| Ct. Cl. | Dec 15, 1867
Lead Opinion
delivered the opinion of the court:
This is an action brought to recover #176,576 37 for services in carrying the United States mails in California and Utah during the years 1S52 and 1853. The facts, so far as it is necessary to consider them, are these:
Between the years 1851 and 1854 the claimant, or the firm of which he is the surviving partner, were engaged in certain mail services which involved them, it is alleged, in great loss, injustice, and personal
“ Chapter CLXXVI. An act for tire relief of George Chorpenning, jr.
“Be it enacted, by the Senate and House of Representatives of the United States of America in Congress assembled, That the Postmaster General be, and he is hereby, required to adjust and settle the claim of said Chorpenning, as surviving partner of Woodward & Chorpenning-, in his own right for carrying the mails by San Pedro, and for supplying the post office in Carson’s "Valley, and also for carrying part of the Independence mail by California, allowing a pro rata increase of compensation for the distance by San Pedro, for the service to Carson’s Valley, and for such part of the eastern mail as was carried by California during all the time when said services were performed, as shown by the affidavits and proofs on file in the House of Representatives.
“ Sec. 2. And be it further enacted, That the Postmaster General he, and he is hereby, required to adjust and settle the claim of said Chorpenning, as surviving partner of Woodward & Chorpenning, for damages on account of the annulment or suspension of Woodward & Chorpenning’s contract for carrying the United States mail from Sacramento, in California, to Salt Lake, in Utah Territory, as shown in the affidavits and proofs on file in the House of Representatives.
“ Sec. (3) 4. And be it further enacted, That the Postmaster General be required to allow and pay to said Chorpenning his full contract pay during the suspension of Woodward & Ohorpen'ning’s contract, from the 15th day of March, 1853, to the 1st of July of the same year; and also, to allow and pay to said Chorpenning $30,000 per annum from the 1st day of July, 1853, when he resumed service under the contract of Woodward & Chorpenning, down to the termination of his present contract, which said sum of $30,000 per annum shall be in lieu of the contract pay under both contracts. And the sums in this act authorized to he allowed shall be paid out of the treasury.
“Approved March 3, 1S57.” (11 Stat. L.,p 521.)
When the subject was brought before Postmaster General Brown, several of the items specified in the act were adjusted to the satisfaction of the claimant. He also made to the claimant an allowance under the first section of the act for the increased distance, via Ban Pedro, for the supply of Carson’s Valley and for the Eastern or Independ
Without passing upon the correctness or incorrectness of this construction it is sufficient to say, that when the report of the Postmaster General came before Congress the committees of both houses on post offices, being the same committees which had previously reported the bill, adopted a resolution wherein it is said that the act “ shall be construed so as to allow said Chorpenning for the extra services mentioned in the first section, a pro rata increase of pay to be calculated, upon the basis of the pay allowed him by the same act for services under the contract But before Postmaster General Brown could reconsider his award he died. Since then the subject has been brought before successive Postmasters General and successive Attorneys General, but without effecting a revision of the award, or a re-examination of it upon the merits. The prevailing opinion seems to have been that the decision of one Postmaster General was conclusive upon his successors.
The claimant has now come into this court under that provision of the act to establish a Court of Claims, (Act 24th Feb., 1855, 10 Stat. L., p. 612,) which gives us jurisdiction of a claim “founded upon any law of Congress,” and has put in evidence the contracts,' certificates, and affidavits which were before Congress when the private act was passed, and the decision or award of the Postmaster General thereon. To this the defendants answer: First, that the ex parte affidavits and papers which were before Congress are not evidence in this court; and second, that the decision of the Postmaster General, followed by the claimant’s acceptance of the amount awarded, was final and renders the case res adyudicata.
There is no doubt, under the previous decisions of the court, that these ex parte affidavits and certificates are not competent evidence to sustain an action founded upon contract, (Clark’s case, 1 C. Cls. It., p. 246; McKee’s case, ib., p. 336.) We do not understand the claimant to have offered them -for that purpose. He, on the contrary, is understood to set them up as a part of his case, and to request the court to award that relief upon them which the private act of Congress gives, and which the Postmaster General has refused.
The second objection occasions more doubt. It is a matter of daily practice in this court, that an ordinary decision of- an accounting officer in the adjustment of accounts does not hind the claimant in an action. It was also a matter of early decision, that when Congress by special enactment directed an accounting officer to restate an account,
In all of these cases the defendants have recovered. The various opinions of, the court have treated the question as though it were one of arbitration and award between ordinary suitors; and hence the belief prevails that such references by Congress (other than to mere accounting officers) are arbitrations, and the decisions subject to all the rules and principles applicable to and governing awards. But it is to be noted, on the contrary, that no decision has yet been rendered against the government on any so-called award, and the question is still entirely an open one whether such an award can be made the subject of an action against the government, or be given in evidence under the rule in the Duchess of Kingston case. The decision in each of the cases before cited may have been right, but the reasoning wrong; and it remains to be determined, when the proper case shall present the question, whether the court should treat these references as arbi-trations established by the consent of the parties and limited only by the terms of the submission, or as special tribunals established by express legislative enactment, and possessed of that exclusive jurisdiction which has recently received a full and careful exposition in the case of Meade v. The United States, 2 C. Cls. R., p. 226.
The case at bar, however, is different from all the others. The claimant does not sue upon the award, for he has received the full amount thereof, but attacks it as erroneous. Neither does he sue upon an express or implied contract, but seeks to evade the award as the mere statement of an accounting officer. He, in effect, comes into court and asks the court, first, to review the decision of the Postmaster General, and second, to assume the duty with which he was charged and become the minister of Congress in carrying out the intent of this particular law.
It is not necessary that an action here be founded upon contract either express or implied. For the statute has authorized actions “founded upon any law of Congress,” of which a familiar example are the pension cases. Yet there, a party gives evidence to show that he
Tbe case which most closely resembles tbe claimant’s in this particular is that of Riley v. The United States, 1 C. Cls. R., p. 299. There Congress by special enactment bad required “ the accounting officers of the treasury ” to credit General Riley on the settlement of bis accounts with certain disbursements, of which he should produce the proper vouchers. In the settlement of these accounts the accounting officer of the treasury did not do this, but disallowed certain items which had been clearly allowed by Congress. The claimant sought to recover those items by an action in this court, and all of the judges regarded the action as well brought and acquiesced in rendering a judgment. We may, therefore, conclude in this case that if the Postmaster General acted in a ministerial capacity and as the chief accounting officer of his department to allow the items which Congress had rendered fixed and certain, then that the action will lie and that the court may re-examine the claimant’s case. If, on the contrary, the Postmaster General acted or was to act in a judicial or quasi judicial character, either as arbitrator or as a special tribunal invested with the sole jurisdiction of the claim, then Ms award was final and conclusive, and its errors cannot be corrected by an action in any other tribunal.
The language of the private act is not so decisive and clear as might be wished. The first and second sections say the Postmaster General “is required to adjust and settle the claim of said Ohorpenning;” the third, that he “ be required to allow and pay to said Ohorpenning his full contract pay,” &c. The first and second sections relate to damages outside of his written and formal contract, viz : For services in carrying the mails an increased distance by San Pedro; for supplying the post office in Carson’s Valley; for carrying an increased amount of mail matter; and for damages caused by the annulment and suspension of his formal contract. The third section relates simply to the claimant’s “ contract pay,” giving it to him in full during the suspension of his contract, and increasing it after he recommenced his services.
The duty assigned to the Postmaster General by the third section is .manifestly ministerial. He is simply to “ allow and pay ” to the claimant a certain fixed compensation under certain express contracts,.
The character of the reference does not depend on the precise form of the language employed by Congress, but on the nature of the duty assigned to the officer. In this case the duty assigned by the first section of the act was “ to adjust and settle ” a claim for services at a rate prescribed by the same statute. The rate of compensation was fixed and certain; but the services were undetermined, being such as were “ shown by the affidavits and proofs on file in the House of Representatives.” This would imply that the officer must exercise a judicial discretion, and from “the affidavits and proofs” deduce, like a jury, the ultimate facts to which the statute might be applied. Still, as the statute did not allow these ultimate facts to be determined upon ordinary evidence, but limited the officer to certain “ affidavits and proofs on-file” it was possible that those affidavits and proofs contained specific statements of the services and were referred to by ■Congress as mere accounts and vouchers, leaving - the duty of the Postmaster General simply one of calculation, and involving no discretion or judgment as arbitrator on his part. But on looking into the “ affidavits and proofs ” we find they are, as their description imports, a mass of testimony from which the facts -would have to be deduced as from ordinary evidence, and from which very different conclusions might be drawn by different tribunals. We find, also, that it would be difficult and perhaps impossible for any tribunal to act intelligibly upon them without an extrinsic knowledge of the transactions and business pf the Post Office Department. In his decision upon this claim the Postmaster General says : “ The settlement of this claim has not been made without considerable embarrassment. The act of Congress was peremptory to adjust and settle, not according to the proofs that might be taken before the final action, but as shown by the proofs and affi
The judgment of the court is that the petition be dismissed.
Concurrence Opinion
concurring:
I think the act of Congress of March 3,1857, made the Postmaster General an arbitrator. The second section of the act authorizes him to assess damages for the suspension of a contract. This is the function of an arbitrator, and is not the function of a mere accountant. And it is not inconsistent with the office of an arbitrator that, in connection with his proper duties, he should state an account upon term's prescribed, relating to the same subject-matter. There is, therefore, no reason for supposing that the Postmaster General was to be an arbitrator under one section of the act and an accountant under the others, so that litigation should be closed as to one subject of the act and left open as to the other subjects of it. And in this connection it is observable that all the sums allowed are all alike directed to be paid out of the treasury on his allowance of them.
And I think that the Postmaster General in his action on the subjects of the first section applied the rule given by the act. The subjects of the first section are two contracts with different rates of com
The sum of $30,000 specified in the third section is declared to be “in lieu of the contract pay on both contracts,” and relates to what it is substituted for, and that is the pay for contract services as distinguished from extras. So that the first and third sections relate to different things. Then the $30,000 is a gross sum for both contracts, and there is no rule or authority for dividing it equally or otherwise apportioning it between them, so as to ascertain the different compensation on each and a fro rata allowance on them. And the terms of both sections may be carried out by allowing the $30,000 as the price for contract services for the time specified in the third section, and a fro rata compensation at the different rates of the original contracts for the extras specified in the first section. And this the Postmaster-General did.
Dissenting Opinion
dissenting:
I am unable to give my assent to the conclusions arrived at by the majority of the court in this case.' The. act passed for the relief of the claimant on the 3d of March, 1857, in my opinion, was not a submission of the case to a referee so as to give to the award of the Postmaster General any binding or conclusive effect.
Congress, in the law, defines and prescribes the exact measure and kind of relief to which the claimant shall be entitled. It determines the principles upon which it shall be based, and the evidence by which the amount shall be ascertained. Nothing is left to the judgment and discretion of the Postmaster General. His duties in the premises are neither judicial nor quasi judicial. They are simply those of an executive, accounting, and disbursing agent or official carrying into execution the will of Congress, definitely and specifically expressed. A submission to arbitration necessarily implies the duty to hear tbe case, and the right to decide it according to the opinion and judgment of the referee. But here that element of the case is wanting. Where it is referred to a party to make the calculations and fix the amount upon a designated basis, or according to a prescribed standard, the case is wholly divested of all semblance of submission and award. In the case of Kelly v. Crawford, (5 Wall., p. 790,) the Supreme Court of the
The remaining inquiry is whether we have jurisdiction. This is dependent, as I think, entirely on the solution of the other question. If the reference to the Postmaster General was not in the nature of an arbitrament, and his report does not partake of the character of an award, then it is not conclusive of the rights of either the claimant or the United States. And if the claimant has not received what he was fairly entitled to under.the law, that right still remains. He still holds a claim against the United States for it. That claim is founded upon an act of Congress, and, therefore, comes within both the letter and spirit of the act of 1855 and 1863, conferring jurisdiction upon this court.
In my opinion the Postmaster General erred in giving a construction to this law. In computing the allowance for the increased distance and service mentioned in the first section, it was manifestly intended that the computation should be made upon the basis of the increased compensation allowed by the third section, in lieu of that stipulated in the original contracts.
■ In rejecting this view of the case I think an error was committed against the claimant. There was nothing in the proceedings which