
    ALGERNON S. BELCHER v. THE UNITED STATES.
    [No. 19295.
    Decided April 10, 1899.]
    
      On the Proofs.
    
    The Act March %, 1889 (25 Stat. L., 841), establishes a new classification of post-office salaries. Superintendents of delivery are to receive “from, ‡1,300 to not exceeding ‡%,700” and “not exceeding 45 per centum of the salary of the postmaster ” of the same office. The claimant performs the duties of the superintendent for a number of years. During some years he is designated as superintendent; during other years he is not. During all of the years he is paid less than $1,300 per annum.
    I.Under the Act Maich St, 1889 (25 Stat. L., 841), it was within the discretion of the Postmaster-General to fix the compensation of all superintendents of delivery at less than 45 per cent of the postmasters’ salaries, but at not less than “one thousand three hundred dollars.”
    
    II.The intent was to prevent exceptionally high salaries in some post-offices and exceptionally low salaries in others,
    III. The proviso in the act that the aggregate salaries as fixed by such classification shall not exceed the amount appropriated, $6,550,000, did not authorize the Postmaster-General to pay some officers in the classified service less than the minimum while he paid others more; nor can the court assume that the amount appropriated was insufficient to pay all the officers The minimum.
    IV. Where maximum and minimum salaries are prescribed by a statute, with a general proviso that the aggregate allowed shall not exceed a designated amount, and it appears that a clerk has been paid less than the minimum, the burden of proof is on the defendants to show that no one was allowed more than the minimum before they can set up the general limitation.
    V.Where a call is made on the Postmaster-General for information as to whether he reduced all salaries to the minimum and he docs not respond, it will be assumed that he did not do so.
    VI.Where a jmst-office clerk contends that during certain years he was in fact a superintendent of delivery, though not designated as such, and the defendants contend that as to certain other years the designation was inadvertant and unintentional, the record of tho Department must govern both for the claimant and against him.
    VII.The legal right of an officer to the salary of an office depends upon his being de jure an officer holding or entitled to hold the office.
    
      
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I.The claimant was appointed a clerk in the post-office at Augusta, in the State of Georgia, on the 19th of December, 1874.
    From the 1st of January, 1889, to the 30th of April, 1893, be served in said office under a designation stated as follows in the roster approved by the Postmaster-General on the dates respectively stated; and the annual salary paid him during each period from the approval of the roster until the approval of the next roster, or to the end of his service, together with the salary of the postmaster for the same period, was as stated for each period respectively:
    Date. Designation of claimant. Salary of claimant. Salary of postmaster.
    Jan. 1,1889 July 1,1889 July 1,1890 July 1,1891 July 1,1892 Superintendent of carriers and distributing clerk. Distributer. Superintendent of delivery. Distributer.. Superintendent of delivery.. $1, 000 1,000 1,100 1,100 1,100 $3,000 3,000 3,000 3,100 3,100
    II. During all the period covered by this claim the claimant distributed all mail matter for city delivery in the post-office at Augusta, Ga., made up all reports, pay rolls, and exercised entire supervision of the letter-carrier’s work, and in addition performed service in the money-order branch of said post-office, together with other general clerical work. He was known as superintendent of delivery and distributer, exercised authority as such, and directed solely the duties performed by letter carriers. There was no change in the character of his said duties at any time.
    III. During the period covered by this claim said post-office was an office of the first class, as defined by section 5 of the act of July 12,1876 (19 Stat. L., 78).
    IV. That portion of the act of the 2d of March, 1889, classifying clerks in post-offices, which provided for the classification and designation of employees in first and second class post-offices, was put into effect by the Postmaster-General July 1, 1889. It has been in continuous operation, without change or modification, since. The custom of the Postmaster-General has been for postmasters to submit annually, on the 1st day of July, a roster of tbe clerks employed in their respective offices, showing the name, designation, and salary of each clerk as previously fixed by the Department, together with any changes in designations and salaries that they may desire to recommend. Under the authority conferred by the act of March 2,1889, these annual rosters are reviewed, and designations and salaries fixed by the Department for the ensuing year. In fixing-salaries and designations it is the intent of the Department to have the designations correspond to those fixed by the act, and that the salaries shall not be less than the minimum nor more than the maximum provided by the law for such designations. It is, however, impossible in many cases to have the designation indicate the exact and full duties of a clerk ; the appropriations made by Congress may be inadequate, or the exigencies of the service may require that a clerk under a certain designation be assigned to other duties, or he may have a variety of duties to perform, as is the case in nearly all post-offices. The Postmaster-General, therefore, under the law authorizing him to make such rules and regulations for the conduct of his Department as may be necessary to facilitate the public business, requires clerks in post-offices to perform such duties as the best interests of the service may require, regardless of their official roster designations.
    Y. It does not appear in the case that the Postmaster-General, during the years covered by this action, allowed only minimum salaries to the superintendents of delivery, clerks, and other employees for which the appropriations have been made; and the court finds that in some cases, but to what extent is not shown, more than minimum salaries have been allowed and paid.
    Upon the foregoing findings of fact the court decided, as a conclusion of law, that the claimant should recover for the fiscal year beginning July 1,1890, and for ten months of the year beginning July 1,1892, the sum of $366.60, and that he should not recover for the years beginning July 1, 1889 and 1891.
    
      Mr. William B. King and Mr. George A. King for the claimant:
    The whole language is inconsistent with the idea of a mere appropriation. The proviso is not merely that the following sums be appropriated, but that the “Postmaster-General be, and he is hereby, authorized to classify and fix the salaries,” etc. Toward the end of the proviso it is provided that “ Hereafter postmasters at offices of the first and second classes shall submit rosters of the clerks attached to their respective offices to the Postmaster-General, to take effect from the first day of the fiscal year, July first, instead of January first as heretofore,” etc. This language plainly points to a continuing duty to be performed from year to year. Having been continuously so treated by the Post-Office Department, and that being the manifest intent of the act, it would be strange indeed if this court were now to declare that it had failed to take effect as a measure of general legislation and had expired by its own terms eight years ago. No complaint is made in this case that the Post-Office Department has refused to recognize the act as in force, but only that in some cases the salary fixed under its authority has been below the minimum prescribed by the act. It is only such isolated and perhaps accidental cases of failure to comply with the terms of the act that will be favorably affected by a decision in favor of the present claimant.
    The act in question is permissive within certain limits, but outside of those limits it is mandatory. An examination of the act in question discloses that the statutory basis of classification of the clerks and other officers attached to first and second class post-offices is based upon the theory of a minimum and maximum compensation. The provision covering the office held by the present claimant is similar in most respects to the others contained in the act and is as follows:
    “Superintendents of delivery, salary not exceeding 45 per centum of the salary of the postmaster, as provided by the act of March 3,1883, graded in even hundreds of dollars, from $1,300 to not exceeding $2,700 per annum, except at New York, N. X., where the salary of the superintendent of delivery shall be fixed at $3,200 per annum.”
    It is not claimed on behalf of the claimant in this case that the Postmaster-General was without authority to exercise a discretion in fixing the salary of himself or any other clerk or employee in th.e post-office, but only that that discretion must be exercised within the statutory limits. It is hardly necessary in the discussion of this question to follow counsel into the field of that much vexed inquiry as to the signification of .the word “may” when used in a statute, as to whether it is merely permissive, or is to be interpreted as equivalent to “ shall.” In some cases it is doubtless true that it must be interpreted according to its more general and popular signification of permission. In those where private rights are involved the rule is that it is mandatory. Thus in the case of Supervisors v. United States (4 Wall., 435), it was held, “Where power is given by statute to public officers, in permissive language — as that they ‘may, if deemed advisable,’ do a certain thing — the language used will be regarded as peremptory, where the public interest or individual rights require that it should be.”
    In the present case it is the right of the individual that is involved to have his salary fixed at a rate not below the minimum, and it would seeni to be peculiarly a case for the application of the doctrine laid down by the Supreme Court in the case just cited.
    The statute before the court, however, does not contain the word “may,” but provides “that the Postmaster-General be, and he is hereby, authorized to classify and fix the salaries,” etc. What classes are to be thus fixed, and within what limits, is found under the subsequent clauses. Each clause contains a maximum and also a minimum provision.
    Take a somewhat simpler clause than that directly involved in the present case. Let us take that of cashier, as follows:
    “Cashier, five classes, graded in even hundreds of dollars, at $1,800, $2,000, $2,200, $2,400, and not exceeding $2,000 per annum.”
    Or that of stamp clerks:
    “ Stamp clerks, ten classes, salary, graded in even hundreds of dollars, from $800 to not exceeding $1,700 per annum.”
    Doubtless the Postmaster-General could classify a cashier, or a stamp clerk, into any one of the five classes provided by the statute for the former office, or the ten for the latter. But can he create a sixth class for cashiers, or an eleventh for stamp clerks, by grading a cashier below the lowest grade named for him in the statute? Does not the cashier or stamp clerk by the very fact of his appointment to this position become entitled to receive at least the lowest salary fixed by the law?
    In the case of Gleeson v. United States (23 C. Cls. B., 207), this court had before it the case of a postal employee whose salary was fixed by a different provision of statute from the one under consideration in tbe present case. There the Postmaster-General was authorized tó appoint railway mail postal clerks to be paid a salary at the rafe of not more than one thousand four hundred dollars a year.” This act, it will be perceived, fixed a maximum salary but no minimum. The question was only whether the Postmaster-General had the right to reduce the salary below the maximum. It was held that the act vested the Postmaster-General with the power to fix any salary up to the maximum named; that his powers to fix a salary in the office named at a sum up to but not exceeding that maximum was a continuing one, and that any salary which might be prospectively fixed by the Postmaster-General within the statutory limit was the legal salary of the office.
    The present case, as will be seen, presents.the very opposite of the Gleeson Case. Clearly if the Postmaster-General had fixed the salary of the claimant in this case at $1,500, when the statute had provided that it should not exceed $1,400, his action would have been held void, as in excess of his powers. As the law allowed him to fix it within any limits within that amount, however, he exercised nothing more than a lawful discretion in fixing it at a lower sum.
    The act now before the court is different from that considered in the Gleeson Case, in that it names not only á maximum, but a minimum salary for each office. If the Postmaster-General may not fix a salary in excess of the maximum provided by the statute, can he, on the other hand, go below the minimum which it names ? If he can, as contended by the counsel for the United States, it would seem to have been utterly useless and nugatory for Congress to have named any minimum compensation at all in the act. It might just as well, as in the case of the railway postal clerks, considered in the Gleeson Case, have named a maximum only, and the Postmaster-General would thus have had power to do the very thing which counsel in this case contends he had power to do, viz, reduce the compensation to any amount he thought proper. That Congress did not enact a statute like that considered in the Gleeson Case, fixing-a maximum only, but did enact a statute fixing both maximum and minimum, affords the strongest possible evidence of an intention to restrain the power of the Postmaster-General in both directions. Under such a statute he had no more power to go below the minimum than he had to exceed the maximum. To concede to him the power to do either would in effect nullify one or the other of the two provisions for a maximum and a minimum compensation, „“ For the good expositor,” says Lord Coke in a passage quoted in the case just cited (23 O. Ols. R., 217), “gives effect to every word in the statute.”
    The fact that the Postmaster-General is the officer referred to in the statute as the one authorized to classify and fix the salaries is material only in so far as the discretion is exercised within the limits permitted by the law. It does not follow that because the act referred to the Postmaster-General as the officer authorized to take this action that he must necessarily fix a particular salary before the claimant could become entitled to it. The law itself gives him the.right to at least a certain amount, and, while the Postmaster-General could grade him from that amount up to the maximum, the very designation of him as appointed to the position gives him the right to receive at least the smallest amount which the statute had annexed to the position.
    In the case of United, States v. Baltin (144 U. S. R., 1) the Supreme Court had under consideration an act passed by Congress to meet a prior decision of that court to the effect that worsted goods were not the same as woolens, and were to be held as dutiable under a different provision from woolen goods. The act provided (p. 2)—
    “That the Secretary of the Treasury be, and he hereby is, authorized and directed to classify as woollen cloths all imports of worsted cloth, whether known under the name of worsted cloth or under the names of worsteds or diagonals or otherwise.”
    It was claimed under this act that before worsted goods could be classed as woolens some action by the Secretary of the Treasury was necessary. The Supreme Court, however, held the act to be mandatory, and that the Secretary of the Treasury was referred to merely as the chief administrative officer in the collection of duties. ‘
    “ There is given no choice or selection, but it is the imperative direction of Congress to him, as the chief administrative officer in the collection of duties, to place all worsted cloths, by whatever name properly known or known to the trade, within the category of woolen cloths, and, of course, if placed within that category, or using the familiar language of the tariff, if classified as woolen cloths,’ subject to the duty imposed on such cloths.”
    
      So far as fixing the salary below the minimum is concerned, the Postmaster-General in the execution of this statute had no more authority or discretion to fix these salaries below the minimum named in the statute than the Secretary of the Treasury had in the case cited to refuse to classify worsted goods as woolens. In each case the statute was to the extent named self-excfiting.
    3. The limitation to the amount appropriated. It is claimed on behalf of the United States that the proviso to this act is a limitation of all salaries in the aggregate to the amount of the appropriation, and that it is incumbent on this claimant to show that both he and every other claimant in a similar situation after recovering the full amount of their minimum salaries under the act of March 2,1889, would not then exceed the aggregate appropriation for post-office clerks for that year.
    It is a well-settled rule in the construction of statutes that every part of a statute must be so construed as to be in harmony with every other part, so that nothing in the statute shall be deemed nugatory or without force. If the view so well expressed by the counsel for the United States is sound, then the limitation to a minimum salary in the ease of each class of officers was wholly useless and inoperative. Congress might just as well have fixed a maximum only, and placed no minimum limitation upon the amount of the salary. In fact such would be the result of a judgment against the claimant in the present case. He is seeking to recover nothing more than the minimum salary attached by law to his office. To defeat his claim to this minimum salary counsel for the United States points to another provision of the act, which is claimed to render the limitation to a minimum salary wholly inoperative and useless, and to justify a reduction to any amount, no matter how far below the minimum, which may seem just to the Postmaster-General. A much more reasonable construction of this proviso is apparent upon the face of the act. The act names a large variety of clerks and other officers attached to first and second class post-offices, and fixes a minimum and a maximum rate of compensation for each, but makes hardly any provision in regard to the number of each class of officers. Hence nothing was more reasonable or proper than that the Postmaster-General should be directed in carrying out the act not to exceed the amount appropriated by Congress. This he could readily do, without in the slightest degree going below the minimum or exceeding the maximum of salary thus fixed, by simply limiting the number of officers of each different class whom he might think fit to appoint, and then grading their salaries as nearly down to the minimum as might be necessary to avoid running over the limits of the appropriation. In this way both provisions of the law harmonized, the minimum and maximum rates fixed by the law are maintained in full force, while at the same time the Postmaster-General is prohibited from exceeding the limits of .the appropriation.
    The question thus raised is not a new one in this court. It has always been held that where there is an appropriation applicable to many contractors, or other objects, no one contractor, or other person, whose rights may accrue under such appropriation is chargeable with notice of the state of it, or obliged to prove that his own claim, together with others chargeable against the same appropriation, will not exceed its limits. The duty of seeing that the appropriation in such a case should not be exceeded belongs to the head of the department charged with the expenditure. Those granted rights under it have no such responsibility. The principle is clearly stated in the case of' Dougherty v. United States (18 C. Cls. R., 490, 503).
    Again, in Dew York Central and Hudson River Railroad v. United States (21 C. Cls. R., 468):
    So, too, in Myerle v. United States (31 C. Cls. R., 105).
    Persons having contracts with the Government may safely ignore the condition of the appropriation and rely on the terms of their contracts, leaving it to the heads of Departments to see that the aggregate of all the contracts does not exceed the amount appropriated.
    With much more justice ought officers holding laborious and at best but moderately paid positions to be entitled to rely upon the limitations of law touching their official compensation and to rest upon the legal assurance that the head of the Department will not employ more officers than he is able to pay the legal salary to. The proviso cited by counsel for the United States as limiting the expenditure for postal clerks to the amount appropriated was thus a direction addressed exclusively to the Postmaster-General, who alone could have any knowledge of the state of the appropriation, not to exceed its amount, though in apportioning the appropriation he had the right to appoint as many officers of the different classes as he thought best, and to grade their salaries anywhere between the minimum and the maximum. He could no more, however, scale any salary down below the minimum in order to appoint enough officers to do the work than he could on the other hand appoint a smaller number of officers and grade their salaries above the maximum, which he might well do and yet come within the limits of the appropriation. Both provisions, that limiting the salaries between the minimum and a maximum and that providing that he should not exceed the amount of the appropriation, were equally binding and effective, and it would be perfectly practicable to observe both. If, however, in any fiscal year the Postmaster-General appointed too many officers to be paid within the limits of the appropriation, it was no fault of this claimant, or any other officer, and can not operate to divest their legal rights.
    
      Mr. M. 0. Burch (with whom was Mr. Assistant Attorney-General JPradt) for the defendants:
    1. The annual appropriation bills presented by the committees for each of the several Executive Departments of the United States have cometo be matters of common knowledge. The act in question was not different in title, language, amount provided for expenses, or any other respect from the usual ones, except the matter of classifying the employees in the larger post-offices of the country and equalizing them. It was probably believed to be a good thing to do this; but it was an experiment, and doubtless intended to be left just where the act leaves it — in the hands of the Postmaster-General, not merely to be supervised and carried into effect by him, but to be used, to be tried on, by him if he deemed it a proper thing and to be continued if he found it wise.
    But really all that can be said of the legislation as a practical certainty is that it is an annual appropriation bill. That much is certain, because it is clearly indicated in its title; because the amount appropriated is clearly expressed; because the two plain provisos forbid that a greater aggregate than the sum named shall be used.
    2. The fact that the classifying and compensation-fixing portion of the act did not amount to more than a permission, coupled with suggestions to the Postmaster-General, we think is fairly demonstrated in many ways. But it seems no mention of it was made in the title; its adjustment to the regular part of the bill is suggestive of a hasty job with paste and scissors, rather than of a great systematizing finality in legislation covering the wages of thousands of employees and liable to swell the post-office budget a million or more annually; it indicated all over its face the uncertainty of the experimental stage; it was a thing made possible for the Post-Office Department to do if it was deemed proper, and if found to work well it might be further continued; it was an idea which, having been tried out, might be found wise or otherwise.
    3. The authorities cited by claimant’s counsel may with propriety be first examined to see if they have any tendency to support his assumption that the salaries were “ required” to be paid; whether “this act fixes the minimum salary;” whether the Postmaster-General in fact “ reduced ” the salaries in any respect, and whether the cases cited throw any light upon this case whatever.
    We respectfully urge that no requirement of Congress whatever can be found on claimant’s sido of this case; that nothing can be found in this act fixing a minimum or maximum salary for one year, or for any time whatever; that no salary of claimant has ever been reduced nor sought to be reduced, and that in fact claimant’s was raised $100 per annum during the time complained of.
    Now let us briefly consider the cases cited.
    The first is Williamson V. United, States (10 O. Gis. B., 62). A captain in the Army, whose pay was fixed by statute at $165 per month, was ordered to go to his home and report from there from time to time to the adjutant-general of the district.
    Upon the assumption that his. case was like that of one absent from duty with leave, but at his own request, in which latter case he would by statute be only entitled to half pay, he was only paid one-half of his salary. As both full pay and half pay were fixed by law beyond any question, clearly stated and well defined by acts of Congress, it was simply held that being ordered home and there held subject to orders was not a half pay condition. There is not an element in the case that bears analogy to the case at bar. In Adams y. The United States 
      (20 O. Cls. R., 115) tbe statute (section 2733, Revised Statutes) ■says:
    “ Sucb inspector shall receive for. every day he shall be actually employed in aid of the customs three dollars; and for every other person the collector shall find it necessary and expedient to employ as occasional inspector or in any other way in aid of the revenue a like sum, when actually so employed, not exceeding three dollars for every day so employed.’'
    It will be seen that there was no room for controversy m this case. Congress had said plainly “shall,” and the only person who had any option in the matter was the person employed, and all he had was to refuse his compensation.
    In the Langston Case (21 C. Cls. R., 10) the language of the act (11 Stat. L., 52) fixing our ambassadors and ministers was: “ Shall be entitled to compensation for their services.” This was not for a certain clearly stated year. There was no proviso or limitation, and under it, as minister to Haiti, Langston was entitled to $7,500 per annum. Consequently, when Congress only appropriated $5,000 and did not in any manner repeal or amend the original act, it was held that Langston • was entitled to the balance. This was not a case where a department executive sought to reduce, but Congress itself; and it was held that Congress could not reduce without doing it in a proper way. But in the case at bar there was nothing to reduce since nothing had been “ fixed ’’ or established. The last case cited, Foote v. The United States (23 C. Cls. R., 443), depends upon the same act as to language used as the Langston case. The claimant was appointed envoy extraordinary to Korea in order to open diplomatic relations with that country. Of course the salary for such an office was $10,000 per year, and that amount had been appropriated by Congress for the first year. But the second year Congress appropriated $5,000 for a minister resident. The claimant was appointed to that office. He declined, and after awhile resigned the former office. It was simply held that while he held the office of envoy, without amending the general act, his salary could not be reduced. “ Shall be entitled to compensation for their services ” was the language in both cases.
    It will be seen, therefore, there is not the least similarity in the case at bar and those cited by claimant’s counsel; that there is nothing in the language of either this court or. the Supreme Court which would seem to support the contention of counsel or even cast a ray of light by way of aid in construing this act of Congress.
    4. We insist that the presumption is that the Postmaster-General for the fiscal year ending June 30,1890, did his duty under the law in the absence of any showing to the contrary. No attempt seems to be made toward such a showing except through a misconstruction of the law and the erroneous inference thereby drawn. To enable the claimant to recover even for the single year covered by the act, he must in some manner satisfy the court that he was absolutely entitled to $1,300 compensation for that year, or that he was, if the appropriation of $6,550,000 would have been sufficient, to have paid all the post-office clerks their compensation, and that his proportionate share would have entitled him to that amount.
    And this affirmative showing, in any event, he can not escape as a condition precedent to a recovery, because the presumption of law going with the acts of the honorable Postmaster-General of that time is that he has conformed to the law, and the burden of proof is on him who alleges to the contrary. The presumption is that public officers do as the law and their duty require of them. (Lawson on Presumptive Evidence, 52, supported by three pages of citations.)
    The presumption is always in favor of the correct performance of his duty by an officer. (Throop on Public Officers, section 558, citing a long line of cases.)
    “The presumption is that no official person, acting under oath of office, will do aught which is against his official duty to do, or omit to do aught which his official duty requires to be done.” This is the language of Judge Folger in Mandeville v. Reynolds (68 N. Y., 528).
    In the absence of evidence to the contrary, this presumption will prevail, but it is not indisputable and may be overcome by countervailing evidence. It will not be extended so as to make it cover substantive independent facts which are the incidents of official duty (United States v. Ross, 92 U. S. K., 281), but if a public officer be charged with doing that which he ought not to do the presumption will have the effect to throw the burden of proof on the party so charging him. {Bruce v. Molden, 21 Pickering, 187; Clapp v. Thomas, 5 Allen (Mass.), 168.)
    
      Where the rights of the public require it the presumption in favor of due performance is liberal, and the evidence to overthrow it must be clear. (Commonwealth v. Sifer, G4 Am. Decisions, 680.)
    The presumption is in accordance with the established and familiar maxim, “Omnia preesumuntur rite et solenniter esse acta donee probetur in contrarium” — everything is presumed to be rightly and duly performed until the contrary is shown. (Broom’s Legal Maxims, 944,- Bank, etc., v. Bandridge, 12 Wheat., 69, 70.)
    5. As a condition precedent to establishing a prima facie case under such an act as this, the burden is plainly with the claimant, even if in terms it were otherwise mandatory, to avoid the limiting provisions by showing, either from the terms of the act itself and the natural consequences thereof or by proof as of a substantive fact, that the provisos were not in the way of carrying the act into effect.
    In other words, it must appear as a natural result of the act that there was money enough in the appropriation of $6,550,000 made by Congress to pay the aggregate of all salaries of clerks of all kinds when so classified, or else the presumption that the Postmaster-General did his whole duty will prevail and the claimant can not recover, unless claimant shall make proof by competent evidence sufficient to establish the factjwima facie. (Potter’s Dwarris, 74; Nicholl v. Allen, 1 B. & S„, 934; Broclcbanh v. Whitehaven, etc., 7 H. & N., 834; Rockwell v. Clark, 44 Conn., 534.)
    That Congress regarded the act as merely permissive is evidenced by the post-office appropriation bills in an unbroken line since that time, in no one of which is the classification mentioned. (26 Stat. L., 207, 1079; 27 lb., 146, 722; 28 lb., 104, 691; 29 lb., 313, 644.)
    It seems to us, therefore, that the plain construction to be put upon the purpose of Congress was to give the Postmaster-General authority whereby, if he desired so to do, he could fix the salaries in the first-class post-offices of the country for that year, and use the system for so doing in succeeding years with the authority of Congress, provided he did not thereby lay out a greater sum total for all clerks in all post-offices than $6,550,600. We think this is the utmost that may be claimed for this act; and the fact that it has not been referred to since in tbe appropriations acts indicates that Congress and the Department have both so construed it.
    Where statutes are couched in words of permission or declare that it shall be lawful to do certain things or provide that they may be done, their literal signification is that the persons, official or otherwise, to whom they are addressed are at liberty or have the option to do those things or refrain at their election. (Sutherland on Interpretation of Statutes, section 460.)
    In a case tried in this district in 1828 (Minor et al. v. Mechanics’ Banlc of Alexandria, 1 Peters, 64), Mr. Justice Story clearly stated the rule in such case's, citing Julius v. The Lord Bishop of Oxford (L. B. 5; App. Cases, 214, and Blackwell’s Case, 1 Vera., 152)/
    It will be seen from the above that the highest English and American judicial authorities concur in the doctrine for which we are contending. But let us go a step further.
    The word “may” is construed as mandatory only for the purpose of sustaining or enforcing a right, and never for the purpose of creating one. (Black on Interpretation of Laws, 157; State v. Justices, etc., 39 Mo., 521; Ailstoch v. Page, 77 Va., 386; Batters v. Dunning, 49 Conn., 479; In re Bauden-busch, 120 Pa. St., 328).
    To create a right by and through this'statute is exactly what this claimant seeks to do.
    Again: Statutory requirements intended for the guidance of officers in the conduct of business devolved upon them and designed to secure order, system, and dispatch in proceedings and by a disregard of which the rights of parties interested can not be injuriously effected are not usually regarded as mandatory. (Mr. Justice Field in 13 Wallace, 506; Cooley on Constitutional Limitations, 74-78; Sedgwick’s Statutory and Constitutional Law.)
    6. In many, perhaps most, of the State's of this Union a provision, has been embodied in the respective constitutions to this effect in substance: No statute shall have more than one object, which shall be clearly expressed in its title.
    The Federal Constitution does not contain such provision, but while occasionally somewhat incongruous subjects are contained in the same act, it may be fairly said, in construing this act, that Congress has, in the main, endeavored to indicate the purposes of its various acts in the titles of the same; but in this one there is no hint in such title of anything beyond the disposition of post-office affairs for one year.
    We think this must be fairly regarded as entitled to some weight in this case. It is what might be termed a limiting circumstance. If there can be said to be any moral or equitable claim in this and kindred cases, even a scintilla of right, to that extent it must follow that this act partakes of the nature of a gratuity of the Government to certain of its post-office employees. Originally they had no such right. Prior to the passage of this act they were paid as the Government, through its Post-Office Department, fixed their wages. At law nothing will be presumed, nothing resolved, in favor of the donee. In this particular relation it should not be presumed that money belonging to the whole people, i. e., the Government, was intended to be taken from their Treasury by their Eepre-sentatives in Congress, under a species of false pretenses, to be paid out annually from a given date under a notice that an annual departmental appropriation was being made. If the contention made by this claimant is correct, it must be adjudged by this court that 10 to 20 per cent of annual items ranging from $6,550,000 to upward of $10,000,000 per annum (judged by the claim in this case, which calls for $1,300 per annum instead of $1,000 and $1,100) will be given away, or, say, from half a million to a million dollars a year, under a title which might have deceived half the members who voted on the bill and ninety nine one-hundredths of the people.
    8. But if a court should hesitate, concerning so great a'matter, to attach importance to the bearing of such a title, how can it escape those two provisos — the first having reference to first-class post-offices: Provided, hoto ever, That the aggregate salaries as fixed by such classification shall not exceed the sum hereby appropriated;” and the second after the second-class post-offices are mentioned: “Provided, however, That the aggregate salaries as fixed by such classification as shall be made under this act shall not exceed the several sums appropriated by this act for the service authorized to be classified.”
    Could limiting language be more simple? In the similar items of annual appropriation bills there is not one till this day which is within several hundred thousand dollars of the $6,550,000 appropriated for that year. Who can point out a method whereby the language of these provisos can be made to conform to dissimilar appropriations for other years. Had there been an intention to make this classification and this range of salaries apply to succeeding years, must not the presumption have irresistible force that the committee would have prepared and Congress would have made some such provisos following those which were made, as this: “And provided further, That from and after June 30, 1890, the aggregate of salaries for each year as fixed by such classifications as shall be made under this act shall not exceed the several sums appropriated for such service for that year.”
    We contend that nothing more can be made of the act in question than—
    First. An annual appropriation bill.
    Second. A permission to the post-office authorities to classify upon what was deemed tobe an equitable basis of percentages, if they found it proper to do so, the salaries or wages of employees in first and second rate offices, in the interest of uniformity, for one year, provided it did not overreach the appropriations for that year.
    Third. That this was suggested, permitted, or authorized for that year as an experiment, to enable the Government to determine whether it thereby might not eliminate jealousies and complaints of favoritism among the persons employed and obtain a better system of adjusting salaries, the system to be continued or discontinued thereafter as results might seem to justify.
   Nott, Oh. J.,

delivered the opinion of the court:

The controversy in this case springs out of a few words in the following statutory provisions, viz:

“Chapter 874. — AN ACT making appropriations for the service of tliePost-Oifice Department for the fiscal year ending June thirtieth, eighteen hundred and ninety.
“Be it enacted, etc., (1) That the following sums be, and they are hereby, appropriated for the service of the Post-Office Department, in conformity with the act of July second, eighteen hundred and thirty-six, as follows:
“For compensation to clerks in post-offices, six millions five hundred and fifty thousand dollars; and that the Postmaster-General be, and is hereby, authorized to classify and fix the salaries of the clerks and employees attached to the first-class post-offices from and after July first, eighteen hundred and eighty-nine, as hereinafter provided: Provided, hoioever, That the aggregate salaries as fixed by such classification shall not exceed the sum hereby appropriated, namely:”

(Then follow paragraphs mentioning the percentages upon the salaries of their respective postmasters which the following classes of post-cffice employees shall receive: Assistant postmasters, secretaries and stenographers to the postmaster, cashiers, assistant cashiers, finance clerks, stamp clerks, stamp agents, superintendents of mails, assistant superintendents of mails, and a large number of others ; and then the paragraph which relates to superintendents of delivery.)

“Superintendents of delivery, salary not exceeding forty-five per centum per annum of the salary of the postmaster, as provided by the act of March third, eighteen hundred and eighty-three, graded in even hundreds of dollars from one thousand three hundred dollars to not exceeding two thousand seven hundred dollars per annum, except at New York, New York, where the salary of the superintendent of delivery shall be fixed at three thousand dollars per annum.” (25 Stat. L., p. 841.)

The Act 3d March, 1883 (22 Stat. L.,-600), above referred to, is the “ act to adjust the salaries of postmasters.” It subdivides post-offices of the first class into thirteen subclasses. In the smallest, where the gross receipts are between 140,000 and $45,000, the salary is fixed at $3,000; -in the largest, where the gross receipts amount to $600,000 and upward, the salary is fixed at $6,000. The New York and Washington post-offices are distinct subclasses, the salaries being permanently fixed at $8,000 and $5,000, respectively.

The act of 1889 provides for each superintendent of delivery a “salary not exceeding 45 per cent per annum of the salary of the postmaster, as provided lay the act of March 3,1883, graded in even hundreds of dollars.” Forty-five per cent of $3,000 (the smallest salary of a postmaster) “in even hundreds” will be $1,300; 45 per cent of $6,000 (the largest salary) will be $2,700. Therefore, at the first reading of this statutory clause there seems to be no reason for the additional words “from one thousand three hundred dollars to not exceeding two thousand seven hundred dollars per annum.” The practical application of the statute to the maximum salaries of superintendents of delivery at “not exceeding 45 per cent per annum of the salary of the postmaster, as provided by the act of March. 3,1883, graded in even hundreds,” will be seen in the following table:

Postmaster’s salary, $3,000; superintendent’s, $1,300.
Postmaster’s salary, $3,100; superintendent’s, $1,300.
Postmaster’s salary, $3,200; superintendent’s, $1,400.
Postmaster’s salary, $3,300; superintendent’s, $1,400.
Postmaster’s salary, $3,400; superintendent’s, $1,500.
Postmaster’s salary, $3,500; superintendent’s, $1,500.
Postmaster’s salary, $3,600; superintendent’s, $1,600.
Postmaster’s salary, $3,700; superintendent’s, $1,600.
Postmaster’s salary, $3,800; superintendent’s, $1,700.
Postmaster’s salary, $3,900; superintendent’s, $1,700.
Postmaster’s salary, $4,000; superintendent’s, $1,800.
Postmaster’s salary, $5,000; superintendent’s, $2,250.
Postmaster’s salary, $6,000; superintendent’s, $2,700.

The postmasters’ salaries are fixed by law and admit of no discretion on the part of the Postmaster-General; the superintendents’ salaries are limited by law, and that limitation is 45 per cent of the fixed salary of the postmasters, respectively. The Postmaster-General being limited in the exercise of his discretion to a maximum, is he also limited to a minimum?

The statute answers this inquiry by the accompanying words, “from one thousand three hundred dollars to not exceeding two thousand seven hundred dollars.” It was within the discretion of the Postmaster-General to fix the compensation of all superintendents in the above table at less than 45 per cent of the postmasters’ salaries; it was not within his discretion to fix the compensation of any one of them at less than “ one thousand three hundred dollars.” In other words, he had discretion to make all thé amounts in the second column $1,300; he had not discretion to make any one of them more than 45 per. cent of the postmaster’s salary. The intent was twofold— to prevent exceptionally high salaries in some offices and arbitrarily low salaries in other offices. Previous legislation had allowed Postmasters-General to do what they pleased with an appropriation for clerks; this act was to restrict that discretion, both.above and below, in maximum and minimum. It was a rational purpose on the part of Congress, a commendable one, tending to the security and consequent elevation of the civil service. Whether clerks performing identical service in different places should be paid different salaries was a question of a general nature, which might well engage the attention of Congress. The statute answers the question by approximating to uniformity — by declaring in effect that the salaries, say, of these superintendents, shall not be more than $3,000 in New York, nor more than $2,700 in Philadelphia, nor less than $1,300 in Augusta.

It has been urged by the defense that the general proviso in the appropriation act of 1889, “ that the aggregate salaries as fixed by such classification shall not exceed the sum hereby appropriated, namely, $6,550,000,” was a general limitation upon the action of the Postmaster-General and upon the classification itself. The court is not informed as to the particulars of the manner in which the classification has been carried out generally. In his annual report for the same year, 1889, the Postmaster-General said: “The law required the classification to take effect July 1, and while'it raised the salaries of the lower grades, it failed to make adequate appropriation for the same, in consequences of which the salaries of many of the officials of the higher grades had to be reduced to the minimum sum named, when faithfulness and training called for an increase to the maximum.” In the report for 1890 it is said: “The maximum salaries for certain lines of clerical service are not large enough at present to command the highest order of clerical ability, arid the law should be amended in this respect.”

Not until the Postmaster-GeneraLhad reduced every officer in the classified service to the minimum salary could the gen eral proviso be deemed to authorize him to place any one officer on a salary below the minimum; and not until that fact is established can the court infer that the amount appropriated was insufficient to carry out the purposes of the act. The burden of proof rests upon the defendants. It is within their power to show that the Postmaster-General allowed nothing-above minimum salaries and that the appropriation was then insufficient to pay minimum salaries to all. That fact is a matter of defense, and it is one which the claimant manifestly can not prove, and therefore should not be called upon to prove. The annual reports above cited imply very clearly that the Postmaster-General did not reduce all of the officers of the classified service to minimum salaries. Moreover, the court has given defendants especial opportunity to establish that fact by remanding the case after hearing it, and calling upon the Postmaster-General for further information. The Postmaster-General has not responded to the call, and the defendants have offered no proof to establish, the fact. It must therefore be assumed and inferred and taken to be and treated as a fact established that the Postmaster-General did not reduce all salaries to the minimum, and that if he had done so the appropriation would have been sufficient to give to every official his statutory compensation. Congress manifestly believed that they were appropriating money enough to give full effect to the act, and there is nothing shown in this case to justify the court in saying that Congress were mistaken. Not until the legislative mistake is established will the court be justified in entertaining the question whether the provisions of the statute must necessarily fail.

If it were shown in the case that the $6,550,000 appropriated was insufficient to pay all and only minimum salaries, it would not follow that every public officer in the classified service would necessarily be without redress. A departmental officer charged with the administration of a statute is intrusted with the power of carrying out, its provisions, and not with a kind of veto power to nullify them. The extremest limit to which such an officer can go is well defined by the recent case of Dunlop v. The United States (7113 U. S. B., 65; 33 C. Cls. B., 135), where the Supreme Court, by a bare majority of its members, held that the act must fail in practical effect because the Secretary of the Treasury had not prescribed the regulations by which the claimant’s rights could be determined. This case now before us would be analogous to the Dunlop Case if the Postmaster-General had failed or declined to classify the service. If he had appointed nobody as superintendent of delivery in any post-office, there would be no. superintendent of delivery seeking redress.

But it is impossible that Congress intended that every clerk or any clerk in the service of the Government should be held responsible for the manner in which the head of an Executive Department disburses a general appropriation. In the Ourtis Case (4 C. Cls. B., 144) it was held that where a contractor was the sole contractor to do the work under an act which expressly limited the expenditure to the amount appropriated he was chargeable with notice and could not recover for anything in excess. But in many cases it has been held that where a public work is authorized, and an appropriation made therefor, and a number of contractors are employed, none is chargeable with knowledge as to the condition of the fund. The rule was well formulated by Mr. Justice Davis in the case of Dougherty v. United States (18 C. Cls. B., 496, 503):

‘‘When one contract on its face assumes to provide for the execution of all the work authorized by an appropriation the contractor is bound to know the amount of the appropriation and can not recover beyond it; but we have never held that persons contracting with the Government for partial service under general appropriations are bound'to know the condition of the appropriation account at the Treasury.”

The same principle has been applied to public officers. In. one of the earliest cases in this court — Graham's Oase (1 C. Cls. B., 380) — it was held that “an employee of the Government is entitled to the salary allowed by law and is not limited by the amount appropriated.” In Collins's Case (15 id., 22) it was held that “ the compensation,of public officers depends upon general laws, irrespective of the annual appropriation acts.” In Langston v. The United States (118 U. S. B., 389) the Supreme Court held that “a statute which fixes the annual salary of a public officer at a designated sum without limitation as to time is not abrogated or suspended by subsequent enactments appropriating a less amount for his services for a particular fiscal year.”

The limitation which we are considering, that the aggregate salaries to be fixed by the Postmaster-General should not exceed $6,550,000, was the annual appropriation for a particular fiscal year. It is plain that Congress supposed they were appropriating money enough for the purposes of the new classification, and that this limitation applied to the Postmaster-General as distinguished from his subordinates, and that it was intended to limit him with regard to the maximum salaries which he might allow. As the case now stands it is simply a question whether the Postmaster-General in his discretion could take one officer’s money and pay it to another; whether he could put the compensation of some superintendents of delivery below the minimum in order that he might put some other superintendents’ compensation at the maximum. To that question there can be but one answer: The statute gave to him no such discretion.

But the case presents still another question. It appears by the evidence that the claimant performed the duties of a superintendent of delivery during the entire period of service for which the suit is brought. But it also appears by the records of the Department that he was not designated as superintendent of delivery for more than two of those years. The record of the Department — that is to say, the record of his appointment — must govern both for the claimant and against the claimant. If a clerk received from the Postmaster-G-eneral the appointment of superintendent of delivery in the manner contemplated by the statute and served as such and performed the duties of the office, the defendants can not show, as they have attempted to show, by evidence aliunde the record that the Department did not intend to make the appointment. Conversely, where a clerk was not designated or appointed superintendent of delivery, he can not claim the salary of that office as a matter of legal right by showing that he performed the service of a superintendent of delivery. Whether the Postmaster-General (as is contended by the claimant’s counsel) intended to evade the statute by procuring the services of superintendents of delivery and refusing them appointments as such is a question between the Postmaster-General and Congress, which this court can not determine. The legal right of an officer to the salary of an office depends upon his being de jure an officer holding or entitled to hold the office. {Romero’s Case, 24 C. Ols. R., 331.)

The judgment of the court is that the claimant recover $366.60.

Peelle, J.,

dissenting:

My reasons for dissenting from the conclusion of the court in this case are briefly these:

The act of March 2,1889 (1 Supp. Bev. Stat., p. 679), was a general appropriation act “for the service of the Post-Office' Department for the fiscal year ending June thirtieth, eighteen hundred and ninety,” in which were incorporated the provisions upon which the claimant relies for recovery.

The material words of the act, for the purpose of this case, are as follows:

“For compensation to clerks in post-offices, six million five hundred and fifty thousand dollars; and that the Postmaster-General be, and he. is hereby, authorized to classify and fix the salaries of the clerks and employees attached to the first-class post-offices, from and after July first, eighteen hundred and eighty-nine, as hereinafter provided:
“Provided,, however, That the aggregate salaries as fixed by such classification shall not exceed the sum hereby appropriated, namely: * * *
“Superintendents of delivery, salary not exceeding forty-five per centum of the salary of the postmaster, as provided by the act of March third, eighteen hundred and eighty-three, graded in even hundreds of dollars, from one thousand three hundred dollars- to not exceeding two thousand seven hundred dollars per annum, except at New York, New York, where the salary of the superintendent of delivery shall be fixed at three thousand two hundred dollars per annum. * * - *
u Provided, That when the salaries hereinbefore stated are adjusted and fixed no clerk or employé shall be promoted or advanced in grade or salary without the approval of the Postmaster-General, in accordance with the requirements of section four hundred and sixty-four, Postal Laws and Regulations, edition of 1887; and hereafter postmasters at offices of the first and second classes shall submit rosters of the clerks attached to their respective offices to the Postmaster-General, to take effect from the first day of the fiscal year (July first), instead of January first, as heretofore; and no roster shall be considered in effect until approved by the Postmaster-General.”

The claimant is seeking to recover the difference between the salary ($1,100) he was paid, as set forth in the findings, and $1,300 per annum, which he claims was the minimum salary due him for the time he served as superintendent of delivery.

The Congress'by the act doubtless intended that the Post- • master-General should classify and fix the salaries as in the act provided, but they equally intended that the salaries to be thus classified and fixed should not exceed in the aggregate the sum appropriated. Hence, by the proviso the Postmaster-General was limited in his action; i. e., he was required to classify and fix the salaries of those named in the act upon the basis therein stated, provided that the aggregate salaries when so fixed did not exceed the sum appropriated. A like proviso is also attached to the classification and fixing of the salaries of clerks in second-class post-offices.

In respect of the compensation of superintendents of delivery, their salaries were to be classified and fixed at “not exceeding forty-five- per centum of the salary of .the postmaster.” That language to my mind clearly shows that as Congress by the proviso had limited the authority of the Postmaster-General in sncli classification to the sum appropriated, he was given the necessary discretion as to the amount of salary he might fix in order' that the sum appropriated should not be exceeded.

But the claimant contends that the parenthetical clause, i. e., “ graded in even hundreds of dollars, from one thousand three hundred dollars to not exceeding two thousand seven, hundred dollars per annum,” which follows the language fixing the salary of superintendents of delivery, has the effect to nullify both the proviso and the discretionary language. That is to say, the claimant contends that although his salary was fixed at $1,100 per annum, as set forth in the findings, yet as the •Postmaster-General at the same time approved a roster prepared by the postmaster designating him as superintendent of delivery, that therefore he is entitled to $1,300 per annum, because that is the minimum sum named in the clause grading salaries in even hundreds of dollars.

Such was not the view of the Postmaster-General, for in his annual report for 1889, page 38, he says:

The neto classification. — The administration of the Post-Office Department was greatly embarrassed at the outset in putting into operation the act of March 2,1889, which related to the readjustment of the duties and the salaries of clerks in the larger post-offices. The law required the classification to take effect July 1, and while it raised the salaries of the lower grades it failed to make adequate appropriation for the same, in consequence of which the salaries of many of the officials of the higher grade had to be reduced to the minimum sum named, when faithfulness and training called for an increase to the maximum. Some of the good clerks have been lost to the service because the salaries were not sufficient to retain them. Certain modifications and amendments of the act will be needed to adjust the scheme to the entire service, and it is quite apparent that the inquiry division, which was abandoned in the new classification, should be restored.”

And in his annual report for the succeeding year, 1890 (p. 213), referring to the classification and fixing of salaries under the act, he said:

“The Congress, however, failed to appropriate a sum sufficient to meet the requirements of the service under the said act by $350,000.”

And, further, he says “that the limited appropriation greatly embarrassed the Department in the administration of the service under this act.”

Thus it will be seen that the Postmaster-General understood, and so held, that his authority was coupled with and limited to the sum appropriated, for he says “the salaries of many of the officials of the higher grade had to be reduced to the minimum sum named when faithfulness and training called for an increase to the maximum;” and this, too, for the reason that the sum appropriated was insufficient for the requirements of the service by $350,000.

Under the act it was made the duty of the Postmaster-General not only to classify — designate the office — but to “ fix the salaries of the clerks and employees” for whom the appropriation was made; and it can not, therefore, be said that when the Postmaster-General approved the roster designating the claimant as superintendent of delivery that ipso facto a certain salary became attached thereto.

The fixing of the salary was as much of an executive act as the classification of the clerks, and when the Postmaster-General fixed the claimant’s salary at $1,100 under the designation stated, it was within his discretion under the act, and he is presumed to have done his duty, and that act alone must measure the liability of the Government.

For, if the meaning of the act be doubtful by reason of the clause graded in even hundreds of dollars, from one thousand three hundred dollars to not exceeding two thousand seven hundred dollars,” still as the Postmaster-General, who was charged with the execution of the act, so construed it as to give force and eifect to the proviso, I think his construction should prevail. United States v. Johnson (124 U. S. B., 236, 253.)

In the case of United States v. McLean (95 U. S. R., 750, 753) it was ruled that no obligation was imposed upon the Government to pay an increased salary, though warranted by the quarterly returns of an office, until readjustment had been made by the Postmaster-General; and that such readjustment was an executive act, made necessary by the law, in order to perfect any liability of the Government.” And in this respect the court said:

“ But courts can not perform executive duties or treat them as performed when they have been neglected. They can not enforce rights which are dependent for their existence upon a prior performance by an executive officer of certain duties he has failed to perform. The right asserted by the claimant rests upon a condition unfulfilled.”

But the claimant contends that when the Postmaster-General designated him as superintendent of delivery and failed to fix his salary at a sum between $1,300 and $2,700, that, therefore, ipso facto the law fixed his salary at the minimum of $1,300.

The decisions of the court in Langston (21 C. Cls. R., 10) and Foote (23 C. Cls. R., M3), to the effect that where one holds an office the salary of which had been fixed by law previous to his appointment, the same can not be reduced by the mere appropriation of a less sum does not apply in this case for the reason that the classification of the clerks and the fixing of their salaries by the Postmaster-General were authorized by one and the same act, and therefore the salary of the claimant was fixed at the time he was designated as superintendent of delivery, such designation having been made from a lower grade and salary, so that when the claimant was designated as superintendent of delivery at $1,100 per annum it was a promotion and not a reduction.

If the Postmaster-General had wholly failed to act in fixing the claimant’s salary there would be more force in the claimant’s contention, but as the Postmaster-General did act and fixed the claimant’s salary at a sum presumably within the limits of his discretion, I am of the opinion that his acts in the premises are conclusive against the claimant’s right to recovery in this action, especially as he received and accepted the salary of $1,100 per annum, so fixed by the Postmaster-General, without protest or objection.  