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UNITED STATES EX REL. MCLEAN v. VILAS.

decided: January 9, 1888.

UNITED STATES EX REL. MCLEAN
v.
VILAS.



ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

Author: Miller

[ 124 U.S. Page 86]

 MR. JUSTICE MILLER delivered the opinion of the court.

This is a writ of error to the Supreme Court of the District of Columbia.

In the case of United States v. McLean, 95 U.S. 750, will be found the report of the decision of this court in an action instituted by the present plaintiff in error against the United States. The appeal was taken from a judgment of the Court of Claims in favor of McLean for the sum of $569.50, for compensation as deputy postmaster at Florence, Kansas, from April 14, 1871, to July 1, 1872, which was rendered on the ground that he was entitled to a readjustment of his salary by the Postmaster General for the period between those dates, and that if such readjustment had been made his salary would

[ 124 U.S. Page 87]

     have been increased by the amount for which the court rendered judgment in his favor.

This court, however, held on the appeal that the Court of Claims could not perform the duty of readjusting the salary under the acts which conferred that power on the Postmaster General, and that there was no legal liability against the United States for the amount claimed by him until that officer had readjusted the salary in accordance with those acts of Congress. In its opinion the court suggested that if the executive officer failed to do his duty in that respect he might be constrained by a mandamus to perform it.

Acting upon this suggestion, and under the act of Congress of March 3, 1883, which authorized and directed the Postmaster General, in proper cases, to make readjustments of salaries which should act retrospectively, Mr. McLean made a demand upon that officer -- indeed, he made two demands, one upon Postmaster General Gresham, and the other upon Postmaster General Vilas -- for such a readjustment. Both of these officers declining to comply with his demand, he, on the 4th day of August, 1886, commenced the present suit in the Supreme Court of the District of Columbia by filing therein his petition for a writ of mandamus.

This petition alleges that McLean served as a postmaster of the fifth class at Florence, Kansas, from or prior to April 14, 1871, to June 30, 1872, and made full returns of the business and receipts of his office on the last day of each quarter to the officer designated by law to receive such returns; that upon the returns made on the 30th of June, 1871, he was allowed and paid a salary of $1.48, and that if paid in commissions upon said returns, under the act of 1854, he would have received $89.12.He further declares that upon all the returns made by him between July 1, 1871, and July 1, 1872, he was allowed and paid a salary of $7.00, and that if he had been paid in commissions upon said returns, under the act of 1854, he would have received $568.64. He also alleges that the Postmaster General refused to readjust his salary as such postmaster during his said term of service, whereby he had been unable to recover his just compensation in the Court of Claims;

[ 124 U.S. Page 88]

     and further, that under the act of March 3, 1883, c. 119, 22 Stat. 487, he did, in writing, present his application for such readjustment to William F. Vilas, Postmaster General, who refused to readjust his salary for the term of service between April 14, 1871, and July 1, 1872, or for any part of that term; and, therefore, he prays the court for a writ of mandamus to compel this readjustment.

An amended petition was filed in the lower court, a demurrer to the petition as thus amended was overruled, and the respondent then filed pleas to the jurisdiction of the court to issue a mandamus in the case. He also filed a very elaborate answer, in which many defences were set out, and among others a denial that by a true construction of the statutes by which he was governed in the matter of the readjustment of salaries of postmasters, the plaintiff is now or ever was entitled to such a readjustment. The court below, having issued a rule to show cause why a mandamus should not issue, to which these defences on the part of the Postmaster General were set up, on final hearing decided in his favor, and discharged the rule. To that judgment the present writ of error is directed.

Before proceeding to examine with minuteness the various statutes on which the arguments turn, it may be well to state in condensed shape the two propositions relied on by the contesting parties growing out of the construction of these statutes.

Counsel for the defendant assert the proposition, that, under the statutes on this subject, which will hereafter be referred to, there was no obligation resting upon the Postmaster General to readjust the salaries of these officers oftener than once in two years; that such readjustment, when it took place, could only establish the amount of the salary for two years thereafter, and that no such readjustment could be made unless there were quarterly returns for two years preceding such readjustment on which it could be based.

Counsel for the plaintiff, on the other hand, insist that whenever, upon the filing of any quarterly return by a postmaster of the third, fourth, or fifth class, it is shown that the salary

[ 124 U.S. Page 89]

     allowed is ten per cent less than it would be on the basis of commissions under the act of 1854, then the Postmaster General shall review and readjust his salary under the provisions of the act, and that this duty devolves upon him at the end of every quarter when the return of the postmaster for that quarter shows this condition of affairs; so that he is compelled, by this construction of the law, to make this readjustment four times a year if the returns justify it, instead of once every two years, as the counsel for the Postmaster General contend.

From the beginning of the government down to the year 1864 postmasters were paid by commissions on the receipts at their offices, ascertained by their quarterly returns of the moneys received for postage, stamps, box rents, &c. Until 1836 all postmasters were appointed by the Postmaster General, and were thence called deputy postmasters. So much of the statute of June 22, 1854, as is pertinent to the consideration of this case, is here inserted:

"That in place of the compensation now allowed deputy postmasters the Postmaster General be, and he is hereby, authorized to allow them commissions at the following rates on the postage collected at their respective offices, in each quarter of the year, and in due proportion for any period less than a quarter, viz.:

"On any sum not exceeding one hundred dollars, sixty per cent; but any postmaster at whose office the mail is to arrive regularly between the hours of nine o'clock at night and five o'clock in the morning, may be ...


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