
    ENOCH D. MOFFETT v. THE UNITED STATES.
    [No. 22782.
    Decided May 19, 1902.]
    
      On the defendants' Demurrer.
    
    A postmaster of the third class places his own letter boxes in the office and retains the rents. Ilia office is raised to the second class, and he is then required to pay over the box rents. The Department refuses to allow him compensation for the use of his boxes.
    I. The Revised Statutes, 3860, provides that “the, Postmaster-General may allow to the postmaster at offices of the first and second classes” “a reasonable sum for the necessary cost of rent,” etc. The statute by the term ‘‘may” allows the Postmaster-General to do justice to his subordinates in the manner prescribed, but does not invest him with discretion to allow reimbursement to one postmaster and refuse it to another.
    
      II. The provision that “no such allowance shall he made except upon the order of the Postmaster-General” prohibits such allowances from being made by other administrative officers, but does not exclude a postmaster from judicial redress.
    
      The Reporters' statement of the case:
    The following are the material allegations of the petition, demurred to by the defendants:
    On January 14,1898, the claimant was duty appointed postmaster at Hartford City, Ind., for a period of four years, receiving his commission February 5,1898; that he faithfully served as such postmaster from February 5, 1898, until January 25, 1902, when he resigned said office, turning over to his successor all books, papers, and moneys in his hands belonging to said office at the time of the incumbency of such successor.
    The claimant was the owner of the furniture, fixtures, and box outfit of the post-office from February 5, 1898, to October 1,1899, when ho sold same to one William B. Cooley, of Hartford City, who, on that date, let and leased to the defendants through the Post-Office Department the building and room in which said post-office was located and conducted, and also let and leased to the defendants the said furniture, fixtures, and box outfit in connection with said building, all for a valuable consideration.
    On July 1, 1899, the said post-office was duly advanced to and.made a post-office of the second class, prior to which time said office was of the third class.
    The box rents of said post-office for the quarter ending September 30, 1899, accounted for by the claimant as postmaster as aforesaid, and paid into the Treasury over his protest and at the demand of the Postmaster-General, was $276.37.
    The surplus revenues of said post-office up to July 1, 1899, and during the fiscal year ending September 30, 1899, and since, were sufficient to pay all necessary cost of rent, fuel, lights, furniture, stationery, printing, clerks, and necessary incidentals of said post-office.
    While the Postmaster-General on May 31,T899, notified the claimant that said post-office was then designated as and assigned to the second class from and after July 1,1899, and on this last-named date actually made a post-office of the second class, be did not enter into a lease for the building in which the post-office and fixtures and box outfit were located until October 1, 1899, and thereby claimed and had the use of claimant’s post-office furniture, fixtures, and box outfit, in said second-class post-office, for the quarter beginning July 1, 1899, and ending September 30, 1899, without compensating the claimant therefor.
    It is claimed by the claimant that it was the duty of the Postmaster-General, under the United States Post-Office Laws and the rules and regulations of the Post-Office Department, on July 1, 1899, to enter into a lease for and provide a building and furniture and fixtures and box outfit and appurtenances for the use of said Hartford City post-office; and that, having accepted the use of the furniture, fixtures, and box outfit, etc., of the claimant for the use of said post-office, it is the duty of the defendants to pay a reasonable rent for the same, which he says is $276.31.
    
      Mr. F. W. Oollins (with whom was Mr. Assistant Attorney-General Fraclt) for the demurrer.
    
      Messrs. Ohaney and Hart opposed.
   Nott, Ch. J.,

delivered the opinion of the court:

This case comes before the court upon the defendants’ demurrer to the plaintiff’s petition, by which the following facts appear:

On the 30th of J une, 1899, the post-office at Hartford, Ind., was a post-office of the third class; on the 1st of July, 1899, it became a post-office of the second class. As postmaster, the claimant had furnished the post-office with furniture and letter boxes, and had received the rents while the office belonged to the third class. For the quarter running from the 1st of July to the 30th of September the claimant continued to furnish the furniture and boxes, which were his private property, and was required to pay over the box rents, which he did under objection and protest.- Consequently the defendants have received the rents, amounting to $276.37, derived from the claimant’s boxes without making compensation to him or to any other person for the use of the furniture •and boxes. He sues for a reasonable rent, and alleges that $276.37 is reasonable.

The defendants rely apon section 3860 of the Revised Statutes, which is in these words:

“The Postmaster-General may allow to the postmaster at New York City, and to the postmasters at offices of the first and second classes, out of the surplus revenues of their respective offices' — that is to say, the excess of box rents and commissions over and above the salary assigned to the office— a l’easonable sum for the necessary cost of rent, fuel, lights, furniture, stationery, printing, clerks, and necessary incidentals, to be adjusted on a satisfactory exhibit of the facts, and no such allowance shall be made except upon the order of the Postmaster-General.”

The positions taken by the defendants are that the statute was not obligatory upon the Postmaster-General, but left it at his discretion whether to allow or not to allow “postmasters at offices of the first and second classes ” compensation for “rent, fuel, lights, furniture, stationery, printing, clerks, and necessary incidentals,” and that no such allowance can be made-excopt upon the order of the Postmaster-General.

As to the first proposition, it seems to the court evident that Congress could not have intended that the discretion of the Postmaster-General should go to the extraordinary length of allowing one postmaster a “ l’easonable sum for the necessary cost of rent, fuel, lights, furniture, stationery, printing, clerks, and necessary incidentals” in carrying on the business of his office, and, while having a fund provided by law at his disposal, that he should refuse all reimbursement to another postmaster. The statute, by the term “ may,” allows the Postmaster-General to do justice in these matters to his subordinates, the numerous postmasters of the first and second class offices, and at the same time clearly assumes that the Postmaster-General will exercise the power conferred upon him.

It also seems plain to the court that the last clause of the section — that “no allowance shall be made except upon the order of the Postmaster-General” — was not intended to exclude a second-class postmaster from judicial redress, but to prohibit such allowances from being made by subordinates of the Postmaster-General or by the Auditor for the Post-Office Department.

The judgment of the court is that the demurrer be overruled and that the claimant recover the sum of $276.37, with leave to the defendants to have the judgment set aside and file a traverse to the petition within thirty days.  