
    JAMES M. T. GLEESON v. THE UNITED STATES.
    [No. 13900.
    Decided April 2, 1888.
    
      On the Proofs.
    
    This court holds that the Postmaster-General has power to reduce the pay of a railway clerk prospectively (22 C. Cls. R., 82), hut enters a judgment in favor of the claimant for the purposes of an appeal. The Supreme Court reverses the judgment, on the ground that it appears on the face of the record to be pro forma.
    
    I. The Postmaster-General may appoint railway postal clerks, each of whom shall be paid “a salary at the rate of not more than one thousand fom’ hundred dollars a year to the head elerhs” (Revised Statutes, §. 4025.) The appointment is not for a definite period, and the right to continue a clerk in the service is within the discretion and power of the Postmaster-General, who may remove from office or reduce the compensation.
    II. The Act July 31, 1882 (22Stat., L. p.,180), can not affect the prior rights of postal clerks, but may be referred to as explanatory of legislation and as indicating a policy on the part of Congress.
    
      The Reporters' statement of the case:
    The facts were not a matter of controversy, the only question in the case being whether the Postmaster-General had power to reduce the claimant’s salary below the maximum rate named in the statute. ' ,
    
      Mr. Robert O. ScheneJc (with whom were MeG-rew & Small) for the claimant:
    By Article II, section 2, of the Constitution of the United States, it is provided that, while the President may nominate, and by and with the ad¡vice and consent of the Senate, appoint all officers of the Government, yet “ the Congress may, by law, vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of Departments.” Under this clause alone can authority to appoint be given to the Postmaster-General. By tbe eighth section, Article I, of the Constitution Congress has power “ to establish post-offices and post-roads,” and, by another clause in the same article, “ to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in the Government of the United States, or in any Department or officer thereof.”
    In the head of a Department might be vested only the power of appointment. All offices not provided for by the Constitution itself are expressly to be “established by law.” The creation of an office itself therefore, including the conditions of its tenure, the service to be performed, and the compensation to be allowed for such service, with provisions for all its other incidents, can be but the work of legislation.
    To “establish” the office, and to provide for and regulate its ■character, its duties, and other incidents, are not within the functions of the executive or administrative branch of the Government. Congress may, as to inferior officers, delegate to certain executive officers the power to appoint, but certainly no authority is expressly given, and ought not reasonably to be inferred, to transfer to an executive official the right to legislate. If, however, it be claimed that it is too late now to deny a construction of power and practice under it which appears to have been exercised in many instances, or if it be contended that the fixing of a salary is so essential and necessary an incident of office that it may be included in the phrase “ to appoint,” the court, we submit, should look with great strictness, if not with disfavor and jealousy, on so loose a construction and practice. It is for this highest tribunal, above all, to guard the boundaries which define and separate the functions to be exercised by the great cardinal branches of our Government.
    3. It is contended, in behalf of the United States, that the words “ not more than,” used in the statute, must be construed so as to invest the Postmaster-General with the power, at his discretion, not only to determine the amount of the salary to be allowed the officer under his appointment within the maximum limit given by the law, but within that limit thereafter to reduce and change such salary at his like discretion. Without going now into a consideration of the danger, the uncertainty, the injustice which must attend such an interpretation, we sub-mil on this point a denial of intention by Congress to confer any such monstrous power. To claim it is to propose a new encroachment of the Executive on legislative ground. So far as we are advised this claim raises a question which is new in this court, and has perhaps never had a judicial decision upon it. But the question is very far from new, so far as administrative and legislative interpretation and practice can settle it and remove doubt. The words “not more than,” or some equivalent phraseology, such as “ not exceeding,” “ not to exceed,” “ not greater than,” are words of common use in the framing of statutes where the legislature intends only to indicate an amount of compensation to be paid for any service rendered; and if the uniform understanding and usage of our law-makers, as well as the administrators of the law, is tobe regarded as of value, we can aid the court by the production of numberless examples. The statute-books are full of such instances, and the understanding and application of such words in the cases for which they provide appear never to have varied or been questioned. “The practical construction given to a statute by the public officers of the State, and acted upon by the people thereof, is to be considered and is perhaps decisive in case of doubt.” (The Union Ins. Go. v. John Blair. Jloge, 21 How., 35, and Brown v. United States, 113 U. S., 5G8.)
    And here it may be properly remarked,"that the very fact of the novelty of the question raised in this case — a question as to the effect of the words “ not more than” — furnishes in itself the strongest proof that the interpretation we give to such language has not heretofore been doubted.
    There are a largo number of enactments applicable to various cases, including compensation provided for officers of every grade, from Senators and Representatives themselves, and Ministers Plenipotentiary, down to many subordinates. Two classes of cases are presented, one of acts where we contend the salary or pay is fixed by law, the other where Congress intended to delegate the power to regulate the same. These lists, with labor and patience, might be greatly extended. We submit that they present to the court at the same time both argument and illustration very strongly and clearly sustaining the view that Congress meant by its own action not only to make a classification of these railway postal clerks into head clerks and other clerks, but to fix by sufficiently determinate language their salaries, respectively, at $1,400 and $1,200 per annum.
    To construe the intention of Congress otherwise than this, and to give the Postmaster-General the power claimed for him to allow salaries as he pleased, only keeping within the amounts named by the law, would have enabled that official to defeat at the start the very object and purpose of its enactment by refusing to allow in any case pay sufficient to secure the services of competent persons, or, by reversing the arrangement intended, to give to head clerks smaller salaries than those allowed to the other and lower class of clerks. It is submitted, also, the employment of the terms and expressions “may vary and apportion,” “may allow in his judgment,” “may prescribe” within a given “maximum,” found in statutes delegating, or rather seeking to delegate, the power to regulate salaries, precludes the idea that it can be implied or conferred otherwise than by the use of such terms and expressions, or others equally express, unequivocal, and substantive.
    In the case of Oonverse v. United■ States (31 How., page 403), the question at issue was whether Greely, late collector customs, Boston, Mass., was entitled to an additional allowance ($17,084.02) as commissions on disbursements made by him under orders of the Secretary of the Treasury in view of the statutory prohibition against additional allowances to officers receiving fixed salaries ( Act Aug. 23,1842, sec. 2,5 Stat. L., 510), the court held that he was entitled to the compensation fixed by law for this service, so far as it was outside his district and beyond the limits to which his duties as an officer extended. Greely was paid the salaries of $0,000 and $400 per annum which attached to the office under the Act of March 3,1841, sec. 5 (5 Stat. L., 432), and Act of May 7, 1822, sec. 18 (3 Stat. L., 696), in both of which the expression “more than” occurs.
    
      Act.of May 7,1822, sec. 18 (3 Stat. L., p. 696):
    “That no collector, surveyor, or naval officer shall ever receive more than $400 annually exclusive of his compensation,” etc.
    
      Act of March 3, 1841, sec. 5 (5 Stat. L., 432):
    “ That no collector shall, on any pretense whatever, hereafter receive, hold, or retain for himself in the aggregate more than $6,000 per year.”
    
      Counsel for both parties argued tbe ease from the standpoint that 'Greely was an officer whose salary was fixed by law; and it is also clear that the court so regarded him. Justice Campbell, in his dissenting opinion, using this expression : “ It being admitted that Mr. Greely was an officer whose salary, pay, or emoluments was or were fixed by law.”
    And in all other cases where the same expression occurred it was always assumed by the court that the salary of the officer was fixed by law.
    But if it should be accorded and held that the Postmaster-General, iu executing the law, might, at his first appointment of a head clerk under this statute, exercise a discretion in fixing the salary, placing it at some figure in each case less than the amount indicated by Congress, then we most confidently conteud that at that point discretion ceased, and his power in that particular was exhausted. He was made an agent to fix compensation within the limit named in the law. So far as that duty was involved, he was functus officio. (People v. Supervisors, 40 Mich., 080.)
    There was no continuing power given him after that to change or regulate at his pleasure the compensation. To hold any other doctrine than this would be to introduce aud recognize a most dangerous and even fatal element in our political system. “ Danger” and “fatal” are plaiu terms, but not too strong for the occasion.
    We know with what caution in the interpretation of statutes the courts will regard the weight of argument drawn alone from considerations of public policy, but we know, also, with what equal caution they will stop from a seeming “literal construction which would lead to absurdity and mischief.” (U. 8. v. Kirby, 7 Wall., 482 ; Wilberforce, Stat. Laws, 82.)
    And in interpreting statutes, as in the interpretation of the Constitution, we may, without invoking a “ higher law,” fairly claim that there are certain broad, radical, underlying principles of right, always recognized and intended, which are us much a part of that organic law as the written letter of the instrument itself. In the particular instance before us it is easy-to point out what must be manifestly some of the mischievous, unjust, and monstrous results of the reading and meaning sought to be given to the act in question, and to the wide and unchecked power which it would thus confer on the Postmaster-General.
    
      (1) That official might, as before intimated, so arrange, by the insufficiency of the pay allowed, as to defeat altogether the purpose and objects of the law and prevent its execution.
    (2) He might virtually destroy the classification of these employés intended by Congress, and without regard to their relative services and greater or less responsibility, give greater compensation to the inferior clerks than to the head clerks.
    (3) He might designate very different salaries for individuals of the same class for similar service rendered, and thus establish and maintain an odious favoritism. Indeed, we believe that the official records will show that such discriminations have been made.
    Here, in this contention, are presented two widely-varying interpretations of a statute. They are like two roads diverging and leading to different points. In one direction is safety, and' the path proceeds on solid ground. The other way is marked with danger, and may end in a boggy marsh. Is it too much to claim that this court, standing as a guide at the dividing point, will wisely and authoritatively warn us not to take the wrong road ?
    
      Mr. JP. P. JDewees (with whom was Mr. Assistant Attorney-General Howard) for the defendants :
    It may be stated as a general rule, subject to some modifications, that where it is declared in a statute that a public officer “may” have power to do an act which concerns the public interests, “may” means “shall.”
    There can be no question but that in the present instance the provision that the Postmaster-General “may” appoint clerks, etc., is not only directory as to the appointment of such clerks, but also that he shall appoint a sufficient number “ for the purpose of assorting and distributing the mails.” The act provides that the salaries of the head clerk shall be paid “ at the rate of not more than $1,400 per annum.” He is directed to employ a sufficient number ef clerks, but he is limited as to their payment by the express terms of the statute, and also by the further limitation that such clerks “ shall be paid out of the appropriation for the transportation of the mail.” The requisite number of clerks must be employed by the Postmaster-General to perform the service; the rate of pay is dependent upon the-yearly appropriation.
    
      It is idle to discuss whether it is true policy for the Government to vest officials with discretionary powers. As a matter of fact, as appears by a plain reading of the statute, the Postmaster-General is invested with the power to appoint a suffi-oientnember of clerks and, within certain limitations,to fix their pay.
    But it is contended that if the Postmaster-General is author ized to appoint head clerks at a rate of compensation less than $1,400, this discretion is not a continuing discretion, but is exhausted after an appointment is made.
    It is sufficient answer to this to say:
    (1) The number of clerks must be sufficient for the purpose of assorting and distributing the mails.
    (2) The rate of salaries is limited by the appropriation.
    In the present case, the question of duress can by no possibility arise. The reduction was made before the services were rendered. It is to be assumed that the Postmaster-General fixed the salaries of all the employés in accordance with the provisions of the statute relative to the work to be accomplished and the amount of the appropriations.' If he failed in his duty in this respect, the claimant can have no remedy in this action.
    The point is made that, as Congress passed the act of July 31, 1S82, “ to designate, classify, and fix the salaries of persons in the Bail way Mail Service,” it follows that prior to that time the Postmaster-General had no such power. This is a novel proposition. The Bevised Statutes are a re-enactment of existing laws. Many of the original statutes are simply reenactments of the common law. Departmental practice must be in accordance with law, but statutory enactment may make a departmental practice obligatory which prior thereto was discretionary.
    It is respectfully submitted that the construction of section 4025, Bevised Statutes, given by the Postmaster-General, and applied to the claimant in this case, is in accord with the words, the context, the subject-matter, the effects or consequences, and the spirit and meaning of the law.
   Weldon, J.,

delivered the opinion of the court.

This cause was tried and determined at the last term of the ■court; and in that proceeding a judgment for $597.84 was rendered for the claimant. On appeal to the Supreme Court, that judgment was reversed, upon the ground that it was in form pro forma. The legal merits of the controversy not having been decided by the Supreme Court, we are asked to review and reverse our opinion in the former trial, and give a judgment on the merits, in favor of the claimant.

The facts are as follows :

On the 15th day of November, 1871, the claimant was appointed by the Postmaster-General a railway postal clerk at a salary of $1,400 per annum, and served in said capacity until May 23, 1883. From the 1st day of August, 187G, to the 31st day of July, 1SS2, his salary was reduced from $1,400 to $1,300, and on the' 12th day of June, 1879, a further reduction was made for one month, as stated, from $1,300 to $1,240 per an-num ; the total of such deductions being $597.84; and for that amount said judgment was rendered in favor of the plaintiff. Upon the foregoing state of facts, we are asked to render a judgment, upon the merits, for said amount. The cause is important in the fact that it affects a class of cases; and perhaps none of them is of sufficient magnitude to confer the right of appeal, in case the result is adverse to the claimant. It was for that reason that the judgment of the court at the last session differed from the opinion of the court.

The case has been most elaborately and ably argued by the claimant and the defense, especially so in the last trial.

The question of compensation of a public officer is most usually settled by the statute in regulating his fees for a given service, or measuring the quantity of his salary, if it is an office capable of having a fixed salary. Where the work is continuous, and does not consist of distinct acts of official power, an entire compensation is provided for an entire service.

A postal clerk is in the performance of a duty which can be measured only by a definite quantity of compensation. With a court it is not, as a general proposition, a question of how much a given public service is worth, but what is the statutory compensation provided for the performance of the labor. However meritorious the service may be, it must conform in its compensation to the amount fixed by law. It is not" the quantity merited, but the quantity allotted by the statute.

Section 4025 of the Bevised Statutes provides:

u The Postmaster-General may appoint clerks for the purpose of assorting and distributing the mail in railway post-offices, each, of whom shall be paid, out of the appropriation for the transportation of mail, a salary at the rate of not more than one thousand four hundred dollars a year each to the head clerks, nor more than one thousand two hundred dollars a year each to the other clerks.”

It is insisted by claimant that the foregoing- section fixes the rate of compensation at the exact amount of $1,400; and that there is no power in the Postmaster-General to reduce it below that amount. The appointment of a sufficient number of clerks to distribute the mail in railway post-offices is by this statute given to the Postmaster-General, and he is to exercise his discretion both as to the persons to be appointed and the number of clerks to perform the service. The appointment is not for a definite period; and during the incumbency of the clerk the right to continue in the service is within the discretion and power of the Postmaster General. He may remove, in the exercise of that discretion, upon reasons satisfactory to himself.

Under the act of July 31,1882, entitled “An act to designate, classify, and fix the salaries of persons in the railway mail service (22 Stat. L., p. 180), it is provided—

“ That the Postmaster-General, in fixing the salaries of clerks in the different classes, may fix different salaries for clerks in the same class, according to the amount of work done and the responsibility incurred by each; but shall not in any case allow a higher salary to any clerk of any class than the maximum fixed by this act for the class to which such clerk belongs.”

The purpose of this statute is to enable the Postmaster-General to classify the postal clerks into different classes, dependent upon their importance in the mail service, and to fix their respective compensations, not to exceed a maximum allowance. The word “maximum” used in the statute, although not found in section 4025, may be held as indicating a purpose on the part of Congress to recognize in the Postmaster-General a power to determine the compensation for a given service. This statute, passed as it was after the rights of the claimant accrued, can not affect the rights to which he was entitled under section 4025, but may be referred to as explanatory of that section, and as indicating a policy Congress may have had in legislating on the question of postal mail service.

The point is made in behalf of the claimant that the salary being once fixed and established, the Postmaster-General had no power to reduce or change it in his discretion. If the power exists iu the Postmaster-General to ñx the salary, it is a continuing power, and does not become exhausted by the exercise of it by the first designation. It is true that there are certain powers given to public officers or individuals which become exhausted when once exercised, but the power in this case, if it exists, does not belong to that character.

If the compensation, not to exceed a certain amount, is iu the control and discretion of the Postmaster-General, that control and discretion is not to be taken away by once exercising the power of designation. In the case of McBlair and Bunlcle (19 O. Gis. R., 397,528) this court held that the President in the exercise of a certain power in relation to officers on the retired list of the Army became /unctus officio; but those decisions are placed upon the distinction of a continuing power, and one intended to accomplish a definite and individual result.

The right to appoint and discharge at discretion gave to the officer practical control of the power of designation of the' amount of salary, and he would not be estopped by the fact that he once designated the salary at a given sum.

If the Postmaster-General had, under the law, the right to fix the salary ata sum not exceeding $1,400, and the power to appoint and discharge, the law would not require, him to-discharge and re-appoint, in order to designate the salary anew.

What can be done indirectly, may ordinarily be done directly, in the performance of a public dutj.

The statute confers on the officer the right to appoint clerks “at the rate of not more than $ 1,400 a year.” The services of clerks in the postal service are as dissimilar in the amount of labor performed and responsibility incurred as the different routes differ iu importance in the mail service to be performed.

If a discretion was given to the Postmaster-General to vary the compensation so as to suit the different degrees and responsibility of labor incident to different routes, or incident to a changed condition in the same routes, it would not have been an unwise policy of the law.

The words “not more than $1,400” become important because of the diversity of service which may be rendered by persons in the postal service. If the labor was uniform in its amount, no good reason would exist for a diversity of compensation ; but such is not the fact. The classification in the statute of 1882 recognizes a condition of things which necessarily existed from the commencement of railway postal service, and will continue so long as differences exist in the commercial importance of the different mail routes of the United States.

As was quoted in the case'of Fisher (15 O. Cls. K>., ,327):

“ The good expositor (says Lord Coke) makes every sentence have its operation to suppress all the mischief; he gives effect to every word in the statute; he does construe it so that anything should be vain and superfluous, nor yet make exposition against express words.” (Dwarris on Statutes, 577.)
“In Bowen’s (14 U. S. R., 508) this court held that the introduction into a section of the Revised Statutes of the single word “ such,” which was not in the original act there revised and re-enacted, completely changed the law, and that decision was affirmed by the Supreme Court.” (Fisher v. United States, 327.)

In the case of The Eastern Railroad Company (20 C. Cls. R., 41), this court said:

“Section 4002 of the Revised Statutes, from the act of 1873, does not establish an absolute rate of compensation, necessarily alike to all railroads, for mail transportation, but fixes máximums which are not to be exceeded, leaving the Postmaster-General a discretion to make contracts at less rates if he should be able to do so. On that point the language of the section is clear: ‘The pay per mile shall not exceed the following rates.’
“ It is urged that this language is controlled by the preceding words of the section: ‘ The Postmaster-General is authorized and directed to re-adjust the compensation hereafter to be paid for the transportation of mails on railroad routes upon the conditions and at the rates hereinafter mentioned.’ In our opinion the rates there referred to are any rates which the Postmaster-General may contract for, not exceeding those thereinafter mentioned.”

In the case of The Union Pacific Railway Company v. The United States (20 C. Cls. R., 70) the words “ at a fair and reasonable rate of compensation, not to exceed the amounts paid by private parties for the same kind of service,” became a subject of judicial interpretation and application; but could it be successfully insisted in that case that such words absolutely fixed the compensation of the company at the prices paid by private parties, even though they were reasonable? “ Not to exceed ” and “not more than ” must be of similar legal import in reference to the subject-matter of this statute. Expressions in different phraseology, but conveying the same general meaning, must be held as equivalent in law. The sum of $1,400 being subjected to the restraining force of the words “not more than,” becomes in the act upon which the claimant’s right is based a maximum compensation, and not a definite and determined quantum of the valúe of the service performed by the claimant.

The fact that the claimant was appointed under the Act of 1805 (13 Stat. L., 506), which provides that the salary “ shall not exceed $1,400,” if different from the Revised Statutes, which provides that the salary shall be “ not more than $ 1,400,” would make no difference in favor of the claimant, as we have construed the power of designation, under the last act as to the salary, to be a continuing power. There could be no vested right against the defendants in the claim to a salary at $1,400 under the act of 1865.

In the Fisher Case this court decided :

With some few exceptions Congress may at any time reduce the salaries of public officers. The only contract which arises from a statute establishing a salary is to pay the incumbent that salary while the law remains inforceP (15 C. Ols. R., 333.)

The Fisher Case was taken to the Supreme Court, and, upon appeal, the principle announced in this court was affirmed, the Supreme Court saying:

Congress therefore could, without the violation of any contract, reducetke salary of the appellee, and had the constitutionalpoioer to do so.”

We have very carefully reconsidered our former opinion, aided by the suggestions of the able presentation of claimant’s right by his counsel in the second hearing; but are constrained by the best light of interpretation to hold, as we did in our former opinion, that the plaintiff has no right to recover and therefore

The petition must be dismissed.  