
    WILLIAM T. EWING v THE UNITED STATES.
    [No. 16345.
    Decided April 2, 1900.]
    
      On the Proofs.
    
    The claimant is a postmaster from July 1, 1866, to July 1, 1870. He applies for a readjustment of his salary. November 19, 1897, the Postmaster-General certifies and returns/to this court a readjustment, with documents in relation to th$ action of theDepartment in this class of cases.
    I. Where a claim is made by statute to depend upon the previous action of an executive officer no right vests until that officer has acted. II. A postmaster of the third, fourth, or fifth class whoso salary has been readjusted pursuant to the principles laid down by Postmaster-General Gresham, June 9, 1883, may recover on suc-h adjustment.
    
      
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. Plaintiff was postmaster at Gadsden, Ala., during the period involved in this action.
    II. As such postmaster he was paid:
    For his services between July 1,1866, and June 30,1868,173 per year, or for two years. $146.00
    For his services between July 1, 1868, and June 30,1870, at $220 per year, or for two years. 440. 00
    In addition thereto since said service for the two years between July 1,1868, and June30,1870, $45.95 per year, amountingfor the two years to. 91.90
    Amounting in all to... 677.90
    During his first biennial term his adjusted salary was less than §100.
    During his second biennial term his adjusted salary was more than. §100 and less than §1,000 per annum.
    III.He made application in writing to the Postmaster-General for readjustment and payment of salary (under chapter 119 of the laws of 1883) for service as postmaster in accordance with chapter 61 of the laws of 1851 and section 8 of chapter 111 of the laws of 1866. This he did prior to January 1, 1887. The Postmaster-General thereupon stated plaintiff’s account 'as shown later in these findings. This statement shows that, if plaintiff be correct in his contention as to the law, his salary for the ensuing biennial term should have been §1,516.90, whereas he was paid but §667.90; so, if he be correct, there is still due him as “readjusted salary” §869.
    IY. The following order and memorandum were entered by this court; the following call was made by this court upon the honorable the Postmaster-General, and the following reply was received from him, dated May 31, 1889:
    
      '‘‘‘Motion for rule on Rost- Office Department im, accordance with order of court.
    
    “ORDER.
    “ This cause is remanded'to the docket for proceedings in accordance with memorandum filed herewith.
    “This cause is remanded to the docket with direction that a rule issue requesting the Postmaster-General to furnish the court with a certified copy of any and all papers in bis Department showing or tending to show what action, if any, was taken by the Department upon the request of each of the claimants herein for a readjustment of salary under the following acts:
    “June 22, 1854, chapter 61, 10 Stat. L., page 298; July 1, 1864, sections 1 and 2, chapter 197,13 Stat. L., 335; June 12, 1866, section 8, chapter 114, 14 Stat. L., 59; March 3, 1883, chapter 119, 22 Stat. L., 487.-
    “ Allowed. W. A. R., Oh. J.
    
    “ Gall on Post-office Dejpari/ment.
    
    “To the Hon. John Wanamaker,
    ‘ ‘ Postmaster- General:
    
    “You are hereby requested to furnish to the Court of Claims, that the same may be used as evidence on the trial of the above-entitled cause now pending in said court, duly authenticated copies of the papers or documents supposed .to be on file in your Department, set forth in the accompanying rule allowed by Chief Justice Richardson.
    “Your reply thereto you will please return to this office at your earliest convenience.
    “By order of the court.
    “In testimony whereof I have hereunto set my hand and affixed the seal of said court at Washington, this 22 day of May, A. D. 1889.
    [SEAL.] “ARCHIBALD HOPKINS,
    “ Chief Clerk of Oov/rt of damns.
    
    “ Reply of Post-Office Department.
    
    “Post-Office Department,
    “Office of the Postmaster-General,
    “ Washington, D. C., May 31, 1889.
    
    “ To the honor able the Ohief Justice and Judges, Court of Claims:
    
    “Comes now the Postmaster-General, in response to the rule of the honorable the United States Court of Claims, by his honor Chief Justice Richardson, of date May 22, 1889, and makes reply thereto as follows:
    “That the statement hereto annexed and made a part of this reply, and marked ‘Exhibit A,’ contains a full copy of the papers named in the order of said court, and further saith not.
    “In witness whereof I, John Wanamaker, Postmaster-General, hereunto set my hand and affix the seal of'the Post Office Department this first day of June, A. D. 1889.
    [SEAL. ] “ JOHN WANAMAKER,
    “ Postmaster- General.
    
    
      “Exhibit A.
    “Post-Office DEPARTMENT,
    “Office of the
    “First Assistant Postmaster-General,
    “Salary and Allowance Division,
    “ Washington, D. G., November 7, 1888.
    
    
      “Statement relative to the claims of Jane Yarrington and others for a review of their salaries as former postmasters at the followingmamed offices in the State of Alabama, under the act of March 3} 1883.
    
    
      
    
    V. Subsequent to the foregoing proceedings, to wit, on tbe 19tb of November, 1897, Postmaster-General Gary certified and returned to this court the following readjustment of the plaintiff’s salary and documents relating to the action of the Post-Office Department in this and similar cases. If the foregoing readjustment of Postmaster-General Wanamaker is the readjustment prescribed and intended by the statutes therein referred to, there is no balance of salary remaining due the plaintiff. If the readjustment hereinafter set forth of Postmaster-General Gary is the readjustment prescribed and intended by the said statutes, there remains due to the plaintiff the sum of $869.
    VI. The following documents are found as facts herein, to wit.
    1. Letter from Mr. Gresham, Postmaster-General, to Mr. Hatton, First Assistant Postmaster-General, dated June 9, 1883.
    2. Copy of item furnished the press by Postmaster-General Gresham, through Chief Clerk Walker, February 16, 1881, etc., dated February 17, 1884.
    3. Copy of a circular letter to “late postmasters,” Form 1223.
    
      . 4. Copies of tbe transcript of registered returns of W. T. Ewing as postmaster at Gadsden, Ala., etc.
    5. Copy of the restatement of Ewing’s account.
    ‘ ‘ 1. Olcdms of postmasters for readjustment of salaries undet' act of March <?, 1883.
    
    “POST-OFFICE DEPARTMENT,
    ‘ ‘ Washington, D. O., June 9, 1883. “Hon. EraNK HattoN, First Assistant Postmaster- General.
    
    “ Sir: A careful examination of the act approved March 3, 1883, entitled ‘An act authorizing and directing the Postmaster-General to readjust the salaries of certain postmasters in accordance with the provisions of section 8 of the act of June 12, 1866,’ has satisfied me that the purpose of this legislation is to require the Postmaster-General, in all cases in which any one of his predecessors has failed to comply with the provisions of section 2 of' the act of July 1, 1864, as amended by section 8 of the act of June 12, 1866, requiring a readjustment of salaries in offices of the third, fourth, ana fifth classes, to proceed to make such adjustment under the terms of that section.
    “It is essential, therefore, to ascertain the exact meaning of section 2 of the act of July 1,1864, and the change effected by the amendment of June 12, 1866.
    “The act of June 22, 1854, authorized the Postmaster-General to allow commissions to postmasters at the following rates on the postage collected at their respective offices in each quarter of the year, and in due proportion for any period less than a quarter:
    “ On not exceeding $100, 60 per cent.
    “Over $100 and not exceeding $400, 50 per cent.
    “Over $400 and not exceeding $2,400, 40 per cent.
    “Over $2,400, 15 per cent.
    “There are certain qualifications and additions to these commissions not necessary to enumerate for the purpose of this examination. ■
    “Under the provisions of this act the commissions were allowed to postmasters upon each quarterly return.
    “The act of July 1, 1864, classified postmasters according to the salary received. Those whose compensation was not less than $3,000 yearly were placed in the first class; those whose commissions were below that sum and yet reached $2,000 per annum were of the second class; post-offices with the salaries between $1,000 and $2,000 were of the third class; those between $100 and $1,000 of the fourth class, and those under $100 constituted the fifth class.
    
      £ ‘ Post-offices were to be arranged in these classes whenever for the two consecutive years next preceding July 1, 1864, the compensation at the office should have amounted to the average sum assigned to the class.
    ‘‘The second section of the act reads as follows:
    “ ‘And be it further enacted, 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, on the basis of the preceding section, the salary assigned by him to any office; but'any change made in such salary shall not take effect until the first day of the quarter next following such order, and all orders made assigning or changing salaries shall be made in writing and recorded in this journal and notified to the Auditor for the Post-Office Department.’
    “Under this legislation it resulted that while under the act of June 22, 1854, postmasters received their compensation based upon each quarterly return, they were in future to be paid salaries for two years based upon the average amount of receipts, as shown by their quarterly returns for the two years preceding the 1st day of July, 1864, calculated upon the basis fixed in the act of June 22, 1854.
    “As this general legislation, however, fixing absolutely the salary of a postmaster for two years in advance upon the basis of his receipts for the two years preceding would, in rapidly growing communities, work an injustice to postmasters the revenues of whose offices would be largely increased without any corresponding increase during the two years in their salary, the Postmaster-General was authorized ‘ in special cases, upon satisfactory representation, as much oftener as he may deem expedient, to make such readjustment on the basis of the preceding section.’
    “The rule fixed by this legislation was a biennial readjustment of salaries. The exception to this rule was the exercise by the Postmaster-General of a discretion ‘in special cases.’
    “ After this act had been in force for nearly two years the second section was amended by adding the following:
    “ ‘Provided, That when the quarterly returns of any postmaster of the third, fourth, and fifth classes show that the salary allowed is 10 per centum less than it would be on the basis of commissions under the act of 1854, fixing compensation, then the Postmaster-General shall review and readjust under provisions of said section.’
    “There is no attempt in this section to change the settled rule of biennial readjustment. It requires simply that when the ‘ quarterly returns ’ at offices of the third, fourth, and fifth classes show that the salary allowed upon the average annual compensation of postmasters for the two next preceding years is 10 per cent less than it would be on the basis of the act of 1854 (which basis is the actual quarterly returns themselves), then the Postmaster-General shall adjust upon the quarterly returns.
    ■ “The substitution of a salary for two years by the act of July 1,1854, based upon the average returns for two years, in place of commissions upon each quarterly return was not abandoned by the amendment, but it was provided that where the effect of taking the average of annual compensation of postmasters for the two years preceding was to reduce the compensation of the postmasters' 10 per cent below what it would be by using the eight preceding quarterly returns themselves as a basis the postmaster at such office belonging either to the third, fourth, or fifth class should have the adjustment upon the actual quarterly returns.
    “This construction leaves in full force the policy inaugurated by the act of July 1, 1864, of paying salaries to postmasters which are fixed for a period of two years in advance, the amendment simply providing that all postmasters of the third, fourth, and fifth classes whose compensation was thus reduced 10 per cent or more below what they would have received under the act of 1854 shall have their salaries readjusted and fixed upon the basis of the latter act.
    “This construction of the amendment leaves in .full force the discretion conferred upon the Postmaster-General to make a readjustment ‘ in special cases, upon satisfactory representation, as much of tener as he may deem expedient.’
    “I am aware a persistent effort has been made for years to make it appear that it was an imperative duty of the Postmaster-General, under the amendment, to examine each quarterly return as made by postmasters of the third, fourth, and fifth classes, with a view of ascertaining whether officers of these classes would have their compensation reduced on the basis of the act of 1864 as much as 10 per cent below the basis of the act of 1854, and, if this result appeared, to make the adjustment quarterly, as though the act of 1864 had not passed. This construction of the amendment would practically destroy the principles of legislation of which it formed a part as to all officers claimed to be within its provisions and render biennial adjustments as to them not only unnecessary, but absolutely impossible. It was not the intention of Congress by the amendment of 1866 to repeal any part of the statute of 1864. The latter statute was to stand, the amendment simply securing to officers of the designated classes the right to have their biennial adjustments of salaries made upon the basis of the act of 1854, instead of the act of 1864, whenever they could save 10 per cent by this course.
    
      “If, in fact, there are cases in which it appeared from the quarterly returns or from sworn reports of receipts and business that postmasters of the third, fourth, and fifth classes at the biennial readjustment had their salaries fixed under the act of 1861, when, by an adjustment under the act of 1854,10 per cent or more would have been added to their salaries, then under the act of 1883 such postmasters are entitled to whatever additional sum they would and should have received under the act of 1854.
    “In all cases, therefore, in which applications are made for readjustment under the act of 1883, signed by the postmasters or late postmasters of the third, fourth, or fifth classes, or if deceased by their executors or administrators, 3rou will take the necessary steps to determine from the sworn returns of receipts and business for readjustment or from the quarterly returns made whether any additional sum is due under section 8 of the act of 1866 as herein construed.
    “Very respectfully,
    “W. Q. Gkesham, “Postmaster- General.
    
    
      Copy of item, furnished the press by Postmaster- General Gresham through Chief Glerk Walker, February 16, 1884■, relative to opinion of Attorney-General Brewster construing act of March 3, 1883.
    
    “WASHINGTON, February 17, 1884■
    
    “The Attorney-General has rendered an opinion in regard to the construction of the act of March 3,1883, relative to the readjustment of postmasters’ salaries. He holds that in all cases in which it appears from the biennial adjustment of salaries of postmasters of the third, fourth, and fifth classes that they receive 10 per' cent or more less than they would have received in commissions under the act of 1854 they are now entitled under the act of March 3, 1883, to the difference between what was paid them and what they would receive as commissions under the act of 1854. He also holds that it is not the intention of Congress by the acts of 1864 and 1866 to dispense with the biennial readjustments. It follows that a claimant under the act of March 3, 1883, must show that the acts subsequent to 1854 deprived him of 10 per cent or more of what he should have received if those statutes had not been enacted and he had been compensated on the basis of the act of 1854. This opinion of the Attorney-General is in harmony with the construction of those statutes by the Department.
    
      “<?. Oojpy of the circular letter addressed T>y the Depa/rinnmt to late post/masters on Form No. lBBS.
    
    “ [Form No. 1223, New Series, November, 1884.]
    ‘ ‘ Post-Office Department,
    “Oeeice oe First AssistaNt Postmaster-General, “Salary and Allowance Division,
    “ Washington, D. 0.,-,-.
    “Sir: In response to your application, dated'-, for a readjustment of --salary-as postmaster under the provisions of the act approved March 3,1883, you are informed that by direction of the Postmaster-General applications or claims of this nature are being placed in process of examination and review.
    “The act embraces such claims as postmasters or late postmasters may have, for a review of their salaries under the provision of section 8 of the act of June 12, 1866, wherein it shall appear that the salary allowed was 10 per centum less than it would have been upon the basis of commissions under the act of 1864.
    “Briefly stated, the period covered by the act of March 3, 1883, dates from July 1,1864, to July 1,1874, and the review will be made on biennial adjustments — i. e., on returns for eight quarters, immediately preceding the biennial adjustment. Claimants should, therefore, furnish without delay the following information, viz:
    “First. Period of service as postmaster from- to
    “Second. The name of post-office, county, and State.
    “Third. The present address of claimant.
    This information must be inclosed in an envelope addressed to the First Assistant Postmaster-General, Salary and Allowance Division, Washington, D. C., and bear the inscription 4Claim for review of adjustment of salary.’ Upon its receipt your claim will.be reviewed in its regular order and you will be advised when action is taken.
    " Very respectfully,-,
    
      “First Assistant Postmaster-Gmeral.
    
    
      
      ie4> Copies of the transcripts of registered returns of W. T. Fhoing as postmaster at Gadsden, Ala., in his biennial term of service beginning July 1, 1866, and ending June 80, 1868, and also in his biennial term of sewice beginning July 1, 1868, and ending July 1, 1870, on Form No. 1224.
    
    '“Post-office, Gadsden; State, Alabama.
    
      
    
    “J. Oopy of the restatement of the sala/ry account of clcmncmt, W. T. JSwi/ng, made wider dweet/ion of the Postmaster-General upon transcripts of claimant’s registered retu/rns from Juby 1, 1866, to dune 80, 1868, for the biennial period from Juay 1, 1868, to June 30, 1870.
    
    “No returns from the said post-office were made to the Auditor for the six first quarters, biennial period from July 1, 1864, to June 80, 1866; hence there was no restatement of Mr. Ewing’s salary account for the period from July 1,1866, to June 30, 1868.
    “ STATEMENT.
    “ From July 1, 1868, to July 1, 1870.
    “ COMPUTATION.
    “ Eight quarters.
    “ $45.95-j-4=¡¡¡>11.48f X 8=$91.100.
    
      “Seceipts July 1, 1866, July 1, 1868.
    
    “Stamps. $847.45
    “ Letter postage. 3.33
    ‘ ‘ Newspaper postage. 53,02
    
      “ Compensation.
    
    “§800.00 X 60 per cent. §480. 00
    “103.80 X 50 per cent. 51.90
    “Total compensation 2 years. 531. 90
    “Average compensation 1 year... 265. 95
    “Total salary allowed 2 years. 440. 00
    “Average salary allowed 1 year. 220. 00
    “$265.95 —§220.00 = $45.95 or an increase of 20.8 per cent.
    “§531.90 — $440.00 = $91.90 due claimant.”
    
      Mr. Harvey Spalding for the claimant.
    
      Mr. John G. Gapers (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
    
      Mr. W. II. Button was on the brief.
   Davis, J.,

delivered the opinion of the court:

Plaintiff was postmaster at Gadsden, Ala., from July 1, 1866, to July 1,1870. He, in due course, following the act of 1883, applied for a readjustment of his salary, whereupon the proceedings set forth in the findings of fact took place.

The act of 1883 (22 Stat. L., 487), referring to the act of June 12, 1866, “authorized and directed the Postmaster-General to readjust salaries of postmasters of the third, fourth, and fifth classes (act of July 1, 1864) whose salaries had not been theretofore readjusted under section 8 of the act of June 12, 1866, and who made returns showing that the salary allowed was 10 per centum less than it would have been upon the basis of computation under the act of 1854. These readjustments were to be made according to the mode prescribed in the act of June 12, 1866 (sec. 8), and were “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 upon written application by the postmaster.

Plaintiff accordingly made application, and November 7, 1888, the Post-Office Department made a statement from which this is an extract:

“Statement relative to the claims of Jane Yarrington and others [one of them the plaintiff] for a review of their salaries as former postmasters at the following-named offices in,the State of Alabama, under the act of March 3, 1883.” In the ■list appears the name of this plaintiff described as postmaster at Gadsden; his “period of service as per application” is stated 'as from July 1, 1865, to July, 1874, and under the heading

Remarks” appears this: “The returns for the 3rd and 4th qrs. of 1864, 1st, 2nd, and 3rd qrs.' of 1865, and 1st qr. of 1866 are not on record; no review can be made to June 30, 1868. Erom July 1, 1868, to Juno 30, 1872, $186.90 was allowed. Erom July 1, 1872, to June 30, 1874, no additional amount is due.”

Plaintiff served as postmaster as Gadsden between July 1, 1866, and June 30, 1870. Under the act of 1864 (13 Stat. L., 335) he was a postmaster of the fifth class (during his first biennial term), as his adjusted salary was less than $100; in the second term, under the same act, he was of the fourth class, his salary being more than $100 and less than $1,000 per an-num. He now seeks to recover a readjusted salary of $531.90 in his first term and a readjusted salary of $1,015 in his second term ($1,582.90), less the adjusted salary heretofore paid in each of those terms.

Coming on to be heard with this case, on the merits, is defendants’ motion to dismiss the petition upon the ground that the Supreme Court and this court have decided in similar causes “ that a readjustment of a postmaster’s salary is a necessary precedent to a cause of action in a petition for relief under the act of March 3, 18’83 (22 Stat. L., 487), and the act of July, 1864 (13 Stat. L., 335).” It has been decided by the Supreme Court that an action of this nature can not succeed unless a readjustment has in fact taken place (McLean v. The United States, 95 U. S. R.., p. 750), a decision followed by the Court of Claims in Birdsong’s Case (34 C. Cls. R,., p. 437). We were at first consideration of this case on the evidence at that time before us brought to one point as decisive of this action: Did the action of the Postmaster-General amount to a readjustment under the statute?

The Postmaster-General was requested by this court to furnish it “ duly authenticated copies of the papers and documents supposed to be on file ” in the Post-Office Department “showing or tending to show what action, if any, was taken by the Department upon the request of each of the claimants herein for a readjustment of salary under the following acts,” being the statutes which relate to this cause of action. In response to this request the Postmaster-General answered “that the statement hereto annexed and made a part of this reply and marked ‘ Exhibit A’ contains a full copy of the papers .named in the order of said court.” To this communication is annexed a document thus headed: “Postoffice Department, office of the First Assistant Postmaster-General. ” This is a statement relating to the claims of postmasters at certain offices (including plaintiffs) under the act of March 3, 1883. Here we find, as to Ewing, that the report shows this:

“ The returns for the 3rd and 4th qrs. of 1864; 1st, 2nd, and 3rd qrs. of 1865, and 1st qr. of 1866 are not on record; no review can be made to June 30, 1868. From July 1,1868, to June 30, 1872, $186.90 was allowed. From July 1, 1872, to June 30, 1874, no additional amount is due.”

Up to this point it appeared that the Postmaster-General was to readjust the salaries of postmasters of the class whom plaintiff represents, but it did not appear that he had done so. The case then might perhaps have fallen within the principle that where a claim is by statute made to depend upon the previous action of an executive officer no right vests until that officer has acted.

Subsequent to all this (the 19th of November, 1897) Postmaster-General Gary certified and returned to this court a readjustment of plaintiff’s salary, with documents in relation to the action of the Post-Office Department in this class of cases.

It therefore follows that it the foregoing action of Postmaster-General W anamaker is that intended by the statute, it was final. If the action of Postmaster-General Gary is that intended by the statute, the plaintiff should recover $869.

Upon the readjustment made by Postmaster-General Gary we are of opinion that the plaintiff should recover, and this result we reach for the reasons set forth by Postmaster-General Gresham, stated in the findings of fact.

Judgment for plaintiff for $869.  