OpenJurist

128 US 471 United States v. McDonald

128 U.S. 471

9 S.Ct. 117

32 L.Ed. 506

UNITED STATES
v.
MCDONALD.

November 26, 1888.

Asst. Atty. Gen. Howard and F. P. Dewees, for appellant.

Robert B. Lines and John Paul Jones, for appellee.

LAMAR, J.

1

This is an appeal by the United States from a judgment of the court of claims. The appellee, Joseph McDonald, (plaintiff below,) a boatswain in the navy, on the 21st of June, 1876, was ordered by Rear-Admiral Werden, commanding at Callao, Peru, 'to proceed to your home in the United States, and, upon your arival, report to the honorable, the secretary of the navy.' Pursuant to said order, McDonald traveled from Callao to Washington, via Panama, and reported as directed. By act June 16, 1874. (18 St. 72,) 'only actual traveling expenses' were 'allowed to any person holding employment or appointment under the United States.' By act June 30, 1876, (19 St. 65,) so much of the preceding act as was 'applicable to officers of the navy' was repealed, 'and the sum of 8 cents per mile' was 'allowed such officers' 'in lieu of their actual expenses.' The journey from Calloa to Panama was made prior to June 30, 1876, and from Panama to Washington after that date. He was paid his actual traveling expenses for the whole distance, to-wit, $256.60, under the first section of the act of June 16, 1874. McDonald claimed that he should have received 8 cents per mile for the distance actually traveled, under the act of June 30, 1876, which would have been $368, or $111.40 in excess of the amount received by him. The treasury department having refused to accede to his demand, he brought suit in the court of claims against the United States to recover said sum of $111.40. That court held that McDonald should receive only his actual expenses for that part of his journey performed prior to the passage of the act of June 30, 1876, to-wit, from Calloa to Panama, and mileage for that portion performed after the passage of said last-mentioned act, to-wit, from Panama to Washington; and rendered judgment in his favor accordingly for $74; that amount being the excess of such mileage from Panama to Washington, over and above his actual traveling expenses for that portion of his journey. An appeal by the United States from this judgment brings the case here.

2

It is contended on behalf of the United States that the order was made, and the travel undertaken, while the law of 1874 was in force, and therefore with the understanding that only actual traveling expenses should be paid; and that the rule as to payment under a contract is that the terms under which the contract is undertaken shall control the amount to be paid. The reply to this is that the claim of this officer rests not upon any contract, expressed or implied, with the government, but upon the acts of congress, which provide for his compensation. The case cited by the assistant attorney general in support of his contention (Packet Co. v. Sickles, 10 How. 149) was a suit upon a special contract between private parties. The compensation paid to public officers of the United States for their services, or for traveling expenses incidental thereto, is always under the control of congress, except in the cases of the salaries of the president, and the judges of the courts of the United States. As said by this court in Embry v. U. S., 100 U. S. 685: 'All agree that congress has full control of salaries, except those of the president and judges of the courts of the United States. The amount fixed at any one time may be added to or taken from at will. No officer except the president, or a judge of a court of the United States, can claim a contract right to any particular amount of unearned compensation.' The act of June 30, 1876, having repealed that of* June 16, 1874, so far as it applied to the traveling expenses of officers of the navy, became operative upon the date of its approval, and thereafter the traveling expenses were regulated and defined by its provisions. Had the court decided in favor of the contention of the appellants that the claimant was entitled to his traveling expenses only, it would have enforced a repealed statute, and would have disregarded the provisions of existing law. The judgment of the court of claims is affirmed.