
    ELIZABETH TRASK v. THE UNITED STATES.
    [No. 16854.
    Decided May 16, 1892.]
    
      On the Proofs.
    
    A postmaster of the fourth class applies to the Postmaster-General for the readjustment of her salary, directed hy the act 3d March, 1883. A clerk in the Department prepares two statements of the claimant's account under the statute. These statements do not appear to have been acted upon by the Postmaster-General.
    I.Under the Act 3d March, 1883 (22 Stat. L, p. 487) which provides “that the Postmaster-G-eneral he, and he is hereby, authorized and directed to readjust the salaries of all postmasters,” etc. “Sueh readjustment to he made in accordance with the mode presented in § 8 of the act of Jume 12, 1866.” A readjustment is necessary to consummate a right of action. A court can not perform the executive act of making the readjustment if the Postmaster-General neglects that performance of his ’duty.
    II.A statement of readjustment made by a clerk in the Post-Office Department showing the amount to which the claimant is entitled, but not apparently acted upon by the Postmaster-General, can not be taken as the readjustment prescribed by the act 1883.
    III.Parol evidence to show the adoption or ratification of an alleged readjustment of salary by the Postmaster-General in the absence of record evidence is inadmissible.
    
      The Reporters7 statement of the case:
    The case was considered on an offer of evidence which is quoted in the opinion of the court:
    
      Mr. Harvey Spalding for the claimant:
    It is plain that neither the acts of 1866 nor 1883 in any way change or modify the act of July 1,1864, inasmuch as neither of these acts has anything to do either with the basis of establishment of post-office salaries or with the terms for which such salaries thus established were to continue. These acts are both remedial acts and are entitled to have fall and complete effect in order to remove the wrong produced by the prior statute. It is plain that no readjustment of salary required by these laws could be made except by the ascertainment of the graduated commissions exhibited by the returns within the term in which the salary was deficient. A readjustment of salary consequently means the ascertainment of the salary earned upon the returns for the term, and when ascertained it is to be substituted for the deficient salary. The computation by the Postmaster-G-eneral of the salary upon the returns by the only method known to the law constitutes the readjustment; and this computation has been heretofore held to be not within the jurisdiction of the Court of Claims, because executive duties can not be performed by the courts.
    Upon consideration, the statute of July 1,1864, is shown to be complete and exclusive in its scope and effect in the establishment and reestablishment of salaries at post-offices for terms in futuro. This act could not operate at all except in this way. It not only gave no authority for the readjustment of any postmaster’s salary created by its operation, but it expressly prohibited any such readjustment. It made the basis of the establishment of such salaries the average graduated commissions prescribed by the act of 1854 upon the eight quarterly returns preceding the establishment of such salary. It will be seen that this act gave no absolute right to the incumbent of the office to receive during the term for which the salary was thus fixed, the salary fixed, because the Postmaster-General had the discretionary authority to reduce such office salary at any time during the term upon a decrease of business. Consequently, the Postmaster-General could not be required by a writ of mandamus to continue the salary thus fixed, nor could he be compelled to fix the salary equal to the prior commissions if there was a large decrease at the end of the term in the receipts. And in cases where the office salary was fixed in accordance with this act, and the business increased to three or four fold, the Postmaster-General could not be compelled to increase the salary at all. It is plain that the writ of mandamus would not issue against the Postmaster-General at all under the act of 1864, no matter how much he might have deviated from the rule laid down by that act for the establishment of salaries at iiost-offices, because he had a certain discretionary power interwoven in that law. And if this writ could not be issued against him during- the life of that law, how absurd it is to assume that for any past term of service the rule of that law can be enforced by mandamus. These considerations give all the light that can be given to the decision of the Supreme Court in the first McLean case, it is clear, therefore, that the rule of readjustments of postmasters’ salaries laid down by the act of 18C6 is the only rule which can be enforced by mandamus. This statute is itself a mandate, and orders the Postmaster-General to readjust the salaries of all the classes of postmasters specified whose returns show the salary fixed and paid under the prior act of July 1, 1864, to be 10 per cent less than the graduated commissions prescribed by the act of 1854. As the act of 1864 fixed a salary for two years, it necessarily required a consideration of the quarterly returns for that two years to be considered in order to determine whether the salary paid was in fact 10 per cent less than the commissions. As the act of 1854 imposed the computations of percentages upon the postal revenues, the intent and results of the act of 1866 and the act of 1854 is as certain as any mathematical proposition can be. And as the intent of these laws upon consideration is certain, and simply imposes upon the Postmaster-General the executive duty of computing the percentages upon the postal revenues exhibited by the returns, it is difficult to understand how the refusal of that officer to perform this executive duty can be held to deprive the postmasters of their property rights, for the money resulting from these computations is as much the property of the postmaster as the salary of the Postmaster-General is his property after he has rendered the service. And yet the record shows that by the refusal of the Postmaster-General to perform this simple but supreme duty laid upon them by the laws the claimant has been deprived from twenty-one to twenty-five years of more than two-fifths of the entire salary which the laws undertook to secure to her. For all this time the officers of the Post-Office Department, by refusing to perform a plain duty and by strenuously resisting the performance of that duty year after year, have prevented the payment of this money to the claimant. If there is anything sacred in this country it is the property rights of the people secured to them by law. This is not only true in theory, but it is affirmed and reaffirmed over and over by the United States Supreme Court. That court has decided again and again that rights can not be defeated by the refusal of executive officers to perform duties imposed upon them by law. The opinion of that court in the case of George W. Campbell and others, appellants, v. United States (17 Otto, 407-413) lays down the rule upon this point which is to-day the supreme law of the land.
    The opinion of the Supreme Court of the United States is binding on this court and on the country as to the law laid down therein. It follows that no failure of the Postmaster-General to perform the ministerial duties laid upon him by the acts of 1866 and 1883 can deprive the claimant of her property rights. Any omission or defect in the action of the Postmaster-General can not be interposed here to defeat the claimant’s rights.
    In the past there has been interposed against the rights of the postmasters under these statutes, by way of apologies or excuses of the refusal of the Postmaster-General to accord to them their rights, an endless amount of discussion and controversy. This discussion and controversy havebeenbuildedupon the fact that the remedial statute of 1866 was added as a proviso to the second section of the post-office salary law of 1864, and is silent as to the specification of the time when the readjustments ordered shall be made and upon what returns, and contains at the end of the act the words “ under provisions of said section.” Although the Department knew what the act meant when it passed and readjusted salaries in conformity to its requirement, and although this requirement has always been published officially as the requirement of the acts of 1866 and 1883, there have been attempts made in contradiction of the terms of the statutes and of the official declarations of the requirements of them to show that the act of June 12, 1866, is a legislative nullity, and that Congress seventeen years afterwards enacted a law to enforce a legislative nullity. To cover the Department’s refusal to permit the laws to be executed it is pretended that the act of 1866 required the special cases specified in the law to be readjusted precisely as they would have beenread-justed under the prior act of July 1,1864, if the act of 1866 had not been enacted, and that the act of 1883 reenacted this preposterous legislative nullity. Such, and such only is the defense, if it be a defense, opposing the execution of these statutes.
    The only method of readjusting postmasters’ salaries under the act of 1866 and 1883 possible under the statutes is shown in this record. It consists in ascertaining the amount of certain percentages prescribed by the act of 1854 upon the postal revenues of the eight quarterly returns constituting the biennial term for which the post-office salary was previously established under the prior act of July 1,1864. It can not be doubted, in the light of the Supreme Court decision cited in this brief, that, had this method of statutory readjustment of the salary constituted a part of the record in the McLean Case, the court would not have permitted the nonperformance of that executive duty to defeat the postmaster’s rights. In the decision of the last McLean Case, upon an examination of that decision it will be seen that the statutory rule of the law was surrendered to the opinion of the able attorney who argued that case. That attorney contended for an independent readjustment of salary upon each quarterly return. Manifestly this view can not be maintained under the statutes. It is equally manifest that the remedial statutes of 1866 and 1883 enjoined the readjustment of the deficient salary of every postmaster of the classes named for any term of service, whether it be a full term or a fractional biennial term. McLean’s post-office was not established till April 1,1871, and the demand for readjustment covered a term of a little less than five quarters. While five independent readjustments on the five quarters could not be made under the acts of 1866 and 1883, it is manifest that one readjustment covering the whole term not only could be made, but was ordered to be made by the acts of 1866 and 1883. It is to be noted with the greatest deference that the contention against independent readjustments resulted in this apparent error, for it is a settled rule of law that remedial statutes must have liberal construction. The opinion of the Supreme Court in the last McLean Case discusses these quarterly readjustments erroneously contended for, and lays down the rule of the salary system embodied in the act of July 1,1864. But it is a monstrous error to attribute to that decision a nullification of the remedial statutes of 1866 and 1883. While that decision limits those acts so that in tbe view then taken tbey were not to be applied to the readjustment of salaries of postmasters at post-offices established less than two years, that opinionin fact affirms the rule of the acts of 1866 and 1883. The court declared that “ the act of Congress of March 3,1883, * * * (whichisbutamandateto enforce the act of 1866) authorized and directed the Postmaster-General in proper cases to make readjustments of salaries which should act retrospectively.” This declaration is exactly equivalent to the requirement of the law as published by the Postmaster-General continuously after February 16,1884, and the computations of the claimant’s salary by the Postmaster-General as proven in the record in this case. This is the concurrent rule of the statutes of 1866, 1883, and of Postmaster-General Gresham, and the United States Supreme Court. It is plain that these considerations are conclusive of the right of the claimant to recover her readjusted salary.
    If it be objected that the computation of the claimant’s salary by the Postmaster-General must be supplemented by some other additional act or order for the payment, the answer is that the computation of the claimant’s salary by the method prescribed by law constitutes the readjustment of her salary, and that any affirmative or negative order of thePost-master-General is absolutely void in the precise degree in which it is contrary to law. The Postmaster-General’s report of the computation of salary is simply a communication of the evidence of the readjustment and the results of the readjustment. If he refuses to send such evidence to the Auditor or to Congress, the claimant has a manifest remedy in this court, for her claim is founded on two statutes, and on the performance of an executive duty iu accordance with the statutes by the Postmaster-General. The court in the Terdier Case has been made acquainted with the fact that great sums of money have been paid to postmasters by authority of the Postmaster-General regardless of the amount of their computed salaries. Suppose such a case had been presented to this court, showing an order of the Postmaster-General allowing $4,000 to a postmaster whose computed salary was less than the salary heretofore paid, and that the $4,000, not having been appropriated, the judgment of this court against the United States was invoked. Is it not manifest that such an order would be of less value here than a sheet of blank paper? Herein is the explanation of tbe successful invocation by tbe Postmaster-General, on tbe 4th of August, 1886, for a legislative shield and protection from liability on account of sucb orders made by bim. The proviso containing this protection makes no attempt to repeal either tbe act of 1886 or 1883, and tbe property rights of tbe postmasters are sacredly conserved by those acts.
    Tbe act of March 3,1883, orders tbe Postmaster-General to readjust tbe deficient salaries of postmasters. He could take no action under that act without at once proceeding to make tbe readjustments, and tbe readjustments could be made only by computations of tbe returns applied to tbe deficient salaries. Having employed a large force of clerks in this work for a term of years since February, 1884, tbe country has witnessed a determined and protracted effort of tbe Department to suppress every computation exhibiting tbe actual salaries earned by tbe postmasters. For what purpose? It is manifest that these computations under tbe statutes if nothing was due would be conclusive of that fact. If opposed to payments of salaries in all cases in which no salaries were due the postmasters, tbe computations themselves would forever settle tbe controversy. This court has made call after call upon tbe Department for tbe computations of salaries in an unimportant number of cases, and these calls have been treated with contempt. Eesolution after resolution has been introduced in tbe Senate calling for these computations, and these resolutions, like tbe calls of tbe court, have been treated with contempt by tbe Department. Eeports having at last been made to a committee of tbe Senate in a few cases, such reports have been recalled by tbe Postmaster-General. For what purpose? It is manifest that if these reports bad been printed and laid before tbe Senate tbe appropriation to pay tbe salaries shown to be due by tbe computations would have been made. This result could only be prevented by a recall of tbe reports, and they were recalled. The authority of law is supposed to be supreme. In these cases this supreme authority can not be defeated unless tbe Postmaster-General is permitted to suppress or destroy tbe evidence of the recorded debt due postmasters, which repeated statutes require shall be paid. This court has ample jurisdiction and power to enforce the supreme authority of tbe law in tbe Post-Office Department to tbe extent that tlie property rights of postmasters depend upon such enforcement. Accordingly the power and jurisdiction of this court is invoked in this case.
    
      Mr. Henry M. Foote (with whom was Mr. Attorney-General Cotton) for the defendants.
   Weldon, J.,

delivered the opinion of tbe court:

The petition alleges that the claimant was postmaster at the town of Emporia from August, 1864, to July 1, 1871; that the said office for the biennial terms ending June 30,1806, June 30,1868, and June 30,1870, was by the Postmaster-General assigned to the fourth class, and in June 30,1871, assigned by him to the third class.

“Petitioner says that she was paid a salary for the biennial term ending June 30, 1867, of about $270 per year, and for the term ending June 30, 1868, she was paid $400 per year, and for the term ending June 30,1870, she was paid $790per year, and for the year ending June 30, 1871, she was paid $1,8001 And petitioner says that the salary paid for each of said terms was more than 10 per cent less than she would have received in commissions under chapter 61 of the laws of 1854, and that the salary paid her for each of said terms not having been readjusted, as required by section 8, of chapter 114, of the laws of 1866, she made application to the Postmaster-General, under chapter 119 of the laws of 1883 prior to January 1, 1887, for the readjustment of salary to which she was entitled, and she further says that upon her said application her salary for each of said terms has been readjusted by the Postmaster-General upon the returns of said office, and that by the readjustments thus made, which have not been reported, she is entitled, in all, for all the said terms of service, to be paid, in addition to what has been heretofore paid her, the sum of $2,175.57, and she says she is unable to state the amount of salary due for each of said terms of service, because the Postmaster-General lias failed to report the same. Petitioner says that there is due her from the United States $2,175.57, for which sum she prays judgment of this honorable court against the United States.”

In the request for findings the claimant abandons the specific sum of $2,175.57, and asks a judgment for the sum of $2,049.25, as the amount to which she is entitled upon a proper and legal adjustment of her rights under chapter 119 of the laws of 1883. The sum of $2,175.57 represents an alleged readjustment of the salary of the claimant under the act of 1883. The pleading of the claimant does not directly count upon it as a readjustment; and tbe contention is that, although there is inlaw a readjustment under the act of 1883, that without such readjustment, if it appears that under the different statutes an amount is due claimant, she has a right to recover. The act of 1883 provides—

“ That the Postmaster-General be, and he is hereby, authorized and directed to readjust the salaries of all postmasters and late postmasters of the third, fourth, and fifth classes under the classification provided for in the act of July 1, 1864, whose salaries have not heretofore been readjusted under the terms of section 8 of the act of June 12,1866, who made sworn returns of receipts and business for readjustment of salary to the Postmaster-General, the First Assistant Postmaster-General, or the Third Assistant Postmaster-General, or who made quarterly returns in conformity to the then existing laws and regulations, showing that the salary allowed was 10 per centum less than it would have been upon the basis of commissions under the act of 1854; such readjustment to be made in accordance with the mode presented in section 8 of the act of June 12, 1866, and to date from the beginning of the quarter succeeding that in which such SAVorn returns of receipts and business or quarterly returns were made: Provided, That every readjustment of salary under this act shall be upon a written application, signed by the postmaster or late postmaster or legal representative entitled to such readjustment; and that such payment shall be by warrant or check on the Treasurer or some assistant treasurer of the United States, made payable to the order of said applicant, and forwarded by mail to him at the post-office within whose delivery he resides, and which address shall be set forth in the application above provided for.” (22 Stat. L., p. 487.)

The proviso indicates the mode in which the rights of parties are to be dealt with under the statute, and furnishes the court an indication of construction in determining the legal liability of the defendants in this proceeding. The contention of the Government is the reverse of the claimant’s. It is contended that a readjustment is necessary, that no such readjustment has been made, and that under a proper readjustment by the Postmaster-General nothing would be dire the claimant. We will first consider whether it is necessary that the claimant-have a readjustment.

At the time the act of 1883 was passed the claimant was not only without remedy, but without right. If she ever had any claim against the Government for fees or salary as postmaster, that claim was barred by the statute of limitations long before the act of 1883.

Tbe plaintiff’s right to sue and her right to recover depends upon and is incident to the act of 1883 as applicable to the acts of 1854 and 1866 recited in the act of 1883. A case very similar to the one at bar was determined by the Supreme Court, on appeal from this court, involving the rights of a postmaster under the act of 1866, providing for a readjustment of a postmaster’s salary. The court said:

“From a review of these statutory provisions it appears plainly that after a salary of a postmaster has been fixed a readjustment by the Postmaster-G-eneral must be made before it can be increased, and the readjustment takes effect in all cases prospectively. The law imposes no obligation upon the Government to pay an increased salary unless a readjustment has preceded it. And by the act of 1866 the Postmaster-General is not to readjust an existing salary unless the quarterly returns made show cause for it. Now, if it be conceded that the quarterly returns made on the last day of each quarter, beginning with June 30,1871, made it the duty of the Postmaster-General to make a readjustment immediately on receipt of the returns, still his readjustment was an executive act, made necessary by.the law, in order to perfect any liability of the Government. If the executive officer failed to do his duty, he might have been constrained by a mandamus. But the 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. The judgment was therefore erroneous and must be reversed, and the record remitted to the Court of Claims with instructions to dismiss the petition: and it is so ordered.” (95 U. S. R., p. 753.)

After the decision of the Supreme Court the claimant sought to mandamus the Postmaster-General, and for that purpose commenced suit in the Supreme Court of the District of Columbia.

The Supreme Court of the District refused to grant the mandamus, which decision was affirmed by the Supreme Court of the United States on the ground—

“That no obligation rests upon the Postmaster-General to readjust the salaries of postmasters offcener than once in two years; that such readjustment, when it takes place, establishes the amount of the salary prospectively for two years, but that a discretion rests with the Postmaster-General to make a more frequent readjustment when cases of hardship seem to require it.” (124 U. S. R., p. 86.)

In the case in 95 U. S. Reports the court held:

“The law imposes no obligation on the Government to pay-increased salary unless a readjustment preceded it.”

The duty of the Postmaster-General under the act of 1866, on which the suit of McLean was brought, is in substance the duty of the Postmaster-General under the act of 1883, and whatever the Supreme Court may have decided in that case becomes the law of construction in this case. The court in that case held in substance, that if any executive officer failed to perform his duty he might be compelled to discharge it by a proceeding'in mandamus; but that courts can not perform executive duties or treat them as performed when they are dependent upon the exercise of executive authority for their existence; that conditional rights must be associated with, and sustained by, the happening or performance of the condition. The suit, under the act of 1883, is in legal effect a suit based upon the award of an arbitrator, and without an award there is no legal virtue in the submission, as conferring a right of action or power of recovery.

Aside from the peculiar language of the act of 1883, upon the authority of the McLean Case, we must hold that it is necessary, in order to consummate a cause of action in favor of a postmaster under the statute, that he must establish as an affirmative fact that the Postmaster-General has in law made a readjustment in his favor, and recover on that as an award under the law. The court will not examine and determine the ques- , tion, whether under the various statutes he has a right to recover irrespective of the acts of the Postmaster-General under the law of 1883. That would be the performance of executive duties within the meaning of the decision of the Supreme Court. We now come to the question whether in law there has been a determination upon the part of the Postmaster-General binding the Government as a readjustment.

The claimant, on the 8th of March, 1884, made application in writing for readjustment from January 3,1865, to July 1,1870.

Upon that application action was taken in the Post-Office Department by one of the subordinates, and the question of contention is, whether such action was the action of the Postmaster-General in the adjustment of the account of the claim-aut under tbe act of 1883. Tlie Departments of the Government ordinarily act through and in subordination to the he.ad of each Department, and while the great mass and routine of work is done by the clerks of each Department, the authority to promulgate an order or make an award rests in the head of the Department, or some person specially designated; and unless it affirmatively appears that such officer or person has made the order or award, it is not binding on the Government. In this matter it is made the duty of the Postmaster-General to make the readjustment, and the contention is whether he has made such readjustment.

The claim for readjustment was made in March, 1884, and sometime thereafter, but it does not appear at what time, a clerk in the Post-Office Department prepared two statements of the claimant’s account under the statute authorizing readjustment. Neither bears a date, and it does not distinctly appear at what time they were made. The last one, and on which the claimant asks a judgment, is as follows:

[Readjustment, 1890. Form 1224 A.]
State, Kansas j post-office, Emporia.
Statement salary; basis, act 1854, and salary paid.

The first was in substantially the same form, but having as a result the sum of $2,175.57. These statements were never acted on by the Postmaster-General, so far as we can ascertain from the evidence. It is contended by claimant that they were tbe acts of tbe Postmaster-General; that they were prepared in accordance with instructions issued by him in 1884= for tbe purpose of executing tbe provisions of tbe act of 1883. Tbe proof as to tbe preparation of tbe alleged readjustment is dependent upon oral testimony as to wbat was said and done by clerks in charge of tbe matter in tbe Post-Office Department, and tbe record fails to show any official sanction by tbe Postmaster-General of tbe alleged readjustment. If tbe Postmaster-General ratified and adopted such readjustment, then it may be asked why be did not remit to tbe claimant, as provided in the act of 1883. Tbe first allowance was transmitted to tbe Senate in reply to a call on tbe Department, which was subsequently recalled because of it being erroneous.

In reply to a call of tbe court on tbe present Postmaster-General tbe said computations have been furnished, and it is alleged by tbe officer making tbe return that they were made by a subordinate employé of tbe Department without any authority.

Tbe court can not accept oral testimony as to tbe adoption or ratification of tbe alleged readjustment by tbe Postmaster-General, and in tbe absence of record evidence we must bold that no action has been taken by tbe Department under the act of 1883, and that no readjustment has been made. In tbe absence of such readjustment, tbe claimant is without a right to recover, and tbe petition is dismissed. Tbe counterclaim is also dismissed.

Peelle, J., took no part in tbe decision, tbe case having been argued before be took bis seat.  