34 Ct. Cl. 400 | Ct. Cl. | 1899
Lead Opinion
delivered the opinion of the court:
The controversy in this case springs out of a few words in the following statutory provisions, viz:
“Chapter 874. — AN ACT making appropriations for the service of tliePost-Oifice Department for the fiscal year ending June thirtieth, eighteen hundred and ninety.
“Be it enacted, etc., (1) That the following sums be, and they are hereby, appropriated for the service of the Post-Office Department, in conformity with the act of July second, eighteen hundred and thirty-six, as follows:
“For compensation to clerks in post-offices, six millions five hundred and fifty thousand dollars; and that the Postmaster-General be, and is hereby, authorized to classify and fix the salaries of the clerks and employees attached to the first-class post-offices from and after July first, eighteen hundred and eighty-nine, as hereinafter provided: Provided, hoioever, That*417 the aggregate salaries as fixed by such classification shall not exceed the sum hereby appropriated, namely:”
(Then follow paragraphs mentioning the percentages upon the salaries of their respective postmasters which the following classes of post-cffice employees shall receive: Assistant postmasters, secretaries and stenographers to the postmaster, cashiers, assistant cashiers, finance clerks, stamp clerks, stamp agents, superintendents of mails, assistant superintendents of mails, and a large number of others ; and then the paragraph which relates to superintendents of delivery.)
“Superintendents of delivery, salary not exceeding forty-five per centum per annum of the salary of the postmaster, as provided by the act of March third, eighteen hundred and eighty-three, graded in even hundreds of dollars from one thousand three hundred dollars to not exceeding two thousand seven hundred dollars per annum, except at New York, New York, where the salary of the superintendent of delivery shall be fixed at three thousand dollars per annum.” (25 Stat. L., p. 841.)
The Act 3d March, 1883 (22 Stat. L.,-600), above referred to, is the “ act to adjust the salaries of postmasters.” It subdivides post-offices of the first class into thirteen subclasses. In the smallest, where the gross receipts are between 140,000 and $45,000, the salary is fixed at $3,000; -in the largest, where the gross receipts amount to $600,000 and upward, the salary is fixed at $6,000. The New York and Washington post-offices are distinct subclasses, the salaries being permanently fixed at $8,000 and $5,000, respectively.
The act of 1889 provides for each superintendent of delivery a “salary not exceeding 45 per cent per annum of the salary of the postmaster, as provided lay the act of March 3,1883, graded in even hundreds of dollars.” Forty-five per cent of $3,000 (the smallest salary of a postmaster) “in even hundreds” will be $1,300; 45 per cent of $6,000 (the largest salary) will be $2,700. Therefore, at the first reading of this statutory clause there seems to be no reason for the additional words “from one thousand three hundred dollars to not exceeding two thousand seven hundred dollars per annum.” The practical application of the statute to the maximum salaries of superintendents of delivery at “not exceeding 45 per cent per annum of the salary of the postmaster, as provided by the act
Postmaster’s salary, $3,000; superintendent’s, $1,300.
Postmaster’s salary, $3,100; superintendent’s, $1,300.
Postmaster’s salary, $3,200; superintendent’s, $1,400.
Postmaster’s salary, $3,300; superintendent’s, $1,400.
Postmaster’s salary, $3,400; superintendent’s, $1,500.
Postmaster’s salary, $3,500; superintendent’s, $1,500.
Postmaster’s salary, $3,600; superintendent’s, $1,600.
Postmaster’s salary, $3,700; superintendent’s, $1,600.
Postmaster’s salary, $3,800; superintendent’s, $1,700.
Postmaster’s salary, $3,900; superintendent’s, $1,700.
Postmaster’s salary, $4,000; superintendent’s, $1,800.
Postmaster’s salary, $5,000; superintendent’s, $2,250.
Postmaster’s salary, $6,000; superintendent’s, $2,700.
The postmasters’ salaries are fixed by law and admit of no discretion on the part of the Postmaster-General; the superintendents’ salaries are limited by law, and that limitation is 45 per cent of the fixed salary of the postmasters, respectively. The Postmaster-General being limited in the exercise of his discretion to a maximum, is he also limited to a minimum?
The statute answers this inquiry by the accompanying words, “from one thousand three hundred dollars to not exceeding two thousand seven hundred dollars.” It was within the discretion of the Postmaster-General to fix the compensation of all superintendents in the above table at less than 45 per cent of the postmasters’ salaries; it was not within his discretion to fix the compensation of any one of them at less than “ one thousand three hundred dollars.” In other words, he had discretion to make all thé amounts in the second column $1,300; he had not discretion to make any one of them more than 45 per. cent of the postmaster’s salary. The intent was twofold— to prevent exceptionally high salaries in some offices and arbitrarily low salaries in other offices. Previous legislation had allowed Postmasters-General to do what they pleased with an appropriation for clerks; this act was to restrict that discretion, both.above and below, in maximum and minimum. It was a rational purpose on the part of Congress, a commendable one, tending to the security and consequent elevation of the civil service. Whether clerks performing identical service in different places should be paid different salaries was a question of a general nature, which might well engage the attention of Congress. The statute answers the question by approximating to uniformity — by declaring in effect that the salaries,
It has been urged by the defense that the general proviso in the appropriation act of 1889, “ that the aggregate salaries as fixed by such classification shall not exceed the sum hereby appropriated, namely, $6,550,000,” was a general limitation upon the action of the Postmaster-General and upon the classification itself. The court is not informed as to the particulars of the manner in which the classification has been carried out generally. In his annual report for the same year, 1889, the Postmaster-General said: “The law required the classification to take effect July 1, and while'it raised the salaries of the lower grades, it failed to make adequate appropriation for the same, in consequences of which the salaries of many of the officials of the higher grades had to be reduced to the minimum sum named, when faithfulness and training called for an increase to the maximum.” In the report for 1890 it is said: “The maximum salaries for certain lines of clerical service are not large enough at present to command the highest order of clerical ability, arid the law should be amended in this respect.”
Not until the Postmaster-GeneraLhad reduced every officer in the classified service to the minimum salary could the gen eral proviso be deemed to authorize him to place any one officer on a salary below the minimum; and not until that fact is established can the court infer that the amount appropriated was insufficient to carry out the purposes of the act. The burden of proof rests upon the defendants. It is within their power to show that the Postmaster-General allowed nothing-above minimum salaries and that the appropriation was then insufficient to pay minimum salaries to all. That fact is a matter of defense, and it is one which the claimant manifestly can not prove, and therefore should not be called upon to prove. The annual reports above cited imply very clearly that the Postmaster-General did not reduce all of the officers of the classified service to minimum salaries. Moreover, the court has given defendants especial opportunity to establish that fact by remanding the case after hearing it, and calling upon the Postmaster-General for further information. The Postmaster-General has not responded to the call, and the defendants have
If it were shown in the case that the $6,550,000 appropriated was insufficient to pay all and only minimum salaries, it would not follow that every public officer in the classified service would necessarily be without redress. A departmental officer charged with the administration of a statute is intrusted with the power of carrying out, its provisions, and not with a kind of veto power to nullify them. The extremest limit to which such an officer can go is well defined by the recent case of Dunlop v. The United States (7113 U. S. B., 65; 33 C. Cls. B., 135), where the Supreme Court, by a bare majority of its members, held that the act must fail in practical effect because the Secretary of the Treasury had not prescribed the regulations by which the claimant’s rights could be determined. This case now before us would be analogous to the Dunlop Case if the Postmaster-General had failed or declined to classify the service. If he had appointed nobody as superintendent of delivery in any post-office, there would be no. superintendent of delivery seeking redress.
But it is impossible that Congress intended that every clerk or any clerk in the service of the Government should be held responsible for the manner in which the head of an Executive Department disburses a general appropriation. In the Ourtis Case (4 C. Cls. B., 144) it was held that where a contractor was the sole contractor to do the work under an act which expressly limited the expenditure to the amount appropriated he was chargeable with notice and could not recover for anything in excess. But in many cases it has been held that where a public work is authorized, and an appropriation made therefor, and a number of contractors are employed, none is chargeable
‘‘When one contract on its face assumes to provide for the execution of all the work authorized by an appropriation the contractor is bound to know the amount of the appropriation and can not recover beyond it; but we have never held that persons contracting with the Government for partial service under general appropriations are bound'to know the condition of the appropriation account at the Treasury.”
The same principle has been applied to public officers. In. one of the earliest cases in this court — Graham's Oase (1 C. Cls. B., 380) — it was held that “an employee of the Government is entitled to the salary allowed by law and is not limited by the amount appropriated.” In Collins's Case (15 id., 22) it was held that “ the compensation,of public officers depends upon general laws, irrespective of the annual appropriation acts.” In Langston v. The United States (118 U. S. B., 389) the Supreme Court held that “a statute which fixes the annual salary of a public officer at a designated sum without limitation as to time is not abrogated or suspended by subsequent enactments appropriating a less amount for his services for a particular fiscal year.”
The limitation which we are considering, that the aggregate salaries to be fixed by the Postmaster-General should not exceed $6,550,000, was the annual appropriation for a particular fiscal year. It is plain that Congress supposed they were appropriating money enough for the purposes of the new classification, and that this limitation applied to the Postmaster-General as distinguished from his subordinates, and that it was intended to limit him with regard to the maximum salaries which he might allow. As the case now stands it is simply a question whether the Postmaster-General in his discretion could take one officer’s money and pay it to another; whether he could put the compensation of some superintendents of delivery below the minimum in order that he might put some other superintendents’ compensation at the maximum. To that question there can be but one answer: The statute gave to him no such discretion.
But the case presents still another question. It appears by the evidence that the claimant performed the duties of a super
The judgment of the court is that the claimant recover $366.60.
Dissenting Opinion
dissenting:
My reasons for dissenting from the conclusion of the court in this case are briefly these:
The act of March 2,1889 (1 Supp. Bev. Stat., p. 679), was a general appropriation act “for the service of the Post-Office' Department for the fiscal year ending June thirtieth, eighteen hundred and ninety,” in which were incorporated the provisions upon which the claimant relies for recovery.
The material words of the act, for the purpose of this case, are as follows:
“For compensation to clerks in post-offices, six million five hundred and fifty thousand dollars; and that the Postmaster-General be, and he. is hereby, authorized to classify and fix the salaries of the clerks and employees attached to the first-class*423 post-offices, from and after July first, eighteen hundred and eighty-nine, as hereinafter provided:
“Provided,, however, That the aggregate salaries as fixed by such classification shall not exceed the sum hereby appropriated, namely: * * *
“Superintendents of delivery, salary not exceeding forty-five per centum of the salary of the postmaster, as provided by the act of March third, eighteen hundred and eighty-three, graded in even hundreds of dollars, from one thousand three hundred dollars- to not exceeding two thousand seven hundred dollars per annum, except at New York, New York, where the salary of the superintendent of delivery shall be fixed at three thousand two hundred dollars per annum. * * - *
u Provided, That when the salaries hereinbefore stated are adjusted and fixed no clerk or employé shall be promoted or advanced in grade or salary without the approval of the Postmaster-General, in accordance with the requirements of section four hundred and sixty-four, Postal Laws and Regulations, edition of 1887; and hereafter postmasters at offices of the first and second classes shall submit rosters of the clerks attached to their respective offices to the Postmaster-General, to take effect from the first day of the fiscal year (July first), instead of January first, as heretofore; and no roster shall be considered in effect until approved by the Postmaster-General.”
The claimant is seeking to recover the difference between the salary ($1,100) he was paid, as set forth in the findings, and $1,300 per annum, which he claims was the minimum salary due him for the time he served as superintendent of delivery.
The Congress'by the act doubtless intended that the Post- • master-General should classify and fix the salaries as in the act provided, but they equally intended that the salaries to be thus classified and fixed should not exceed in the aggregate the sum appropriated. Hence, by the proviso the Postmaster-General was limited in his action; i. e., he was required to classify and fix the salaries of those named in the act upon the basis therein stated, provided that the aggregate salaries when so fixed did not exceed the sum appropriated. A like proviso is also attached to the classification and fixing of the salaries of clerks in second-class post-offices.
In respect of the compensation of superintendents of delivery, their salaries were to be classified and fixed at “not exceeding forty-five- per centum of the salary of .the postmaster.” That language to my mind clearly shows that as Congress by the proviso had limited the authority of the Postmaster-Gen
But the claimant contends that the parenthetical clause, i. e., “ graded in even hundreds of dollars, from one thousand three hundred dollars to not exceeding two thousand seven, hundred dollars per annum,” which follows the language fixing the salary of superintendents of delivery, has the effect to nullify both the proviso and the discretionary language. That is to say, the claimant contends that although his salary was fixed at $1,100 per annum, as set forth in the findings, yet as the •Postmaster-General at the same time approved a roster prepared by the postmaster designating him as superintendent of delivery, that therefore he is entitled to $1,300 per annum, because that is the minimum sum named in the clause grading salaries in even hundreds of dollars.
Such was not the view of the Postmaster-General, for in his annual report for 1889, page 38, he says:
“ The neto classification. — The administration of the Post-Office Department was greatly embarrassed at the outset in putting into operation the act of March 2,1889, which related to the readjustment of the duties and the salaries of clerks in the larger post-offices. The law required the classification to take effect July 1, and while it raised the salaries of the lower grades it failed to make adequate appropriation for the same, in consequence of which the salaries of many of the officials of the higher grade had to be reduced to the minimum sum named, when faithfulness and training called for an increase to the maximum. Some of the good clerks have been lost to the service because the salaries were not sufficient to retain them. Certain modifications and amendments of the act will be needed to adjust the scheme to the entire service, and it is quite apparent that the inquiry division, which was abandoned in the new classification, should be restored.”
And in his annual report for the succeeding year, 1890 (p. 213), referring to the classification and fixing of salaries under the act, he said:
“The Congress, however, failed to appropriate a sum sufficient to meet the requirements of the service under the said act by $350,000.”
And, further, he says “that the limited appropriation greatly embarrassed the Department in the administration of the service under this act.”
Under the act it was made the duty of the Postmaster-General not only to classify — designate the office — but to “ fix the salaries of the clerks and employees” for whom the appropriation was made; and it can not, therefore, be said that when the Postmaster-General approved the roster designating the claimant as superintendent of delivery that ipso facto a certain salary became attached thereto.
The fixing of the salary was as much of an executive act as the classification of the clerks, and when the Postmaster-General fixed the claimant’s salary at $1,100 under the designation stated, it was within his discretion under the act, and he is presumed to have done his duty, and that act alone must measure the liability of the Government.
For, if the meaning of the act be doubtful by reason of the clause “ graded in even hundreds of dollars, from one thousand three hundred dollars to not exceeding two thousand seven hundred dollars,” still as the Postmaster-General, who was charged with the execution of the act, so construed it as to give force and eifect to the proviso, I think his construction should prevail. United States v. Johnson (124 U. S. B., 236, 253.)
In the case of United States v. McLean (95 U. S. R., 750, 753) it was ruled that no obligation was imposed upon the Government to pay an increased salary, though warranted by the quarterly returns of an office, until readjustment had been made by the Postmaster-General; and that such “ readjustment was an executive act, made necessary by the law, in order to perfect any liability of the Government.” And in this respect the court said:
“ But courts can not perform executive duties or treat them as performed when they have been neglected. They can not enforce rights which are dependent for their existence upon a prior performance by an executive officer of certain duties he*426 has failed to perform. The right asserted by the claimant rests upon a condition unfulfilled.”
But the claimant contends that when the Postmaster-General designated him as superintendent of delivery and failed to fix his salary at a sum between $1,300 and $2,700, that, therefore, ipso facto the law fixed his salary at the minimum of $1,300.
The decisions of the court in Langston (21 C. Cls. R., 10) and Foote (23 C. Cls. R., M3), to the effect that where one holds an office the salary of which had been fixed by law previous to his appointment, the same can not be reduced by the mere appropriation of a less sum does not apply in this case for the reason that the classification of the clerks and the fixing of their salaries by the Postmaster-General were authorized by one and the same act, and therefore the salary of the claimant was fixed at the time he was designated as superintendent of delivery, such designation having been made from a lower grade and salary, so that when the claimant was designated as superintendent of delivery at $1,100 per annum it was a promotion and not a reduction.
If the Postmaster-General had wholly failed to act in fixing the claimant’s salary there would be more force in the claimant’s contention, but as the Postmaster-General did act and fixed the claimant’s salary at a sum presumably within the limits of his discretion, I am of the opinion that his acts in the premises are conclusive against the claimant’s right to recovery in this action, especially as he received and accepted the salary of $1,100 per annum, so fixed by the Postmaster-General, without protest or objection.