A paymaster's clerk, appointed by a paymaster in the navy with
the approval of the Secretary of the Navy, is not an officer of the
navy within the meaning of the Act of June 30, 1876, 19 Stat. 65,
c. 159, so as to be entitled to the benefit of the mileage allowed
by that act.
The petition of the defendant in error in the Court of Claims
was as follows:
"The claimant, David Mouat, respectfully showeth as
follows:"
"I. That on the 16th day of November, 1885, he was appointed a
paymaster's clerk in the United States Navy, on board the United
States receiving ship
Vermont, subject to the laws and
regulations governing the United States Navy. That the said
appointment was approved by Capt. A. P. Cooke, commanding the
Vermont, and by D. B. Harmony, Acting Secretary of the
Navy. That on the 19th day of November, 1885, he accepted by letter
said appointment, and on the same day took an oath to comply with
and be obedient to such laws, regulations, and discipline of the
navy as were then in force or that might be enacted by Congress or
established by other competent authority. Copies of the said
appointment, the
Page 124 U. S. 304
letter of acceptance, and the oath are hereto annexed as Exhibit
No. 1. [It does not appear to be necessary to reprint these
exhibits.]"
"II. That when he received said appointment he was in Chicago,
in the State of Illinois, where the appointment was addressed. In
the said letter of appointment, he was directed to proceed to New
York via Washington, D.C. That after his acceptance of said
appointment, and taking the oath aforesaid and the oath to support
the Constitution of the United States and to faithfully discharge
the duties of the office upon which he is about to enter, he
proceeded to New York via Washington, D.C., and on November 30,
having arrived in New York, reported at the navy yard for duty as
directed."
"III. That under the army mileage table, which has been adopted
by order of the Secretary of the Navy as the correct table of
distances in the United States and as the standard for determining
the distances traveled by officers in the naval service, the
distance from Chicago to Washington, D.C., is 813 miles, and from
Washington to New York 228 miles, the whole distance traveled under
orders being 1,041 miles."
"IV. That under the Act of Congress of June 30, 1876, he was
entitled to be allowed and to receive the sum of eight cents per
mile for this distance, the same being $83.28."
"V. That upon the presentation of his claim for the above amount
of mileage, the same was settled and allowed by the Fourth Auditor
of the Treasury, but was not allowed by the Second Comptroller of
the Treasury, and that the claimant has not received any part
thereof."
"That since the passage of the Act of June 30th, 1876, it has
been the practice to allow mileage to paymasters' clerks who were
ordered to seagoing vessels upon travel as performed within the
United States from July 1st, 1876, to February 5th, 1886. It has
never been the practice to consider clerks employed by pay officers
on shore stations as entitled to mileage."
"VI. No assignment or transfer of this claim nor of any part
thereof nor of any interest therein has been made; the claimant is
justly entitled to the amount claimed in this petition
Page 124 U. S. 305
from the United States after allowing all just credits and
set-offs; he is a citizen of the United States, and has at all
times borne true allegiance to the United States, and he believes
the facts stated in the petition to be true."
"Wherefore he prays judgment against the United States in the
sum of $83.28."
To this petition the United States filed a general demurrer,
upon which the Court of Claims rendered a judgment in the
petitioner's favor for $83.23, from which judgment the United
States took this appeal.
MR. JUSTICE MILLER delivered the opinion of the Court.
This is an appeal from a judgment of the Court of Claims in
favor of David Mouat for the sum of $83.28. The question arises as
to the compensation to be paid to Mouat for traveling expenses
while acting as a paymaster's clerk. The act of Congress of June
16, 1874, making appropriations for the support of the army for the
next fiscal year, has appended to the clause providing for the
transportation of officers and baggage, and for their traveling
expenses the following:
"Provided that only actual traveling expenses shall be allowed
to any person holding employment or appointment under the United
States, and all allowances for mileages and transportation in
excess of the amount actually paid are hereby declared illegal, and
no credit shall be allowed to any of the disbursing officers of the
United States for payment or allowances in violation of this
provision."
18 Stat. 72, c. 285.
This proviso in its terms is applicable to every person holding
employment or appointment under the United States, and seems to be
one of those frequent cases in which Congress in a general
appropriation bill has intentionally enacted some law
Page 124 U. S. 306
reaching far beyond the general scope of the bill itself. Its
obvious purpose was to abolish all payments for traveling expenses
in which a specific allowance per mile was made by law, and to
establish the more equitable principle of paying the actual
expenses of persons traveling in the service of the government. And
it is to be observed that the universality of this principle is
secured by the use of the two words "employment or appointment" in
reference to persons serving under the government of the United
States.
Two years later, when Congress was making appropriations for the
naval service by the Act of June 30, 1876, the attention
of that body seemed to be directed to the fact that it included
officers of the navy, as well as all other officers of the
government. That act contains the following provision:
"And so much of the Act of June 16, 1874, making appropriations
for the support of the army for the fiscal year ending June 30,
1875, and for other purposes as provides that only actual traveling
expenses shall be allowed to any person holding employment or
appointment under the United States while engaged on public
business, as is applicable to officers of the navy so engaged, is
hereby repealed, and the sum of eight cents per mile shall be
allowed such officers while so engaged in lieu of their actual
expenses."
19 Stat. 65, c. 159.
By this declaration, Congress did not repeal the whole of that
statute. It did not even repeal it as applicable to the entire
navy, but it selected a certain class of persons in the navy to
whom it should no longer apply, and who should thereafter by
relieved from keeping an account of their actual expenses while
traveling for the government, and should be allowed eight cents per
mile in lieu thereof.
The class of persons thus relieved from the effect of the act of
1874 is designated as "officers of the navy." No other person
holding an employment or appointment under the United States,
although in the navy, was thus relieved from the effect of that
act. As this is a special statute, exempting for particular reasons
a certain class of persons from the operation of a
Page 124 U. S. 307
general law, which was left to include all other persons in the
employment of or holding appointment under the government of the
United States, it is obviously proper to confine that class to
those who are, properly speaking, officers of the navy. There is
nothing in the context nor in the reason which may have been
supposed to influence Congress in making this exception out of the
general law justifying its application to any other persons than
those who are, strictly speaking, officers of the navy.
What is necessary to constitute a person an officer of the
United States in any of the various branches of its service has
been very fully considered by this Court in
United States v.
Germaine, 99 U. S. 508. In
that case, it was distinctly pointed out that under the
Constitution of the United States, all its officers were appointed
by the President, by and with the consent of the Senate, or by a
court of law or the head of a department, and the heads of the
departments were defined in that opinion to be what are now called
the members of the cabinet. Unless a person in the service of the
government, therefore, holds his place by virtue of an appointment
by the President or of one of the courts of justice or heads of
departments authorized by law to make such an appointment, he is
not, strictly speaking, an officer of the United States.
We do not see any reason to review this well established
definition of what it is that constitutes such an officer.
In response to this objection to the claimant as an officer of
the United States, it is alleged that his appointment as
paymaster's clerk, as shown by the finding of facts in the Court of
Claims, although made by a paymaster in the United States Navy, has
endorsed on it the approval of D. B. Harmony, Acting Secretary of
the Navy. If there were any statute which authorized the head of
the Navy Department to appoint a paymaster's clerk, the technical
argument, that the appointment in this case, although actually made
by Paymaster Whitehouse, and only approved by Harmony as acting
secretary in a formal way, with the approval of a half dozen other
officers, might still be considered sufficient to call this an
Page 124 U. S. 308
appointment by the head of that department. But there is no
statute authorizing the Secretary of the Navy to appoint a
paymaster's clerk, nor is there any act requiring his approval of
such an appointment, and the regulations of the navy do not seem to
require any such appointment or approval for the holding of that
position. The claimant therefore was not an officer, either
appointed by the President or under the authority of any law
vesting such appointment in the head of a department.
Section 1378 of the Revised Statutes enacts that "all
appointments in the pay corps shall be made by the President, by
and with the advice and consent of the Senate." Sections 1386,
1387, and 1388 provide that certain classes of paymasters shall be
allowed clerks.
It is obvious from the language of § 1378 that the pay
corps is limited to officers commissioned by the President, and
that clerks and others who are not so commissioned do not belong to
the pay corps. The naval regulations of 1876, a copy of which is
found in the brief of the appellant so far as relates to this
matter, provide very fully for these clerks and the manner of their
appointment, but nowhere is there any mention that it must be
approved by the Secretary of the Navy; on the contrary, it is said
that
"Every officer entitled to a secretary or clerk may nominate
him, but the appointment or discharge of a clerk by any officer not
in command is subject to the approval of the commanding
officer."
From all this it is clear that neither by the regulations nor by
the statutes nor by any constitutional provision is the present
claimant an officer of the navy. Undoubtedly Congress may have used
the word "officer" in some other connections in a more popular
sense, as will be shown in the case of
United States v.
Hendee, immediately following this, in which case it will be
the duty of the Court in construing such an act of Congress to
ascertain its true meaning and be governed accordingly.
The judgment of the Court of Claims is accordingly reversed,
and the case remanded to that court with instructions to dismiss
it.
