52 Ct. Cl. 338 | Ct. Cl. | 1917
Lead Opinion
reviewing the facts found to be established, delivered the opinion of the court:
In the act of March 4, 1913, 37 Stats., 791, making appropriations for the expenses of the Post Office Department for the fiscal year 1914, there was incorporated a provision relating to compensation on railroad routes “on account of the increased weight of mails resulting from” the parcel post system which had become established on January 1, 1913. Excepted from the operation of said provision, were the routes on which the usual quadrennial weighing of mails would occur before July 1, 1913, the beginning of the fiscal year 1914.
The plaintiff company operated a large number of railroad postal routes (75 or more) under contracts with the Postmaster General. The quadrennial weighing of mails on its routes had occurred in 1910 and 1911, effective for the fiscal year 1911 and afterwards unless lawfully changed. In explanation of the “ quadrennial ” weighings, it may be stated that in execution of his powers and duties under the laws of Congress relative to the transportation of mails by railroads the Postmaster Generai had divided the United States into four sections comprised' of groups of States, and he conducted a weighing of the mails in each of said sections once every four years. Upon the result of these weighings in the several sections, the compensation to be received by the railroads for transporting the mails over routes in the section concerned was adjusted and fixed by contracts, the terms of which are not material in the instant case except as to the amount of the compensation stated therein. The petition avers that plaintiff had entered into contracts with the Post Office Department for the quadrennial period from July 1, 1911, to June 30, 1915, over a large number of routes mentioned in an exhibit to
The Parcel Post System was established by the act of August 24, 1912, 37 Stats., 557. That system was designed to open the facilities of the mails, under the classification of fourth-class mail matter, to “ all other matter, including farm and factory products, not now embraced in either the first, second or third class, not exceeding eleven pounds in ■weight,” under certain restrictions mentioned in the act. A result which it was naturally to be supposed would follow from making available to said products and other matter the cheaper or more rapid transportation afforded by the mail service was a large increase in the weights of the mails. The extent of the increase could not be forecast. One provision of the act was that “ the Postmaster General may readjust the compensation of star routes and screen wagon contractors if it should appear that as a result of the parcel post system the weight of the mails handled by them has been materially increased.” 37 Stats., 558. The act was silent as to any increase of weights resulting from the system upon railroad postal routes.
In the following year a provision was inserted in said general appropriation act which forms the basis of the plaintiff’s claim. That provision is as follows, the words which we have italicized showing the portion which the contentions of the parties are addressed to:
“ For inland transportation by railroad routes $51,500,-000: Provided, That no part of this appropriation shall be paid for carrying the mail over the bridge across the Mississippi River at Saint Louis, Missouri, other* than upon a mileage basis: But, provided, further, That the Postmaster General may in his discretion pay within the present law a fair and reasonable price for the special transfer and termi*343 nal service at the Union Station at East Saint Louis, Illinois, and at the Union Station at Saint Louis, Missouri, including the use; lighting and heating of the mail building and transfer service at Saint Louis, Missouri, provided the amount so paid shall not exceed $35,000: Provided further, That on account of the increased weight of mails resulting from the enactment of section eight of the act of August twenty-fourth, nineteen hundred and twelve, making appropriations for the service of the Post Office Department for the fiscal year ending June thirtieth, nineteen hundred and thirteen, the Postmaster General is authorized to add to the compensation paid for transportation on railroad routes on and after July first, nineteen hundred and thirteen, for the remainder of the contract terms, not exceeding five per centum thereof per annum, excepting upon routes weighed since January first, nineteen hundred and thirteen, and to be readjusted from July first, nineteen hundred and thirteen, until otherwise provided by law." [Italics ours.] „ 37 Stats,, 797.
When the department came to apply said provision they adopted a method which is stated in the findings of fact. Securing estimates of the increase of weights of mails resulting from the parcel post on the several railroad routes which were made by its field agents and with these estimates and other elements as factors, the department made computations to ascertain the increase which should be allowed the respective routes, taking into its consideration section 4002 of the Revised Statutes and amendatory acts. The results obtained by said method were diverse. In some instances upon routes on plaintiff’s road the amount of increase allowed was equal to 5 per cent of the compensation stated in tlie contracts; in others the amount of the increase was below 5 per cent of the compensation, and the percentages varied; while on some routes no addition was made to the contract compensation. The method adopted is illustrated by what was done as to route 153013 set out in Finding VII. It will be seen therefrom that an estimated increase in weight as a result of parcel post was 8 per cent, and the computation adopted resulted in an increase of compensation on that route of 3.27 per cent. But an estimated increase in weight resulting from parcel post on routes 155065 and 155055 of 9 per cent and 21 per centj respectively, produced
An estimated increase of 6 per cent, as a result of parcel post on route 176095, resulted in an increase of compensation of 2.08 per cent, while the same estimated increase in weight on route 176103 resulted in an increase of compensation of 3.77 per cent on that route, or more than 50 per cent more than upon said route where the estimated increase of weight was the same.
That the method adopted and applied can be sustained upon the theory of defendants that said act, being permissive merely, gave the Postmaster General a discretion to add to the compensation of the several routes 5 per cent thereof or nothing; and that whatever method he adopted is controlling, alike on the plaintiff and the court, may be conceded, but that Congress anticipated that results so diverse could follow an application of the language used by them in the act, we may well hesitate to believe.
We think that one fundamental error in the said method was in the use in it of section 4002 of the Revised Statutes and amendatory acts, as though the act contemplated a restatement by the Postmaster General of the compensation under said section and its amendments. There is nothing in said act which contemplates a change in the contracts further than an addition to the compensation “ for the remainder of the contract terms.” Nor do we see any force-in the plaintiff’s suggestion that a correct interpretation of said act involves an examination of “ the whole series of statutes relating to railroad mail pay.” We do not here attempt any discussion of those statutes or the rights of parties under them. While we have held in what- are called the Divisor cases that the Postmaster General had a large discretion under the act of 1873 and amendatory acts, and while in the Delaware, Lackawanna & Western R. R. Co. case, 51 C. Cls., 426, we had occasion to consider the effect of certain provisions in the contract appearing therein, neither of the questions involved in said cases are here involved. Plainly, the act under consideration is not dealing with compensation for transporting all mails, but confines itself to an increase resulting from parcel-post matter.
The plaintiff contends that the purpose and the effect of said act were to provide for the payment to plaintiff of an addition of 5 per centum to the Compensation it was receiving annually under its then existing contracts for transporting the mails.
The defendants insist (1) that the act authorized an increase of compensation “ not exceeding 5 per cent ”; “ that is, that the maximum is 5 per cent, the minimum nothing, and between the two lay the Postmaster General’s discretion ”; (2) that the authority being permissive and not mandatory, the manner of its exercise by the Postmaster General is not open to question. In amplification of their position the defendants argue that the act contains no positive direction “ to allow the railroads any increase whatever,” and that if the Postmaster General had refused to allow any increase claimant could have had no cause of action. Assuming the correctness of their premise, it may be conceded that the. logic of their argument is sound; but was the authority conferred by the act a power which could be exercised in the discretion of the Postmaster General or left unexercised by him according as his judgment might dictate?
It is well settled that in the construction of an act of Congress the expressions of individual members in debates are not to be considered by the courts in ascertaining the meaning of the language in which the act is finally expressed or the intention of the act itself. Mackenzie v. Hare, 239 U. S., 299, 308.
In Pacific Coast Steamship Co. case, 33 C. Cls., 36, 56, the rule is thus stated:
“We must look to what was done by the entire body as the result of the debates rather than to opinions expressed pending the discussion of bills resulting in enactments. Courts take judicial notice of some circumstances outside of*346 an act which go to show its meaning, and in doing so they frequently take a wide range of illustration and investigation from public records, public documents, general and local history, and other matters of such general and public notoriety as may be supposed to have been in the minds of all the legislators when the act was passed, but they never admit the opinions and evidence of individual witnesses for that purpose.”
In a late case the Supreme Court said:
“Reports to Congress accompanying the introduction of proposed laws may aid the courts in reaching the true meaning of the legislature in cases of doubtful interpretation. Blake v. National Banks, 23 Wall., 307, 319; Bate Refrigerating Co. v. Sulzberger, 157 U. S., 1, 42; Chesapeake Telephone Co. v. Manning, 186 U. S., 238, 246; Binns v. United, States, 194 U. S., 486, 495. But, as we have already said, and it has been so often affirmed as to become a recognized rule, when words are free from doubt they must be taken as the final expression of the legislative intent, and are not to be added to or subtracted from by considerations drawn from titles or designating names or reports accompanying their introduction, or from any extraneous source. In other words, the language being plain, and not 'eading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent. See Mackenzie v. Hare, 239 U. S. 299, 308.” [Italics mine.] Caminetti v. United States, 242 U. S., 470.
But it is equally settled that the court may consider the history of the time, the occasion giving rise to the legislation, the subject-matter of the enactment, and its object or purpose.
The reason for this rule is manifest. The act is not to be taken as a mere abstraction, dissociated from all other statutes, its context, or its purpose, and be dealt with as so many words. The purpose of its enactment and its application to a concrete condition of ail airs to which it was intended to be applied must be considered. The object of construction is to find the intention, and that must be given effect if consistent with the language used to express it. Where the language is plain and unambiguous there is no need of or room for construction; but, where words are used which appear to be ambiguous, the effort must be directed to finding the meaning of them which will consist with the intention and dominant purpose of the act rather than a meaning which will
“ That on account of the increased weight of mails from the establishment of the parcel post, the Postmaster General is authorized and directed to weigh the mails on railroad routes for not less than thirty successive working days, and to readjust compensation from the date of commencement of said weighing at not exceeding the rate provided by law.”
The House refused to concur in several amendments to the general act made by the Senate and a conference was ordered. All of the amendments were disposed of by action on the reports of the conferees to their respective Houses except Senate amendment No. 26, which was the one above quoted. A second conference was ordered, and the conferees drafted and reported to the two Houses an amendment or substitute for said item of inland transportation by railroad routes which included the act in question and which became the law.
Prior to the adoption of said amendment No. 26 by the Senate the Postmaster General had communicated an estimate to the Senate committee as to the cost of reweighing
The differences between Senate amendment No. 26 and the amendment as reported by the conferees and subsequently enacted are marked. One fact stands out, however, and that is that the Senate amendment increasing the amount of the appropriation from $49,000,000r as fixqd in the House bill, to $51,500,000 was not changed, and the only change in the body of the item was the incorporation of the enactment in question shown by italics in the act above quoted.
This review of the history of the act brings clearly into view its subject matter and the purpose of Congress.
From the language of the act it can be definitely found, (1) that Congress made an appropriation on account of the increase of mails resulting from the parcel post; (2) that provision was made for three weighing sections and that the fourth was not provided for because a quadrennial weighing of the mails in that section would soon take place, which would determine, with approximate accuracy, what the average daily weight of mails, including parcel post, would be in that section; (3) that Congress recognized the existence of contracts which had been made based upon quadrennial weighings having periods to run; (4) that by said contracts a compensation had been stated to which an addition was to be made because of said increased weight. We think the act prescribes the percentage of increase.
The authorized addition “to the compensation paid for transportation ” was to be applied “ on railroad routes ” on and after July 1, 1913, for “ the remainder of the contract terms ” in said three sections. Clearly the addition was applicable to all of the said routes. The railroad routes in all of the country (excluding one section specially excepted) are dealt with comprehensively. The statute does not indi
While the act made an appropriation for the fiscal year 1914, the provision in question was not limited to that year. It extends into the future. “ The remainder of the contract terms” refers to the contracts having one, two, and three years, respectively, to run and the additional compensation authorized was to be “ per annum.” The act is therefore in the nature of general legislation engrafted upon an appropriation act. It clearly recognizes that because of an increased weight of the mails resulting from the establishment by statute of a system, which was designed to produce the increase, there were equitable considerations which would justify additional compensation to the routes concerned. It makes no difference that the equities arising from the conditions, which had their basis in the parcel-post act, may not be such equities as a court could recognize or undertake to enforce except for the statute, because Congress could recognize them and authorize their enforcement. Congress in said act does recognize them. The act is remedial.
This brings us to the question of what provision is made for paying for said increased weight, and whether the amount of it is left in the discretion of the Postmaster General or is to be found in the proper meaning of the language of the act. As has been said, the defendants contend that the act left the matter of compensation entirely in the discretion of the Postmaster General, and, therefore, left it for that official to say whether there would be added 5 per cent or less, or, as they argue, the “ Postmaster General is authorized to add to the compensation paid for transportation on railroad routes * * * not exceeding five per centum thereof per annum” and, therefore, to add any percentage of the then existing compensation within the maximum he deemed proper.
The rule of law applicable to such an act is broadly stated in Supervisors v. United States, 4 Wall., 435. The question before the court in that case was upon the meaning of the words “ may, if deemed advisable ” in an act which declared that “the board of supervisors under township organization, in such counties as may be owing debts which their current revenue, under existing laws, is not sufficient to pay, may, if deemed advisable, levy a special tax, not to exceed in any one year one per cent upon the taxable property of any such county,” to be collected as other taxes, kept as a separate fund, and “ be expended under the direction of the said county court or board of supervisors, as the case may be, in liquidation of such indebtedness.” The counsel for the board insisted that the authority thus given involved no •duty; that it depended for its exercise wholly upon the judgment of the supervisors, and that the writ of mandamus ap
“ The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the act before us, or in equivalent language — whenever the public interest or individual rights call for its exercise — the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless.
“In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to impose ‘ a positive and absolute duty.’ ” City of Galena v. Amy, 5 Wall., 705; United States v. Thoman, 156 U. S., 353, 359.
In the last-named case the question was whether the word “ may ” imposed a duty or created a discretion. The opinion by Mr. Justice “White (now Chief Justice) says (p. 359) : “ It is a familiar doctrine that where a statute confers a power to be exercised for the benefit of the public or of a private person the word ‘ may5 is often treated as imposing a duty rather than conferring a discretion,” and cites, among others, the said case of Supervisors v. United States, supra. He adds, however, that the rule as announced by him is by no means invariable, and that its application depends on the context of the statute and on whether it is fairly to be presumed that it was the intention of the legislature to confer a discretionary power or to impose an imperative duty.
In United States v. Cornell Steamboat Co., 202 U. S., 184, the question involved a construction of section 2984 of the Revised Statutes, whereby the Secretary of the Treasury is “ authorized, upon production of satisfactory proof to him ” of certain facts, to abate or refund customs duties. The court declared that while the language of the section is permissive in that it “ authorizes ” and does not in terms require the abatement or refunding of the duties, they “ do not find it necessary to go deeply into the learning expended upon the distinction between permissive and mandatory clauses,”
When the Cornell Steamboat case was before the Circuit Court of Appeals, Second Circuit, 137 Fed., 455, the contention was made that section 2984 of the Revised Statutes confided an irreviewable discretion in the Secretary to refund or to refuse to refund, but that court held otherwise.
In Village of Kent v. United States, 113 Fed., 232, it was held in an opinion by Judge Day that where an act authorized a municipal council to do a number of things, among which was an authority to levy taxes to pay interest, there might be a discretion as to some of the matters, but the act was mandatory as to the interest. Judge Day said (p. 237): “ We think it plain that the discretion vested in the council to determine the amount to be levied for each purpose does not apply to a purpose such as the payment of interest which is mainly a matter of mathematical calculation not required to be fixed by the exercise of discretion on the part of the council.” He therefore construed the provision as mandatory.
A circumstance which may be noted as indicative of the sense in which the word “ authorized ” was used in said act is that in the proviso which immediately precedes the provision under consideration, and grants to the Postmaster General authority to pay a price not to exceed $35,000 for certain service, the form of expression used is that the Postmaster General “ may, in his- discretion, pay.” Similarly, in other places in the general act we find (37 Stats., 791) a provision that “ the Postmaster General may, in his discretion, allow ” a certain per diem; a provision for the expenditure “in the discretion of the Postmaster General” of not to exceed $5,000 for collecting certain information; a provision (p. 798) that the Postmaster General may, “in his discretion,” make certain allowances to postal clerks; and in
When the act is read in connection with the history of its passage (Lapina v. Williams, 232 U. S., 78) it is clear that Congress was legislating with a definite object in view. That object was the matter of compensation to railroad routes for increase of mails resulting from parcel post. The recipients of the appropriation — those for whose benefit it was made — are as certainly designated, by reference, as if they had been named in the act. They were railroad routes that were receiving compensation under contracts, except those in a specified section, and whose contract terms extended beyond July 1, 1913. The added per cent of the •compensation was to be “per annum” and not variable. Senate amendment 26 would have furnished a more definite standard, but it was rejected. Whether rejected because of the expense of its execution or because under its operation the Government would lose the benefits of existing contracts, so far as the normal increase in the mails during the quadrennial periods was concerned, as well as stand to pay under a reweighing a larger sum “ on account of the increased weights of mails resulting from ” the parcel post or whether it was rejected because of all of said considerations or others, it can not be positively affirmed. But it is clear that every factor essential to a determination of whether a per cent of compensation was to be added is stated in the act. In our view the adjustment of the matter — the application of the percentage contemplated by the act — involved just such a situation as Judge Day describes in the Village of Kent case, supra, as “merely a matter of mathematical calculation not required to- be fixed by the exercise of discretion
“ Congress manifestly believed that they were appropriating money enough to give full effect to the act, and there is nothing shown in this case to justify the court in saying that Congress were mistaken. Not until the legislative mistake is established will the court be justified in entertaining the question whether the provisions of the' statute must necessarily fail.”
With all the elements for a mathematical calculation stated in the act, and a sufficient appropriation provided, can it be reasonably supposed that the Congress intended to vest a discretion in the department such as the defendants claim was vested in this instance, namely a right to determine that nothing should be added to the compensation and thereby to render nugatory the congressional purpose to add something to the existing compensation because of a recognized condition that produced an increase in the weights of mails and therefore justified some increase in pay ?
In Jordan's case, 113 U. S., 418, it. appeared that an act had provided for the refunding to persons named therein of the amount of taxes collected from them contrary to the provisions of certain regulations therein mentioned, the amount to be paid to each of them being set opposite his name. The statute (19 C. Cls., 113) required the Secretary
Whether we adopt the rule as stated in Supervisor's case, supra, or concede that that rule is not inexorable and seek to apply the principal stated in United States v. Thoman, supra, we think the result must be the same. That result is that the use of the word “ authorized ” in said act does not imply a discretion but devolved a duty. Nor do we think that because the language was that the Postmaster General was authorized to add “not exceeding five per cent” of the compensation, we must conclude that the act left it in his discretion to allow 5 per cent or any less per cent he chose, or nothing if he so decided. If there was anything in the act which called for the exercise of some judgment or discretion or some reason appearing therefrom why Congress left the “per cent” to be fixed by the Postmaster General, instead of themselves fixing it, the question could be readily solved. Can it be that they have placed it in the discretion of the department to render nugatory the provision which they considered should be made, for a,
In Oates v. National Bank, supra, it is said that the court should not by a too rigid adherence to the letter of the statute defeat the clearly expressed intention of the act.
In Wilkinson v. Leland, 2 Pet., 627, 661, it is said that an act of the legislature is to be interpreted according to the intention of the legislature apparent on its face, and “ every technical rule as to the construction or force of particular terms must yield to the clear expression of the paramount will of the legislature.”
In The Emily, supra, it is said that an interpretation is never to be adopted that would defeat the purpose of the enactment if any other reasonable construction can be found which its language will fairly bear.
The construction for which defendants contend would enable the Postmaster General to decline to make any addition to t'he compensation of railroad routes notwithstanding the appropriation of money therefor and the right to
In thus speaking of the power of the Postmaster General to refuse to make any addition, Ave do not mean that he has done so. We are considering, however, the meaning of the act and the possibilities of its application if the official charged with its execution had taken the course which defendants insists he was armed with power to do, and in that view we may assert that the act, so far as concerns any benefits to the routes mentioned, could be rendered of no effect. We can not think that Congress intended to confer such a power or discretion or that they did so by the language they used. United States v. Cornell Steamboat Co., supra; Supervisors v. United States, supra; Moffet case, 37 C. Cls., 499.
The facts show that the Postmaster General added different rates of per cent to the compensation on many of the routes, and upon others that nothing was allowed. Let us examine the act with reference to the theory that he could have declined to make any additions and had refused to make any. Could the parties referred to therein have had any relief in this court ? An affirmative answer to that question will shoAv that the act is not permissive merely. The Court of Claims has jurisdiction of claims founded upon any la\v of Congress. It is Avell recognized that where Congress appropriates a specific sum to be paid to a person or class of persons a claimant thereunder has a remedy in this court because his claim is founded upon a law of Congress. Jordan case, 19 C. Cls., 108, 113 U. S., 418; Hubbell case, 15 C. Cls., 562; Sanderson case, 41 C. Cls., 230. It is also true that Avhere an act' creates a right to be paid and provides no sufficient remedy against the Government this court can grant relief. Medbury case, 173 U. S., 492; Kaufman case, 11 C. Cls., 659, 96 U. S., 567. But where there is no recognition of the claim or class of claims as obligations of the
In United States v. Cornell Steamboat Co., 137 Fed., 455, the Circuit Court of Appeals considered a case which involved the construction of section 2984 of the Kevised Statutes, which “ authorized ” the Secretary of the Treasury, “ upon production of satisfactory proof to him ” of certain facts, to abate or refund the amount of import duties paid or accruing upon certain goods. A subsequent section (sec. 3689) provides an appropriation for said abatements or refunds. The suit was brought under the general acts conferring, jurisdiction on the district courts concurrently with the Court of Claims. The court’s jurisdiction was assailed because it was contended that said sections confided to the Secretary of the Treasury “ an absolute and irreviewable discretion to refund or to refuse to do so.” But it was held that where the facts were undisputed there was no authority for the proposition that, nevertheless, the Secretary might refuse “ to allow the refund arbitrarily and capriciously.” Calling attention to the intent and object of the act to afford relief to unfortunate importers who might be able to satisfy the Secretary, by sufficient proof, that they came within the terms of the section and that a permanent appropriation was provided therefor, it was said by the court (p. 459) :
“ It would certainly defeat that object if, after being satisfied that the proofs established all the prerequisite facts which the section called for, the Secretary might, nevertheless, arbitrarily refuse to make payment.”
In a late case in this court of Charles H. Maginnis, ante, p. 271, the court considered the question of jurisdiction under a statute which provides that “ in all cases where it shall appear to the satisfaction of the Secretary of the Interior ” that a person has paid under the general land laws more than he was lawfully required to pay under such laws, such excess should be repaid to him. It was held in an opinion by Judge Booth that the statute did not vest exclusive power in the Secretary to order the excess to be repaid, and that, as the obvious intent was to repay any fees illegally exacted, relief could be had in this court upon the principle that a claimant entitled to a right by virtue of an act of Congress is also entitled to a remedy for its enforcement. Newcomber case, supra; Medbury case, supra.
Applying the principle of said cases to that of a refusal by the Postmaster General to make any addition at all to compensation, what facts could there be about which there could be any doubt? The act makes a sufficient appropriation, declares the object for which it is made, designates by suitable reference the claimants, states the term during which the addition is allowable, authorizes the Postmaster General to make the addition, and prescribes that the addition shall not exceed 5 per cent of a fixed compensation. Should not the court take jurisdiction in such a case as being a claim founded upon a law of Congress, because the facts would be undisputed, unless the fact that the act says “ not exceeding five per cent” shall be added, renders an ascertainment of the proper per cent impossible? Bather than reach the latter conclusion, would not the court revert to the amount of the appropriation and, if necessary, apply the per cent justified by the appropriation, not exceeding, however, 5 per cent? Would we not in such a case be justified in giving to the words “not exceeding” the meaning above stated? We do not find anything in said act upon which a mere discretion was to operate. The Postmaster General was not charged with a duty of ascertaining the amount of increase of weights. The Congress had pretermitted that question
In Moffett's case, 37 C. Cls., 499, the court considered the effect of section 3860 of the Revised Statutes, which provides that the Postmaster General “ may allow ” to certain postmasters out of the surplus revenues of their offices “ a reasonable sum for the necessary cost of rent,” etc., “ to be adjusted on a satisfactory exhibit of the facts ”; and further provides that “ no such allowance shall be made except upon the order of the Postmaster General.” Moffett sued for what he claimed was a reasonable rent for the use of certain fixtures, and the contention was made in that case, as in this case, that the statute was not mandatory but permissive. The court, in an opinion by Judge Nott, said that it seemed evident that Congress could not have intended that the discretion of the Postmaster General should go to the extraordinary length of allowing one postmaster a reasonable sum for the necessary cost of rent, etc., in carrying on the business of his office and, while having a fund provided by law at his disposal, that he should refuse all reimbursement to another postmaster. The statute, by the term imay'> [italics ours], allows the Postmaster General to do justice in these matters to his subordinates, the numerous first and second class offices, and at the same time clearly assumes that the Postmaster General will exercise the power conferred upon him.” Upon the question of the last clause of the section — that “no allowance shall be made except upon the order of the Postmaster General ” — it seemed plain to the court that the said clause was not intended to exclude a second-class postmaster from judicial redress, and Moffett was accordingly granted a judgment. The principle decided in that case can be applied in this case. It should not be said that when acting under a statute such as that before us, which provides the basis and rate of additional compensation to designated persons for certain mail transportation, the Postmaster General acts judicially or that his action in the premises is conclusive when brought in question in a court of justice. Wisconsin Central Railroad Co. v. United States, 164 U. S., 190, 205.
It is so ordered.
Dissenting Opinion
dissenting:
It it not necessary in this opinion expressing a contrary view of the case that the facts be restated except as may be required in the course of the discussion.
■ Proceeding at once to the required construction of the legislative provision in question I agree with the conclusion reached as to the construction to be put on the word “ author-' ized ” and that it does not imply a discretion to act or not to act as the Postmaster General may see fit but imposes a duty. It does not follow, however, that there remains no discretion as to his official action in the discharge of that duty. Even though there may be no discretion as between action and non-action there may still remain a discretion as to the action itself and a discretion which when honestly exercised without evidence of abuse or bad faith may not be reviewed.
It has been frequently held that the proper courts may by mandate direct the performance of a purely ministerial duty. Contra, where the effect is to direct or control the head of an executive department in the discharge of an executive duty involving the exercise of judgment or discretion. Redfield v. Windom, 137 U. S., 636, and cases cited.
In the case of United States ex rel Dunlap v. Black, 128 U. S., 40-48, the Supreme Court said:
“ The court will not interfere by mandamus with the executive officers of the Government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the court having no appellate power for that purpose; but when they refuse to act in a ease at all [italics ours] or when, by special statute or otherwise, a mere ministerial duty is imposed upon them, that is, a serv*362 ice which they are bound to perform without further question, then, if they refuse, a mandamus may be issued to compel them.
“ Judged by this rule the present case presents no difficulties. The Commissioner of Pensions did not refuse to acb or decide. He did act and decide * *
In Huidekoper v. Hadley, 177 Fed. Rep., 1-9, it is said:
“ The rule is also well settled that, although the exercise of discretion will not be controlled by mandamus, yet the writ will lie to compel the person or body in whom the discretion is lodged to proceed to its exercise.”
The citations are not for the purpose of attempting to control this case in any degree by the law of mandate but for the purpose of showing a recognition of the principle that there may be a nondiscretionary duty to act and still remain a discretion as to the action to be taken. And applying that principle we are but on the threshold of the case when we conclude that the word “ authorized ” is to be construed as “ directed ” and that conclusion is of force only for its own purposes, of no real importance since the Postmaster General did act, and can in no way affect the question as to whether he had a discretion in the manner of his action.
The Postmaster General is the head of an executive department. With reference to the duties generally of such officers the Supreme Court, in Decatur v. Paulding, 14 Peters, 497, said:
“ In general, such duties, whether imposed by act of Congress or by resolution, are not ministerial duties. The head of an executive department of the Government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. He must exercise his judgment in expounding the laws and resolutions of Congress, under which he is from time to time required to act. If he doubts, he has a right to call on the Attorney General to assist him with his counsel; and it would be difficult to imagine why a legal adviser was provided by law for the heads of departments, as well as for the President, unless their duties were regarded as executive, in which judgment and discretion were to be exercised.”
It of course does not follow that purely ministerial duties involving no discretion may not be imposed on heads of executive departments. Indeed, the Supreme Court has held
Assuming then the correctness of the conclusion that Congress did not intend by the use of the word “ authorized ” to leave it to the Postmaster General, in his discretion, to act or not act at all in the matter as he might see fit, we must determine whether in the action to be taken he was simply to apply a 5 per cent increase to all compensations paid for railway mail transportation, a mere matter of simple mathematics, a purely administrative duty, or whether he had some discretion in the bestowal of the increases.
The words in question are found in an appropriation act and in a clause thereof appropriating money for inland transportation of mails. They must apply in some form or Other to payment to be made, and if they do not apply specifically to the percentage rate of increase to be paid each railroad under each of its contracts for carrying the mails, they must apply either to an increase in gross of the compensation for transportation or in some peculiar way to the amount of the appropriation. There is no other element in the legislation of such a nature as to permit any possible application of the words in question. It seems sufficient as to the first proposition to say that the application of these words to gross compensation of all railroads rather than to increased payment to each can not serve to change the con-
But all this can, in my opinion, aid but little, if any, in reaching a correct conclusion as to the meaning of the act. There is no more authority for transposing words or sentences unnecessarily than there is for disregarding them. They are found in connection with the percentage of increase ; they were intelligently used in that connection, and in that connection they must be interpreted. Further, they must mean something. All words mean something, and none may be arbitrarily disregarded. Their meaning is to be determined from the connection in which they are used, and their relation to other words associated with them. The proper province of some words is to modify other
With reference to the defendant’s contention that there is a discretion vested in the Postmaster General within the maximum stated, it is said that this argument is predicated on the word “ authorized ” as used in the act when followed by the words “not exceeding 5 per centum thereof per an-num,” and the meaning to be given the word “ authorized ” is discussed in the light of the authorities. If this statement correctly indicates the basis of the defendant’s contention, then, *in my opinion, the fault is in the argument used and not in the result. Conceding, as I have already done, the question so far as the interpretation of the word “ authorized ” is concerned, and as to the argument of the Chief Justice in that respect, I take no exceptions but am in accord, we revert to the proposition I have already stated that even though there be a nondiscretionary duty to act there remains a discretion as to the action to be taken, found, not in the word “ authorized,” but, by necessary implication and usual rules of interpretation, in the words “not exceeding” and in the otherwise entire absence of necessity or reason for their use. For, in addition to the observation that without them the act would require a straight 5 per cent increase, they would be wholly unnecessary for the purpose only of limiting a directed 5 per cent increase to that amount, for under every rule of interpretation of appropriation statutes a specific direction to increase 5 per cent would be held to limit to that amount the authority to increase.
In our process of interpretation we come now to consider the proposition but for which the argument in favor of a flat increase of 5 per cent must be without any substantial foundation. It is found in the argument that the act required that the percentage of increase should be equal, that the plan adopted was inequitable and the invoking of the principle that “equity delighteth in equality.” I find no fault with the principle nor with its general application nor with its application to this case. In my judgment it has
There are apparently two possible views with reference to the effect of this particular contention, and perhaps they should be considered. Assume the proposition to be that the procedure on the part of the Postmaster General under this act was inequitable, a violation of the principle stated. Does the inequity of the plan adopted go to the question of the construction of the act and furnish basis for the conclusion that Congress, presumably intending no such inequity, must have intended a flat and equal increase of 5 per cent without discretion in the matter, or does it support and justify the conclusion that, conceding a discretion in the Postmaster General, there was such an inequitable use of the discretion to the detriment of the intended beneficiaries as to give them a remedy in the courts notwithstanding the imposed discretion?
In either event there would be no occasion to question the jurisdiction of this court, and what is said on that subject is concurred in. If, under a discretion, the Postmaster General’s action was “ arbitrary and capricious,” terms used by the Supreme Court, to the detriment of a beneficiary, or not in good faith, such an abuse of discretion could conclude no one and the courts would furnish a remedy. But, as I understand what has been said, it is not concluded that there was a discretion which it is shown was improperly exercised, but that there was no discretion granted, and the inequity of the plan is suggested in furtherance of the argument to that end.
It would seem apparent that if the inequity of the plan adopted is to become a legitimate basis, either in whole or in part, for the conclusion that there was no discretion vested, it must necessarily be accompanied by the conclusion that that plan was the only plan available under a discretionary authority. Otherwise it can not serve to exclude the idea of a discretion, but indicates an improper use of the
But I am not prepared to concede that there was any such inequity as would support either contention. On the contrary, judged in connection with the whole system of railway mail pay, which we are certainly not now to regard as unauthorized, I am inclined to the opinion that it developed more of equity than any other possible plan, at least more of equity than a straight 5 per cent increase.
Preliminarily, attention has been called to the fact that a Senate amendment to the post office bill directed the Postmaster General to weigh the mails for not less than 30 successive working days and to readjust compensation from the commencement of said weighing at not exceeding the rate provided by law, and that the House refused to concur in this amendment, as a result of which the provision as now under consideration was written. This matter of legislative history is for consideration for what it is worth. But how does it sustain a contention against the theory of a granted discretion? The record doesn’t tell us why one provision was rejected and the other adopted. If we are to theorize we might conclude that the expense of the weighing for 30 days was influential, but with more reason we may conclude that .the potent consideration was the fact that the proposed plan, in the midst of contract periods, would necessarily result in giving the railroads having contracts the benefit, for the remainder of those periods, of the normal increase in mails other than parcel post, a benefit which otherwise and under the regular system would not accrue to them until, in the separate sections, they became entitled to the regular quadrennial weighing. If this was, perchance, the controlling motive, the Postmaster General, under his plan, did not operate counter to the legislative intent. While his plan did involve, in a sense, a readjustment of compensation under the usual schedule of relative compensation and weights, it did not involve or take any account of increased weights of mails other than parcel post.
The purpose of the legislation under consideration was to provide additional compensation to the railroads for carrying increased weight of mail on account of the parcel post. It appears from the record in the case that the approximate increases on the routes in question over the plaintiff’s lines varied from 4 to 39 per cent, an increase in one case of nearly ten times that in another. For the purpose of determining the equities of the proposition resort to the extremes is certainly proper; but suppose we take it on a comparative mean basis, a certainly conservative method of test not required. It happens peculiarly that of the 104 routes here involved upon which the percentage of increase was estimated, the increase in just half is under 10 per cent. The average increase on these 52 routes was 7.18 per cent. On the other 52 routes on which the increase was 10 per cent or more the average increase was 14.54 per cent, so that the average increase on the 52 of highest per cent of increase was double the average on the other 52. But, aside from these figures, we must know — indeed, it appears from the act itself — that the parcel post was yet young, and if there were cases on the plaintiff’s lines showing an increase of only 4 or 5 per cent it is not unreasonable to assume the possibility that there might have been even less increase in some parts of the country, and so small, if any, in some instance as to be wholly negligible. In the face of these conditions, presumptively known at least in a general way to those called upon to legislate with reference thereto, is it to be presumed that Congress intended an equal percentage of increase to all without regard to the increased service rendered and, indeed, without regard to whether any increased service at
The Postmaster General took the ascertained percentage of increase in the amount of mail carried on the basis of the last weighing and, adding it to the original amount, he applied the established rule as to the compensation for the resultant amount of mail. If, perchance, in a case cited it resulted in no increase, it was because the increase was so small that the amount remained within one of the units above referred to, or because the compensation was already up to the maximum allowable for the total weight. If in two cases the same percentage of increase in weights resulted in a different increase in compensation, it was because the increased weight added to the differing original weights carried the total weights into different units, or because, possibly, being in different statutory classifications the unit of increase was different. In any event, the only inequality was the same inequality always existing under the established system referred to above and never regarded as a fatal inequity.
But there is yet another feature of the matter which seems to me worthy of consideration. The increases thus to be provided for were only to apply to the divisions having contracts yet to run under former weighings for one, two, and three years. It did not apply to the other division within which a quadriennial weighing was due and within which the parcel-post mail, at that weighing, would be absorbed with the other mail, and compensation for all fixed on the usual basis. Is equity to be determined in the one case, as between the roads in the three divisions, by a hard and fast rule of equal percentage of increase without relation to service, and by another rule as between those three divisions and the fourth division on which a reweighing was to occur? Why did Congress except this one division from the operation of this provision? Clearly and only because the reweighing was to occur as a result of which the roads in that division would be paid for parcel post on the usual basis as other mail was paid for, and just as the Postmaster General under his plan paid the roads in the three divisions.
It is argued that Congress rejected a reweighing plan and probably because it would result in a readjustment of compensations paid not only on account of parcel post, but also on account of the normal increase in other mails, and that the Postmaster General by his plan did, in this respect, just what Congress did not intend should be done. But this view of the matter, I think, is founded on error. There was no procedure on the part of the Postmaster General which served to give any of the carriers the benefit of any normal increase in mails other than parcel post. The percentage of increase on account of parcel post was determined by using the weight of mails carried, as shown by the last weighing, as the basis. It was an estimated percentage of that weight and the adjustment was on the basis of the addition of the percentage of increase to that weight and that weight alone.
Contrary to the views entertained when this matter was first presented, I am convinced, after careful study of the matter, that the plan adopted by the Postmaster General was not only an equitable plan, but the only equitable plan. Compensating the carriers for increased mails carried under an authority which limited increases to 5 per cent, the more pronounced inequities must fall on those carriers which might have been entitled to more than the stipulated per
It seems to me that the argument in support of a flat 5 per cent increase construction, without discretion, which is predicated on the alleged inequities of the plan adopted,, must fail for any purpose.
For the reasons stated I am of the opinion that the act in question vested in the Postmaster General a discretion as to the increases to be paid which he might very properly regulate upon any reasonable basis in proportion to service rendered and that he acted in the exercise of such discretion and in so doing did not act arbitrarily or capriciously or in bad faith. The exercise of a judgment or discretion, when not arbitrary or capricious, or in bad faith, is not subject to revision.
