United States ex rel. Parish v. Cortelyou, 30 App. D.C. 45

United States ex rel. Parish v. Cortelyou

30 App. D.C. 45 | D.C. Cir. | 1907

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. A preliminary question involving the right of the petitioner, as executrix of the will of Joseph W. Parish, to maintain the action under the act of February 17, 1903, is raised by the first paragraph of the return, in the nature of a demurrer, and must be first considered. The contention is that the statute was passed solely for the relief of Joseph W. Parish, and makes no provision for the succession of his personal representatives. This is true, but the act creates or recognizes the right of said Parish to the payment of money, and makes an appropriation therefor. Assuming, for present purposes, that the plain, simple duty was imposed upon the Secretary of the Treasury to make that payment, a right of action accrued to Parish for the enforcement of that duty. For manifest reasons the action of debt or assumpsit would not lie, and the •only proceeding left to the party was in mandamus to compel payment. It is the appropriate action at law to recover the money, and is subject to the principles governing such actions. Louis v. Brown Twp. 109 U. S. 162, 166, 27 L. ed. 892, 893, 3 Sup. Ct. Rep. 92. As there is no apparent reason why the right should be limited to Joseph W. Parish solely, and there is nothing in the act expressly negativing its succession in case of his death, we are of the opinion that the right to enforce the demand, if it can be enforced at all, survived, and passed to his personal representatives.

2. The contention of the petitioner that the statement of the claim made by the auditor of the War Department, an officer subject to the direction of the Secretary of the Treasury, and the ascertainment of the balance due Parish by him, were binding upon the Secretary, and left nothing for him to do but issue the draft for the amount as found, is untenable. The duty of adjusting the claim, of whatsoever nature that duty may be, as well as of making the payment of the amount awarded, was imposed by the statute, in express terms, upon the Secretary of the Treasury, and upon no one else. The act is quite *55different from that under consideration in Kendall v. United States, 12 Pet. 524, 610, 9 L. ed. 1181, 1215. By that statute, the duty of adjusting the account and ascertaining the credit due the claimant was devolved expressly upon the Solicitor of the Treasury. When adjusted by him, the single duty of carrying the ascertained sum to the credit of the party was imposed upon the Postmaster General. He was vested with no discretion or control over the decision of the Solicitor, and with no right of review thereof. While the Secretary of the Treasury might, probably, have delegated the duty of stating the claim of Parish, in the first instance, to the auditor or any other skilled employee of his department, and might have approved and adopted the report and made it his own decision under the act, he was not bound to do so. Moreover, his return shows that he did not adopt the report of the auditor, and that that officer revised his views, and made another statement to the effect that nothing was due the claimant. The return further shows that the Secretary, in person, took the entire matter under consideration, as required by the act, and made a decision to the effect that nothing was due.

3. The substantial question in this case is the effect to be given to the act of February 17, 1903. If it imposes a plain ministerial duty upon the Secretary of the Treasury, then the performance of the duty may be compelled. As has been said by the Supremo Court of the United States: “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.” Roberts v. United, States, 176 U. S. 221, 231, 44 L. ed. 443, 447, 20 Sup. Ct. Rep. 376.

On the other hand, if it does not impose upon him the plain duty of ascertaining a balance due Parish by a mere computation, on plain lines laid down for his guidance, but requires him to ascertain facts and make an application thereto of a prescribed measure of damages; in other words, if it requires the exercise of any discretion on his part in reaching a con*56elusion, then it is" beyond the power of the courts to control the exercise of that discretion. United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 324, 47 L. ed. 1074, 1078, 23 Sup. Ct. Rep. 698. And in such a case, the question is not whether he has made a correct decision, but whether he has decided at all. It is not for the courts to determine whether he has decided wrongly. United States ex rel. West v. Hitchcock, 26 App. D. C. 290, 295, 205 U. S. 80, 51 L. ed. 718, 27 Sup. Ct. Rep. 423. Tested by these principles, we think there was no error in denying the petition. If it be true, as contended for their report, that the committees of Congress regarded the claim as an entirely just one for the entire amount of the contract price, and considered that all that was necessary to ascertain the exact amount was a simple calculation, of which any ordinary person is capable, that intention could have been readily and plainly expressed. As an expression of such an intention, the language of the act was, to say the least, unfortunately chosen. That it is ambiguous is well demonstrated by the radically different views of its meaning taken by the claimant, and by the Secretary, whose perfect good faith must be presumed. The act, after reciting the substance of the contract, provides “that the Secretary shall determine and ascertain the full amount which should have been paid to J. W. Parish & Company if the said contract had been carried out in full, without change or default made by either of the parties thereto.” Had it stopped there, the meaning contended for would be plain enough. But as the contract had not been “carried out in full without change or default made by either of the parties thereto,” it was deemed necessary to determine the claimant’s damages by reason of the fact that the contract had not been carried out through the change and default of the representatives of the United States charged with its execution. Consequently, the act proceeded to recite in the same sentence, with the interposition of a comma: “Under the rule of the measure of damages laid down by the Supreme Court of the United States in the case of United States v. Behan (one hundred and tenth United States Reports, three hundred and thirty-eight), and *57in accordance with the evidence in the case collected by the United States court of claims, and after determining the full amount thus due said J. W. Parish & Company, under the said contract and rule of law aforesaid, to deduct therefrom all payments which have been made to said J. W. Parish & Company, or to said Joseph W. Parish, whether in pursuance of judgments of the court, or direct appropriation by Congress, or otherwise, stating what balance, if any, is due under the rule and evidence prescribed herein, and pay the said balance to said Joseph W. Parish, the present owner of said claim” [32 Stat. at L. 1612, chap. 559], — sufficient money being also appropriated for the purpose. The rule for the measure of damages is thus declared in the case designated (United States v. Behan, 110 U. S. 344, 28 L. ed. 170, 4 Sup. Ct. Rep. 81): “The prima facie measure of damages for the breach of a contract is the amount of the loss which the injured party has sustained thereby. If the breach consists in preventing the performance of the contract, without the fault of the other party, who is willing to perform it, the loss of the latter will consist of two distinct items or grounds of damage; namely, first, what he has already expended towards performance (less the value of materials on hand) ; secondly, the profits that he would realize by performing the whole contract. The second item, profits, cannot always be recovered. They may be too remote and speculative in their character, and therefore incapable of that clear and direct proof which the law requires. But when, in the language of Chief Justice Nelson, in the case of Masterton v. Broolyn, 7 Hill, 69, 42 Am. Dec. 38, they are ‘the direct and immediate fruits of the contract,’ they are free from this objection; they are then ‘part and parcel of the contract itself, entering into and constituting a portion of its very elements; something stipulated for, the right to the enjoyment of which is just as clear and plain as to the fulfilment of’ any other stipulation.’ Still, in order to furnish a ground of recovery in damages they must be proved. If not proved, or if they are of such a remote and speculative character that they cannot be legally proved, the party is confined to his loss of actual outlay and expense.”

*58Having preseriDed this as the applicable rule, the next direction was to apply it, not to the facts recited in the report or to the findings of fact by the court Of claims, but “to the evidence in the case collected by the United States court of claims.” What this evidence was as a whole we are not advised. The Secretary says of it in his decision: “The evidence taken before the court of claims fails to cover some very important questions, and is vague and unsatisfactory upon other matters.” His general conclusion from the whole of it is that it does not show that Parish was ready to deliver and could have made delivery of the whole of the ice if the suspension of the contract had been recalled; and that the payments heretofore made to him exceed the loss which he actually sustained. He was commanded to consider the evidence, to apply the rule of law to it, and to render a decision. This involved the exercise of some discretion; and whether or not he erred in his decision is a matter which the courts have no right to determine. They are vested with no power of review.

It follows that the judgment must be affirmed, with costs; and it is so ordered.

Affirmed.

On motion of the appellant, made June 10, 1901, a writ of error to the Supreme Court of the United States was allowed the same day.