a copy of which will be found accompanying the memorial of your petitioner to Congress. No attention was given to the remonstrance by Mr. Comptroller Whittlesey, as far as your petitioner was informed; its receipt was not officially acknowledged, although that fact was verbally admitted to your petitioner.

And your petitioner adds further, that the Comptroller's report of the adjustment of the accounts of the disbursing clerk of the Navy Department, for the quarter ending 30th September, 1856, continues the disallowances of payments to the superintendent of the southwest executive building, from the 1st of July, 1854, on the ground that there is "no appropriation therefor." Although there is a head of appropriation for the general purposes of the southwest executive building," viz: "For labor, fuel, lights, and miscellaneous items," which specifies no particular species or kind of labor, fuel, light, or miscellaneous item for which provision is thus made. The entire appropriation being under the supervision and control of the Secretary of the Navy for the purposes indicated, and the labors of the superintendent being of a diversified and miscellaneous character, such as the general care of the southwest executive building, the employment of mechanics and laborers for repairs of the same, the providing of fuel, lights, &c., attending to its security against danger or injury by fire, or other cause, the examination of the accounts for disbursements, &c., the compensation of the superintendent for miscellaneous labor was deemed an item legitimately falling under the head of appropriation "for the general purposes of the southwest executive building." It is to this head of appropriation the payments to the superintendent have been charged in the accounts of the disbursing clerk, and to which the Comptroller objects. Your petitioner, however, claims that he is legally entitled to the compensation fixed by law to be paid to the superintendent of the southwest executive building, from the 1st day of July, 1854, until the office shall be abolished, or until he shall cease to hold it.

Your petitioner further adds the assurance that he knows of no other action taken in his case, by or in Congress, except the reference of the memorial and papers of your petitioner to the honorable the Court of Claims, which was done on the 25th of June, 1856; that no action. has been had, except as herein stated, by any department of the government, and that no person or persons, except your petitioner, is owner in part or in whole, or interested therein, unless it be an indirect interest by the disbursing clerk of the Navy Department, whose accounts the disallowances stand charged.

Your petitioner concludes by saying he does not deem it necessary to appear before the honorable Court of Claims by counsel. He is willing to rest his case upon its merits, as herein set forth, and perhaps more fully presented in his memorial to Congress, and the paper accompanying it; invoking the honorable Court to hear and determine the same according to the law and the equity of his claim. Your petitioner, as in duty bound, will ever pray, &c. JOHN ETHERIDGE.

WASHINGTON, D. C., December 30, 1856.

IN THE COURT OF CLAIMS.- No. 795.

JOHN ETHERIDGE vs. THE UNITED STATES.

Solicitor's Brief.

It appears from the petition and papers in this case that the petitioner held the office and received the salary ($250 per annum) of superintendent of the southwest executive building, (Navy Department,) in addition to his office and salary of third class clerk, (1,600 per annum.) in the office of the Secretary of the Navy, from the month. of August, 1853, to the date of his petition, December 30, 1856.

That the payments made to him for his salary from August, 1853, to June 30, 1854, were allowed by the Comptroller, and there is now no question respecting the amount thereof.

That the payments made to him from July 1, 1854, to March 31, 1855, ($187 50,) were allowed as credits to the disbursing clerk, but subsequently the account was opened, and the amount was charged to the disbursing clerk, who in turn demands the amount from the petitioner.

That the payments made to petitioner for his salary as superintendent subsequent to March 31, 1855, have not been allowed by the accounting officers in favor of the disbursing clerk.

It thus appears that the petitioner has no legal interest in this claim. The Treasury Department holds, not the petitioner, but the disbursing clerk of the Navy Department, liable for the sums in dispute, and the relief sought must, if accorded by the Court, be in the form of a bill to relieve the disbursing clerk from the charges against him on the books of the treasury. But, on the other hand, the disbursing clerk has no real interest in the claim. By the well settled practice in the executive departments, if any payment of salary be rejected at the treasury the officer who receives it is bound to refund. The disbursing clerk suspends his demand upon the petitioner to enable the latter to apply to Congress through this Court, and the latter is therefore the real party in interest.

For many years prior to the year 1842, there was in each of the executive departments a superintendent of the building, who kept it in repair, purchased fuel, supervised the laborers in their daily duties, &c., &c. The superintendent was appointed from the clerks, and was allowed a salary of $250, in addition to his pay as clerk. This sum was included in the annual estimates, and given by Congress in the general appropriation acts; and the arrangement had no sanction of law beyond the appropriation of an annual sum for the salary of the superintendent For examples of which, see 5 Statutes, 342, 374, 424. The allowance was not regarded as within any of the acts prohibiting the allowance of extra compensation.

In the first session of Congress under the new administration, which came in on the 3d March, 1841, the Committee of Ways and Means struck out from the annual estimates, and omitted in the annual appropriation bill, all items for which there was not express authority

of law, and reported for these a separate bill, which passed as the act of August 26, 1842, (5 Stat., 523,)" legalizing and making appropriations for such necessary objects as have been usually included in the general appropriation bill without authority of law," &c. This act, in sec. 1, par. 4, authorized the employment of a superintendent of the Navy Department, or southwest executive building.

The provisions of this act were limited by its 6th section to the 20th of July, 1844, but were continued in force by annual acts until June 30, 1854. (See acts June 17, 1844, sec. 3, 5 Stat., 694; March 3, 1845, sec. 5, id., 764; August 10, 1846, sec. 3, 9 Stat., 96, &c.; August 31, 1852, sec. 9, 10 Stat., 98; March 3, 1853, sec. 8, id., 212.)

In the meantime, a proviso in the general appropriation act of September 30, 1850, sec. 1, (10 Stat., 542, 543,) prohibited the allowance to any one person of the salaries of two offices, but from this prohibition the superintendents of the executive buildings are specially excepted.

The general appropriation act of March 1, 1843, sec. 3, (10 Stat., 209,) made provision for classifying the clerks and other employés in the executive departments, and in a paragraph at p. 211, it enacted: "There shall be a disbursing clerk for each of the Departments of War and Navy, and the Post Office; not more than three for the Treasury Department, at the discretion of the Secretary thereof; and not more than three for the Department of the Interior, at the discretion of the Secretary thereof. The said clerks to be appointed out of class four, by the heads of the respective departments, and to receive such sum in addition to their regular salaries as may amount in all to two thousand dollars per annum. But it shall be their further duty, when designated by the head of the department for that service, to superintend the buildings, and they shall give bonds as required by the independent treasury act," &c.

This classification went into effect on the 1st of July, 1853, and the question at once arose, whether the disbursing clerks were by law required absolutely to perform the duties of superintendents of the buildings, or whether they were required to do so only in the event of being designated by the head of the department for that service."

The decision of this question depended upon the construction to be given to the paragraph just cited, viz: whether designated for that service meant designated to be disbursing clerks, or designated to superintend the buildings.

The Secretaries of the Navy and of War gave it the latter construction, and, declining to require the disbursing clerks to superintend the buildings, appointed in either department a superintendent. As the usual appropriation had been made for the fiscal year ending June 30, 1854, both superintendents were paid during that year. The departments estimated as usual for the superintendents' salaries for the next year, (July 1, 1854, to June 30, 1855,) but the appropriation was not made by Congress. In the Navy Department the salary was then paid out of the appropriation for contingent expenses, and, as above stated, allowed by the Comptroller. When, however, a similar payment was made to the superintendent of the War Department building, and presented for the approval of the Comptroller, he re

viewed the question and rejected the claim of the superintendent of the War Department building; and he moreover re-opened the account of the disbursing clerk of the Navy Department building, and recharged to him the amounts he had paid to the superintendent of that building.

On the part of the United States the Solicitor adopts and relies upon the elaborate opinion of Mr. Comptroller Whittlesey, rejecting the claim of the superintendent of the War Department building, which was given under date of August 7, 1855, and is among the papers in this cause, in which he cites numerous provisions of law, embracing, no doubt, all that bear upon this subject.

JNO. D. McPHERSON,
Deputy Solicitor.

Memorandum of papers in evidence.

A. Certificate of Secretary of the Navy, dated March 3, 1857, proving appointment and service.

B. Letter of Comptroller of July 2, 1855, admitting all payments made for the quarter ending the 31st March, 1855.

C. Letter of Comptroller of November 20, 1855, containing notice of recharge of salary paid to March 31, 1855, and of rejection of subsequent payments.

D. Letter of Comptroller of May 13, 1857, persisting in rejection of payments as above, and rejecting subsequent payments.

E. Opinion of Mr. Comptroller Whittlesey of August 7, 1855, upon which the notice of November 20, 1855, and subsequent notices were based.

J. D. McP.

IN THE COURT OF CLAIMS.

JOHN ETHERIDGE vs. THE UNITED STATES.

SCARBAUGH, J., delivered the opinion of the Court.

In the month of August, A. D. 1853, the petitioner was appointed principal corresponding clerk, in class three, in the Navy Department; the appointment to take effect on the first day of September, A. D 1853; and at the same time he was appointed superintendent of the southwest executive building. He continued to hold and perform the duties of the place of superintendent till the 31st day of March, A. D. 1857, (see the certificate of J. C. Dobbin, and the letter of the Comptroller to the disbursing clerk, dated May 13, A. D. 1857 ;) but, under a decision of the First Comptroller of the Treasury, it has been held that compensation therefor was not due him after the 1st July, A. D. 1854.

The petitioner alleges that he received compensation as superintendent of the southwest executive building till March 31, 1855; and that the accounts of the disbursing clerk therefor were settled and

allowed by the accounting officers of the Treasury Department, but that those accounts have been opened by those officers, and the payments made to the petitioner since the first day of July, A. D. 1854, disallowed. The evidence on this point is a letter from the Comptroller to the disbursing clerk, dated November 20, A. D. 1855, in which it is stated that in the adjustment of his accounts for the quarter ending on the 30th of June, A. D. 1855, there was found against him a balance of $250, which was produced by disallowing the amounts paid by him to John Etheridge, as superintendent of the southwest executive building, from the 1st July, A. D. 1854, to 31st March, A. D. 1855, and for April, May and June, A. D. 1855. There is also on file a letter, dated May 13, A. D. 1857, from the Comptroller to the disbursing clerk, in which it is stated that similar payments to the petitioner for similar services to the 31st day of March, A. D. 1857, had been disallowed.

The petitioner claims that, as the superintendent of the southwest executive building, he is entitled to a salary of two hundred and fifty dollars a year, and he shows by the evidence that he has regularly received it from the disbursing clerk. If, then, on the one hand, his view of the law be correct, he has already received all that he is entitled to; and if, on the other, his view of the law be incorrect, then surely he cannot be entitled to more. It seems to us, therefore, that his case presents no question for adjudication by this Court.

Our opinion is, that we cannot grant the petitioner relief.