expenditures of the board to the amounts appropriated, and there was no implied contract to pay a member, who was also the board's salaried employe, any compensation for services rendered in either capacity, after the appropriations were exhausted. U. S. v. Langston, 6 Sup. Ct. Rep. 1185, 118 U. S. 389, distinguished.

Appeal from the court of claims.

Action by William P. Dunwoody against the United States to recover for services rendered in connection with the national board of health. A counter-claim was filed by the United States, but both the petition and counter-claim were dismissed. 22 Ct. Cl. 269; 23 Ct. Cl. 82. Petitioner alone appeals. Affirmed.

STATEMENT BY MR. JUSTICE HARLAN. *March 3, 1879. An act was passed by congress to prevent the introduction of contagious diseases into the United States, and establishing the national board of health, to consist of seven members, to be appointed by the president, by and with the advice and consent of the senate, "whose compensation, during the time when actually engaged in the performance of their duties under this act, shall be ten dollars per diem each, and reasonable expenses;" four members of the board to be detailed from the army, navy, marine hospital service, and the department of justice, respectively, and to receive no compensation The sum of $50,000 was appropriated "to pay the salaries and expenses" of the board, and "to carry out the purposes" of the act. 20 St. p. 484, c. 202.

April 5, 1879. The appellant, Dunwoody, was appointed by the board its chief clerk, with compensation at the rate of $100 per month, dating from April 3, 1879.

June 2, 1879. Congress passed an act to prevent the introduction of contagious or infectious diseases into the United States, requiring the national board of health to co-operate with, and, so far as it lawfully might, aid, state and municipal boards of health to that end. The act appropriated $500,000, or SO much thereof as might be necessary, to meet the expenses incurred in carrying out its provisions, and to be disbursed by the secretary of the treasury on estimates made by the national board of health, and approved by him. This act was to continue in force four years. 21 St. pp. 5, 7, c. 11.

June 5, 1879. Dunwoody was nominated by the board to the secretary of the treasury as its disbursing clerk.

June 6, 1879. The secretary sent to Dunwoody this communication: "Upon the recommendation of the national board of health, you are hereby appointed a disbursing agent of this department for the purpose of disbursing the funds appropriated by congress for the national board of health; this appointment to be without compensation. You will be requested to furnish a bond, with two or more sureties, in the penal sum of $20,000." The bond so required was given.

*June 12, 1879. The board fixed the salary of the claimant as chief clerk at $2,000 per annum, beginning June 1st.

July 1, 1879. An act was passed authorizing the board to procure suitable offices for the transaction of its business, at a

rent not exceeding $1,800 a year, and to pay past rent, and providing: "Sec. 5.

That the chief clerk of the national board of health shall act as disbursing agent for the board, and shall give bond, conformably to section 176 of the Revised Statutes, for the faithful performance of that duty, and for such service he shall receive $300 per annum, in addition to his salary as chief clerk; and the board of health may, with the approval of the secretary of the treasury, pay to its secretary such sum, in addition to his pay as a member of the board, as it may deem proper, not exceed. ing $100 per month." "Sec. 7. That all the money herein before authorized to be expended and all contracts made and liabilities incurred by the national board of health shall be paid out of the appropriation of five hundred thousand dollars made in the act of congress * proved June 2, 1879." 21 St. p. 46, c. 61.

ap

June 16, 1880. The act appropriating money for sundry civil expenses of the government for the fiscal year ending June 30, 1881, contained these items:

"National board of health. For salaries and expenses of the national board of health, and to carry out the purposes of the various acts creating the national board of health, seventy-five thousand dollars, or so much thereof as is necessary: provided, that twenty-five thousand dollars of the appropriation made by the act of June 2, 1879, ⚫ shall

be applied to the same purposes.

For aid to local quarantine stations, and for aid to local and state boards of health, to be used in case of epidemic, one hundred thousand dollars: provided, that fifty thousand dollars of the appropriation made by act of June 2, 1879,

shall be applied to the same purposes. 21 St. p. 266, c. 235.

February 8, 1881. Dunwoody's salary as chief clerk was increased to $3,000 per

annum.

*March 3, 1881. The appropriation act for sundry civil expenses for the fiscal year ending June 30, 1882, contained these items:

"National board of health. For salaries and expenses of the national board of health, and to carry out the purposes of the various acts creating the national board of health, seventy-five thousand dollars, or so much thereof as is necessary: provided, that fifty thousand dollars of the appropriation made by act of June 2, 1879, ✦✦ shall be applied to the same purposes; and no more money shall be expended for the above purposes out of any appropriations heretofore made or by virtue of any previous law.

"For aid to local quarantine stations, and for aid to local and state boards of health, to be used in case of epidemic, one hundred thousand dollars: provided, that fifty thousand dollars of the appropriation made by act of June 2, 1879, * shall be applied to the same purposes; and no money shall be expended for the above service for the fiscal year eighteen hundred and eighty-one other than that specifically appropriated by the act approved June 16, 1880, making appropriations for sundry civil expenses of the gov ernment." 21 St. pp. 442, 443, c. 133.

ices as secretary of the board from November 5, 1884, to July 31, 1886; in all, $8,242.77.

The United States, besides controverting the claims of the appellant, asked judg ment, by way of counter-claim, for $11,391.21, which sum, it was alleged, he had illegally appropriated to his own use out of moneys set apart by congress for the expenses of the national board of health, and not intended by it to be used in payment of any salary or personal compensation.

The court of claims dismissed both the petition and counter-claim. 22 Ct. Cl. pp. 269, 277; 23 Ct. Cl. p. 82.

Geo. A. King, for appellant. Asst. Atty. Gen. Cotton, for the United States.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The United States has not appealed from the judgment below, and therefore we need not consider any question raised by its counter-claim.

Does this case come within the principle announced in U. S. v. Langston, 118 U. S. 389, 394, 6 Sup. Ct. Rep. 1185? Langston was minister resident and consul general of the United States at the republic of Hayti from September 28, 1877, until July 24, 1885, under a statute providing for a diplomatic representative of the United States to the republic of Hayti, at an unnual salary of $7,500. That amount was annually appropriated for the salary of that officer from the creation of the office until 1883. But the diplomatic and consular appropriation acts for the fiscal years ending June 30, 1883, 1884, and 1885, appropriated only $5,000 for the minister of Hayti. And the question was whether Langston was entitled to $7,500 for each of the fiscal years last named. This court said: "While the case is not free from difficulty, the court is of opinion that, according to the settled rules of interpretation, a statute fixing the annual salary of a public officer at a named sum, without limitation as to time, should not be deemed abrogated or suspended by subsequent enactments which merely appropriated a less amount for the services of that officer for particular fiscal years, and which contained no words that expressly, or by clear implication, modified or repealed the previous law."

We do not think the present case comes within the principle of Langston's Case. While the act of 1879, establishing the national board of health, may be said to have created the office of member of that board, with a fixed salary, and without express limitation as to time, the accompanying appropriation of a round sum to pay "the salaries and expenses" of the board, and to "carry out the purposes' of the act, indicates that congress intended that sum to be the limit of expenditure for such objects, unless further appropriations were made. But all doubt upon this subject is removed by subsequent legislation. The act of June 2, 1879, appropriating $500,000 to be disbursed on estimates to be furnished by the board to the secretary of the treasury, expired, by limit. ation, on the 2d of June, 1883; and that

of July 1, 1879, required all money authorized by it to be expended, and all contracts and liabilities incurred by the board, to be paid out of the appropriation of $500,000. The appropriation of $75,000 by the act of June 16, 1880, was for salaries and expenses of the board, and to carry out the purposes of the various acts creating it. That made by the act of March 3, 1881, for "salaries and expenses" of the board, was accompanied by a direction that no more money should be expended for the purposes of the various acts creating it, out of any appropriations previously made, or by virtue of any previous law; and the act of 1882 expressly provided that "no other public money than that hereby appropriated shall be expended for the purposes of the board of health." These enactments evince the purpose upon the part of congress not to create any liability upon the part of the United States in respect to the work of the national board of health, beyond the amounts specifially appropriated by it from time to time for that work. This purpose, if not clearly indicated by the act of 1879 establishing the board, became manifest before the plaintiff rendered the services for which, in this action, he claims compensation, as upon an implied contract. If the plaintiff is equitably entitled to be paid for any of the services in question rendered by him as a member of the board, and if the special appropriation made for the salaries and expenses of its officers and employes have been exhausted, his appeal must be made to congress. Looking at all the acts of congress passed before he became a member of the board, it is clear that he did not perform services as such member under any implied contract that he should be compensated otherwise than out of the moneys specially appropriated to meet the expenses incurred by the board in the performance of the duties imposed upon it. In other words, that board had no authority to incur any liability upon the part of the government for salaries or other expenses in excess of the amounts appropriated by congress for such purposes.

These views dispose of the case, adversely to the plaintiff, as to his claim for compensation as a member of the board. There is still less ground for a judgment in his favor in respect to services rendered as chief clerk, disbursing agent, and secretary. Congress never intended to incur liability for such services beyond the sums appropriated from time to time for the work of the board of health. Judgment affirmed.

(143 U. S. 517)

BUDD V. PEOPLE OF STATE OF NEw York. (No. 719.) PEOPLE OF STATE OF New YORK ex rel. ANNAN V. WALSH, Police Justice, et al. (No.644.) PEOPLE OF STATE OF NEW YORK ex rel. PINTO V. SAME. (No. 645.)

(February 29, 1892.) CONSTITUTIONAL LAW-POLICE POWER - GRAIX ELEVATORS-REGULATION OF CHARGES.

1. Laws N. Y. 1888, c. 581, fixing a maximum charge of five-eighths of a cent per bushel for elevating, receiving, weighing, and discharging grain by means of floating or stationary eleva

sue for and recover any damages he may sustain against any person or persons violating said provisions. Sec. 4. This act shall not apply to any village, town, or city having less than one hundred and thirty thousand population. Sec. 5. This act shall take effect immediately."

2. The further provision that, in transferring grain to and from vessels and canal-boats, the charge for shoveling to the leg of the elevator when unloading, and for trimming cargo when loading, shall be limited to the actual cost of the outside labor employed therein, does not render the act invalid, since under cover of a charge for this work the purpose of the statute might easily be evaded.

3. The fact that the operation of the act is limited to cities having a population of 130,000 or over, does not render it unconstitutional, as denying the equal protection of the laws.

4. The fact that the elevators are largely employed in the transfer of grain which is in course of transportation from the western states to the seaboard does not render the act obnoxious, as a regulation of interstate commerce. Justices BREWER, FIELD, and BROWN, dissenting.

22 N. E. Rep. 670, affirmed.

In error to the superior court of Buffalo, state of New York. In error to the supreme court of the state of New York. Affirmed.

B. F. Tracy and W. N. Dykman, for plaintiff in error in 644 and 645. C. F. Tabor, Atty. Gen., and J. A. Hyland, for defendants in error in 644 and 645. Blair Lee and Spencer Clinton, for plaintiff in error in 719. C. F. Tabor, Atty. Gen., and G. T. Quimby, for defendant in error in 719.

Mr. Justice BLATCHFORD delivered the opinion of the court.

On the 9th of June, 1888, the governor of the state of New York approved an act, chapter 581 of the Laws of New York of 1888, which had been passed by the two houses of the legislature, three-fifths being present, entitled "An act to regulate the fees and charges for elevating, trimming, receiving, weigh ing, and discharging grain by means of floating and stationary elevators and warehouses in this state." The act was in these words: "Section 1. The maximum charge for elevating, receiving, weighing, and discharging grain by means of floating and stationary elevators and warehouses in this state shall not exceed the following rates, namely: For elevating, receiving, weighing, and discharging grain, five-eighths of one cent a bushel. In the process of handling grain by means of floating and stationary elevators, the lake vessels or propellers, the ocean vessels or steam-ships, and canal-boats, shall only be required to pay the actual cost of trimming or shoveling to the leg of the elevator when unloading, and trimming cargo when loading. Sec. 2. Any person or persons violating the provisions of this act shall, upon conviction thereof, be adjudged guilty of a misdemeanor, and be punished by a fine of not less than two hundred and fifty dollars, and costs there1. Sec. 3. Any person injured by the vio

On the 26th of November, 1888, an indictment, which had been found by the grand jury of Erie county, New York, in the court of sessions of that county, against J. Talman Budd, for charging and receiving fees for elevating, receiving, weighing, and discharging grain into and from a stationary elevator and warehouse, contrary to the provisions of said statute, came on trial before a criminal term of the superior court of Buffalo, Erie county.

The charge in the indictment was that Budd, at Buffalo, on the 19th of September, 1888, being manager of the Wells elevator, which was an elevator and warehouse for receiving and discharging grain in the city of Buffalo, that city being a municipal corporation duly organized in pursuance of the laws of the state of New York and having a population of upwards of 130,000 people, did receive, elevate, and weigh from the propeller called the "Oceanica," the property of the Lehigh Valley Transportation Company, a body corporate, 51,000 bushels of grain and corn, the property of said company, into the said Wells elevator, and unlawfully exacted from said company, for elevating, receiving, weighing, and discharging said grain and corn, the sum of one cent a bushel, and also exacted from said company, for shoveling to the leg of the elevator, in the unloading of said 51,000 bushels of grain and corn, $1.75 for every 1,000 bushels thereof, over and above the actual cost of such shoveling.

The facts set forth in the indictment were proved, and the defendant's counsel requested the court to instruct the jury to render a verdict of acquittal, on the ground that the prosecution was founded on a statute which was in conflict both with the constitution of the United States and with that of the state of New York; that the services rendered by Budd, for which the statute assumed to fix a price, were not public in their nature; that neither the persons rendering them, nor the elevator in question, had received any privilege from the legislature; and that such elevator was not a public warehouse, and received no license. The court declined to direct a verdict of acquittal, and the defendant excepted.

The court charged the jury that it was claimed by the prosecution that the defendant had violated the statute in charg ing more than five-eighths of one cent a bushel for elevating, receiving, weighing, and discharging the grain, and in charging more than the actual cost of trimming or shoveling to the leg of the elevator, in unloading the propeller; that the statute was constitutional; and that the jury should find the defendant guilty as charged in the indictment, if they believed the facts which had been adduced. The defendant excepted to that part of the charge which instructed the jury that they might find

the defendant guilty of exacting an excessive rate for shoveling to the leg of the elevator, and also to that part which instructed the jury that they might convict the defendant for having exacted an excessive rate for elevating, receiving, weigh ing, and discharging the grain and corn.

The jury brought in a verdict of guilty as charged in the indictment, and the court sentenced the defendant to pay a fine of $250, and, in default thereof, to stand committed to the common jail of Erie county for a period not exceeding one day for each dollar of said fine. The defendant appealed from that judgment to the general term of the superior court of Buffalo, which affirmed the judgment. He then appealed to the court of appeals of New York, which affirmed the judgment of the superior court of Buffalo; and the latter court afterwards entered a judgment making the judgment of the court of appeals its judgment. The defendant then sued out from this court a writ of error directed to the superior court of Buffalo.

The opinion of the court of appeals is reported in 117 N. Y. 1, 22 N. E. Rep. 670. It was delivered by Judge ANDREWS, with whom Chief Judge RUGER and Judges EARL, DANFORTH, and FINCH Concurred. Judges PECKHAM and GRAY dissented; Judge GRAY giving a dissenting opinion, and Judge РECKHAM adhering to the dissenting opinion which he gave in the case of People v. Walsh, 117 N. Y. 621, 22 N. E. Rep. 682.

On the 22d of June, 1888, a complaint on oath was made before ANDREW WALSH, police justice of the city of Brooklyn, N. Y., that on the preceding day one Edward Annan, a resident of that city, had violated the provisions of chapter 581 of the Laws of New York of 1888, by exacting from the complainant more than five-eighths of one cent per bushel for elevating, weighing, receiving, and discharging a boat-load of grain from a canal-boat to an ocean steamer, and by exacting from the canal-boat and its owner more than the actual cost of trimming or shoveling to the leg of the elevator, and by charging against the ocean steamer more than the actual cost of trimming the cargo; the services being rendered by a floating elevator of which Annan was part owner and one of the agents. On this complaint, Annan was arrested and brought before the police justice, who took testimony in the case, and committed Annan to the custody of the sheriff of the county of Kings to answer the charge before court of special sessions in the city of Brooklyn. Thereupon writs of habeas corpus and certiorari were granted by the supreme court of the state of New York, on the application of Annan, returnable before the general term of that court in the first instance, but, on a hearing thereon, the writs were dismissed, and Annan was remanded to the custody of the sheriff. The opinion of the general term is reported in 2 N. Y. Supp. 275. Annan appealed to the court of appeals, which affirmed the order of the general term, (117 N. Y. 621, 22 N. E. Rep. 682,) for the reasons set forth in the opin ion in the Case of Budd, 117 N. Y. 1, 22 N.

E. Rep. 670; and the judgment of the court of appeals was afterwards made the judgment of the supreme court. Annan sued out a writ of error from this court, directed to the supreme court of the state of New York.

Like proceedings to the foregoing were had in the case of one Francis E. Pinto; the charge against him being that he had exacted from the complainant more than five-eighths of one cent per bushe! for receiving and weighing a cargo of grain from a boat into the Pinto stores, of which he was lessee and manager, the same being a stationary_grain elevator on land in the city of Brooklyn, N. Y, and had exacted more than the actual cost of trimming or shoveling to the leg of the elevator. Pinto sued out from this court a writ of error to the supreme court of the state of New York.

*

The main question involved in these cases is whether this court will adhere to its decision in Munn v. Illinois, 94 U. S. 113. The court of appeals of New York, in People v. Budd, 117 N. Y. 1, 22 N. E. Rep. 670, held that chapter 581 of the Laws of 1888 did not violate the constitutional guaranty protecting private property, but was a legitimate exercise of the police power of the state over a business affected with a public interest. In regard to the indictment against Budd, it held that the charge of exacting more than the statute rate for elevating was proved, and that as to the alleged overcharge for shoveling, it appeared that the carrier was com. pelled to pay $4 for each 1,000 bushels of grain, which was the charge of the shovelers' union, by which the work was performed, and that the union paid the elevator, for the use of the latter's steamshovel, $1.75 for each 1,000 bushels. The court held that there was no error in submitting to the jury the question as to the overcharge for shoveling; that the intention of the statute was to confine the charge to the "actual cost" of the outside labor required; and that a violation of the act in that particular was proved; but that, as the verdict and sentence were justified by proof of the overcharge for elevating, even if the alleged overcharge for shoveling was not made out, the ruling of the superior court of Buffalo could not have prejudiced Budd. Of course, this court, in these cases, can consider only the federal questions involved.

It is claimed, on behalf of Budd, that the statute of the state of New York is unconstitutional, because contrary to the provisions of section 1 of the fourteenth amendment to the constitution of the United States, in depriving the citizen of his property without due process of law; that it is unconstitutional in fixing the maximum charge for elevating, receiving, weighing, and discharging grain by means of floating and stationary elevators and warehouses at five-eighths of one cent a bushel, and in forbidding the citizen to make any profit upon the use of his property or labor; and that the police power of the state extends only to property or business which is devoted by its owner to the public by a grant to the public of the right to demand its use. It is claimed on