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ent from those presented to the state court on behalf of the Power Company. Because there is diversity of citizenship, the trustee under the mortgage is entitled to have the adjudication of his alleged rights made in the federal court. Compare Atchison, T. & S. F. Ry. Co. v. Wells, 265 U.S. 101. As a decree enjoining the City “ from removing the wires and poles without state warrant” would not interfere with the proceedings in the state court, that part of the injunction was not within the prohibition of Judicial Code, $ 265. Louisville Trust Co. v. Cincinnati, 76 Fed. 296, 300, 317.

Third. The contention that the decree violates Judicial Code $ 265, is rested mainly upon the clause which enjoins the City, its officers and attorneys " from taking any steps or action of any kind whatever to cause the enforcement or carrying out by the sheriff of Huron County, Ohio, or any of his deputies, or by any other officer of any of the courts in the State of Ohio of the judgment of ouster” and “from applying to any of the courts of the State of Ohio for any writ or process of any kind whatever for the purpose of enforcing and carrying out said judgment of ouster."

To enjoin the City from taking steps to enforce the judgment of ouster obviously does not stay that judgment. The City was not, and could not have been a party to the action in quo warranto. The City's argu

• The City states that it was not, and could not have been made, a party to the quo warranto proceedings; that the fact that quo warranto proceedings are brought by the State in its sovereign capacity is not a mere matter of form, but is of the essence of the proceeding; and that it is public not personal in nature, regardless of the person who furnishes the information upon which the action is based. In support of this proposition the City cited State v. Maccabees, 109 Ohio State 454; 142 N.E. 888; State v. Conservancy District, 100 Ohio State 483; 128 N.E. 87; Hardin-Wyandot Co. v. Upper Sandusky, 93 Ohio State 428; 113 N.E. 402; Thompson v. Watson, 48 Ohio State 552; 31 N.E. 742; State v. Craig, 21 Ohio C.C. 175.

Opinion of the Court.

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ment is that the decree can have no effect unless it acts directly upon the Court of Appeals of Huron County itself, and upon the State of Ohio, which was the moving party in the quo warranto proceeding, and that hence, this action is an attempt to do so; that “the incidental effect of the decree upon the possible unauthorized action of the city officials is too negligible to be given consideration in determining its character"; and that the real purpose for which the decree was sought is to stay the proceeding in the state court. It may be assumed that in seeking an injunction from the federal court, the trustee's purpose its hope—was to induce the officials of the State of Ohio to refrain from enforcing the judgment of ouster until adjudication of the trustee's rights should have been had in the federal court. That purpose or hope is not of legal significance in this connection. Full control of the ouster proceeding rests with the law officers of the State, subject to the control of the state court. See Thompson v. Watson, 48 Ohio State 552; 31 N.E. 742. The injunction, when limited as we hold it must be, is directed only to the City, its attorneys, agents and confederates. It prohibits them from attempting to induce the State to enforce the judgment of ouster. So limited, the decree will leave the State and the relator free to act; and the injunction will not stay the operation of the judgment.

Fourth. The contention is also made that the Circuit Court of Appeals properly ordered the bill dismissed because the trustee failed to allege, or prove, that it did not have knowledge of the proceeding in the state court or that it could not have intervened therein, as mortgagee, and asserted there the claims that it now makes as the basis of the relief sought. Where equitable relief is sought on the ground that a judgment entered upon proper serv

a ice in a court of competent jurisdiction was obtained

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through fraud or mistake, or is being used fraudulently, such a showing of diligence is ordinarily required. Crim v. Handley, 94 U.S. 652; Brown v. Buena Vista, 95 U.S. 157; Knox County v. Harshman, 133 U.S. 152; Marshall v. Holmes, 141 U.S. 589. Compare Wells, Fargo & Co. v. Taylor, 254 U.S. 175. But here the injunction is sought on the ground that the judgment is inoperative as against the plaintiff because it was neither party nor privy thereto Compare Atchison, T. & S. F. Ry. Co. v. Wells, 265 U.S. 101; Simon v. Southern Ry. Co., 236 U.S. 115; Old Colony Trust Co. v. Omaha, 230 U.S. 100.8 The law does not impose upon any person absolutely entitled to a hearing the burden of voluntary intervention in a suit to which he is a stranger. Whether under the Ohio practice it would have been possible for the trustee to intervene, we have no occasion to determine. Unless duly summoned to appear in a legal proceeding, a person not à privy may rest assured that a judgment recovered therein will not affect his legal rights.

The decree of the Circuit Court of Appeals is reversed. As it did not pass upon the merits of the trustee's claim, the cause is remanded to that court for further proceeding in conformity to this opinion.



Louisville Trust Co. v. Cincinnati, 76 Fed. 296; Old Colony Trust Co. v. Tacoma, 219 Fed. 775; Ilinois Trust Co. v. Des Moines, 224 Fed. 620; Williamson v. Clay Center, 237 Fed. 329; Firestone Tire & Rubber Co. v. Marlboro Cotton Mills, 282 Fed. 811; Seay v. Hawkins, 17 F. (2d) 710; but compare Denton v. Baker, 93 Fed. 46.

Also compare National Surety Co. v. State Bank, 120 Fed. 593. 'In Northern Ohio Traction & Light Co. v. Ohio, 245 U.S. 574, a proceeding in quo warranto, in which the Traction Company alone was named as defendant, it appears from the record in this court, that the Cleveland Trust Company, trustee under a mortgage, moved in the Supreme Court of Ohio for leave to be made a party and to file an answer; that consent thereto was given; that thereafter motion was allowed; and that the answer was filed and replied to.


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No. 435. Argued February 14, 15, 1934.-Decided March 5, 1934.

1. Where the duty to make a payment of public money is imposed so

plainly by statute as to leave no play for judgment or discretion, the duty is purely ministerial and its performance may be

compelled by mandamus or mandatory injunction. P. 451. 2. A native of the Philippine Islands who enlisted under the Act of

February 2, 1901, “ for service in the Army” as a Philippine Scout, became “an enlisted man in the Army” within the meaning of the Act of March 2, 1907, and, after having served 30 years, was eligible under the latter Act to be placed upon the retired list, with

the pay and allowances therein prescribed. P. 452. 3. Provisions in later Acts cited in the opinion deal with the status of

officers of the Philippine Scouts, but not enlisted men, and cast no

doubt upon this right of the latter. P. 453. 4. A duty to pay, plainly imposed by the statutes, can not be

affected by a contrary decision of the Comptroller General. P. 454. 5. The Chief of Finance of the Army being charged by law with the

duty of disbursing all the funds of the War Department, including the pay of the Army, is the proper party defendant to a suit for a mandatory injunction brought by a retired enlisted man to

enforce payment of retired pay and allowances. P. 455. 6. The disbursing officer to whom the voucher was presented, being

a subordinate of the Chief of Finance, is not an indispensable party

to such suit. Id. 7. The United States is not a necessary party to such a suit. Id. 8. It is not a ground for dismissing such a suit that recovery of the

pay may be had in the Court of Claims. Id. 9. In granting relief by injunction requiring the Chief of Finance of

the Army to satisfy claims for retired military pay and allowances, as to which the Comptroller General upon request under 31 U.S.C. (Supp.) § 74 had rendered an advance decision which was adverse to payment, held unnecessary to require the Comptroller General

to recall the decision or to return the voucher. P. 455. 62 App.D.C. 259; 66 F. (2d) 564, reversed in part.


Argument for McCarl.

CERTIORARI, 290 U.S. 618, to review the reversal of a decree commanding the Chief of Finance of the Army to satisfy claims of the plaintiff for retired military pay and allowances; enjoining the Comptroller General from interfering, and requiring him to return from his files to a disbursing officer a voucher upon which he had rendered an adverse advance decision.

Mr. Samuel T. Ansell, with whom Mr. George M. Wilmeth was on the brief, for petitioner.

The Comptroller General had no jurisdiction to review the order of the President, acting through the Secretary of War, placing petitioner on the enlisted men's retired list of the Army with pay.

The Comptroller General was not required by law, when applied to by a disbursing officer, to decide the question of petitioner's right to retired pay notwithstanding the action of the President placing him on the retired list with pay.

The decision of the Comptroller General was not based on statutes of uncertain meaning. The status of petitioner was not doubtful under the applicable statutes and his right to mandamus was clear.

The Court of Appeals erred in holding by implication that no appropriation was available from which the retired pay could be paid to petitioner and that this was a question solely for the determination of the Comptroller General.

Mr. Harrell 0. Hoagland, with whom Mr. R. L. Golzé was on the brief, for McCarl, Comptroller General, respondent.

What primarily is brought in question by the petitioner is the constitutional control (Art. I, § 9, cl. 7) by the legislative branch over the uses of public moneys, as maintained through the appropriation acts and the duly con

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