11. When executive officers who are not accounting officers allow an account in favor of a claimant, the accounting officers are authorized to determine whether the officer so making an allowance had jurisdiction, and to reject or modify it unless their allowance is made conclusive by express provision of law.

On the 1st of July, 1880, the Secretary of War addressed a letter to James Eveleth, as follows:

"In the appropriation for sundry civil expenses of the Government for the fiscal year ending June 30, 1881, is the following provision:

To enable the Secretary of War to cause to be constructed a fire, proof roof for the building on the corner of Seventeenth and F streetstwenty-five thousand one hundred and seventy-eight dollars and fourteen cents, or so much thereof as may be necessary? (Act of June 16, 1880, 21 Stats., 260.)

"In order to carry out the design of this section, the sum therein appropriated will be placed in your hands for the construction of the fireproof roof for Winder's Building, as provided for in the above-named section; and you will take such steps as may be necessary, with the approval of the Secretary of War, to advertise and make contracts with the lowest bidder for the work."

On the 21st of July, 1880, the Secretary of War addressed another letter to Mr. Eveleth, as follows:

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"As the assignment to you of direction and superintendence of the work of putting the fire-proof roof on the Government building at the corner of Seventeenth and F streets, and of disbursing the appropriation of $25,178 made by act of June 16, 1880, for that purpose, will probably leave you but little time, during the progress of that work, for attention to your duties as clerk in the office of the Chief of Engi neers; and, in consideration of the requirements of law that you enter into bond for faithful accountability for the public money to be from time to time advanced you from the Treasury, your salary as clerk, as well as your salary as superintendent of Winder's Building, will, for such time, be suspended, and you will be allowed, instead thereof, three hundred dollars per month, for the service above referred to, from the date of your assignment to it to the time of its conclusion, to be paid out of the appropriation for the construction of the roof.

You will please file the requisite bond, in the sum of $10,000, without delay."

On the 20th of November, 1880, "James Eveleth, superintendent of the building on the corner of Seventeenth and F streets," (Winder's Building,) filed his account of receipts and disbursements, in which he credits himself with three hundred dollars compensation for each of the months of July, August, and September, 1880.

The papers are submitted informally by the First Auditor to the First Comptroller, to decide whether the three credits of three hundred dollars each can be allowed.

DECISION BY WILLIAM LAWRENCE, First Comptroller:

On behalf of the disbursing agent it has been suggested, that it would have been competent for the Secretary of War to entitle Mr. Eveleth to the compensation fixed for his services as superintendent of construction by removing him for the time being from his clerkship, and then appointing him special disbursing agent and superintendent of construction; and that the credit should be allowed upon the principles laid down by the Supreme Court in the case of The United States vs. Jones, 18 Howard, 92.

The Secretary of War was, by the act of June 16, 1880, charged with the duty of constructing a fire-proof roof on "Winder's Building,” in Washington. As the act did not give specific directions as to the mode of executing it, or provide for the appointment of subordinate officers or agents for the purpose of the appropriation, the whole matter was left to the discretion of the Secretary of War, subject, however, to the restrictions and limitations of other laws.

He could, by virtue of that act, as he properly did, appoint a special agent, to be "charged with the disbursement of public moneys," subject to the law which required such agent to give bond. (Rev. Stats., 161, 183, 3614; Birch's case, 1 Lawrence, Compt. Dec., 154; Inspectors' case, Id., 201; Bender's case, Id., 317.)

He might properly appoint a clerk in his office as such special agent, and permit him to continue to receive the salary of his office as such, but the clerk-the man so appointed agent-while he continued to be clerk, would be subject to the prohibition of section 1765 of the Revised Statutes, and of other laws, against receiving any pay for such services as such special agent other than his salary as clerk.

This prohibition has already been so fully discussed that it is only necessary to refer to decided cases. (Reporter's case, 1 Lawrence, Compt. Dec., 307; Wade's case, Id., 302; Bender's case, Id., 317; Herndon's case, Id., 45; Randolph's case, ante, 12.)

Under the act of June 16, 1880, the Secretary of War very properly devolved upon Mr. Eveleth two classes of duties-those of a special agent "charged with the disbursement of public moneys," and those of superintendent of construction.

In neither one of these positions was he an officer.

The statute distinguishes between "disbursing clerks" and "special agents" who are "charged with the disbursement of public moneys." A disbursing clerk is an officer. His office is created and salary fixed by law. (Rev. Stats., 176, 201, 215, 235, 351, 393, 416, 440.)

A special agent is equally authorized by law-"charged with the

disbursement of public moneys." Thus, section 3614 of the Revised Statutes (the provision of which is taken from section 14 of the act of August 4, 1854, 10 Stats., 573) provides that—

"Whenever it becomes necessary for the head of any Department or office to employ special agents, other than officers of the Army or Navy, who may be charged with the disbursement of public moneys, such agents shall, before entering upon duty, give bond in such form and with such security as the head of the Department or office employing them may approve."

This provision does not give authority to appoint a special agent-it only declares what shall be done when under an appropriation act, or by virtue of express or implied power, the head of a Department may find it necessary to appoint such agent. (Birch's case, 1 Lawrence, Compt. Dec. 156.)

The special agent charged with this duty is not an officer. (Bender's case, 1 Lawrence, Compt. Dec., 317, 391.)

While Mr. Eveleth acted as special agent, and as superintendent of construction, he held also, as he had a right to hold, two offices-he was clerk in the office of the Chief of Engineers and superintendent of Winder's Building.

Both these offices were created by law. (Rev. Stats., 215.)

He did not resign either of these offices; he was not removed; his ability and experience were such that the War Department could not properly dispense with his services.

The instructions of the Secretary of War to him recognize him as occupying both offices. They show that it was expected that he would devote to them "but little time during the progress of" the work to which he was assigned.

It may possibly be immaterial whether he devoted any time to either of the offices. He held the offices, and was entitled to the salary of each.

His instructions informed him that his salary as clerk and as superintendent of Winder's Building would "be suspended" while engaged in superintending the construction of the roof and in disbursing the appropriation therefor.

The Secretary of War could give Mr. Eveleth, as clerk, leave of absence without pay. (Bender's case, 1 Lawrence, Compt. Dec., 317.) Whether he could suspend the salary of a clerk, with the consent of the latter, it is not necessary to decide; or whether a suspension, assented to under a mistake of law, would defeat the right to salary, is not now material.

The Secretary of War certainly could not, without the consent of a

clerk, suspend his right to a salary. He cannot suspend a law or deny a right given by law.

Section 1765 of the Revised Statutes imposes its prohibition against extra pay to officers, without regard to the amount or suspension of the salary, or to the question whether or not they have a leave of absence without pay, as they may have by virtue of section 161 of the Revised Statutes. (See Rev. Stats., 40, 41, 1742.)

To permit exceptions for such cases would defeat the whole policy of section 1765. (Bender's case, 1 Lawrence, Compt. Dec., 317.)

The sole question to be determined, in view of what has been stated, is this: Can an officer, for services not connected with his office, be lawfully paid compensation fixed in amount at the discretion of the head of a Department, when such services are lawfully rendered by direction of such head of a Department?

The prohibition contained in section 1765 of the Revised Statutes is as follows:

"No officer in any branch of the public service, or any other 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."

If even the position of special agent for disbursing money were an office, which it is not, the compensation now claimed could not be allowed. It does not appear what part of it is for disbursing money, or what part for superintending the construction of a roof, &c. The larger part would necessarily be for the latter service, and the compensation for this would be excluded because of the incumbency of any one of the three offices mentioned, including the special agency as an office.

It is suggested that the decision of the Secretary of War on the question of the right to the compensation is final.

This is a mistake. No officer can make a payment legal which is expressly prohibited by law, as this is.

An order of the Secretary of War, in form giving a right to such extra, but prohibited, compensation, would be ultra vires, and void. The case of The United States vs. Jones, (18 How., 93,) in no way conflicts with the views above presented.

That case may possibly be supposed to assert the principle that the action of the head of a Department in the allowance of a claim is generally conclusive on accounting officers, and to recognize the right of the head of a Department to modify balances certified by a Comptroller.

This latter right was at one time asserted. (Bender's case, 1 Lawrence, Compt. Dec., 331; 10 Op. Att.-Gen., 237.)

But the act of March 30, 1868, now section 191 of the Revised Statutes, which is simply declaratory of the law as it always was, removes all doubt upon this latter question, and maintains the authority of accounting officers. The Jones case is one in which the court were divided in opinion, and the reasoning of the two dissenting justices has great force. But the case itself, when properly considered, gives no color to the claim that the action of the head of a Department is, on such questions as that now presented, conclusive on accounting officers. This has been elsewhere fully shown. (1 Lawrence, Compt. Dec., Appendix, ch. XII, p. 531.)

There is a class of cases which, in this connection, it may be proper

to notice.

Thus, in Allen vs. Blunt, 3 Story's Circuit Court Reports, 742, it is laid down, as a general rule, that

"Where a particular authority is confided in a public officer, to be exercised in his discretion upon an examination of facts, of which he is made the appropriate judge, his decision upon these facts is, IN THE ABSENCE OF ANY CONTROLLING PROVISIONS, absolutely conclusive as to the existence of those facts."

The case of The United States vs. Jones, 18 How., 93, may, in some of its aspects, perhaps, be classed with these. (Martin vs. Mott, 12 Wheat., 19, and sundry cases cited in Bender's case, 1 Lawrence, Compt. Dec., 339.) But the principle stated in those cases has no application to an officer charged with a duty to examine and allow or disallow claims. Such duty is not discretionary; it is imperative.

But it is to be observed that the principle above stated is, that the decision of an officer is only conclusive "in the absence of any controlling provisions."

Here there are two controlling provisions-section 1765 of the Revised Statutes, which controls the Secretary of War; and the provisions. of law which give the accounting officers of the Treasury a right to revise the allowances and decisions of the Secretary of War. (Rev. Stats., 191, 269, 277.)

In the case of Kaufman vs. U. S., (96 U. S., 567,) and in the Greencastle Bank case, (15 Ct. Cls., 229,) no allusion is made to these sections; nor does either of them discuss all the points presented in House Ex. Doc. No. 27, 2d Sess. 45th Cong., 43. (See Wells's Res Adjudicata and Stare Decisis, sec. 485; Kilbourn vs. Thompson, Sup. Ct. U. S., Oct. term, 1880.) Those cases rest on sections 3220 of the Revised Statutes,, taken originally from the act of June 30, 1864, section 44, which pro