Opinion of the Court.

The plaintiff having filed a reply, afterwards moved the court to strike out from the answer of the defendant all the foregoing matter as immaterial and irrelevant. This motion was sustained by the court, to which ruling the defendant excepted. Upon the pleadings as thus amended the cause was tried by a jury, who returned a verdict in favor of the plaintiff, on which judgment was rendered, to reverse which this writ of error has been sued out and prosecuted.

This ruling of the court in striking out this portion of the answer is alleged as error. For the For the purposes of the argument we shall assume what is claimed by the plaintiff in error, that the matter stricken out was material and relevant. The defences intended to be raised by it were, that in two particulars the bonds in question were void as not having been issued in conformity with law. The sections of the statute of 1869, in pursuance of which it is alleged they were issued, are as follows:

"SECTION 1. That any county or city in the state of Nebraska is hereby authorized to issue bonds to aid in the construction of any railroad, or any other work of internal improvement, to an amount to be determined by the county commissioners of such county or the city council of such city, not exceeding ten per centum of the assessed valuation of all taxable property in said county or city, Provided the county commissioners or city council shall first submit the question of the issuing of such bonds to a vote of the legal voters of said county or city, in the manner provided by chapter nine of the Revised Statutes of the state of Nebraska, for submitting to the people of a county the question of borrowing money."

"SECTION 7. Any precinct in any organized county of this state shall have the privilege of voting to aid works of internal improvement, and be entitled to all the privileges conferred upon counties and cities by the provisions of this act, and in such case the precinct election shall be governed in the same manner as is provided in this act, so far as the same is applicable, and the county commissioners shall issue special bonds for such precinct, and the tax to pay the same shall be levied upon the property within the bounds of such precinct. Such

Opinion of the Court.

precinct bonds shall be the same as other bonds, but shall contain a statement showing the special nature of such bonds.”

The averments in that portion of the answer stricken out are in substance, 1st, that the bonds were illegal and void because not issued to a company authorized by the statute to receive them; and, 2d, that they were illegal and void because issued in excess of the amount of ten per centum of the assessed valuation of the taxable property in said precinct. The answer of the defendant, in addition to the matter stricken out, contains the following: "Defendant has no knowledge as to whether the plaintiff is a bona fide holder of said bonds, or any part thereof, or whether he purchased them before due or paid any value therefor, or purchased them at all, and, therefore, for the purpose of raising the issue and procuring the proof thereon by compulsory process, defendant denies the allegations of the petition on that subject, and also denies each and every allegation contained in said petition, except such as it has herein expressly admitted in this answer."

This clause in the answer remained and formed the issue which was tried. It is a general denial of each and every allegation of the petition, as no allegation of the petition was otherwise admitted in the answer. It therefore put the plaintiff upon proof of every fact necessary to constitute the cause of action set out in his petition, and embraced a denial of the legality and validity of the bonds, and the lawfulness of their issue and delivery. It required the plaintiff to show by competent proof that he was the owner of the coupons sued on, taken from bonds in fact executed by the defendant, issued in accordance with law, and delivered to a party competent to receive the title. It permitted proof on the part of the defendant of every fact which tended to establish that the bonds were illegal and void. It follows, therefore, that every defence which was open to the defendant under that portion of the answer stricken out was equally open to it under the answer as it stood at the trial. The plaintiff obtained no advantage, and the defendant suffered no detriment, by the ruling of the court requiring that portion of the answer to be stricken out. The action of the court in granting the motion.

Syllabus.

did not, therefore, prejudice the defendant. It does not appear from this record what took place at the trial. There is no bill of exceptions which shows what evidence, if any, the defendant offered, or whether any that he did offer was rejected. For aught that appears, the very matters which he might have offered in evidence, under that portion of the answer stricken out, were in fact offered and received under the pleadings as they stood at the time of the trial.

It seems also to be objected to the judgment rendered against the county of Nemaha that the coupons sued on are not the obligations of the county. It is said that the bonds are precinct bonds, issued by the county commissioners of the county, the duty to pay which rests upon the precinct alone; the mode of payment being by means of a tax to be levied by the county commissioners upon the property within the bounds of the precinct. It is, therefore, argued that no action will lie against the county in respect to these bonds and coupons, except in case of the refusal of the county commissioners to levy the tax when it ought to be levied, when a mandamus is the sole remedy, being the one prescribed by the statute. This question has been set at rest by the previous decisions of this court. Davenport v. Dodge County, 105 U. S. 237, and Blair v. Cuming County, 111 U. S. 363, are decisions upon the very point arising under the same statute.

There is, therefore, no error in the record, and

The judgment is affirmed.

UNITED STATES v. SYMONDS.

APPEAL FROM THE COURT OF CLAIMS.

Submitted December 6, 1886. - Decided January 10, 1887.

The sea-pay given to officers of the navy by Rev. Stat. § 1556 may be earned by services performed under orders of the Navy Department in a vessel employed, by authority of law, in active service in bays, inlets, roadsteads, or other arms of the sea, under the general restrictions, regula

Opinion of the Court.

tions and requirements that are incident or peculiar to service on the high seas.

The authority of the head of an Executive Department to issue orders and regulations under directions of the President to have the force of law is subject to the condition that they conflict with no act of Congress: and an order by the Secretary of the Navy that a service shall not be a sea service which Congress has directed shall be a sea service is invalid.

THIS was an appeal from a judgment of the Court of Claims. The case is stated in the opinion of the court.

Mr. Attorney General and Mr. F. P. Dewees for appellant. Mr. John Paul Jones and Mr. Robert B. Lines for appellees. MR. JUSTICE HARLAN delivered the opinion of the court.

The question in this case is, whether certain services of the appellee, a lieutenant in the navy of more than five years' standing, were performed "at sea," within the meaning of § 1556 of the Revised Statutes. That section provides as follows:

"The commissioned officers and warrant officers on the active list of the navy of the United States, and the petty officers, seamen, ordinary seamen, firemen, coal-heavers, and employés in the navy shall be entitled to receive annual pay at the rates herein stated after their respective designations: Lieutenants, during the first five years after date of commission, when at sea, $2400; on shore duty, $2000; on leave or waiting orders, $1600; after five years from such date, when at sea, $2600; on shore duty, $2200; on leave or waiting orders, $1800."

By an order of the Secretary of the Navy, June 30, 1881, the officer commanding the United States training-ship New Hampshire, then at Norfolk, Virginia, was authorized to enlist officers' stewards, cooks, and servants, such as were allowed. for a vessel with her complement of officers, the order declaring that her officers "will be considered as attached to a vessel commissioned for sea service the same as other apprentice training vessels." On the first day of April, 1882, Symonds,

Opinion of the Court.

in obedience to orders, assumed the post of executive officer of the New Hampshire, and thereafter discharged the duties of that position, which were similar to those performed by executive officers of cruising ships. He also discharged other duties of a character more exacting and arduous than those on board of any other class of naval vessels. There was no change in the nature of his services after he reported for duty as executive officer of the New Hampshire. He was required to have his quarters on board, to wear his uniform, to mess on the vessel, and was not permitted by the rules of the service to live with his family. When he reported on board that ship she was stationed at Narragansett Bay, and, during most of his service thereon, was the flag-ship of the training squadron.

On the seventh day of July, 1882, the then Secretary of the Navy issued an order to the effect that "on and after the first day of August next, the New Hampshire, the Minnesota, the Intrepid, and the Alarm will not be considered in commission for sea service." There was, however, no change in the status of the ship on or after August, 1882, her equipment and complement of officers being those of a cruising ship.

From April 1, 1882, to July 31, 1882, appellee was allowed sea-pay, and commutation of rations at thirty cents per day; but from the latter date he was allowed only shore-pay of an officer of his grade, without rations or commutation therefor.

This suit was brought by appellee to recover the difference between pay for sea and shore duty as regulated by § 1556 of the Revised Statutes.

Section 1571 of the Revised Statutes which is a reproduction of the third section of an act of June 1, 1860, increasing and regulating the pay of the navy, 12 Stat. 27, — provides that "no service shall be regarded as sea service except such as shall be performed at sea, under the orders of a Department and in vessels employed by authority of law." It is not disputed that the services of Symonds were performed under the orders of the Secretary of the Navy, and in a vessel employed with authority of law. If they were performed "at sea," his compensation therefor is absolutely fixed by § 1556. Does the statute confer upon the Secretary of the Navy, acting