110 'IrUJBPHY v. UNITED STATJIl8. , ;..1
(Clrouit
i
f , ' : - ': :
. ' '"
:
: :.,
,c:."
January, 1893.)
, ,.'
':,
':INo., 11,486. ,,'
:"
'1.'hesuspenslon by thecommnndant of'a government navy yard, upon charges preferred"ot a:toreman maSon appointed by h1nl, and receiVing a , per diem COJDp,eDSJl,ti()n; is equivll1ent. so, tar as the rlght of compensation is concerned, to a The tact that a bOtL'rd,ot investIgation is subSequently appointed by the secretary ot. the navY to inquire' roto the cha.rgesaga1nst the foreman, whlchboardrecommends his d1stnlssal, is not arecognitlon of his status as a government empl()ye, and the fact that he was not formally dismissed ill iJDmaterlaL ' Such foreman oonnotrecover t.rom the United States his expenses In travellngfrom Wa.shli:lgton to MareIsIand navy yard; Cal., to be present at the investigation,' when It appears. that his presence in Washington was tor the Ptlrpose ot a reinstatement, and that the board was appointed on his '
rt Y AiIDS..:...StrsPBNBION.....COMPBNSATION.
2. 8AIlB.·
,,','
,.,'
a.
SUB-QLAJIlB, FOB., T:u.A.VJl:loING EXP"8BB;,
, At Law. Action by Charles Murphy against the United States to to be due him as foreman mason a.t the Mare Islandriavy'yard. Heard on demurrer to the petition. Demurrer sustained. ' , H. B. M,.:Miller, forrpJA-fntiff, ' ' ChadesA. Q-arter, U. S. Atty., and Charles A. Shurtleff, Assr.., U. S. Atty. ' GILBER,T, ' Circuit" Judge. The plaintiff filed his petition ,under the act of congress approved March 3, "An act for the bringing Qt ,suits against the goverilment of the United States." r petition lWntains two caUS Sof action. The 1irst is, in suhs't;ance., thatOJ;l July 23, 1885, the pll\'intifT was, by the commaJ,lt:lant: of theU,¢,ted States navy yard, at Mare island, Cal., appointed foreman mason, of said navy yard, "at the underatood and agreed compensation of, six dollaI1Jper day;" that he forthwith upon the of his duties as such foreman, and continued to perform the same until ,September 29, 1885, , when he was suspenQe4 by the, commandant, by reason of certain "charges w:Wch had been preferred against him; that on November 30th following, a board of investigation met at Mare island under the direQtion of the secretary of the navy" '!X> investigate charges,and on JanuQ.ry 7, 1886, the board to the secretary, recwmmendingthe plaintiff/a disDliflsal; ,that the plaintiff was never discharged, and thap. the procee4ings " the board, for reasons alleged in the petition, were illegal, and of no effect; that ever since the 23d day of July, 1885, plaintiff has been, and now is, the regularly and duly appointed foreman mason at said navy yard; that there is due the plaintiff his compensation as such foreman from the date of his suspension to the commencement of this action. in the sum of $10,430.
ltURPHY fl. UNITED STATES·
111
·.-.b1 the in addition to the facts above stated, plaintL'tf aJ).eges that while foreman Dla$On, and acting under orders from the secretary of the navy, he was compelled to and did travel from the city of Washington to said Mare Island navy yard for the purpose of being in attendance upon said board of investigation, and that he was compelled to and did expend $240 in 80 doing. . Plaintiff waived all of· his claims in excess of the jurisdictional limit of $10,000. The defendant demurs upon the ground that the plaintiff has not stated facts sufficient to constitute a cause of action upon either of his demands. I am of the opinion that the demurrer must be sustained as to both. In the first cause there is no allegation of employment for any definite or fixed time. . The plaintiff did not hold an office, nor was he paid a fixed salary. He was a workman emplo;red by the day at a compensation of six dollars per _diem. He received his appointment from the commandant. The authority that appointed subsequently suspended him. from his position. The suspeIlSion. so far as his right to compensation was concerned, was equivalent to a discharge. The plaintiff was under no contract to the United States for any definite period, or at all. The position 'Was one that he could whenever he so desired. From the time of his suspension he has been free to seek other employment. Since that date he has rendered no service to the United States, and the government owes him. nothing. The fact that subsequently, and presumably at his instance, the secretary of the navy ordered aboard of investigation to consider and report uporn the charges that were preferred against him was no recognition of his status as an employe. Neither does the fact that no formal dismissal was had in pursuance of the report in any way affect the case. The plaintiff was to all intents and purposes discharged when he. was suspended from his position. The provision of the second clause of section 1545 of the Revi$:led Statutes would seem to be applicable to this case: "Sec. 1545. Salaries shall not be paid to any employes In any ot the navy yards except those who are designated In the estimates. All other persons shall receive a per diem compensation for the time during which they may be actually emvloyed." -
As to the second cause of action, the complaint does not contain information sufficient to show that the money paid by plaintiff in returning from Washington was expended in the service of the United States, or that the orders of the secretary of the navy came to the plaintiff in the capacity of an employe, officer, or agent of the government. or that he was under obligation to obey them. Having been suspended from his former position, he was no longer an employe of the navy yard at Mare island; and, even if we concede that his suspension by the commandant was not the equivalent of a discharge, it is not explained how the duties of a foreman mason at Mare island could have required plaintiff's presence at Washington, or rendered the return tIjp necessary. I think it sufficiently appears from the complaint that after the plainti1f":
112
FEDERAL REPORTER.
vol 54.
suspension from his pqsition at navy yard he went to Washington .to,petition either for reinstatement or· an investigation ot the charges that had been preferred against him, and that, in pU1'" suance Qthis'applicatiOO1, the meeting of the board of investiga.tion was ordered. and that in returning to Mare island the plain. tiff came of his own motion to attend the llleeting of that boord. If such were the facts, (and there, is nothing in the complaint to negative that assumption,) the plaintilf is not entitled to recover his travelirig exPenses. The demurrers are sustained.
"
STATES v. BEE at ILl. SERVICE BEGINS.
(Circuit Court ot' Appeals, Ninth, Circuit. January 16, 1893.) Under Re"\t. St. § 1740; 11-. person residing at Apia In the Friendly and Navigators' l$lj\.D.ds, who reQeived notiGe .troIQthe department ot state in June, Francisco, and there await his instructions and 1874, to proceed to commission II,s consul at ,Apia, and who lett Apia July' 3, 1874, arrived in San Francisco, August 21st.: took the oath ot office September 14th, executed his bond. September 15th and sailed for Apia November 18th, arriving Janu,ary I, 1875,1s not entitled to salary prior to January 1, 1875, except tor the, time he was awaiting instructions, (from September 15th to October 14th;) and for the time occupied In the voyage, (from November 14th to January 1st.)
San
2.
8AME-OVERPAYMENT-LIABILITY Oll' BONDSMEN.
BondsIQen that a consul shall truly and taJth:tully df8. charge of his office, and taithfully pay over and deliver up all moneys which' shall come into his hands, are liable tor moneys which he gets as overpayments of salary, and talls to return to the government.
8.
SAME-NEGLECT OF GOVERNMENT TO SUE.
The neglect ot the, treasury department In claiming or suing tor moneys paid to a consul in excess of his salary does not discharge' the sureties on his bond frOIQ their liability therefor, although such neglect continues long enough to afford the surettes a good defense ag1tinst any but the govern· ment, tor publio interest should not· be prejudiced by the neglect ot public officers.
the
In Error futhe Circuit Conrt of the United States for the Northern LJistrict of California. At Law. Action by the United States against Frederick A. Bee and William Bell, bondsmen of S. A. Foster, to recover an excess of salary paid to Foster While acting as United States consul. The district court gave jUdgmE:lnt for plaintiff, but tlrls was reversed on writ of error by the circuit court. Plaintiff brings error. Judgment ofcircmt court reversed. ' ' Charles A. Garter and, Willis G. Witter, for the United States. Thomas Riordan, for defendants in error. Before McKENNA and. GILBERT, Circuit Judges, and HAWLEY, District , . ' '" GILBERT, {lliocuit Judge. This Case involves the construction of section 1740oftb.e Statutes of the United Sta:I:.ea,wbich reads as follows: ', ," , "