The Attorney-General said of the compensation claimed by Whiting, under the act of March 2, 1861:

"But it was remuneration fixed by the Secretary of the Interior himself, in the exercise of what he doubtless deemed a lawful discretion, and it is precisely this discretion which, according to the court, [in Converse vs. U. S., 21 How., 473,] these statutes have forbidden the head of a Depart ment to exercise. It was perfectly competent for the Secretary of the Interior to employ a person to perform the duties in question, and to agree that he should be paid therefor out of the fund appropriated for the Capitol extension and new dome, the amount which he agreed Mr. Whiting should receive. But since no office was created by law for the performance of those duties, and no remuneration therefor fixed by law, it was not competent for the Secretary to add them to the other duties of an officer receiving a fixed compensation therefor, and pay him an additional sum for performing the additional duties. This is the very thing which these statutes, as construed, not only by the majority of my predecessors, but by the Supreme Court, were passed to prohibit.” (And see Folger vs. U. S., 13 Ct. Cls., 93.)

The case of Mitchell, referred to by the claimant, was this: Mitchell was a commissioner of the Court of Claims, whose appointment was authorized by section 1075 of the Revised Statutes. His compensation as such, consisting of fees, was fixed in amount by rule of court, as expressly authorized by said section.

He was also a clerk in the Interior Department with an annual salary of $1,800-the private secretary of the Secretary of the Interior. He was employed by the Department of Justice to take testimony for the Government in suits in the Court of Claims against the United States. His services as commissioner were rendered in November and December, 1877; the account was approved and sent to the proper disbursing clerk, February 27, 1878. The Assistant Attorney-General gave an opinion (not published) that he was entitled to fees as commissioner, in the course of which he says:

"The provisions for compensation will be found in 1075 and 1085, Revised Statutes, and the fees prescribed for services of commissioners by the court in the 17th rule of the court. Since the foundation of the Department of Justice, Congress has annually appropriated a greater or less amount to be applied, among other things, under the direction of the Attorney-General, to payment of the expense of the defence of the United States in the Court of Claims. Although we believe the nonapplicability of the section [1765] is apparent upon examination of it, the conclusion is strongly confirmed, by comparing with it 1763, in which, ten years after the passage of the former statute of 1842, [Rev. Stats., 1765, Congress proceeds, without reference to it, to deal with the subject of compensation of those who may hold more than one office, and to prohibit compensation for services in an additional office where the compensation of one amounts to $2,500. As the latest expression of the legislative will, this would necessarily take such cases as that in question out of the operation of the former statute, if there was any

reason to believe that they would otherwise be included therein. By necessary inference, the right of one whose compensation in either office is less than $2,500 to the lawful compensation of each is conceded by the statute, and such is Mr. Mitchell's case."

This puts the right to the double compensation chiefly on the ground that Mitchell held two offices and was entitled to the compensation of both. (See Wade's case, 1 Lawrence, Compt. Dec., 302; Collins's case, 15 Ct. Cls., 22; Plurality of Offices case, 10 Op. Att.-Gen., 446.)

The Attorney-General, in his opinion of June 11, 1877, (15 Op., 308,) hereafter cited, held that where one person holds two offices, he is entitled to the salary of both, without reference to the amount of salary in either. (See 16 Op., 7.)

These opinions give no sanction to the payment of the claim now made, as for services not connected with the office of a clerk.

The compensation claimed is not "fixed by law"-but by the discretion of the Secretary of the Interior.

b. If Mr. Evans claims compensation for having performed the official duties of another clerk, whether authorized by section 512 of the Revised Statutes or otherwise, his claim must be rejected, on the principle stated by the Attorney-General in his opinion of June 11, 1877, (15 Op., 308,) in which it is said of the provisions of sections 1763, 1764, and 1765 of the Revised Statutes:

"The construction which has been given to these statutes (especially in the case of Converse vs. The United States, 21 How., 463) is that the intent and effect of them is to forbid officers holding one office to receive compensation for the discharge of duties belonging to another, or additional pay, extra allowance, or compensation for such other services or duties where they hold the commission of but a single office, and, by virtue of that office, or in addition to the duties of that office, have assigned to them the duties of another office.

"According to that decision, however, if an officer holds two distinct commissions, and thus two distinct offices, he may receive the salary for each. The evil intended to be guarded against by these statutes was not so much plurality of offices as it was additional pay or compensation to an officer holding but one office for performing additional duties, or the duties properly belonging to another. If he actually holds two commissions, and does the duties of two distinct offices, he may receive the salary which has been appropriated to each office." (And see Herndon's case, 1 Lawrence, Compt. Dec., 51; Bender's case, Id., 317; Wade's case, Id., 302; Clerk's case, Id., 305; U. S. vs. White, Tan. Dec., 152; U. S. vs. Bassett, 2 Story, 389; Dickens vs. U. S., Dev. C. C., 42; U. S. es. Smith, 1 Bond, C. C., 68.)

c. The payments to which the claimant refers as having been made to parties whom he names "for services in connection with publishing the Biennial Register" were not authorized by law, and should not have been made. An officer is not entitled to compensation for extra services as on a quantum meruit. (Jay Co. rs. Templer, 34 Ind., 322.)

II. Is the claimant entitled to payment for services rendered as "returns clerk," out of the appropriation for the salary of such clerk? Clearly not. The certificate of the Secretary of the Interior shows that the claimant held the office of returns clerk-a first-class clerkship-in addition to his fourth-class clerkship.

1. a. It is sufficient objection to the payment of the claim that the voucher presented is not for the salary of a first-class clerk, or for salary of any kind.

It is not for official services, but for services not connected with the claimant's office, or any office.

The voucher is in a form in which, if salary should be hereafter claimed, it could not be said that the salary or any part of it had been paid.

b. The amount of the claim ($200) shows that in fact it is not for the salary of the returns clerk.

2. Can the annual salary of the "returns clerk" fixed by law at $1,200 be paid to Mr. Evans on a proper voucher? Clearly not, in any event. a. As he presents evidence that he held the office of returns clerk, he is prima facie entitled to payment of the salary.

And according to the opinions above cited, he is prima facie entitled to the salaries of both the offices he held.

b. The head of a Department cannot reduce a salary fixed by law. (Rev. Stats., 169.) He cannot say that a clerk shall have only $200 when the law gives him $1,200. The power to do so would, in effect, be a power to repeal or modify the law. (Graham vs. U. S., 1 Ct. Cls., 380; Ware's case. 7 Ct. Cls., 565; Syphax's case, 7 Ct. Cls., 529; Sleigh's case, 9 Ct. Cls., 369; Goldsborough vs. U. S., Tan. Dec., 80; U. S. vs. White, Tan. Dec., 152.) By act of August 5, 1876, (19 Stats., 169, sec. 3,) the head of a Department may "diminish the number of clerks of the higher grade and increase the number of the clerks of the lower grade."

If the duties of a clerk do not require his entire time, he is nevertheless entitled to the salary fixed by law for his office.

Accounting officers will not generally measure the extent or value of the services of an officer having a salary fixed by law, to ascertain how much should be paid. The law settles the amount. (Ex parte Lawrence, 1 Ohio St., 431; Sleigh's case, 9 Ct. Cls., 369; Ware's case, 7 Ct. Cls., 565; Reinhart's case, 10 Ct. Cls., 282; 1 Op., 686; 4 Op., 123; 6 Op., 87; 7 Op., 304; 10 Op., 250; Marbury vs. Madison, 1 Cranch, 161; Bowerbank vs. Morris, Wallace, C. C., 119, 133; U. S. vs. Williams, 23 Wall., 411; U. S. vs. Lippitt, 10 Otto, 663; U. S. vs. Jones, 18 How., 93.) Congress evidently so understood the law in providing expressly that

no salary should be paid in certain cases of absence. (Rev. Stats., 40, 41, 1742; Seward's case, post, 66.)

If the head of a Department does not intend that a clerk shall receive the full salary for a year for services only requiring a small portion of his time, a proper remedy is to vacate the office for all or a part of the year, or, by virtue of his general authority, assign other duties to the clerk to give full employment.

c. But there are difficulties in the way of paying any salary to Mr. Evans as returns clerk.

The "returns clerk," under section 512 of the Revised Statutes, is a clerk in the office of the Secretary of the Interior. He is so regarded by the payment made to him, and by the papers filed in his behalf. But his full salary cannot now be paid, even if an account and voucher were presented for it.

The appropriation for salaries in the office of the Secretary of the Interior for the fiscal year ending June 30, 1880, was $91,970. (21 Stats., 23.)

The whole appropriation, including the "lapse fund," has been expended, except a balance of $226.49, after rejecting the voucher for $200 presented, as already stated.

In any event, no more than this sum of $226.49 could be paid, because that is all that remains of the appropriation.

The Constitution provides that "no money shall be drawn from the Treasury, but in consequence of appropriations made by law." (Art. I, sec. 9.)

When vacancies occur in any bureau of an Executive Department, by reason of deaths or resignations, and they are not filled immediately, the money which has been appropriated for the payment of salaries in said bureau, and which is not used in the regular course because of vacancies, is termed a "lapse fund," and is often used in the payment of persons temporarily employed. It may be used to pay persons assigned to bureaus other than the one in which the vacancy occurs. (See Rev. Stats., sec. 166.)

The compensation paid from the "lapse fund" corresponds with the salaries prescribed by law. (Rev. Stats., 168, 169, 242; 20 Stats., 184.) Messengers, copyists, and laborers are occasionally employed and paid from the lapse fund appropriated for clerks.

If it were res integra, a question might arise as to whether an appropriation for clerks of the first, second, third, and fourth classes could be used for the payment of any other officers or employés. But long usage has determined that it can be so used.

There may be special employés, with compensation prescribed either by law, regulation, or agreement. (Rev. Stats., 163, 169, 242; Inspectors' case, 1 Lawrence, Compt. Dec., 201; Converse vs. U. S., 21 How., 468; U. S. vs. Cadwalader, Gilp., 563; Cox vs. U. S., Dev. C. C., 82; Neilson vs. Lagou, 12 How., 107; U. S. vs. McCall, Gilpin, 571.)

The result is, that if Evans was "returns clerk" for the fiscal year ending June 30, 1880, and is therefore entitled, by virtue of his office, to payment of the salary thereof, the Government is involved in a liability of $1,200 for his salary, for which there is no appropriation beyond the lapse fund of $226.49, as stated. (Graham vs. U. S., 1 Ct. Cls., 380.) His claim for salary could, in such event, if he has not estopped himself from asserting it, be reported to Congress for an appropriation, under the act of June 14, 1878. (20 Stats., 130.)

d. The claimant is not entitled to any salary as "returns clerk," because he has, by his own acts, abandoned all claim thereto and estopped himself from claiming it. He has presented a claim not for the salary of the office of "returns clerk," but for the performance of "services" as a clerk of the fourth class, which pertained to the office of returns clerk. His case comes within the first prohibition of section 1764 of the Revised Statutes.

A clerk duly appointed to office is, while holding the office, generally entitled to the salary fixed by law, and certainly he is so entitled if he performs or tenders performance of the duties of such office.

If the law, or regulations prescribed in pursuance of law, require evidence of conditions precedent to the payment of a salary, accounting officers must require such evidence. Beyond this they will not generally inquire.

But when a clerk neither performs the duties of his office, nor tenders performance as such clerk, and, in addition thereto, repudiates his office, by performing the duties thereof in another office as extraofficial services, for which he agrees to ask and accept compensation as for such extra-official services, he is estopped from claiming the salary authorized by law. (Jackson's case, 8 Ct. Cls., 354; Martin's case, 10 Ct. Cls., 276; Averill's case, 14 Ct. Cls., 200; Pray's case, 14 Ct. Cls., 256; Hildeburn's case, 13 Ct. Cls., 62; Comstock's case, 9 Ct. Cls., 141; Hancox's case, 9 Ct. Cls., 400; Burrows vs. Smith, 10 N. Y., 550; U. S. vs. Adams, 7 Wall., 463; Smith vs. New York City, 37 N. Y., 518; City of Hoboken vs. Gear, 27 N. J. L., 3 Dutch., 265.)

In 9 Opinions, 199, Attorney-General Black says: "An officer forfeits all right to his salary when he does not perform the service assigned him." (See Hunter's case, 1 Lawrence, Compt. Dec., 151.)