1. Where the duty to make a payment of public money is imposed
so plainly by statute as to leave no play for judgment or
discretion, the duty is purely ministerial, and its performance may
be compelled by mandamus or mandatory injunction. P.
291 U. S.
451.
2. A native of the Philippine Islands who enlisted under the Act
of February 2, 1901, "for service in the Army" as a Philippine
Scout, became "an enlisted man in the Army" within the meaning of
the Act of March 2, 1907, and, after having served 30 years, was
eligible under the latter Act to be placed upon the retired list,
with the pay and allowances therein prescribed. P.
291 U. S.
452.
3. Provisions in later Acts cited in the opinion deal with the
status of officers of the Philippine Scouts, but not enlisted men,
and cast no doubt upon this right of the latter. P.
291 U. S.
453.
4. A duty to pay, plainly imposed by the statutes, cannot be
affected by a contrary decision of the Comptroller General. P.
291 U. S.
454.
5. The Chief of Finance of the Army being charged by law with
the duty of disbursing all the funds of the War Department,
including the pay of the Army, is the proper party defendant to a
suit for a mandatory injunction brought by a retired enlisted man
to enforce payment of retired pay and allowances. P.
291 U. S.
455.
6. The disbursing officer to whom the voucher was presented,
being a subordinate of the Chief of Finance, is not an
indispensable party to such suit.
Id.
7. The United States is not a necessary party to such a suit.
Id.
8. It is not a ground for dismissing such a suit that recovery
of the pay may be had in the Court of Claims.
Id.
9. In granting relief by injunction requiring the Chief of
Finance of the Army to satisfy claims for retired military pay and
allowances, as to which the Comptroller General upon request under
31 U.S.C. (Supp.) § 74 had rendered an advance decision which was
adverse to payment,
held unnecessary to require the
Comptroller General to recall the decision or to return the
voucher. P.
291 U. S.
455.
62 App.D.C. 259, 66 F.2d 564, reversed in part.
Page 291 U. S. 443
Certiorari, 290 U.S. 618, to review the reversal of a decree
commanding the Chief of Finance of the Army to satisfy claims of
the plaintiff for retired military pay and allowances, enjoining
the Comptroller General from interfering, and requiring him to
return from his files to a disbursing officer a voucher upon which
he had rendered an adverse advance decision.
Page 291 U. S. 448
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
The petitioner served as an enlisted man in the Philippine
Scouts under successive enlistments from October 1, 1901, until
October 31, 1931, at which time, upon proper
Page 291 U. S. 449
application, he was, by order of the Secretary of War acting for
the President, placed on the retired list of the army with the rank
of master sergeant in pursuance of the Act of March 2, 1907, c.
2515, 34 Stat. 1217, which provides:
"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 percentum 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
Page 291 U. S. 450
allowances for November and subsequent months. Motions of
respondents to dismiss the bill were denied by the Supreme Court of
the District, and thereupon respondents filed separate answers. A
motion to strike these answers and for a decree in favor of
petitioner was granted by the Supreme Court of the District. Final
decree against respondents followed in accordance with the prayer
of the bill.
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. 62 App.D.C. 259, 66
F.2d 564, 566. The holding of that court rested upon the view that
mandamus would not lie against the Comptroller General to determine
the right of a retired member of the Philippine Scouts to receive
retirement pay and allowances, because the question of his status
was disputed in good faith on the merits, and that neither mandamus
nor injunction should issue
"in a case of doubtful inference from statutes of uncertain
meaning, for in such circumstances the duty sought to be controlled
is regarded as involving the character of judgment or
discretion."
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
Page 291 U. S. 451
voucher was pending for payment, has rendered his decision
holding such payment not authorized under existing
appropriations.
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, 281 U. S. 206,
281 U. S.
218-219, as follows:
"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 and 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 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. 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, 176 U.
S. 221, this Court held that, where the proper
construction of a statute is
Page 291 U. S. 452
clear, the duty of an officer called upon to act under it is
ministerial in its nature, and may be compelled by mandamus. The
opinion points out (p.
176 U. S. 231)
that every such statute to some extent requires construction by the
officer; that he must read the law, and therefore, in a certain
sense, construe it in order to form a judgment from its language
what duty he is required to perform.
"But that does not necessarily and in all cases make the duty of
the officer anything other than a purely ministerial one. 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."
This view of the matter has been uniformly approved in
subsequent decisions.
See, for example, Lane v. Hoglund,
244 U. S. 174,
244 U. S. 181;
Wilbur v. Krushnic, 280 U. S. 306,
280 U. S. 318.
The mandatory injunction here prayed for is in effect equivalent to
a writ of mandamus, and governed by like considerations.
Warner
Valley Stock Co. v. Smith, 165 U. S. 28,
165 U. S. 31-33.
With the foregoing well settled rule in mind, we turn to the
pertinent legislation.
Section 36 of the Act of February 2, 1901, c.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
Page 291 U. S. 453
becomes "an enlisted man . . . in the Army," and when he "shall
have served thirty years" therein, he falls within the plain terms
of the Act of March 2, 1907,
supra, and, in accordance
therewith, is entitled to "be placed upon the retired list" with
the pay and allowances therein prescribed. Statutory provisions so
clear and precise do not require construction. In such case, as
this Court has often held, the language is conclusive. "There can
be no construction where there is nothing to construe."
United
States v. Shreveport Grain Co., 287 U. S.
77,
287 U. S. 83,
and cases cited.
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 our
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 pointed out in the brief of
the Solicitor General, because, prior to the enactment 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
Page 291 U. S. 454
to, relate to "all officers of the Philippine Scouts," but it is
expressly provided that nothing in the act shall alter the status
of enlisted men. Section 17 of the Act of June 10, 1922, likewise
relates to officers and former officers of the Philippine Scouts,
according them the status of officers in the regular establishment,
and again it is provided that the act shall not be construed as
affecting the enlisted men.
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.
281 U. S.
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
Page 291 U. S. 455
available an existing appropriation for retired pay and
allowances of enlisted men retired under that provision.
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.
165 U. S. 34-35;
Gnerich v. Rutter, 265 U. S. 388,
265 U. S.
391-393;
Webster v. Fall, 266 U.
S. 507;
Alcohol Warehouse Corp. v. Canfield, 11
F.2d 214;
Dami v. Canfield, 5 F.2d 533. We find no merit
in the contention that the United States is a necessary party, and
this suit not maintainable without its consent,
Payne v.
Central Pac. Ry. Co., 255 U. S. 228,
255 U. S. 238;
or in the further contention that the suit cannot be maintained
because petitioner has a remedy at law in the court of claims for
his retired pay.
Smith v. Jackson, 246 U.
S. 388; 241 F. 747, 760.
It follows that the decree of the court below, insofar 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
Page 291 U. S. 456
motion, and as he asserts, did nothing either to coerce or
invite the application for an advance decision. Having given that
decision, his function in that regard ceased. The effect of the
decision is a matter purely of law. Obviously there is no occasion
for compelling him by mandamus to recall his decision. However, he
continues to retain possession of the voucher, upon the theory,
evidently, that, having determined that the disbursing officers
were without authority to make payment, it belongs in the files of
his office. The view of the Supreme Court of the District that a
mandatory injunction will lie to compel a return of that voucher to
the disbursing officer and to enjoin the Comptroller General from
any interference with the Chief of Finance tending to prevent
payment thereof to petitioner has not, in the light of the case as
now made, met with the concurrence of a majority of this Court. In
that situation, we therefore affirm, without discussion, the decree
of the District Court of Appeals insofar as it relates to the
Comptroller General. But it is not to be supposed that, upon having
his attention called to our decision, the Comptroller General will
care to retain possession of the voucher, or that he will interfere
in any way with its payment.
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.
280 U. S. 319,
the mandatory injunction to Coleman should issue directing a
disposal of petitioner's application for pay upon the merits,
unaffected 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 circumstances than that
indicated by the Supreme Court of the District.
It is so ordered.