GEORGE W. MELVILLE v. THE UNITED STATES.
[No. 15642.
Decided January 30, 1888.]
On the Proofs.
Tlie claimant, about to leave on tlie Jeannette Exploring Exp edition, mates an allotmeut of $90 a month to his wife. During his absence, and without his consent, the Secretary of the Navy directs the Fourth Auditor to increase the amount to $140 a month.
I. The Secretary of the Navy has no power to increase a naval officer’s allotment without his consent, and the Fourth Auditor can derive no authority from such an order.
II. Where an officer’s allotment of pay in favor of his wife was increased and paid to her without his knowledge or consent during his absence on a long voyage, he may recover the illegal excess.
The Reporters’ statement of the case:
The following are the facts as found by the court:
I. The claimant was á passed assistant engineer from April 28, 1879, to March 3, 1881, and from the latter date he was chief engineer until September 1,1882.
II. In June, 1879. the claimant made and registered, in accordance with the regulations of the Navy, an allotment of bis pay to the amount of $90 a month, to be paid to his wife, Mrs. Hettie B. Melville, during his absence from bis family on public duty for a period of thirty-six months.
*75III. Oil the 3d June, 1881, during the absence of the claimant on a distant voyage, and without his consent or knowledge, the Secretary of the Navy addressed the following communication, signed by him, to the Fourth Auditor:
“Navy DEPARTMENT, June 3, 1881.
“You are authorized to increase the allotment of Chief Engineer George W. Melville on the Jeannette from $90 to $140 per month, commencing with the May payments.”
IV. In pursuance of said communication the defendants paid to said Hettie B. Melville, wife of the claimant, during the continuance of his said allotment, without his consent or knowledge, beyond the amount of his said allotment $650, and withheld the same and still withholds it from the claimant’s pay or salary due to him by law.
Mr. Robert B. Lines for the claimant.
Mr. F. P. Lewees (with whom was Mr. Assistant Attorney-General Howard) for the defendants:
A husband is liable for his wife’s debts made without his authority, incurred for the necessaries of life. The payment of the amount in dispute was made by order of the Secretary of the Navy for the purpose of support of the wife in the husband’s absence.
The absence of Melville was under orders of the Navy Department. It was an enforced absence. His family were away from him by the rules of the service. The welfare of his wife and family was a proper subject for the consideration of the Department. Recognizing the fact of his legal liability for the payment of his wife’s debts, it is submitted that the Secretary of the Navy had authority to direct the increase of the allotment. It is not a suit against claimant for payment of necessaries furnished to his wife, but a suit by claimant to recover moneys paid to his wife under the circumstances as his agent. It is not the case of unauthorized payment to a stranger.
If the Secretary of the Navy had no right to authorize the increase of allotment to Mrs. Melville, then the payment under such authority was unauthorized, and the United States is not liable.
It is a well recognized principle of law, repeatedly decided, *76that the authority of public officers, from the President down, is limited by law. If, in the case at bar, the Secretary of the Navy had no authority to order the increased allotment to Mrs. Melville, then such order could confer no authority upon the disbursing officer to pay. The payment was made to the wife for his use and benefit.
The United States is not liable for the wrongful act of its officers. The appropriation, so far as it applied to Melville, was paid. If any one is liable to Melville it is the disbursing officer. The disbursing officer would undoubtedly claim that Melville is liable through the receipt of his wife as his agent.
Richardson, Ch. J.,
delivered the opinion of the court:
Allotments by officers and others of the Navy from their pay, towards the support of their families or other relatives during absence on public duty, are by the Navy Regulations governed by minute and strict directions and requirements.
They must not exceed one-half the pay of the person, except by special permission of the Secretary of the Navy. After having been signed they must have the approval of the commanding officer of the vessel or station to which the person is attached, and will be registered by the pay officer of such vessel or station; they must be executed in duplicate, and in the case of commissioned or warrant officers one part is transmitted by the pay officer who has,registered them to the Fourth Auditor’s Office, and they are subject to various other regulations. (Navy Regulations of 1876, § 11, p. 124.)
The claimant, about to leave in the Jeannette on the Arctic Exploring Expedition, made an allotment of $00, a month from his pay to his wife for the term of three years, in conformity with the regulations. This he had a right to do, and as it was less than half his pay neither the Secretary of the Navy nor anybody else had a right to interfere with it. It "was registered with the Fourth Auditor, whose only authority in the matter was to audit an.account monthly for $90 in favor of Mrs. Melville. It was also registered with the pay officer of the Jeannette, from whom the claimant had a right to draw the balance of his pay.
During his absence, and without his consent or knowledge, the Secret ary of the Navy undertook to “ authorize” the Fourth *77Auditor to increase tbe amount of the allotment $50 a months that is, to $140 a month instead of $90, and thereby the defendants were led to pay Mrs. Melville $650 beyond the claimant’s allotment. The Secretary of the Navy had no legal power to give such an authorization, and the Fourth Auditor, whose duty in the premises was fixed by law and the regulations, above and beyond the control of the Secretary, derived no authority from it. The order was not only an interference with the rights of the claimant, whose salary was wholly within his own control to appropriate as he saw fit, but was in contravention of the duties and obligations of the pay officer of the Jeannette, who under the law was authorized to pay the claimant all his salary above the $90 allotted by him, and in the distant region where he was it could not be known to him that any larger sum was deducted by the Fourth Auditor and paid to some one else.
The claimant is entitled to recover the sum of $650, withheld from his salary, and judgment will be so entered.