
    THE UNITED STATES, ON THE RELATION OF ELLIOTT SHURTZ, v. DAVID M. KEY, POSTMASTER-GENERAL.
    At Law. —
    No. 19,487.
    I. When the salar}' of a postmaster has been adjusted and fixed at the proper time, upon a sworn statement of the revenues of the office furnished by such postmaster, a mandamus will not issue to compel a subsequent Postmaster-General to readjust the salary so fixed by his predecessor.
    II. The adjustment of such salary is not merely a ministerial function. It requires skill and discretion, which cannot be controlled by the compulsory process of mandamus.
    STATEMENT OE THE CASE.
    This is an application for a mandamus to compel the Postmaster-General to readjust the salary of the relator as postmaster at Marshalltown, in the State of Iowa, for the four years commencing on the 1st day of July, 1872, and ending on the 30th day of June, 1876.
    The proceeding is based upon an alleged violation of section 3854 of the Revised Statutes, which provides that the salaries of tbe postmasters shall be readjusted by the Postmaster-General once in two years, and in special cases as much oftener as he may deem expedient, &c. The mode of readjustment is laid down in section 3855 in the following words:
    “In readjusting the salary of a postmaster, the amount thereof shall be ascertained by adding to the whole amount of box rents commissions of the other postal reveuues of the office, at the following rates: On the first one hundred dollars, or less, sixty per cent.; on all over one hundred dollars, and not over four hundred dollars, fifty per centum; on all over four hundred dollars, and not over two thousand four hundred dollars, forty per centum; on all over two thousand four hundred dollars, fifteen per centum. And in order to ascertain the amount of the postal receipts of each office, the Postmaster-General shall require postmasters to state, under oath, at such times and for such periods as he may deem necessary in each case, the amount of stamps can-celled, the amount of box rents received, the amount of unpaid postage collected, and the amount of postage on printed and other mailable matter,” &c.
    Section 3860 provides that, in regard to postmasters at offices of the first and second classes, the Postmaster-General may allow out of the surplus revenues of their respective offices, that is to say, the excess of box rents and commissions over and above tbe salary assigned to the office, a reasonable sum for the necessary cost of rent, fuel, light, furniture, stationery, printing, clerks, and necessary incidentals, to be adjusted on a satisfactory exhibit of the facts. And by the two following sections, the expenses and salary may be deducted out of the receipts of the office, and that all vouchers and deductions shall be submitted for examination and settlement to the Sixth Auditor. In regard to the amount of the salaries and the classification of postmasters, section 3852 provides that their compensation shall be a fixed annual salary, and they shall be divided into five classes. It then proceeds in the following words:
    
      “ The salary of postmasters of the first class shall not be more than four thousand dollars, nor less than three thousand dollars;.of the second class, less than three thousand dollars, but not less than two thousand dollars; of the third class, less than two thousand dollars, but not less than one thousand dollars,” &c. The remaining two classes are still, less.
    The petitioner represents that the relator was appointed postmaster at said Marshalltown March 1, 1871, and that he continued to discharge the duties of the office until February, 1875, when he was reappointed, and that he has ever since held, and still holds, said office. He also represents that he received a circular from the Postmaster-General, dated June 1, 1871, requiring him to keep an accouut of the amount of stamps cancelled at the office for the six months beginning July 1,1871, and ending December 31,1871, and the amount of unpaid letters, or newspapers and other printed matter, and for box rents; and he was therein also directed to forward a sworn statement of all such amounts, so as to enable the Postmaster-General to revise and adjust the salary of the petitioner from and after the 1st day of July, 1872. That in obedience to such order, he transmitted to the Postmaster-General a statement under oath showing that the amount of stamps cancelled in money was $3,610.42, and for unpaid letters $54164, and for newspapers, &c., $229.23, and for bok rent $447.51. -He claims that of this amount he was entitled to all • the box rent, which, together with his commissions, made an aggregate of $2,105.22 for the six months embraced in said statement; and he also claims that he was entitled to double that amount for the whole year, but that as the salaries of postmasters of the first class shall not be more than $4,000, he was entitled to that amount for each of the two succeeding years.
    He further represents that, on June 1, 1873, he received a similar circular from the Postmaster-General, and that he duly transmitted, as in the former instance, a statement under oath of the postal revenue of the office, to enable him to revise and readjust his salary for each of the fiscal years ending July 1, 1875 and 1876. He then alleges that David M. Key, Postmaster-General, refuses to revise and readjust said salary, though often requested so to do; aud he concludes with a prayer for a writ of peremptory mandamus compelling him to readjust the salary of the petitioner, as postmaster as aforesaid, for the four years specified, at the rate of §4,000 for each of said years.
    The return of the Postmaster-General denies that the relator was entitled to a salary of §4,000 for each of the years mentioned, or that there has been any refusal to readjust his-salary. He attaches au exhibit from the records of the department, from which it appears that the relator was entitled to and received for each of said years the sum of §2,900. It further appears from such exhibit that the predecessor of the present Postmaster-General made the biennial readjustments required by section 3854 on the 1st day of July, 1872, and the 1st day of July, 1874. It also appears by said exhibit that the entire amount of the revenues of said office were absorbed in the payment of the salary of said postmaster, and allowances made to him for fuel, light, furniture, stationery, printing, and clerk hire, and that this allowance was made upon the request of the relator, under said section 3860 of the Revised Statutes.
    The Postmaster-General insists that the readjustment made by his predecessor in office was correct; that the relator, after having received §2,900 as a salary, and the remainder of the revenues of the office, under requisitions made by himself for allowances that could only be made from a surplus of revenues over and above his salary, is estopped from denying the correctness of such readjustment and allowance. He also submits that if such readjustment were based upon an erroneous construction of sections 3852, 3854, 3855, and 3860, he has no power to correct the mistake, it being res adjudicata; and that this court has no right to compel him to ascertain the existence of the right claimed by the petitioner under the construction of doubtful laws. It also appears from such exhibit that the statements under oath forwarded by the relator, showing the revenues of his office, furnished the basis for the biennial readjustment of his salary for the years mentioned in his petition, and that after the salary had been fixed at $2,900 a year, he received that amount regularly, without complaint, and drew his requisitions upon the balance of the revenue of his office for expenses under section 3860. The present Postmaster-General insists that he is entitled to no greater salary than that which was fixed at the time of such readjustment.
    The application which the relator now makes is based upon the assumption that, in point of law, there has been no readjustment of his salary, for the reason that those formerly made were erroneous, in not allowing to him all the commissions upon the revenue of his office to which he was entitled under section 3855.
    The facts are now sufficiently stated.
    
      Durant & Honor, for the relator.
    Now, salary is neither a judicial nor a ministerial question in the first place; it is altogether legislative. It is clear the departments cannot increase or diminish the salaries of your honors, or of any other officers of the United States, because the law fixes them.. In this fixation of salary, the executive officers act first upon the matter; but at last- the question rests with the judiciary to say what the law is. Had the law fixed relator’s salary at $4,000, and the executive had refused to pay it on request, and insisted in its declarations of only a portion of this sum bqing due, the Court of Claims would have jurisdiction. (Williamson v. The United States, 23 Wall., 411.)
    In this case the law fixes the salary with the identical accuracy it used in Williamson’s case. The result was to be reached by certain arithmetical procedures to be made by the defendant upon certain figures which were to be furnished by the relator. These procedures have never been made in point of law. Our case proceeds' upon the theory that no readjustment has ever been made. The judicial action both of the Court of Claims and the Supreme Court is based on the same theory. The readjustment can only be made in one way. No choice or discretion exists in the officer. He must comply exactly with the mandate of the law. After the figures are furnished him by the relator there can be but one result to the calculation. The law does not provide for two different salaries for the same time, for the same officer, for the same performance of duty. The salary is one certain sum, ascertained and fixed by one certain account, by one certain officer, in one certain way. Id 'cerium est quod cerium reddi potest.
    
    Your honors, therefore, have before you no act of any kind of readjustment. You are applied to for relief, not in a case of misfeasance or malfeasance, but of absolute nonfeasance. Hence all that portion of the return averring a readjustment is irrelevant. The relator asks now, for the first time, of your honors, to insist upon the performance by the Postmaster-General of an act of duty imposed upon him by the law, directly within the sphere of his official life, involving no choice and no discretion. Not only is the case a plain one for the issuance of the writ from the very nature of the facts, but the highest authority has declared it the only remedy.
    
      A. A. Freeman, Assistant Attorney-General, for the respondent,
    cited United States v. Lawrence, 3 Dallas, 48; Decatur v. Pauldiny, 14 Pet., 497.
    In the first place, the readjustment of the salary involved the construction of a doubtful law, as laid down in sections 3855 and 3860 of the Devised Statutes. In the second place, that law was construed by the predecessor of the Postmaster-General, and the adjustment made and the salary allowed in accordance with the construction placed by the Postmaster-General on those two sections.
    Section 3860 of the Devised Statutes provides that certain allowances may be made to postmasters at offices of the first and second classes out of the surplus revenue of their respective offices, that is to say, the excess of box rents and commissions over and above the salai-y assigned to the office.
    The record shows that these allowances were hiade to the relator upon his requisition. He accepted the salary assigned to him of two thousand nine hundred dollars, made no objection to it at the time, recognizing the fairness of the allowance by making requisitions upon the department which he knew could only be filled out of the surplus revenue over and above his salary. It was impossible for the Postmaster-General to allow him the amount of salai’y claimed, and also the amount required by him for the items of rent, fuel, &c., as shown in his accounts. If, then, he failed to receive the amount of salary to which he was entitled under the law, his failure is attributable to his own neglect to demand it, or, what is still stronger against the present application, was his recognition of the fact of its correctness by drawing upon the department for supplies which he knew could only be met from the surplus revenue of his office, over and above the amount of salary that he is entitled to receive.
    In deciding, then, upon the question as to whether the entire amount of the revenue of his office should be paid him as a salary, thereby rendering it impossible to make any allowance for necessary cost of rent, &c., or whether two thousand nine hundred dollars should be allowed him as salary, and the remainder devoted to other purposes, the Postmaster-General exercised his best judgment, and, with the acquiescence and consent of the postmaster, determined upon the latter course. In accordance with that adjustment his salary was paid, his vouchers for rent, light, fuel, &c., were presented to the proper department, passed upon and allowed, and the whole matter is therefore res adjudícala, so far as the action of the Postmaster-General is concerned.
    These adjustments, it must be borne in mind, were made at the times required bylaw, and were not objected to by the relator. It is therefore insisted that he is estopped now from complaining that they were incorrect.
    
      Whatever, however, may be the opinion of the court as to the correctness of the original adjustment, it is surely beyond the power of the court to compel the present incumbent to review or revise that adjustment; for, in addition to having to exercise his judgment in the construction of the statutes under which these readjustments are made, he is called upon further to revise and review the action of his predecessor. It is difficult to imagine a case further removed from the exercise of a mere ministerial power than the one at bar. The right of mandamus in the Marburg case was maintained solely upon the ground that the act required to be done involved the exercise of no discretion. All that the Secretary was required to do was. to deliver up a commission already made out and signed. In the case of Stokes and Stockton the Postmaster-General was simply required to enter a credit already ascertained to be due the petitioners.
   Cartter, Oh. J.,

announced the decision of the court, in ■substance as follows :

The petition is predicated on the right of the postmaster to the enjoyment of a salary of four thousand dollars for each year, from 1872 to 1874 inclusive, and which he claims he has been deprived of by reason of the refusal of the Postmaster-General to readjust his compensation for that period. He asserts, in absolute terms, that there was an irregular or unauthorized adjustment, but that there has been no adjustment at all of his salary, and he would be entitled to the extraordinary remedy he invokes if it be true that the head of the department still refuses to comply with the law. But it turns out, upon examination, that his salary was readjusted by the proper officer at the time required by the statute, and upon data furnished by himself for that purpose, under oath, at the request of the department. The real ground of complaint is that he was entitled to a greater salary than that he received. He therefore asserts there was no adjustment. This is specious, but not satisfactory.

The statutes have assigned certain duties to the Postmaster-General for the purpose of regulating the salaries of postmasters. He is to ascertain the revenues of each office at intervals of two years or oftener, according to his own judgment ; and upon a statement of facts to be furnished under oath of the postmaster, he fixes the compensation, and this process is called readjustment. This cannot be regarded as a merely ministerial function. He is called upon, before coming to a conclusion, to examine details, to criticise the materials upon which he is to act, and to pronounce a result after surveying the whole matter, including the interests of the government and the rights of the officer which are involved. It is a delicate and important duty, and implies a much higher exercise of discretion than the mere ministerial duty of computing figures into sums-total.

The review of these statutes and the instrumentality by which salaries from time to time are adjusted, is a labor of great discrimination and nice reasoning, as we have discovered in the discussion of this case, and involves the exercise of skill, ability, and discretion.. Now, the Postmaster-General can be compelled to enter upon the performance of this duty, but after he has acted and reached a result he is beyond the reach of the compulsory process of mandamus. This view is fatal to the application in this case. The genius of this writ, as explained by the Supreme Court and by this court, is to put an officer in motion to perform a duty devolving upon him by the law, and which he neglects or refuses to perform. It requires him simply to act, but if that action involves discretion he cannot be controlled in its exercise. Now, tested by this rule, how does the case stand upon the facts ? Mr. Creswell was Postmaster-General in 1872 and in 1874. The readjustment of the salary of the relator was fixed at that time, and he received it. The commissions were fixed according to the revenue received, and allowances were made for expenses which absorbed the whole amount collected at the office. This happened in 1872, and again in 1874. The postmaster acquiesced in that adjustment, and made his requisition to defray the expenses of the office with reference to it. He now seeks to repudiate the action of the department, to ignore his own conduct in the matter, and to compel the present incumbent to make a readjustment of a salary which was fixed by his predecessor years ago. The former Postmaster-General has acted, and there is no authority to compel his successor to go back and undo the result and establish another standard of compensation for any postmaster. As a precedent it would be extremely injurious. Nothing but anarchy would follow. It would have a tendency, to resolve the administration of the executive departments into the judicial forum, and infringe upon the constitutional distinction between the executive and judicial branches of the government. We are disposed to keep this writ within the restricted limits defined by the decisions, and to hold that it can only issue in a case where the * law points out clearly a duty of a ministerial character. We do not think the case now before us furnishes any occasion for its use, and therefore deny the application.  