IN THE MATTER OF THE AUTHORITY OF THE SECRETARY OF THE TREASURY TO MAKE AN ADDITIONAL ALLOWANCE TO DEPUTY COLLECTORS OF INTERNAL REVENUE AFTER THEY HAVE RENDERED THE SERVICES FOR WHICH THE FIRST ALLOWANCE WAS MADE.-WILSON'S CASE.

1. Construction given to the internal-revenue act of March 1, 1879. (20 Stats., 329.) 2. When the Secretary of the Treasury, on the recommendation of the Commissioner of Internal Revenue, has, as the statute authorizes, fixed the compensation to be paid to sundry deputy collectors in a district for a given fiscal year, and the deputies have performed their services under such regulation, any subsequent additional allowance for such services is prohibited by section 1765 of the Revised Statutes.

3. A deputy collector of internal revenue is a person whose salary is fixed by "regulations" within the meaning of section 1765 of the Revised Statutes.

4. The order made July 1, 1879, by the Secretary of the Treasury, fixing the allowances for deputy collectors in the second collection district of Georgia, is a "regulation."

5. The accounting officers of the Treasury Department are empowered to give authoritative construction to the "regulations" of the Department. The construction so given will be adhered to.

6. Extra or additional compensation cannot be allowed except by express authority of law, and an appropriation therefor. Congress has not delegated the discretion to make such allowance which itself may exercise consistently with public policy.

7. The act of March 1, 1879, by expressly authorizing the Secretary of the Treasury to make further allowances from time to time, as may be reasonable, for collectors of internal revenue, but omitting all mention of deputies, shows that such additional allowance to the latter was not contemplated, and is therefore not authorized.

8. Whether the authority to fix the compensation of deputies can, when once exercised, be subsequently modified so as prospectively to increase or reduce such compensation, considered.

9. When a deputy collector has rendered service under a regulation prescribing his compensation, there is no authority to reduce retroactively the rate of such compensation.

The Secretary of the Treasury, upon the recommendation of the Commissioner of Internal Revenue, and under the provision of section 12 of the act of March 1, 1879, (20 Stats., 329,) made for the fiscal year ending June 30, 1880, an allowance* at a fixed rate per annum, which prescribed the "salaries" to be paid to fifteen deputy collectors in the second district of Georgia as compensation for their services. The order making this allowance classified the salaries by rating them at

*See note on pages 210-212, post.

from $900 up to $1,250 per annum. Similar orders were made for all districts. On March 18, 1881, after the services of the deputies were rendered, the Secretary, on the Commissioner's recommendation, made an additional allowance for the same fiscal year and district, in the aggregate sum of $405, "to increase the salaries" of W. T. B. Wilson and two other named deputies. The question now arises, whether the subsequent allowance can, on proper vouchers of payment to said deputies, be credited in the settlement of the collector's disbursing

account.

DECISION BY WILLIAM LAWRENCE, First Comptroller:

The act of March 1, 1879, (20 Stats., 329,) provides

"SEC. 12. That each collector of internal revenue shall be authorized to appoint, by an instrument in writing under his hand, as many deputies as he may think proper, to be compensated for their services by such allowances as shall be made by the Secretary of the Treasury, upon the recommendation of the Commissioner of Internal Revenue. Allowances shall also be made in like manner for salary and office expenses of collectors, all of which shall be in lieu of the salary and commissions heretofore provided by law." (See Rev. Stats., 3148.)

The same act provides as to collectors—

"SEC. 13. * That the Secretary of the Treasury, on the recommendation of the Commissioner of Internal Revenue, be authorized to make such further allowances, from time to time, as may be reasonable, in cases in which, from the territorial extent of the district, or from the amount of internal duties collected, it may seem just to make such allowances; but no such allowance shall be made if more than one year has elapsed since the close of the fiscal year in which the services were rendered." (20 Stats., 330; see Rev. Stats., 3145.)

The Revised Statutes provide that-

"No person whose salary, pay, or emoluments 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 whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation." (Sec. 1765; see 18 Stats., 109, sec. 3.)

If the rate of compensation is fixed by order of the Secretary before service is performed, and the deputy continues to act, his compensation becomes an agreed rate upon an express contract, and has all the features of a salary prescribed by law. If the service is performed before the Secretary makes an allowance of compensation therefor, there is, under the statute, an implied contract between the deputy and the United States for a quantum meruit. (U. S. rs. Duval, Gilp., 357; U. S. vs. McCall, Id., 563; U. S. vs. Wilkins, 6 Wheat., 135, 142, 143;

U. S. vs. Ripley, 7 Pet., 18; U. S. vs. Eliason, 16 Pet., 291, 301, 302.) In such case it would be perfectly competent for the Secretary to allow reasonable compensation; but where an express contract is entered into, this method is inapplicable and the deputy cannot resort to a quantum meruit. (Clark vs. Smith, 14 Johns., 326; Champlin vs. Butler, 18 Id., 169; Algeo vs. Algeo, 10 Serg. & R., 236; Jay County vs. Templer, 34 Ind., 322.)

The Secretary and the Commissioner have each properly treated the compensation of deputies as a matter of Treasury regulations under their statutory authority. The fixing of compensation for deputy collectors has been delegated to the Secretary of the Treasury by Congress, doubtless because of the impracticability, from the nature of the service to be performed in different parts of the United States, of prescribing by law a just, uniform, and settled rate. (Converse vs. U. S., 21 How., 463.) The "regulation" or order of the Secretary in such a case has the force of law; it should not be founded on arbitary action, but upon principles of law; and it should therefore be, as nearly as possible, uniform in its operation. (U. S. vs. Macdaniel, 7 Pet., 13; U. S. vs. Ripley, Id., 25, 26.) After the compensation of a deputy collector has been once fixed by such order or regulation, and services have been rendered under it, no subsequent order or regulation can operate retrospectively to change the previous rate of compensation. All these orders are subject to the same rules of construction as are applicable to statutes. When an officer or other person in the public service has performed his duties under an agreed rate of compensation, he has not, under the law of contracts, any claim for additional compensation; and when the salary or other compensation has been fixed by law or regulations, no additional compensation can be allowed "unless expressly authorized by law." (Rev. Stats., 1764; U. S. vs. Smith, 1 Bond, 68; Jay County vs. Templer, 34 Ind., 322; 9 Op. Att.-Gen., 98; Patton'scase, 7 Ct. Cls., 362.) The Secretary of the Treasury fixed, by an order of July 1, 1879, the compensation severally of the deputies of the second district of Georgia for the then current fiscal year. Such deputies are "persons" in the "public service whose pay, or emoluments are fixed by

*

* regulations." (Rev. Stats., 1765.)

The order of the Secretary fixing a salary is a "regulation" within the meaning of section 1765 of the Revised Statutes. (Herndon's case, 1 Lawrence, Compt. Dec., 55.) It is part of a series of orders, all made at the same time, regulating the compensation of all deputy collectors of internal revenue. This has in effect already been decided. The accounting oflicers of the Treasury Department are empowered to

give authoritative construction to the regulations of the Department. The construction so given will be adhered to. (Landram vs. U. S., 16 Ct. Cls., 74)

The deputy collector in this case is therefore within the prohibition of section 1765. No statute has appropriated or expressly authorized any additional allowance to deputies serving under a salary or other fixed rate of compensation. The legislation which prohibits extra compensation was intended "to prevent and suppress the growing evil of extra compensation claimed for services purely incidental to a single office." (Story, J., in U. S. vs. Morse, 3 St., 87.) The Revised Statutes have extended the prohibition to the case of persons employed in the public service who are not, in strict legal parlance, officers. In prescribing a salary for an office, Congress ascertains the responsibilities attaching, and the nature and extent of the duties incident thereto, as the basis upon which to fix the compensation. The Secretary of the Treasury is presumed to follow the same rule in regard to salaries which he prescribes by regulations made pursuant to law. In both cases the matter of extra or additional compensation is left discretionary with Congress. (1.) It cannot be allowed except by express authority of law, and an appropriation therefor. (2.) It is against well-defined public policy, and Congress has not delegated the discretion to allow it which itself may exercise consistently with public policy. (3.) The delegation of power to fix or prescribe a salary or compensation for official or quasiofficial services does not, in face of the express prohibition of law and the opposition of public policy, carry with it an implied power to give additional compensation for such services, even though it could be shown, after service performed, that the rate allowed was not sufficient. (4.) The act of March 1, 1879, by expressly authorizing the Secretary to make further allowances from time to time, as may be reasonable, for collectors, but omitting all mention of deputies, shows that such additional allowance to the latter was not contemplated, and is therefore not authorized. Expressio unius est exclusio alterius. It is not intended. to decide that an order may not be made prospectively to increase or reduce the salary of a deputy after he has commenced to act under an allowance fixing his compensation. This would probably be sometimes found just and proper. It is not necessary now to decide whether the power to fix the compensation is, when once exercised, functus officio. (Receiver's case, (second,) ante, 127.)

The Secretary of the Treasury cannot make an increase of compensation retroactive; for this would be, in effect, additional pay or extra H. Ex. Doc. 219. -14

allowance, which no officer or person in the public service is permitted to receive unless it be authorized by law, and appropriation be made explicitly for it. (Rev. Stats., 1765.)

Speaking of the authority of the heads of Departments to make regulations and of the usage thereunder, the Supreme Court in U. S. vs. Macdaniel, (7 Pet., 15,) said: "No change of such usage can have a retrospective effect, but must be limited to the future." When the Secretary of the Treasury makes a special allowance prescribing the compensation of a deputy collector for a current year, he cannot, after service performed, reduce the rate of compensation. (Patton vs. U. S., 7 Ct. Cls., 362.) His authority in such case is functus officio. The same principle will apply to a retroactive increase of the rate; of which the statutory prohibition is also clear and absolute, except upon the conditions named. The statute operates as an express limitation of the power granted to the Secretary. (Russell vs. Wheeler, Hemp.,3.) No inference in favor of a power in the head of a Department to allow additional compensation can be deduced from the practice of making retroactive allowances for expenses incurred in discharging the duties of an office, because there is, as to such allowances, no statutory prohibition; and in such cases where the original expense-allowance is not sufficient to reimburse the employé for his actual and necessary outlay, or for the service required or accepted by the Government, there is an implied agreement to make the allowance sufficient, and the reason of the law against extra compensation does not apply; but the reason and terms alike apply to restrain executive officers from increasing official compensation where the rate has been fixed by law or regulations. (Converse vs. U. S., 21 How., 469, 473, 477.)

The additional compensation to Wilson and the other two deputies will be disallowed.

TREASURY DEPARTMENT,

First Comptroller's Office, April 21, 1881.

NOTE.-The allowance referred to on page 206, ante, was as follows:

TREASURY DEPARTMENT,

Office of Internal Revenue, Washington, June 30, 1879.

Hon. JOHN SHERMAN, Secretary of the Treasury:

SIR: I have the honor to recommend that a special allowance, at the rate of twentyseven thousand five hundred and twenty dollars ($27,520) per annum, be granted to the collector of the second district of Georgia for the fiscal year ending June 30, 1850,