Opinion of the court

from asking remuneration for the services which he did perform.

It is a fair presumption of law, that the Secretary of the Interior, in creating an agency to perform the service in question acted legally. It would not become the government to appoint Mr. Stuart to be Secretary of the Interior, and hold him forth to the world as worthy of public trust, and then to turn around and repudiate his contracts, and deprive innocent individuals of reasonable pay for services performed for the government, in violation of a contract officially made by him.

If, however, that government officer mistook his powers in sending Mr. Stansbury abroad, it was a mistake of the government. Her officer may have been ignorant of the law, but the government cannot now, by any principle of law, go behind her own act to avoid payment of the just obligation which her act induced.

Mr. Talbot, for the Attorney-General, contra:

Mr. Justice DAVIS delivered the opinion of the court.

The appellant insists that the written promise of the Secretary to pay him the value of his services, is a binding obligation on the government. But this is not so, for no authority of law existed for the promise. The secretary could not pay the claim, because there was no appropriation to pay it, and he was not authorized by Congress to create an agency to perform the service in question. He un doubtedly acted in good faith with Stansbury, and supposed that Congress would approve the mode he adopted for obtaining useful information, and ratify his proceedings; and his promise, under the circumstances, must be considered as a dependent one, to take effect, if Congress appropriated money to enable him to comply with it. Congress having failed to make the appropriation, the secretary was justified in refusing to pay the claim.

But he was justified in his refusal on another ground. The payment of the claim was forbidden by positive law.

The second section of the act of August 23d 1842, declares

Opinion of the court.

that no officer of the government, drawing a fixed salary, shall receive additional compensation for any service, unless it is authorized by law and a specific appropriation made to pay it. When Stansbury was appointed in 1851, this law was in force, and afforded notice to all employees of the govern ment, of the policy of Congress on the subject to which it relates. The law was passed to remedy an evil which had existed, of detailing officers with fixed pay to perform duties outside of their regular employment, and paying them for it, when the government was entitled, without this double pay, to all their services. The law prohibited, and was intended to do so, the allowance of such claims as these, made by public officers, for extra compensation, on the ground of extra services.

But the appellant insists, if the above act embraced clerks in the departments, its operation has been withdrawn from them by the twelfth section of the act of 26th of August, 1842. It is difficult to see how this conclusion is reached, because this section refuses to pay clerks or other officers in the departments for doing the duties of other clerks or officers, and refuses, further, to pay them for extra services of any kind.

There is no inconsistency between the provisions of the two acts, which were passed within a few days of each other, and were parts of a system, intended for the guidance of those in the employ of the government. These provisions furnished notice to all in authority, that in no event could clerks in the departments be paid for doing the work of their fellow-clerks, nor could they be paid for any other service, unless it was authorized by law, and followed by an appropriation to pay for it.

Stansbury's appointment was not authorized by law, nor was there any appropriation to pay for the services which he expected to render the department.

It follows, therefore, that the transaction between Secretary Stuart and himself was in violation of the statute, and cannot be the foundation of an action.

JUDGMENT AFFIRMED.

Statement of the case.

REESIDE V. UNITED STATES.

Under the act of 28th February, 1861, which authorizes the PostmasterGeneral to discontinue, under certain circumstances specified, the postal service on any route, a "suspension" during the late rebellion at the Postmaster-General's discretion, of a route in certain rebellious States, with a notice to the contractor that he would be held responsible for a renewal when the Postmaster-General should deem it safe to renew the service there, was held to be a discontinuance; and the mail carrier's contract with the government calling for a month's pay if the postmaster discontinued the service, it was adjudged that he was entitled to a month's pay accordingly.

APPEAL from the Court of Claims, the case being thus:

In 1859, and subsequently, Reeside made certain contracts with the Postmaster-General to carry the mail until 30th June, 1862, over certain parts of Arkansas, Mississippi, and Louisiana. Each contract contained a provision that the Postmaster-General might discontinue or curtail the service, in whole or in part, whenever the public interests required it, he allowing one month's pay on the amount of the service dispensed with. Early in 1861, as is known, the late rebellion in the Southern States broke out; the States above partienlarly mentioned, joining in it. In view of the condition of things, Congress enacted,* on the 28th February, 1861:

"That whenever, in the opinion of the Postmaster-General, the postal service cannot be safely continued, or the post-office revenues collected, or the postal laws maintained on any post route, by reason of any cause whatever, the Postmaster-General is hereby authorized to discontinue the postal service on such route, or any part thereof, and any post-offices thereon, till the same can be safely restored," and shall report his action to Congress.

And it was part of the case, as found by the court below, that on the 15th April following, "a state of actual war

* 12 Stat. at Large, 177.

Statement of the case.

existed between the United States and the States in which the contracts were to be executed.

On the 27th of May, 1861, the Postmaster-General issued an order suspending the service on all the routes till further order, from and after May 31st. Reeside requested the Postmaster-General, instead of suspending the service, to annul the contracts. But this the Postmaster-General refused to do, and Reeside was informed that he would be held responsible under the contracts and be ordered to renew the service whenever, in the opinion of the PostmasterGeneral, it would be safe to do so.

No special notice of the discontinuance was ever served on him.

On the 13th July, 1861, Congress authorized the President, under certain circumstances which it set forth, to issue a proclamation declaring any one of several Southern States, which it named (and which included the three through which Reeside's contract called on him to carry the mail), or any part of it, to be in insurrection against the United States, and enacted that thereupon all intercourse should cease between the same and the citizens thereof and the citizens of the rest of the United States. On the 16th of August following, the President did issue such a proclamation, and declared these three States, along with some others, to be in insurrection, and prohibited the intercourse.

Reeside resided in Washington, and the case showed that it would have taken him twenty days to have gone to Arkansas, and to have disposed of his property on his several routes. No part of his stage property was removed from them.

Reeside, who had been paid up but to the 1st of June, 1861, and whom the Postmaster-General considered entitled to nothing more, now filed a petition in the court below, setting forth that taking into consideration the distance from the seat of government (where, as already said, he resided) to the place of service, he was entitled to receive a reasonable notice before suspending the mail service on the

Argument for the appellant.

several routes where he was the contractor, and that he was entitled, at all events, to his mail pay for one month.

The court below dismissed the claim; and hence this appeal.

Messrs. Fuller and Carlisle, for the appellant:

The contracts had a term of thirteen months to run, when their further execution was suspended by order of the Postmaster-General. And the question is, whether the claimant is entitled to compensation, and if so, the measure of it?

Under the act of February 28th, 1861, the PostmasterGeneral might have discontinued the service, or under the contract, he might have annulled the service, and put an end to the contract. But he did neither. He simply suspended the service for the time being, leaving the contract unimpaired and in full force. For he notified to the claimant that he would be held responsible, and be ordered to renew the same whenever, in the opinion of the PostmasterGeneral, it should be safe to do so.

Hence, we submit that Reeside is not bound to accept one month's extra pay, which his petition asks for, as the measure of his arrearages, but is entitled to ask his full contract price for the thirteen months.*

The Postmaster-General must have regarded the disturbed condition of the country, at the date of his order, as temporary; and thought that within the thirteen months the coudition of public affairs would be such that the postal service would be resumed on the routes, else he would not have declined, upon the request of Reeside, to terminate the contract.

But if not entitled to pay for the thirteen months, Reeside may certainly claim pay till the 16th August, 1861; for the execution of the contract did not become impossible until the sovereign power declared all intercourse between the loyal and disloyal States illegal, which was this said 16th of August.

* Clark v. Marsiglia, 1 Denio, 317.