
    W. J. VERDIER, Administrator, v. THE UNITED STATES.
    [No. 16340.
    Decided April 10, 1893.]
    
      On the Proofs.
    
    A postmaster is sued in 1870 and a judgment recovered. At the same time the Government is indebted to him in an amount which can not he ascertained because of the neglect of the Post-Office Department to fix and allow an increase of salary to which he has been entitled by law. In 1885 this is done, and he is credited with $2,892, which he should have been credited with in 1870. The accounting officers charge his estate with interest on the judgment but refuse to allow interest on the deferred salary.
    I. It can not be held that the Government should derive a benefit from its own laches or taire advantage of the omission of its officers to perform a duty imposed upon them by statute.
    II. This court, in the exercise of its equity powers, will not enforce the the payment of interest upon a judgment in favor of the United States which would not have been recovered if their officers had duly complied with the law.
    
      The Reporters’ statement of the case: -
    The following are the facts of this case as found by the court:
    I. James B. Yerdier was duly qualified postmaster at Beaufort, S. O., from July 1,1866, to the 30th day of April, 1869.'
    II. Upon his retirement from office he appeared as indebted to the United States, on the face of his postal accounts, in the sum of $929.20. June 28,187.0, an action was brought by the United States against him on his official bond, in the United States District Court of South Carolina, to recover said sum, and July 5, 1870, the jury returned a verdict in favor of the United States for tbe sum of $1,063.20, which verdict was, upon motion of Yerdier’s attorney, set aside. •
    October 31, following, the attorney for said Yerdier consented that the case be submitted to the court, and upon said date the jury returned a verdict in favor of the United States against Yerdier for the sum of $1,059.03; the costs were $36.80; total, $1,095.83. Judgment thereon was duly signed January 25, 1871.
    TTT. November 3, 1885, application was made to the Postmaster-General by the administrator for a review and readjustment of decedent’s salary as postmaster as aforesaid, under the provisions of the act of March 3, 1883. (22 Stat. L., 487.) December 23,1885, said salary was readjusted and the sum of $2,892.84 found due said decedent’s estate. August 4,1886, a sum of money was appropriated by Congress to pay this and similar allowances. (24 Stat. L., 307,- 308.)
    IY. March 4, 1887, decedent’s postal account was audited by the Auditor for the Post-Office Department, who charged his account with the aforesaid judgment and interest thereon from July 5, 1870, to August 4, 1886 (the date of appropriation), and costs of suit, the total thereof being the sum of $2,296.77, and deducted this sum from the amount of salary credited to said account, showing a balance of $596.07.
    June 20, 1887, the United States attorney for the aforesaid district was instructed to satisfy said judgment, which was accordingly done July 25,1887.
    Y. This sum of $596.07 was paid plaintiff, who gave the following receipt:
    <8'.4S § Y t E-t
    “Mailed Sept. 14,1887. Received Sept. 26, 1887, the transfer draft of the Third Assistant Postmaster-General, No. 4655, for 596 dollars .07 cents in my favor on the postmaster at New York, State of N. Y.,to the-.
    “W. J. Yebdiee,
    ‘ ‘Administrator
    
    
      Mr. Harvey Spalding for the claimant.
    
      Mr. Henry M. Foote (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    A judgment is conclusive in respect to the parties and can not be impeached collaterally.” Mattingly v. Wye (8 Wall., p. 370); Blliott v. Piersal (1 Peters, pp. 328, 340); Thompson y. Talmie. et al. (1 Peters, p. 157); Voorhees et al. v. Bank of the U. S. (10 Peters, p. 449); Wilcox v. Jaelcson (13 Peters, pp. 498, 511); Railroad Go. y. National Bank (102 IT. S. p. 22).
    Interest is a part of the judgment (16 Peters, p. 303.)
    Claimant seeks to avoid the effect of these proceedings in the District Court by the allegation that, notwithstanding there „ was a balance of $929.20 apparently due the United States upon the retirement of Yerdier from office, yet if his salary had been readjusted prior to the institution of these proceedings, a balance would have,been found in his favor. In effect the contention is that by reason of an omission or neglect on the part of the defendant he could not avail himself of a proper defense to the action, and therefore he is not bound by the judgment.
    However effective this contention would be if presented to a tribunal having appellate jurisdiction, it is certain this court can not entertain it without reversing the rule in the authorities cited; for it is well settled that the only question which this court can consider in a collateral proceeding is that of jurisdiction; and if it be found that the court had jurisdiction of the person and cause of action, then it had authority to decide conclusively every question arising in the progress of the trial.
    It would seem a waste of time to call the attention of the court to the provisions of law conferring jurisdiction upon the District Court in the case under consideration; but as our contention must be affirmatively established, its attention is called to sections 563, 919, and 3824 of the Revised States of the United States, and it will hardly be insisted that under the provisions of these sections the court had no jurisdiction to consider the case.
    If it were material, however, for the purpose of this defense, the proposition would not be difficult to establish that under the provisions of the act of June 30, 1866 (15 Stat., p. 60), Yedier’s right to have his salary readjusted was complete. The act is mandatory, and therefore claimant’s remedy by mandamus was available. (United States v. McLean, 95 U. S. R., 750). It was, therefore, a case of neglect on his part that from the date of his retirement from office (April 1, 1869) down to the institution of the suit (June 28,1870) no steps were taken by him either by petition or' otherwise to obtain a readjustment of his salary. And in this connection it’is but proper to add that not until the 3d day of November, 1885, was any effort made in this direction.
    But the discussion is entirely foreign to the issue, and is only indulged in for the purpose of asserting the rule in the case of the United States v. Shermam, (98 U. S. It., p. 565), wherein it is said “ that it would be a strange doctrine that one by his own delay in availing himself of his legal rights could compel the Government to pay for such neglect: and that laches can not be attributed to the Government.”
    With all the facts fully made known to claimant before the money was paid, shall he be permitted now to repudiate the transaction after the defendant has acted upon his silent acquiescence?
    The whole subject of the final settlement of Yerdier’s account was as much a matter in dispute on the 15th of August, 1887, when the attorney was furnished this statement, as it is now; yet he permits the Government to pay this balance, and the claimant to receipt for it, without questioning the transaction. This feature of the case, in my opinion, is given a legal importance in the case of Murphy v. The United States (14 G. Ols. R., 509), and subsequently reviewed and affirmed by the Supreme Court in 104 U. S. R., p. 464, where the same doctrine which this court announced in the earlier cases of Comstock and Hancox (9 C. Cls. R., pp. 141 and 400) was affirmed.
    Estoppel may arise from passive conduct. Thus, if a person tacitly encourages an act to be done or silently consents to it he can not afterwards exercise his legal right in opposition to such consent. Blaekwood v. Jones (4 Jones (N. C.) Eq., 54); Hollingsworth v. Handeoek (7 Fla., 338); Morris Canal, etc., v. Leiois (12 N. J. Eq., 323); Gregg v. Wells (10 Ad. and EL, 90); MiranviTle v. Silverthorn (48 Pa., 149); Chapman v. Chapman (59 id., 214).
    This is in accordance with the familiar principle in equity, that if a person maintains silence when he in conscience ought to speak, he shall be debarred from speaking when conscience requires him to be silent. Minen v. Belknap (2 Johns, 573); Hall v. Fisher (9 Barb., 17).
    A party can not be allowed to go behind an estoppel and insist upon a validity of tbe claim on which the estoppel operates. Paul v. Harrison (18 Ala., 514).
    Independent of these suggestions, it is insisted that the act of March 3, 1875 (Supp. Rev. Stat., p. 90), authorized the deduction of this judgment from the claim due Yerdier, and as claimant did not deny this indebtedness or refuse to allow it as a set-off, he is deprived of the opportunity to raise objections to the settlement now.
   Davis, J.,

delivered the opinion of the court:

The findings of fact show that James R. Yerdier was postmaster at Beaufort, S. C., for nearly three years prior to April 30,1869. His compensation as such officer to that date was primarily fixed at $2,774.15. After he had ceased to hold office it appeared upon the face of the account that he was in debt to the United States, whereupon he was sued in the district court and a judgment in favor of defendants herein was recovered. Interest increased this judgment, so that on the 4th day of August, 1886, it amounted to $2,296.77. The significance of this date will hereafter appear.

After the death of Yerdier his administrator presented to the Postmaster-General an application for readjustment, of his salary under chapter 119 of the laws of 1883 (22 Stat. L., 487) and section 8 of the act of June 12,1866 (24 Stat. L., 307). A readjustment was made December 23, 1885, with an allowance of $2,892.84 in addition to the former salary.

This allowance was certified to Congress during the first session of the Forty-ninth Congress, and an appropriation to pay it was made in-*;ection 8 of chapter 903 of the laws of 1886. (24 Stat. L., 307, 308.) In March, 1887, the Department audited Yerdier’s account, charging him with the judgment and interest thereon to August 4,1886 (the date of the appropriation), and costs, amounting in all to $2,296.77. This left a balance upon the appropriation of $596.07, which was paid the plaintiff herein, and the judgment of the district court was satisfied.

The substance of this action is interest. Upon the one hand, when he left office Yerdier appeared as in debt to the defendants; they sued him and recovered something over $1,000. Upon the other hand, the United States was then in fact in debt to Verdier in a sum ascertainable, but not ascertained, and which could be ascertained and fixed by the Post-Office Department alone; in 1885 this sum was ascertained and in 1886 the amount found due was appropriated. If no question of interest (after judgment) entered into the computation, plaintiff’s account would show a considerable balance in his favor — that is, while interest has been running against plaintiff’s intestate upon his indebtedness no interest has been running against the defendants upon their indebtedness. To put the question in another form, if defendants had readjusted and fixed Verdier’s salary at the time they sued him they would have shown the Government in his debt; yet he is held to pay interest on his side of the account, while his debtor, the defendants, by failing to fix his salary, which they alone could fix, and by refusing to be debited with interest, which they charged him, materially reduce the amount due Verdier’s estate. Such a condition of affairs could not occur between individuals and should not be permitted to work injustice between a citizen and his Government, unless the statutes imperatively demand it.

The period first presented for our investigation of the law is that between July 1, 1866, and April 30, 1869. By the act of 1854 (10 Stat. L., 298), postmasters were paid by commissions upon receipts at a certain fixed rate. The act of July 1,1864, divided postmasters into five classes, according to the salaries, and those salaries were to be fixed by the Postmaster-General under certain rules set forth in the act (13 Stat. L., 335). The second section of the statute provided “that the Postmaster-General” shall review “once in two years, and in special cases, upon satisfactory representation, as much oftener as he may deem expedient, and readjust * * * the salary assigned by him to any office, ” so that readjustment once in two years became obligatory; a matter of duty in the performance of which the Postmaster-General must take the initiative.

In 1866 (July 12) this section Ayas amended (14 Stat. L., 60) by requiring the Postmaster-General to review and readjust when the quarterly returns of any postmaster of the three lower classes show that the salary allowed is 10 per cent less than it would be on a basis of commission under the act of 1854.

These, then, Avere the laws in force when the contention in this case arose, and by them the following duty was imposed upon the Postmaster-General, to be performed of his own motion and without application: First, to readjust Verdier’s salary every two years; second, to readjust it at any time when the quarterly returns showed that the salary allowed was 10 per cent less than if computed on a basis of commission, under the act of 1854.

•No such action, however, was taken in this case. If it had been taken the Government would have been shown in debt to Verdier at the time of the action against him; not being taken, Verdier then appeared in debt to the Government, was sued, and judgment was recovered against him, because the Department had not taken the action prescribed by statute. That is, the defendants i. the District of Columbia deprived him in South Carolina of his defense.

In 1883 (March 3, 22 Stat. L., 487) followed another statute authorizing and directing the Postmaster-General to readjust the salaries of postmasters and “late postmasters” of the third, fourth, and fifth classes whose salaries had not before been readjusted under the act of June 12, 1866 (sec. 8), the-readjustment to be made in accordance with the mode presented in that act “and to date from the beginning of the quarter succeeding that in which such sworn returns of receipts and business or quarterly returns were made;” this to be done upon the written application of the postmaster, late postmaster, or his legal representative. This act then “directed” the Postmaster-General to do that which the acts of 1864 and 1866 had already directed him to do and which he had not done, and this act for the first time required any initiative on the-part of the postmaster when it provided that he or his legal representative should make a written application for the readjustment. Verdier was dead when this act was passed, and the judgment against him had been drawing interest for several years; his administrator, however, presented the application to the Postmaster-General, and in December, 1885, he was allowed $2,892.84 in addition to the salary already allowed him; yet his estate was paid only $596.07 because of the costs and interest on a sum less than a thousand dollars which lie-only apparently owed the Government, at a time when the Government owed him, as now appears, nearly $3,000, and when the Government alone could ascertain and fix this amount and when tbe duty of so doing was imposed by statute upon a principal executive officer.

Tbis court in no way criticises tbe course of tbe Postmaster-General in tbe matter; but the facts thus disclosed are necessary' to a consideration of tbe defenses to tbis action, which, if valid, operate with peculiar hardship. In 1870 tbe plaintiff’s intestate bad a complete defense against the action brought against him; but that defense was entirely within tbe control of tbe Post-Office Department. At that time Yerdier upon tbe whole account did not owe tbe Government; on tbe contrary the Government was in bis' debt; but he could not prove this, for to do' so required precedent action .upon tbe part of tbe Postmaster-General — action required by statute, but which was not taken until 1885.

Such a result as is here contended for by defendants is manifestly unjust. It puts tbe Government in tbe position of benefiting by its own laches, which it can not be assumed to' intend to do. It gives the defendants tbe advantage of a delay-caused by tbe omission of their officers to perform a duty imposed upon them by mandatory statutes. It reaches an inequitable result by the plea that the Government, while charging interest against its debtors, pays none itself, being always ready, in theory of law, to meet its obligations.

We do not intend to attack,the judgment in this proceeding; the district court had jurisdiction, and the judgment was a necessary result of defendant’s (herein) action at that time; but we do not agree that there is force in defendant’s suggestion of an estoppel in pais because of plaintiff’s silence. The initiative was under the statutes imposed ppon defendant’s officers; we do not think that the fact that plaintiff’s intestate did not institute proceedings by way of mandamus to compel defendants to do their duty can now be cited by these very defendants as an excuse for not doing that duty.

This court has powers in equity and will not enforce the payment of interest and costs upon a judgment which would not have been recovered had the defendant herein at the time complied with the law. At the most, if interest were to be charged it should be charged on both sides, and that would substantially result in the judgment we shall direct to be entered in plaintiff’s favor. In this view of the case it is unnecessary to consider plaintiff’s point that tbe appropriation by Congress should have been paid him in full without regard to prior proceedings. Judgment for plaintiff in the sum of $1,233.67.  