Miguel v. McCarlMiguel v. McCarl
delivered the opinion of the court.
The petitioner served as an enlisted man in the Philippine Scouts under successive enlistments from October t; 1901;-untir0etober 31,1931, at which time, upon proper
“When an enlisted man shall have served thirty years either in the Army, Navy, or Marine Corps, or in all, he .shall, upon making application to the President, be placed upon the retired list, with seventy-five per centum of the pay and allowances he may then be in receipt of, ...”
A voucher for the retired pay and allowances for the month of November, 1931, was presented to the army disbursing officer.for Manila, who, without making payment, forwarded it to the Comptroller General through the respondent Coleman, Chief of Finance, with a request for “an advance decision as to the legal authority for payment.” The Comptroller General, on January 19, 1932, rendered a decision holding that “ the retirement of enlisted men of the Philippine Scouts is not authorized even by the remotest implication of the laws,” and advising the disbursing officer that he was not'authorized to pay the voucher, which would be retained in the files of the office of the Comptroller General. ■
Petitioner thereupon brought this suit in the Supreme Court of the District of Columbia to enjoin the Comptroller General from interfering with the respondent Coleman, Chief of Finance, or with any finance or disbursing officer of the army,- to prevent payment to petitioner of the retired pay and allowances due for the month of November and subsequent months; and to enjoin and command the Comptroller General to return forthwith to the disbursing officer the voucher then being retained in the files of his office. The bill further sought to enjoin and command respondent Coleman, Chief of Finance, to pay or cause to be paid to petitioner such, retired pay and
Upon appeal to the court of appeals of the District, this decree was reversed and the cause remanded to the supreme court of the District with instructions to dismiss the bill.
No appearance is made here by respondent Coleman, and no brief filed or argument made in his behalf. The Solicitor General, however, has filed a comprehensive brief (in which the Judge Advocate General of the War Department joins) urging the correctness of the petitioner’s contention and uniting with him in challenging the decision below. The Comptroller General, contending that the decision is right and should be affirmed, states the point of inquiry to be whether the Chief of Finance and the Comptroller General can be compelled by mandatory injunction, the one to pay or cause to be paid the voucher in question, and the other to approve and allow credit for such payment, after the latter, on application for a decision by the disbursing officer before whom the
The principal question upon which the case turns, and the only one we need consider, is whether the statutes involved so plainly require the payment of the voucher that such payment constitutes a mere ministerial act on the part of the disbursing officer.. Following numerous cases theretofore decided, the applicable rule in respect of the writ of mandamus is stated in
Wilbur
v.
United States,
“Mandamus'is employed to compel the performance, when refused, of a ministerial duty, this being its chief use. It also is employed to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way nor to direct the retraction or reversal of action already taken in the exercise of either.
“ The duties of executive officers, such as the Secretary of the Interior, usually are connected with the administration of statutes which must be read apd in a sense construed to ascertain what is required. But it does not follow that these administrative duties all involve judgment or discretion of the character intended by. the rule just stated. Where the duty in a- particular situation is so plainly prescribed as tó 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. But where the duty is not thus plainly prescribed but depends upon a statute or statutes the construction or application of which is not free from doubt, it is regarded as involving the character of judgment or discretion which cannot be controlled by mandamus.”
In
Roberts
v.
United States,
Section 36 of the Act of February 2, 1901, e.192, 31 Stat. 748, 757, authorizes the President, when in his-opinion conditions in the Philippine Islands justify such action, “ to enlist natives of those, islands for service in the Army, to be organized as scouts, with such officers as he shall deem necessary for their proper control, or as troops or companies, as authorized by this Act, for the Regular Army.”
Petitioner enlisted under this act, and it does not admit of doubt that thereby he enlisted “ for service in the Army ” as a member of the organization of Philippine. Scouts. One who enlists for service in the army certainly
The court below cites § 26 of the National Defense Act of June 3, 1916, 39 Stat. 166, 185; §§22 and 26 of the Act of June 4, 1920, 41 Stat. 759, 770, 775; and § 17 of the Act of June 10, 1922, 42 Stat. 625, 632, in support of its view that this is a case of
“
doubtful inference from statutes of uncertain meaning ” in the sense of the rule stated in
Wilbur
v.
United States, supra,
hereinbefore quoted. But those sections fail, in oúr opinion, to disclose anything which conflicts with the positive words of § 36 of. the Act of 1901,
supra.
Section 26 of the 1916 act simply provides that captains and lieutenants of the Philippine Scouts who are citizens of the United States shall be entitled to retirement under the laws governing retirement of enlisted men of the regular army, but to be retired with the grade held by them at the date of their retirement. The section is confined to the officers named and has nothing to do with enlisted men. The provision was necessary, as pointéd out in the brief of the Solicitor General, because prior to the enáctment of the Act of June 4, 1920,
supra,,
these officers were usually enlisted men of other branches of the regular army, whose appointments were of a provisional character. Special legislation was therefore required to enable them to retire with the pay and allowances of officers instead of enlisted men. The provisions in the Act-of June 4, 1920, which are referred
It is hard to see how it reasonably can be thought that these acts have any effect upon the status of the enlisted men, since they are limited, in express terms, to officers. They do not modify or purport to modify in any way the provisions of § 36 of the Act of 1901 in respect .of such enlisted men. If that conclusion were not clear, the provisos would effectually settle the doubt. Putting aside those acts, therefore, as irrelevant, we have only to consider §36 of the Act of 1901, which plainly establishes the status of petitioner as an enlisted man in the army, and the Act of March 2, 1907, which just as plainly directs that such an enlisted man, having served thirty years as such, shall be placed upon the retired list. In this situation the duty of the disbursing officer to pay the voucher in question “ is so plainly prescribed as to be free from doubt and equivalent to a positive command,” and, therefore, is “ so far ministerial that its performance may be compelled by mandamus.” Wilbur v. United States, supra, pp. 218-219. It seems unnecessary to add that this duty cannot be affected by a contrary decision of the Comptroller General.
It is said by the Comptroller General that there was no existing appropriation of public money available for payment' of retired pay and allowances to petitioner. But this statement quite evidently is made only in the-view that the petitioner does not come within the retirement provision of the Act of March 2, 1907, since there was
The Chief of Finance is charged by law with the duty of disbursing all funds of the War Department, including the pay of the army. U.S.C., Title 10, § 172. The disbursing officer to whom the voucher was presented for payment, therefore, is simply a subordinate of the Chief of Finance, subject to his control and direction, and the suit was properly brought against the latter. The purpose of the suit was to control the action of the Chief of Finance, that is, to compel him to pay or cause to be paid the voucher in question. The disbursing officer as the mere agent of his superior officer is not an indispensable, although he might have been joined as a proper, party. Compare
Warner Valley Stock Co.
v.
Smith, supra,
pp. 34-35;
Gnerich v. Rutter,
It follows that the decree of the-court below, in so far as it directs a dismissal of the bill as against the respondent Coleman, must be reversed, and the decree of the supreme court of the District in respect of that respondent affirmed.
As to the Comptroller General, a different situation is presented. The request for an advance decision from him came from the Chief of Finance at the request of the disbursing officer. U.S.C. (Supp.), Title 31, § 74. The Comptroller General- undertook nothing on his own
The decree of the court below will accordingly be reversed as to the respondent Coleman, and affirmed as to the Comptroller General. But, in accordance with precedent, Wilbur v. Krushnic, supra, p. 319, the mandatory injunction to Coleman should issue directing a disposal of petitioner’s application for pay upon the merits, un-. affected by the opinion of the Comptroller General, and in conformity with the views expressed in this opinion as to the proper interpretation and application of the pertinent statutes. A writ in that form is better suited to the'1 circumstances than that indicated by the supreme court of the District.
, Reversed m part.
Affirmed in part.