In order to enable this Court to entertain jurisdiction of a
writ of error to the Supreme Court of the District of Columbia upon
the ground that the validity of an authority exercised under the
United States was drawn in question in the case, the validity of
the authority must have been denied directly, and not
incidentally.
Where the relator in an application for mandamus seeks to compel
the Fourth Auditor and the Second Comptroller to audit and allow a
claim for mileage upon the ground that the statute provides for
such mileage in terms so plain as not to admit of construction,
that this Court has so decided, and that hence the duty to be
performed is purely ministerial, he does not thereby directly
question the validity of the authority of the auditor to audit his
account and of the Comptroller to revise and pass upon it.
On the 6th day of December, 1889, R. Mason Lisle filed a
petition for a writ of mandamus in the Supreme Court of the
District of Columbia against John R. Lynch, Fourth Auditor, and
Benjamin F. Gilkeson, Second Comptroller, of the Treasury of the
United States, and their successors, in the name of the United
States upon his relation, couched in these words:
"1. The petitioner avers that he was an officer of the Navy from
March 19, 1872, to May 6, 1872, of the rank of lieutenant;
Page 137 U. S. 281
that on March 19, 1872, he was ordered by his superior officer
to proceed from Philadelphia, Pennsylvania via New York and the
Pacific mail steamer from New York, on March 30th, to Aspinwall,
across the Isthmus of Panama, and thence to the Navy Yard, Mare
Island, California, and report for duty on board the U.S.S.
Lackawanna; that he proceeded by the said route, in
accordance with said orders, completing the journey on May 6,
1872."
"2. That in obeying the said orders, he traveled 6,222 miles,
viz., from Philadelphia to New York, 88 miles; from New
York to Mare Island, 6,134 miles. For his traveling expenses from
Philadelphia to New York he was paid $8.80, being at the rate of
ten cents per mile; but for his traveling expenses from New York to
Mare Island he was only credited with mileage for the distance
between the extreme points by the overland route -- a route he was
not ordered to travel and did not travel -- 3248 miles at ten cents
per mile, amounting to $324.80, whereas by the law in force at the
time of the travel (Act of March 3, 1835, 4 Stat. 755), he should
have been credited with mileage for the distance actually traveled,
6,134 miles at ten cents per mile, amounting to $613.40; thus the
petitioner has received $288.60 less than he should have received
under the said act of Congress, which was the act which governed
the compensation to be paid for mileage at that time."
"3. That the respondents have refused and still do continue to
refuse to pay the petitioner or to credit him with, the sum of
$288.60, that being the amount remaining unpaid on the said travel
under the said act of Congress."
"4. That there is no application of the statute of limitations,
for the claim was adjusted and disallowed by Comptroller Maynard on
February 2, 1887, the said disallowance being a clear violation of
the said act of Congress."
"Therefore, the said travel having been performed, the distance
having been correctly computed, the application of the said act of
Congress to the said travel -- under the acts of Congress,
Rev.Stat. (1878), sections 273, 277, prescribing the duties of the
accounting officers -- is a mere ministerial duty,
Page 137 U. S. 282
the exercise of a discretion being invalid under the said
sections."
"Wherefore the petitioner prays that a writ of mandamus may be
issued to the said respondents commanding them to audit the
petitioner's account for the said travel and allow the same, and to
issue a warrant in the manner it is the custom of the Treasury to
issue warrants for the payment of mileage under the said Act of
Congress of March 3, 1835, the same being mandatory upon the
accounting officers."
A rule to show cause was thereupon entered, and the defendants
appearing, it was agreed that the petition and rule to show cause
should be considered and treated as an alternative writ of
mandamus, to which the respondents might make answer or demur as
they might be advised. The respondents accordingly demurred, their
demurrer being accompanied by the following
"NOTE -- Among the matters of law relied upon and to be argued
in support of the above demurrer are --"
"1st. That mandamus will not lie against an officer of the
Treasury Department for refusal to allow and pay a claim against
the United States, for however obviously without legal
justification his refusal may be, a mandamus against him to compel
such allowance and payment is nonetheless in effect a suit against
the United States."
"2d. That it appearing that the relator's claim had been
disallowed by the predecessor in office of the respondent Gilkeson
(to-wit, Second Comptroller Maynard), and there being no allegation
of the production before the respondents of new-discovered material
evidence or that the original disallowance involved errors of
computation, it is not competent for these respondents to reopen
the settlement involving such disallowance."
The cause was heard by the Supreme Court of the District sitting
in general term and judgment rendered denying the relief sought and
dismissing the petition. The pending writ of error was thereupon
sued out.
Page 137 U. S. 283
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
As the matter in dispute does not reach the jurisdictional sum
or value, it is contended that this Court has jurisdiction to
entertain the writ of error, because "the validity of an authority
exercised under the United States" was drawn in question in the
case. 23 Stat. 443, c. 355.
The claim of the relator arises under the last clause of section
2 of the Act of March 3, 1835, entitled "An act to regulate the pay
of the navy of the United States," 4 Stat. 755, 757, c. 27, which
reads:
"It is hereby expressly declared that the yearly allowance
provided in this act is all the pay, compensation, and allowance
that shall be received under any circumstances whatever by any such
officer or person except for traveling expenses when under orders,
for which ten cents per mile shall be allowed."
By section 273 of the Revised Statutes it is provided that
"It shall be the duty of the Second Comptroller first to examine
all accounts settled by the second, third, and fourth auditors, and
certify the balances arising thereon to the secretary of the
department in which the expenditure has been incurred; second, to
countersign all warrants drawn by the Secretaries of War and of the
Navy, which shall be warranted by law."
And by section 277:
"The duties of the auditors shall be as follows: . . . Fifth.
The Fourth Auditor shall receive and examine all accounts accruing
in the Navy Department or relative thereto, and all accounts
relating to navy pensions, and after examination of such accounts,
he shall certify the balances, and shall transmit such accounts,
with the vouchers and certificate, to the Second Comptroller for
his decision thereon."
Section 236 provides:
"All claims and demands whatever by the United States or against
them, and all accounts whatever
Page 137 U. S. 284
in which the United States are concerned, either as debtors or
as creditors, shall be settled and adjusted in the department of
the Treasury."
By the act establishing the offices of comptroller and auditor,
the former was authorized and required "to superintend the
adjustment and preservation of the public accounts," and "to
examine all accounts settled by the auditor," and it was made the
duty of the latter
"to receive all public accounts, and, after examination, to
certify the balance, and transmit the accounts, with the vouchers
and certificate, to the Comptroller, for his decision thereon."
1 Stat. 66.
Considering the accepted definition of an "auditor" with the
language used in these provisions, the Fourth Auditor may be
correctly said to be authorized to examine accounts accruing in the
Navy Department, compare the items with the vouchers, allow or
reject charges, and state the balance, and the Comptroller has
authority to revise the action of the auditor and certify the
balances finally found by him.
It is stated in the opinion delivered by Mr. Chief Justice Waite
in
United States v. Graham, 110 U.
S. 219,
110 U. S. 220,
cited on behalf of relator, that it was found as a fact in that
case
"that on the 6th of April, 1835, which was only a little more
than a month after the act of 1835 passed, circular instructions
were issued from the Treasury Department to the effect that mileage
at the rate of ten cents a mile was fixed by law, and should be
paid for traveling expenses within the United States, but that the
usual and necessary passage money actually paid by officers
returning from foreign service, under orders or on sick ticket,
when they could not return in a public vessel, would be paid as
theretofore, as well as the like expenses of officers going out.
The navy regulations adopted in 1865 and in force in 1872, when the
claim of Graham, the appellee, accrued provided that 'for traveling
out of the United States, the actual expenses only are allowed.' It
is also found that from the time of the passage of the act of 1835
until the decision of
Temple's Case in this Court, the
navy and Treasury Departments had, with a single exception, always
held that the tem cents a mile did not apply to travel
Page 137 U. S. 285
to, from, or in foreign countries, but only to travel in the
United States. In
Temple's Case, the long continued
practice in the departments was relied on to justify the decision
of the accounting officers of the Treasury against him, but the
fact of the actual existence of the practice was not found as it
has been now."
The decision in
United States v. Temple, 105 U. S.
97, was announced at October term, 1881. That case
brought under consideration the Act of Congress of June 30, 1876,
relating to the mileage of officers of the navy, while
Graham's
Case arose under the Act of March 3, 1835, and it was held
that, as the language of the statute in each instance was clear and
precise and its meaning evident, there was no room for
construction, and that eight cents a mile in the one case and ten
cents in the other was properly allowed the claimants by the Court
of Claims, from whose judgments in their favor appeals were
prosecuted to this Court.
It is now argued that the duty of the Fourth Auditor and of the
Second Comptroller, under the last clause of section 2 of the act
of 1835 and the decision of this Court in relation to it, was
merely ministerial, and that, by the disallowance of relator's
claim for mileage, these officers exercised a discretion which they
did not possess; that this was an invalid exercise of an authority
under the United States, and that hence the validity of the
authority was drawn in question. In order to justify this position,
however, the validity of the authority must have been drawn in
question directly, and not incidentally. The validity of a statute
is not drawn in question every time rights claimed under such
statute are controverted, nor is the validity of an authority every
time an act done by such authority is disputed. The validity of a
statute or the validity of an authority is drawn in question when
the existence or constitutionality or legality of such statute or
authority is denied and the denial forms the subject of direct
inquiry.
We think that the authority of the Second Comptroller and the
Fourth Auditor is not thus denied here, nor the validity of that
authority questioned, but that what is claimed is that, in the
exercise of a valid authority, the auditor and comptroller
Page 137 U. S. 286
erred in respect to an allowance in view of the decision of this
Court in another case.
In
Decatur v.
Paulding, 14 Pet. 497,
39 U. S. 515,
it was remarked by Mr. Chief, Justice Taney that the duties to be
performed by the head of an executive department of the government,
whether imposed by act of Congress or by resolution, are not in
general mere ministerial duties; that departmental duties are
executive in their nature; that the laws and resolutions of
Congress under which the departments are required to act have to be
expounded in the exercise of judgment, and that while the court
would not be bound to adopt the construction given, when
departmental decisions are under review in a proper case, the court
would not by mandamus control the exposition of statutes by direct
action upon executive officers. In relation to the interpretation
of a pension law by the Commissioner of Pensions and the Secretary
of the Interior in
United States v. Black, 128 U. S.
40,
128 U. S. 48,
MR. JUSTICE BRADLEY said:
"Whether, if the law were properly before us for consideration,
we should be of the same opinion or of a different opinion is of no
consequence in the decision of this case."
The contention of the relator is that the interpretation the
puts upon the act is too obviously correct to admit of dispute, and
that this Court has so decided; but it does not follow because the
decision of the Comptroller and auditor may have been erroneous
that the assertion of relator to that effect raises a cognizable
controversy as to their authority to proceed at all. What the
relator sought was an order coercing these officers to proceed in a
particular way, and this order the Supreme Court of the District
declined to grant. If we were to reverse that judgment upon the
ground urged, it would not be for want of power in the auditor to
audit the account and in the comptroller to revise and pass upon
it, but because those officers had disallowed what they ought to
have allowed and erroneously construed what needed no construction.
This would not in any degree involve the validity of their
authority.
Snow v. United States, 118 U.
S. 346,
118 U. S. 353;
Baltimore & Potomac Railroad Co. v. Hopkins,
130 U. S. 210.
In
Page 137 U. S. 287
Clayton v. Utah Territory, 132 U.
S. 632, the power vested in the Governor of the
Territory of Utah by the organic act to appoint an auditor of
public accounts was drawn in question, and in
Clough v.
Curtis, 134 U. S. 361,
134 U. S. 369,
the lawful existence, as the Legislative Assembly of the Territory
of Idaho, of a body of persons claiming to exercise as such the
legislative power conferred by Congress, was controverted. In
Neilson v.
Lagow, 7 How. 772,
48 U. S. 775
and 12 How.
53 U. S. 98, the
plaintiff in error claimed the land in dispute through an authority
exercised by the Secretary of the Treasury, and the state court
decided against its validity. The existence or validity of the
authority was primarily involved in these cases, and they contain
nothing to the contrary of our present conclusion.
Why the relator did not bring suit in the Court of Claims does
not appear, nor does the record show the reasons of the Second
Comptroller for rejecting this claim in 1887, nor for the action of
the present auditor and comptroller other than as indicated in the
demurrer. These matters are, however, immaterial in the view which
we take of the case.
The writ of error must be dismissed, and it is so ordered.