percent the pay of employees in the Department of the interior
&c., and in the office of the Capitol and Treasury Extension
and Commissioner of Public Buildings, neither a commission nor a
warrant of appointment is necessary to entitle an employee to the
benefit of the provision under consideration, provided he was
actually and properly employed in the office of the Capitol or
Treasury Extension or in the office of the Commissioner of Public
Buildings, if it appears that he is one of the persons or class of
persons described in the joint resolution. Persons so employed are
properly in the service if they were employed by the head of the
department, or of the bureau, or any division of the department
charged with that duty and authorized to make such contracts and
fix the compensation of the person employed, even though the
particular employment may not be designated in any appropriation
act.
A joint resolution of Congress of February 28, 1867, [
Footnote 1] provided:
"That there shall be allowed and paid to the following described
persons [whose salaries do not exceed $3,500] now employed
in
the civil service of the United States, at Washington, as
follows: to civil officers and temporary and all other clerks,
messengers, and watchmen, including enlisted men detailed as such,
to be computed upon the gross amount of the compensation received
by them, and
employees male and female, in the Executive
Mansion, and in any of the following-named departments, or any
bureau or division thereof, to-wit, State, Treasury,
Page 80 U. S. 569
War, Navy,
Interior, Post Office, Attorney General's,
Agricultural, and including civil officers and temporary, and all
other clerks and
employees, male and female,
in the
offices of the Coast Survey, Naval Observatory, Navy Yard,
Arsenal, Paymaster General, including the division of referred
claims, Commissary General of Prisoners, Bureau of Refugees,
Freedmen, and Abandoned Lands, Quartermaster's,
Capitol and
Treasury Extension, City Post Office, and
Commissioner of
Public Buildings; to the photographer of the Treasury
Department, to the superintendent of meters, and to lamplighters
under the Commissioner of Public Buildings, an additional
compensation of 20 percentum on their respective salaries as fixed
by law, or, where no salary is fixed by law, upon their pay,
respectively, for one year from and after the 30th day of June,
1866."
I
. FITZPATRICK'S AND SEVEN OTHER CASES
This joint resolution being in force, several persons, named
respectively Fitzpatrick, Hall, Bohn, Lytle, Holbrook, La Rieu,
Richards, and Newman, and whose salaries were all less than $3,500,
filed their petitions, each setting forth facts which, if true,
brought him within the act and each claiming the 20 percent
additional. By the finding of the Court of Claims, it appeared that
Fitzpatrick was an employee in the office of the Commissioner of
Public Buildings, as keeper of the western gate of the Capitol;
that Hall was an employee in the office of the Commissioner of
Public Buildings, in that part of the Capitol called the crypt;
that Bohn was an employee in the office of the Commissioner of
Public Buildings as a laborer on the public grounds; that Lytle was
an employee in the office of the Commissioner of Public Buildings
as watchman in the east grounds of the Capitol; that Holbrook was
an employee in the office of the Commissioner of Public Buildings
as watchman at the stables; that La Rieu was an employee in the
same office as watchman in the Smithsonian grounds; that Richards
was an employee in the same office as watchman on the Capitol dome,
and Newman was an employee in the same office as captain of the
Capitol police.
Page 80 U. S. 570
II
. MILLER'S CASE
About the same time, one Miller filed a petition in the Court of
Claims, alleging that he had been as clerk and employee in the
office of the Capitol Extension, assigned to duty as foreman of
construction, receiving a salary of $1,800; that he was in the
civil service of the United States at Washington, and that he was
thus entitled to an addition of 20 percent on his salary, under the
joint resolution above quoted, and asking judgment against the
United States therefor. The United States opposed the demand.
The court found as fact:
1. That the claimant was appointed foreman of carpenters by the
Secretary of the Interior Department, March 1st, 1866, at a salary
of $1800 per annum, and was in the service of the United States,
in connection with Capitol Extension, at Washington, D.C.,
continuously from June 30th, 1866, to June 30th, 1867, inclusive,
at the said salary.
2. That he was paid monthly, as in the case of other salaried
officers; that he received materials for the work upon the Capitol
building, made up daily reports, had charge of workmen, and
performed such duties as were assigned him by the architect of the
Capitol Extension, and was paid out of the said fund as the
architect of the Capitol Extension, clerks, and others connected
with said work,
viz., the appropriation for the Capitol
Extension.
No other facts than those above mentioned were found by the
court. The counsel of the United States, however, after adverting
to the fact that the findings contradicted an averment of the
petitioner of a matter within his own knowledge, they finding that
he was appointed
foreman of carpenters March 1, 1866, at a
salary of $1,800 per annum, and the counsel stating -- by way of
reconciling the discrepancy -- that prior to March 1, 1866, the
claimant was employed in the same capacity as thereafterwards, but
at a compensation of only $5 per day of actual employment -- that
is, exclusive of Sundays, or about $1,500 per annum -- and that the
Secretary of the Interior, on March 1, 1866, wrote the following
letter:
Page 80 U. S. 571
"
DEPARTMENT OF THE INTERIOR"
"WASHINGTON, D.C., March 2, 1866"
"SIR: You are hereby authorized, from and after the 1st of the
present month, to pay George Miller, timekeeper &c., on the
Capitol Extension, at the rate of $150 per month for the time
actually employed, until further orders."
"I am, sir, very respectfully, your obedient servant,"
"JAMES HARLAN, Secretary"
"DR. WM. S. MARSH,"
"Disbursing Agent, Capitol Extension"
III
. MANNING'S CASE
Near about the same time, one Manning filed a petition with a
purpose similar to that with which the others filed theirs. The
court found that the claimant was employed as watchman or guard at
the jail in Washington for one year at a salary of $1,200 per year,
paid to him monthly by the disbursing officer of the Department of
the Interior. His pay was fixed at this rate by the Secretary of
the Interior under act of Congress which place the jail under the
supervision of the Department of the Interior.
The Court of Claims gave a decree for the claimants in all of
the cases, and the United States appealed in all.
Page 80 U. S. 572
MR. JUSTICE CLIFFORD delivered the opinion of the Court in all
the cases, giving it as follows:
I
. IN FITZPATRICK'S AND THE SEVEN OTHER CASES
Twenty percent additional pay is allowed by the joint resolution
of the twenty-eighth of February, 1867, to certain persons or
classes of persons therein described, who are employed in the civil
service of the United States in this
Page 80 U. S. 573
city, whose salaries, as fixed by law, do not exceed three
thousand five hundred dollars per annum, to be paid out of any
money in the Treasury not otherwise appropriated. [
Footnote 2]
Objection is made in several of the pending cases arising under
that resolution that the claimant does not show himself to be an
employee in the civil service of the United States, which, it is
said is the primary condition and the one required to be shown in
every case before the party can lawfully claim the prescribed
additional compensation, and the attempt is made by the appellants
to restrict the meaning of the term civil service so as to exclude
all persons from the benefits of the provision except such as have
been appointed to office or hold appointments of some kind in that
service. They contend that the words "in the civil service" were
not employed merely to contradistinguish the service described from
that of the military or naval service of the United States, but
also to show that the persons entitled to the benefits of the
enactment must be persons filling offices or holding appointments
established by law.
Beyond doubt, those words were intended to contradistinguish the
service described from that of the military or naval service, but
the Court is unable to concur in the proposition that they were
also intended to restrict the operation of the resolution to
persons in office in the civil service, or to persons holding
appointments in that service as salaried officers.
Certain described persons and classes of persons are plainly
entitled to the benefit of the provision, whether regarded as
officers or as mere employees, and it is no valid argument against
that proposition to show that there are or may be other employees
or persons in the civil service here who are not within that
description, as the terms of the enactment are special and do not
extend to every employment in that service, but only to the
described persons and classes of persons therein mentioned.
Civil officers whose salaries, as fixed by law, do not
exceed
Page 80 U. S. 574
three thousand five hundred dollars per annum are clearly within
the terms of the resolution, and so are temporary and other clerks,
messengers, and watchmen, including enlisted men detailed as such,
and employees, male and female, in the executive mansion, and in
the State, Treasury, War, Navy, Interior, and Post Office
Departments, and the Department of Justice, or in any bureau or
division of such a department, including the Agricultural Bureau,
and all civil officers, whether permanent or temporary, in the
offices of the Coast Survey, Naval Observatory, navy yard, arsenal,
paymaster-general, commissary-general of prisoners, bureau of
refugees, freedmen, and abandoned lands, office of quartermaster,
capitol, and treasury extension, city post office, and commissioner
of public buildings, and the other officers and employees described
in the same resolution.
By the finding of the Court of Claims, it appears that
Fitzpatrick was an employee in the office of the commissioner of
public buildings, as keeper of the western gate of the Capital;
that Hall was an employee in the office of the commissioner of
public buildings in that part of the Capitol called the crypt; that
Bohn was an employee in the office of the commissioner of public
buildings as a laborer on the public grounds; that Lytle was an
employee in the office of the commissioner of public buildings as
watchman in the east grounds of the Capitol; that Holbrook was an
employee in the office of the commissioner of public buildings as
watchman at the stables; that Richards was an employee in the
office of the commissioner of public buildings as watchman on the
Capitol dome; and that Newman was an employee in the office of the
commissioner of public buildings as captain of the Capitol police.
Employees in the office of the commissioner of public buildings
being within the very words of the joint resolution, the Court of
Claims in each of these cases rendered judgment for the claimant,
and the United States appealed to this Court.
Most of the defenses to the several claims have already been
considered in the remarks preceding the statement of the case, but
there are also certain special objections which
Page 80 U. S. 575
deserve some consideration, as for example it is insisted that
the question whether the claimant was or was not an employee in the
office of the commissioner is a question of law, and not a question
of fact, and that being a question of law, it may be reexamined in
this Court.
Whether the claimant was or was not employed by the commissioner
of public buildings is certainly a question of fact, but the
question as to what relation he sustained to that office may
perhaps be a question of law, as assumed by the United States. What
they contend is that the words of the act "in the office of" have
respect to another class of employees, that those words refer to
the clerks and messenger and the like, but the Court is of a
different opinion, as clerks and messenger are specially mentioned
in the same enactment, which shows that the words "employees in the
office of" were intended to embrace a class of persons other and
different from the persons having appointments as officers in the
building assigned to the commissioner. Such an interpretation would
be too restricted to comport with the general scope and object of
the resolution or with any of the canons of construction usually
applied in ascertaining the meaning of a remedial law.
Offices may be and usually are divided into two classes -- civil
and military. Civil offices are also usually divided into three
classes -- political, judicial, and ministerial. Political offices
are such as are not immediately connected with the administration
of justice or with the execution of the mandates of a superior, as
the President or head of a department. Judicial offices are those
which relate to the administration of justice, and which must be
exercised by the persons appointed for that purpose, and not by
deputies. Ministerial offices are those which give the officer no
power to judge of the matter to be done, and which require him to
obey some superior, many of which are merely employments requiring
neither a commission nor a warrant of appointment, as temporary
clerks or messengers. [
Footnote
3]
Page 80 U. S. 576
Neither a commission nor a warrant of appointment is necessary
to entitle an employee to the benefit of the provision under
consideration, provided he was actually and properly employed in
the executive mansion, or in any of the departments, or in any
bureau or division thereof, or in the office of the Capitol or
Treasury Extension, or in the office of the commissioner of public
buildings, or in any other of the offices therein mentioned if it
appears that he is one of the persons or class of persons described
in the joint resolution. Persons so employed are properly in the
service if they were employed by the head of the department or of
the bureau or any division of the department charged with that duty
and authorized to make such contracts and fix the compensation of
the person employed, even though the particular employment may not
be designated in an appropriation act.
Many persons not employed as clerks or messengers of a
department are in the public service by virtue of an employment by
the head of the department or by the head of some bureau of the
department authorized by law to make such contracts, and such
persons are as much in the civil service within the meaning of the
joint resolution as the clerks and messengers employed in the rooms
of the department building. [
Footnote 4]
Tested by these rules, it is clear that each of the eight
claimants whose cases are under consideration were employees in the
office of the commissioner of public buildings, and that the
judgment of the Court of Claims in each case was correct.
Judgment in each case affirmed.
II
. IN MILLER'S CASE
Judgment for the claimant was rendered in this case by the Court
of Claims under the joint resolution of Congress
Page 80 U. S. 577
giving additional compensation to certain employees of the
government in the civil service in this city. Preceding the entry
of the judgment is a finding of the facts, which is also agreed to
by the counsel of the parties, as follows:
(1) That the claimant was appointed foreman of carpenters by the
Secretary of the Interior, at a salary of eighteen hundred dollars,
and that he was in the service of the United States, in connection
with the Capitol Extension, continuously for one year at that
salary.
(2) That he was paid monthly, as in the case of other salaried
officers; that he received materials for the work upon the Capitol
building, made up daily reports, had the charge of workmen, and
performed such duties as were assigned him by the architect of the
Capitol Extension, and that he was paid out of the same
appropriation as the architect, clerks, and others connected with
that work.
Several defenses were set up by the appellants, as follows:
(1) That he is not an appointee of the Secretary of the
Interior, and that he was not an employee in the civil service.
(2) That he does not show himself to have been an employee in
the office of the Capitol Extension.
(3) That he was not an employee in any of the departments
specified in the joint resolution.
Support to first proposition is supposed to be derived from the
fact alleged in argument, which is not found by the Court, that the
claimant was employed in the first place at a compensation of five
dollars per day, exclusive of Sundays, and from the copy of a
letter not introduced in evidence, addressed by the Secretary of
the Interior to the disbursing agent of the Capitol Extension, in
which he gives authority to that agent to pay the claimant from
that date as timekeeper &c., on the Capitol Extension, at the
rate of one hundred and fifty dollars per month for the time he
actually worked until further orders.
Two remarks will afford a sufficient reply to those
suggestions:
(1) That such evidence cannot be received in this Court to
contradict the finding of the Court of Claims.
(2) Suppose it could, it would constitute no defense to the
claim,
Page 80 U. S. 578
as it only shows a mistake in the appellation given by the
government to the employment.
Enough appears in the letter to show that he was employed by
authority of the Secretary of the Interior, and that his
compensation was fixed as alleged, by the head of that department.
Grant that the letter does not amount to a warrant of appointment,
still if it be admitted as evidence it clearly shows that he was
employed by the authority of the secretary, which, instead of
contradicting, actually fortifies the finding of the court.
Sufficient has already been remarked in disposing of the first
defense set up by the appellants to show that the second cannot be
sustained, as the claimant does show that he was employed in the
public service on the Capitol Extension. Employed as he was by the
authority of the Secretary of the Interior, it is clear that he was
an employee in the civil service in that department, as neither a
commission nor a warrant of appointment is required to evidence
such an employment.
Argument to show that the work designated by the words "Capitol
Extension" was under the supervision of the Secretary of the
Interior is unnecessary, as the act of Congress of the sixteenth of
April, 1862, provides that the supervision of the Capitol Extension
and the erection of the new dome be and the same is hereby
transferred from the War Department to the Department of the
Interior.
None of the errors assigned can be sustained, and they are
accordingly overruled.
Judgment affirmed.
III
. IN MANNING'S CASE
Persons to act as watchmen or guards at the jails in this
District are usually selected by the warden of the jail, subject to
the approval of the head of the department, but their number and
the amount of their compensation are fixed by the Secretary of the
Interior, as they are paid out of the judiciary fund, over which he
exercises control.
By the Act of the twenty-seventh of February, 1801, the
Page 80 U. S. 579
custody of the jails was entrusted to the marshal of the
District, and he was made accountable for the safekeeping of the
prisoners. [
Footnote 5]
Congress, however, on the twenty-ninth of February, 1864,
created the office of warden of the jail, and enacted that he
should have all the power and should discharge all the duties
previously exercised and discharged over the jail and the prisoners
by the marshal. [
Footnote
6]
Supervisory power over the accounts of marshals is given by the
act of Congress upon the subject to the Secretary of the Interior,
and the express provision is that the warden shall annually, in the
month of November, make a detailed report to the Secretary of the
Interior. [
Footnote 7]
Judgment was rendered for the claimant, and the court below made
the following finding of facts:
(1) That the claimant was employed as watchman or guard at the
jail in this city for one year, at a salary of twelve hundred
dollars per year, paid to him monthly by the disbursing officer of
the Department of the Interior, and it is conceded by the
appellants that the pay of such employees was fixed at that rate by
the secretary of that department.
(2) That he made application to the First Comptroller of the
Treasury for the additional compensation, which is the subject of
controversy, and that his application was refused.
1. Objection is made in this case, as in those previously
decided, that the claimant does not show that he was an employee in
any one of the departments, or in any bureau or division thereof or
in any office named in the joint resolution. His appointment, it is
said, is not authorized by statute, nor is his compensation
prescribed by any appropriation act, and the argument is that
inasmuch as neither his employment nor his compensation is directly
known to any act of Congress, he cannot be regarded as an employee
in the civil service of the United States, but the Court is
entirely of a different opinion, as the office of warden is an
Page 80 U. S. 580
office created by law, and the appointee of the office is
required to report to the Secretary of the Interior.
Guards at the jail are selected by the warden, but their
compensation is fixed by the Secretary of the Interior and they are
paid by him, and it makes no difference whether the pay is charged
to the appropriation for the department or to the judiciary fund,
as the fact remains that the whole subject is under the supervision
of the head of that department; whether their pay is charged to the
one fund or to the other, the charge for their services must be
approved by the warden and must be included in his report to the
Secretary of the Interior, where the same is subject to a further
revision. Evidently they are employees in a bureau or division of
the Interior Department, as their compensation is fixed by the head
of that department, and the officer by whom they are employed is
required annually to make a detailed report to that department of
all his official acts.
Persons employed in a bureau or division of a department are as
much employees in the department, within the meaning of the joint
resolution, as the messengers and others rendering service under
the immediate supervision of the secretary, or those specially
named in the provision as entitled to its benefits. Unquestionably
guards of the jail are employees of the warden, and the office of
warden of the jail is a bureau or division of the Department of the
Interior.
Viewed in that light, as the case must be, it is clear that the
claim is well founded, and we are all of the opinion that the
judgment should be
Affirmed.
[
Footnote 1]
14 Stat. at Large 569.
[
Footnote 2]
14 Stat. at Large 569.
[
Footnote 3]
Mallory's Case, 3 Nott & Huntington 257;
Kirby's Case, ib., 265.
[
Footnote 4]
United States v. Belew, 2 Brockenbrogh 280;
Graham
v. United States, 1 Nott & Huntington 380;
Commonwealth v. Sutherland, 3 Sergeant & Rawle
149.
[
Footnote 5]
2 Stat. at Large 106.
[
Footnote 6]
13
id. 12.
[
Footnote 7]
13
id. 12; 9
id. 395.
