
    THE POSTMASTERS’ CASES.
    Samuel H. Fairchild v. The United States.
    
      On the Proofs.
    
    
      The biennial re-adjustments of salaries take effect always on the 1st July of alternate years. In accordance with this practice, the Postmaster-General, on June 1, 1872, re-adjusts the claimant’s sala/ry for two years to come, to go into effect on 1st July following. On the 8th June, the Revised Post-Office Act is passed. It changes the alloioances to postmasters so that they would he entitled to a larger salary, if the re-adjustment was made under it. The Postmaster-General treats it as prospective, and refuses to revise his adjustments already made. The claimant brings his action for the difference. Also to recover additional salany for an extraordinary increase in the business of his office, the Postmaster-General having neglected to act in regard to it.
    
    I. The salaries of postmasters are left in a greater or less degree to the discretion. of the Postmaster-General. When the law constitutes him the sole judge to determine the compensation to be allowed, the postmaster is without judicial redress. When the law prescribes rules to govern the action of the Postmaster-General, or sets specific bounds to his discretion, a postmaster may sue for and recover whatever the law deolaros he shall be paid.
    II. The Revised Post-Office Act, 1872, (17 Stat. L., 283,295, §5 82,84,) contemplates two classes of re-adjustments of postmasters’ salaries. The biennial re-adjustment is general and mandatory; the statute is imperative; the basis and method are clearly defined; the duty of re-adjusting involves no discretion and is ministerial. The adj ustment “ in special eases ” is not confined to biennial periods; it may be as often as the Postmaster-General “ may deem expedient." Discretion is necessary to determine what is “ an extraordinary increase or decrease in the business of any post-office,” and it is confided to the Postmaster-General.
    
      . III. The journal of the Post-Office in which re-adjustments of salaries are recorded is not a judicial record to which is to he ascribed absolute verity. A mistake in the date of an entry may he shown by evidence aliunde.
    
    IV. The Revised Post-Office Act, June 8,1872, (17 Stat. L., 283,) did not require a biennial re-adjustment of salaries which should supersede'that previously made on the 1st June, to go into operation on the 1st July. The statute is imperative that there shall he biennial re-adjustments, hut is'silent as'to the time when they shall he made; nor did it in terms disturb those made under the previous statute. The effect was to. leave the time when the first under the new statute should he made to the discretion of the Postmaster-General, with the limitation that it should take place within two years.
    
      The Reporters’ statement of the case :
    The following are the facts found by the court:
    I. The claimant was duly appointed and commissioned deputy postmaster at Danville, Ill., for four years from January 17,1871, and he entered upon and discharged the duties of the said office from that date until after July 1, 1874.
    The salary assigned to said office when the claimant obtained it was $2,000 per annum for the biennial period from June 30, 1870, to July 1,1872.
    II. Since July 1,1864, the Postmaster-General has made general assignments and re-adjustments of the salaries of the deputy postmasters for biennial periods subsequent to the first from that date as follows:
    Upon-the sworn returns of such postmasters, made in accordance with his instructions, of the revenue of their respective offices, the salaries assigned to them for the current biennial period have been reviewed and re-adjusted on or before June 1 preceding each biennial period, and the salaries for the ensuing biennial period fixed; and on said date orders assigning or changing salaries, in accordance with such review and re-adjustment, are made in writing and recorded in his journal, and notice given thereof to the said postmasters respectively.
    III. In accordance with this practice, the Postmaster-General on June 1,1872, on the claimant’s sworn return of the revenue of his office, made according to his instructions, reviewed and re-adjusted the said salary of $2,000 assigned to claimant’s office, and fixed the same at $2,600 per annum for the ensuing biennial period from June 30,1872, to July 1,1874, and on said date sent the claimant a written notice of the said re-adjustment.
    IV. The claimant has been paid for his services as such deputy postmaster during the said period from June 80, 1872, to April 1,1874, the annual salary so fixed, and no more, to wit, the sum of $4,550 in all.
    V. On June 1,1874, the Postmaster-General, in the same manner as set forth in the third finding, reviewed and re-adjusted the said salary of $2,600, and fixed the salary of claimant’s office for the next ensuing biennial period at $3,200 per annum.
    VI. The claimant’s returns, on which the first-mentioned review and re-adjustment were made, showed that the gross receipts of his office for the period from June 30,1871, to January 1, 1872, were $2,661.22, of which sum $279.25 were derived from box-rents.
    VII. The claimant’s returns, on which the last-mentioned review and re-adjustment were made, showed that the gross receipts of his office for the period from June 30,1873, to January 1, 1874, were $3,818.31, of which sum $608.50 were derived from box-rents.
    And the court, at the claimant’s request, made the following additional finding of fact:
    The notice of re-adjustment bearing date June 1, 1872, was a printed form used to notify all postmasters of the re-adjustments in that year, and all the orders in writing making the re-adjustments of 1872, and on file in the Post-Office Department, bear date of July 1, 1872.
    
      Mr. Harvey Spalding for the claimant:
    Eelied on secs. 83 and 84 Act June 8,1872, (17 Stat., p. 295.)
    
      Mr. Joseph K. McCammon (with whom was the Assistant Attorney-General) for the defendants :
    The first section of the Act July 1,1864, having provided for the manner of ascertaining the salaries of postmasters of the fourth and fifth classes at offices established two years before July 1, 1864, it was necessary that the law should provide for an adjustment or re-adjustment of salaries of postmasters of the same, classes at offices established before the passage of the act of July 1,1864, but not two years before July 1,1864. The law in force before July 1, 1864, provided for a different mode of compensating postmasters, so tbe act of 1864 was made retroactive in its effects, not only as to offices established for two years preceding July 1, 1864, but as to such offices that had been established before July 1, 1864, but not two years before. The act in effect said: In order that hereafter the Post-Office Department shall be governed by one law, and that law to be the act of 1864, all adjusting or re-adjusting of all offices created before July 1, 1864, shall be made to take effect on that date, whether the offices were in existence for two years or less prior to July 1, 1864, so that the Department shall begin de novo in the matter of fixing salaries of postmasters. The fourth section was altogether retroactive, and had no reference to any office established after July 1,1864, and ceased to have any force after the adjustment of the salaries of all postmasters at offices which had been established for less than two years prior to and before July 1, 1864.
    It is true that an office established after July 1, 1864, is an office which has not been established for two years prior to July 1,1864; but the language of the act would have been different from that used, as “ at all offices established between two biennial adjustments the salaries of thepostmasters may be adjusted,” &c., following the language of the fourth section.
    Why give the Postmaster-General the power to review and re-adjust in special cases, upon satisfactory representation, as often as he may deem expedient, upon the basis of the first section, the salary assigned by him to any office, if the fourth section also governs his action as to the compensation to be paid to postmasters at offices established after July 1,1864? The answer is a plain one. The fourth section, as has been contended before, did not apply to any such offices. An attempt will be made to show that the fourth section governs the adjustment of salaries, and the second section the reviewing and readjusting. As it has been shown the fourth section did not apply to offices established after July 1, 1864, the distinction, if a valid one, can have no application in the cases now pending before the court.
    The act of 1864 provided no rule for the government of the Postmaster-General in the matter of the assignment of salaries of postmasters at offices established after July 1, 1804, and the passage of the act of that date; and the only references to it in the act are in the second section.
    
      The salaries of such offices having been assigned on their establishment, the next question is, how and when are they to be reviewed and re-adj usted or adj usted ? First, where representations as to the business of the office were made, they had to be satisfactory to the Postmaster-General; and then, if he deemed a review and re-adjustment expedient, between biennial adjustments or re-adjustments; he could in special cases so review and re-adjust the salary assigned in the first instance by him to such office on its establishment. There is no positive command for him to do it, but he is made the sole judge of the expediency of reviewing oftener than once in two years the salary which he saw fit to assign to the postmaster who was now applying, after a lapse of time, for increased compensation, and the representation must be satisfactory to him; therefore, another element of discretion is given to him by the act before he grants the .request made. The representation may be satisfactory, but the Postmaster-General may deem it inexpedient to review and re-adjust the salary of the office applying for an increase, because the appropriation does not warrant him in doing so, or for any other reason, or for no reason whatever. (Kendall v. Stokes, 3 Howard, 87-98; The United States v. Wright, 11 Wall., 648; Allen v. Blunt, 3 Story, 745.)
    It being optional with the Postmaster-General whether to change any salary oftener than once in two years, there was nothing to compel him to act contrary to his own judgment or pleasure;. but when he once did act, the change made in such salary could not take effect until the beginning of the following quarter, so that the applicant for increased salary derived no retroactive benefit from the review and re-adjustment in his case, and had to be content to wait for what he was seeking until the first day of the quarter after the order was made by the Postmaster-General. In fact he was entitled only to the first salary assigned his office until an order was made to change, that is, to increase or diminish his salary, and was carried into effect in the quarter following. In some cases claimants are suing for what, in their opinion, should have been their salaries between two biennial reviews; but when an act says that any change made shall not take effect until an antecedent period,, what possible right, in equity or law, have they to receive, under any order, any additional or increased salaries before that antecedent period %
    
    
      The act of 1866 (14 Stat. L., 60, § 8) provides that when the quarterly returns of any postmaster of the third, fourth, and fifth classes show that the salary allowed is 10 per centum less than it would be on the basis of commission under the act of 1854 fixing compensation, then the Postmaster-General shall review and re-adjust under the provisions of said section.
    From the year 1865 circulars were issued to postmasters specifying in what manner they should apply for additional compensation j and such circulars were continued and issued up to the passage of the act of 1872. Where failure to make claim in conformity to the terms of the circular was made, the Postmaster-General had no information or data in his possession or on file in his office upon which a quarterly or biennial re-adjustment could be based. It certainly never was the intention of Congress that a man who desired more pay for his duties as postmaster should make no effort to obtain the same, especially when the increase of compensation depended upon the sufficiency of representations made under oath of the business of his office for a specific period of time. The Auditor of the Treasury for the Post-Office Department is by law, as his title indicates, an officer of the Treasury, the Sixth Auditor, as he has been called in the past, by custom, and now is, by express language, in the Revised Statutes.
    The Act June 8, 1872, (17 Stat. L., 383,) is an act to revise, consolidate, and amend the statutes relating to the Post-Office Department, and the sections of the act of 1864 under discussion received revision and consolidation but no material amendment in the act of 1872. Sections 71, 72, 73,80, 81, 82, 83, and 84 are the same in substance as the sections of the act of 1864, and of other acts before quoted. This being the case, it is unnecessary to argue that the re-adjustment of salaries on information called for by the Post-Office Department on June 1,1871, was made under the act of 1864, and was not governed by the act of 1872, because the acts being similar the re-adjustments would be the same under either act.
    The act of 1864 leaving the whole matter of deciding whether postmasters should have increased or diminished salaries in special cases, between biennial reviews, to the discretion of the Postmaster-General alone, that discretion is to be exercised by him as he may see fit. (Gould v. Hammond, 1 McAllister, 235 j Kendall v. Stolces, 3 Howard, 87-98; The United States v. Wright, 11 Wall., 648; Allen v. Blunt, 3 Story, 745.) The Postmaster-General being in the discharge of a judicial function, his action is not subject to review in this court.
   Nott, J.,

delivered the opinion of the court:

The salaries of postmasters in the United States are not specifically fixed by law, and from the extended and varying character of the postal system they must be left in a greater or less degree to the discretion of some executive officer, who at the present time is the Postmaster-General.

When this discretion is absolute, or when, in the language of the Supreme Court, (United States v. Wright, 11 Wall. R., 648,) Congress have constituted the Postmaster-General “ the sole judge to determine” ‘‘the manner and extent” of the compensation to be allowed, the postmaster, although a salaried officer, is without j udicial redress. But when the law does “go further and prescribe rules to govern the action of the Postmaster-General,” or does set specific bounds to the discretion which he may exercise, then postmasters, like other salaried officers, are entitled to sue for and recover whatever the law declares they shall be paid. In other words, discretion is to be upheld whenever it is confided to an executive officer, but discretion is not to be extended by the judiciary to matters over which ib has not been extended by Congress; nor does the existence of discretion as to a portion of the compensation which may or may not be allowed to an officer defeat a right of action as to another portion which has been legislatively determined, and by positive law is made fixed and certain.

The Revised Post-Office Act, 1872, (17 Stat. L., 283, 295, §§ 82, 84,) contemplates and provides for two classes of re-adjustments of salaries. The first of these, the biennial re-adjustment, is general and mandatory. The statute is imperative that the salaries of postmasters shall he re-adjusted by the Postmaster-General once in two years,” and the basis and method of re-adjustment are so clearly defined by statute thaft the duty of re-adjusting involves no discretion and is merely ministerial. As to such salaries, they are as certain after the proper returns have been filed as though the amount were named in the statute; and as to them the neglect or refusal of the Postmaster-General to readjust cannot defeat a postmaster’s right to receive the salary which the law designates as his legal compensation.

The second class of re-adjustments is special and discretionary. The power to re-adjust salaries “in special cases” is not confined to biennial periods, but is to be exercised by the Postmaster-General 11 as much oftener as he may deem expedient.” (§ 82.) The frequency with which the power should be exercised necessarily depends upon the magnitude and rapidity of the changes in the revenue of an office. Discretion as to the frequency necessarily involves discretion as to the cause. In leaving it to the Postmaster-General to determine the times when a special re-adjustment of a single salary might be advisable, Congress impliedly left it to him to determine -whether the fluctuation of revenue was sufficient to demand his special intervention. A subsequent section of the statute (§ 84) contains a proviso, “That in cases of extraordinary increase or decrease in the business of any post-office, the Postmaster-General may adjust the salary” so as to take effect from the beginning of a preceding instead of from the beginning of a succeeding quarter. But this proviso is manifestly a mere exception to the general requirement of the same section, that all changes of salary shall take effect subsequently to the readjustment. Moreover, if it were not so, the proviso establishes no rule or standard for determining what is “ an extraordinary increase or decrease in the business of any post-office,” and the judiciary has no more right to apply its- discretion in the one case than in the other. Discretion here is necessary to determine what is an extraordinary increase or decrease, and that discretion- is evidently confided to the Postmaster-General.

There is, however, a remaining question in the case springing out of the general or biennial re-adjustment of salaries.

On the 1st June, 1872, the Postmaster General made his biennial re-adjustment, to go into operation at the beginning of the ensuing quarter, viz, on the 1st July. At that time the law as it stood limited the amount of box-rents which should be awarded to a postmaster in the computation of his salary to $2,000 a year, (Act 3d March, 1847, 9 Stat. L., 188, § 13,) with a like limitation as to other commissions and emoluments, (Act 22d June, 1854, 10 Stat. L., 298.) There is no question but that the re-adjustment at that time, as the law then stood, was correctly computed, and that this claimant’s salary would have been precisely what the Postmaster-General assigned to him for the ensuing biennial period from the 1st July, if no subsequent statutory change were made. But on the 8th. June the Iievised Post-Office Act became a law, and it repealed the limitation which restricted box-rents to $2,000 a year. Furthermore, the entry of the biennial re-adjustment on the books of the post-office bears date on the 1st July when it went into effect, and not on the 1st June when it was actually made. The claimant is understood to insist that the date of the record controls — that it was in legal effect an adjustment subsequent to the Act 8th June, and consequently should have been made according to its provisions.

As to the last point involved, it cannot be maintained. The journal of the Post-Office Department, in which the re-adjustments of salaries are recorded, is not a judicial record to which is to be ascribed absolute verity. A number of things had to be done under the act of 1864 before a re-adjustment took effect, and then it only took effect at the beginning of the succeeding quarter. Whether the enrollment bore date when the re-adjustment was made or when it took effect could not prejudice the claimants rights and cannot add to them. He had no control over the Post-Office records, and can neither be held responsible for nor derive an advantage from their errors.

The question which then arises is whether the act of 1872 required are-adjustment of salaries which should supersede the re-adjustment -of June 1st, and at the same time embrace the biennial period beginning on the 1st July, 1872.

The statute is imperative that there shall be biennial re-adjustments, but is silent as to the time when they shall be niade. As to the preceding re-adjustment under the act óf 1864 nothing whatever is said. The statute neither provides that it shall be set aside, nor declares that it 'shall stand unaffected by the new provisions regulating re-adjustments.

The effect of the statute, then, was to leave the time when the first bienuial re-adjustment should be made to the discretion of the Postmaster-General, with the limitation that it should take place within two years from the passage of the act. The purpose of the act, moreover, manifestly was to perfect the existing system and not to overturn or unsettle it. In some cases, doubtless, an earlier action might have been beneficial to some postmasters, but in others it might have been prejudicial. Let it be supposed that the conditions of the present case were reversed •, that the Postmaster-General had set aside his former re-adjustment; .tliat be had required subsequent returns to be made by postmasters; and that the claimant were one of those postmasters whose salaries would be diminished by a subsequent re-adjustment. Might he not then urge with greater propriety that Congress never intended to unsettle what had been done by the Department; that the new revision of the statute was to be in harmony with the existing system; and that the premature action of the Postmaster-General was a needless intermeddling with an established system, substantially retroactive in its effect, and destructive of rights equitably acquired”!

The judgment of the court is that the petition be dismissed.

Peck, J.,

dissenting:

I do not concur in the opinion expressing the views of the majority of the court in this case. I think the Act 8th June, 1872, repealed the prior act in relation to fixing the compensation of certain postmasters by the head of that Department, and intended and required a new adjustment in that respect. Although this statute. did not name any specific time within which a new adjustment should be made, and left much in that regard to the discretion of the Postmaster-General, it was nevertheless mandatory in its purpose and scope, and required his action within some reasonable time, and did not tolerate so large a discretion as to authorize an absolute disregard of its enactments, and so render them nugatory. Such a presumption presents the action of Congress in an humiliating aspect, for it cannot well be supposed that any legislative body would enact a law which might or might not be in force or have effect, as the discretion or caprice of some individual called upon to execute it might or might not decide.

"May" in a statute means “must” whenever third persons or the public have an interest in having the duty performed which is authorized by permissive language.

“And the rule is general that where a duty is imposed upon officers by statute, whether by words which are peremptory in themselves or merely permissive, they have no discretion to refuse its performance as against a party having an absolute interest in it.” (1 Hill, 545.) This claimant had such interest.

The time within which the duty required of the Postmaster-General by this statute should be performed not having been named in it, does not relieve him from the obligation of performing it within some reasonable time, so that the law should have its full effect by giving the persons intended to be benefited by it the whole measure of favor which Congress intended for them.

The adjustment decided upon before the Act 8th June, 1872, was set aside by that act, and was not of any validity. It was not to prevail until the 1st of July following; then the act which authorized it was no longer in force, and the adj ustment fell with the authority for making it.

LoitiNCr, J., was absent when this case was decided.

In the cases of J. V. McLean v. The United States, and F. H. Hopkins v. The United States, (postmasters’ cases arising under the act of 1864,) the court being equally divided on the law, and the claimants having no right of appeal, the court proforma framed the following conclusions of law for the purposes of an appeal, and directed judgment to be entered for the claimants.

conclusions oe law.

1. The purpose of the Act 12th June, 1866, (14 Stat. L., 69, § 8,) was to prescribe rules to govern the action of the Postmaster-G-eneral in the cases therein enumerated; and when the quarterly returns of the claimant showed that the salary, allowed to him by the Postmaster-General was 10 per centum less than it would have been on the basis of the commissions allowed to postmasters under the Act22d June, 1854, (10 Stat. L., 298,) then it became the imperative duty of the Postmaster-General to review and re-adjust the claimant’s salary, to the end that at the beginning of the succeeding quarter he should receive an increased salary, as provided by the Act 1st July, 1864. (13 Stat. L,, 335, § 2.)

2. Although the purpose of the Act 12th June, 1866, (14 Stat. L., 59, § 8,) was to prescribe a rule to govern the action of the Postmaster-Gen eral in regard to the salaries of postmasters of the third, fourth, or fifth class therein referred to, yet, nevertheless, the court cannot execute a discretion confided by the Act 22d June, 1854, (10 Stat. L., 298,) to the Postmaster-General; and therefore the claimant’s recovery must be limited to the minimum compensation provided in like cases by that statute.  