92 F.2d 533 | D.C. Cir. | 1937
This is an appeal in a mandamus casé. Frank M. Welch — petitioner in the District Court — is a railway postal clerk. His service began July 23, 1929. At that time clerks in the railway mail service were divided into two classes and seven grades.
The provisions of section 201 were continued in force during the fiscal year ending June 30, 1934.
The Comptroller General rejected this construction of the law on the theory that the promotion statutes should be regarded as not having been in existence during the period July 1, 1932, to June 30, 1934, inclusive. He advised the Postmaser General that in this view not only could there be no increase in compensation during the suspension period, but also that service during that period could not be included in computing “longevity” — that is, that the Economy Act had suspended promotions from grade to grade whether with or without the accompanying pay increase.
Upon the receipt of this ruling the difference of opinion between these high officers of government was brought to the attention, of Congress, and an amendment to the Act of March 28, 1934, was prepared and passed June 27, 1934,
The report
If this were all, it might be safely assumed this controversy would not have arisen, but on June 14, 1934,
“Congress disapproved this ruling or decision of the Comptroller General as clearly appears from the report of June 13, 1934, of the House Committee on the Post Office and Post Roads. * * * That report, setting out in full the objectionable decision1 of the Comptroller General, recommended, and Congress embodied in the Act of June 27, 1934 (48 Stat. 1265), amending the Economy Act, the provision that in administering section 201 (Economy Act), as amended, ‘all service rendered by postal
He says — and we think correctly:
“Clearer or more definite language could not have been used. By express command of the statute all service rendered within as well as prior to the economy period shall be credited to officers and employees and they shall be promoted to the grade to which they would have progressed had section 201 (Economy Act) not been enacted.
“This provision, enacted to clarify and make certain ‘the purpose and intent of Congress’ (Cong.Rec. 73d Congress, Vol. 78, No. 134, p. 12112), preserves to officers and employees automatic promotions in grade or rank, authorized by law, free from any adverse effect of the Economy Act. The character of that act is thus conclusively fixed as an act temporarily denying increase in compensation but in no wise restricting progress in grade or rank resulting from longevity of service.”
Then, referring to the Reclassification Act which, as we have pointed out, was passed just two weeks earlier
“Obviously the two statutes are in pari materia. Where a general statute and a special statute have both been enacted, in terms that are inconsistent, the special statute may be accepted as governing the particular class or subject matter to which it is directed. But where the statutes can reasonably be reconciled, both must be given effect. Here the Economy Act in general terms, was directed to automatic increases in compensation of all officers and employees of the United States. As if to prevent the possibility of argument that the Terminal Reclassification Act was intended to exclude railway postal clerks from the benefits of the amended Economy Act, the amendment of June 27, 1934, departing from the general language originally used, specifically declares that all services, including services in the economy period, rendered by postal and other employees shall be credited to them and such employees promoted accordingly.
“Moreover, just as the original Economy Act impliedly and the amendment to that Act of June 27, 1934, specifically recognized the distinction between advances in rank and increases in compensation, so also the Terminal Reclassification Act recognized this distinction in its proviso, ‘that no employee in the postal service shall be reduced in rank or salary as a result of the provisions of this Act’
“The Terminal Reclassification Act is obviously not retroactive. It plainly relates only to those automatic promotions of railway postal clerks to be made thereafter, and not to promotions in rank earned prior to that act. The right of the plaintiff to promotion to grade 5 accrued July 1, 1933. The Terminal Reclassification Act does not purport to affect that right. The Economy Act suspended only increases in his compensation up to June 30, 1934, and the amendment thereto of June 27, 1934, made sure that his right to promotion in rank accruing in the economy period should be preserved to him as if the Economy Act had not been enacted, and declares that he shall be promoted accordingly.
“Thus, giving each statute its full effect, the two statutes stand harmoniously together. There appears no real conflict or re-pugnancy between them. They seem so plainly to prescribe the duty of the Postmaster General to promote the plaintiff to grade 5 ‘as to be free from doubt and equivalent to a positive command.’ Miguel v. McCarl, 291 U.S. 442, 451, 454, 54 S.Ct. 465, 467, 78 L.Ed. 901; Wilbur v. United States, 281 U.S. 206, 218, 219, 50 S.Ct. 320, 324, 74 L.Ed. 809.”
Very little, in our opinion, need be added to this clear statement of the effect of the statute. The Economy Act suspended automatic increases in salary for the two years July, 1932, to July, 1934. Its language certainly goes no farther. The Comptroller General thought that it likewise abolished for the time being the effect of continuity of service on grades, and, presumably because the act lifting the prohibition contained no explanatory language, he ruled that it did no more than to restore as of July, 1934, the status both as to pay and grades existing as of July,T932. The result of this, as we have seen, was to afford Congress the opportunity to place its own interpretation upon the scope and meaning of the language used in the act and thus to>
But if this opinion be set to one side and if it be held that the amendment was the adoption of a new policy, the result so far as this case is concerned is the same. It is the last word by Congress on the subject, and the mere fact that it was not to be effective as to pay increases until July 1 following (the commencement of the fiscal year) cannot detract from its force. If Congress had meant by the Reclassification Act — passed, as we have seen, two weeks prior to the amendatory act and effective at once — to limit promotions already earned, it would have qualified the amendatory act by a provision that the advancement in grades therein declared should be subject to the limitations of the Reclassification Act. Nothing could be more inconsistent than to say in one breath that petitioner should be classified as of July 1, 1934, in grade 5, which he had reached or would have reached on July 1, 1933, and in the next that he should not be so classified but should be promoted only to grade 4. We think Congress, of necessity, must have realized the possibility of such a case as this; and we believe that if Congress had intended its legislation to have the meaning respondent contends for, it would have — as it could have — said so clearly. The very inconsistency we have mentioned seems to discredit respondent’s'position, but if proof is needed it is supplied by the language of the Reclassification Act (39 U.S.C.A. § 618a) to the effect “that no employee in the postal service shall be reduced in rank or salary as a result of the provisions of this Act.” If petitioner, as we think, advanced to grade 5 on July 1, 1933, notwithstanding the Economy Act — though such advancement was effective as to increase in salary only after July 1, 1934 (and this, as we have said, is the inevitable result of a fair construction of the language of the Economy Act itself, fortified and confirmed by the language of the amendatory act), — obviously his classification as of July 1, 1934, in grade 4 reduced him in rank contrary to the terms of the applicable statutes.
The trial court, having reached this conclusion, was persuaded by counsel for the Government to issue the writ prayed for rather than find a declaratory judgment in petitioner’s favor. In these circumstances we think -the Government ought not to urge inapplicability of mandamus in a case involving, as the Government claims, assumption by the court of control of the independent affairs of a department of Government. But putting this observation to one side, we think the point is without merit. In this case the administrative officers of the Post Office Department had no discretion. The statute fixes the grades and the salaries pertaining to each and prescribes precisely how an employee shall progress from the one grade to the other. By stipulation the Postmaster General admits that petitioner’s services have been satisfactory within the meaning of the statute, so that petitioner either progresses or does not progress entirely independently of the Postmaster General’s control of departmental affairs. If the Acts to which we have referred mean what we think they mean, and what we think
Nor, as we think, is there any substance to the point that mandamus is not the proper remedy because petitioner could sue in the Court of Claims for the salary due him from July 1, 1934. Success in such a suit would not result in placing petitioner in grade 5, and hence the remedy is not adequate. What petitioner desires is a judicial determination of his right under the statutes to be placed in grade 5, for once there the statutes take care of his compensation. In the case of Miguel v. McCarl, 291 U.S. 442, 54 S.Ct. 465, 78 L.Ed. 901, the remedy in the Court of Claims was decidedly more effective than it would be here, but the Supreme Court found no merit in the contention that such a circumstance was a bar to mandamus.
The answer to the question here depends on how clear the congressional intent is. If it is too clear to admit of reasonable difference of opinion, then mandamus is the appropriate remedy. If it is uncertain or if this court could say the Postmaster General' reasonably reached the position to which he adheres, then mandamus could not issue. We have said enough already to show that we are of opinion the statutes are clear and unambiguous. Under circumstances which we think are similar the Supreme Court, in the Miguel Case, supra, said, quoting Wilbur v. United States, 281 U.S. 206, 50 S.Ct. 320, 74 L.Ed. 809. “Where the duty in a particular situation is so plainly prescribed as to be free from doubt and equivalent to a positive command, it is regarded as being so far ministerial that its performance may be compelled by mandamus, unless, there be provision or implication to the contrary.”
And in the same opinion, quoting from Roberts v. United States, 176 U.S. 221, 20 S.Ct. 376, 379, 44 L.Ed. 443: “If the law direct him to perform an act in regard to which no discretion is committed to him, and which, upon the facts existing, he is bound to perform, then that act is ministerial, although depending upon a statute which requires, in some degree, a construction of its language by the officer. Unless this be so, the value, of this writ is very greatly impaired.”
We applied this rule in MacFarland v. U. S. ex rel. Russell, 31 App. D. C. 321,—a case in many respects like this. There Russell, a policeman in the Metropolitan Police, sought mandamus to compel his advancement from class 1 to class 2 on the force. The pertinent act of Congress provided that class 1 should consist of privates who had served less than three years; that class 2 should consist of privates who had served more than three years and less than five; and that class 3 should be composed of those who had served more than five years. Promotion from one class to the other was automatic and mandatory if the proper qualifications existed. Russell alleged that he had served in class 1 for the requisite time and had the necessary qualifications to warrant promotion. The Commissioners admitted that Russell had the necessary qualifications and defended on the ground that under their construction of the act Russell had not served in class 1 for three years because he had been transferred from one position to another within the Department, and they considered each position a new appointment within the meaning of the act. It appeared that Russell had been on the force for three years but had not held his present appointment, for that period. This court construed the act and concluded that Congress had not intended the distinction which the Commissioners insisted on, and the construction of the act by this court seemed so obviously correct and reasonable that the judgment of the lower court issuing mandamus was affirmed. We think there is the same clarity of the statutes in this case. In both the appointing officer had a degree of discretion, for in both promotion was ultimately dependent upon the rendition of satisfactory service for a prescribed period; but in Russell’s ‘ Case the necessary qualifications were — as they are here — conceded. In each case the officer refused to promote wholly because of his construction of the act in question. We held, as we have said, in that case — as we hold in this — that the only reasonable construction of the acts does not
Argument is made in the briefs on the question whether or not the court below had jurisdiction under the Declaratory Judgment Act
Judgment affirmed.
Act Feb. 28, 1925, 43 Stat. 1062, tit. 1, § 7 (39 U.S.C.A. § 610). (The class depended upon the number of employees in the particular work.)
47 Stat 382, 403 (5 U.S.C.A. § 673 note).
48 Stat. 8, 13, tit. 2, § 4 (5 U.S.C.A. § 673 note).
48 Stat. 509, 522, 523, tit. 2, § 24 (5 U.S.C.A. § 673 note).
48 Stat. 1265, § 1.
House Report No. 1983, 73d Cong., 2d Sess.
48 Stat. 962 (39 U.S.C.A. § 618a)— designated as “An Act to reclassify terminal railway post offices.”
June 14, 1934, 48 Stat. 962 (39 U.S.C.A. § 618a), supra.
48 Stat. 955 (28 U.S.C.A. § 400).