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Argument for McCarl.
stituted accounting officers. The form of the proceeding has for its object the frustration of such legislative control by coercing a subordinate administrative official to make payment on a disputed claim against the United States under a general appropriation not conceded to be available for such purpose, as contrasted with the procedure which has been authorized by Congress under the Tucker Act of a suit on the merits in the Court of Claims, in which any judgment obtained by the petitioner would be for submission to the legislative branch for an appropriation, payment thereunder to be made on settlement by the General Accounting Office.
The decision of the Comptroller General followed a practice which the government accounting officers have followed without interruption, at least since the Act of March 30, 1868, 15 Stat. 54, to decide every question of law and of fact necessary to be decided in determining whether payment on a claim is authorized under existing appropriations. Only in rare cases has Congress by specific language, plainly expressing its purpose, made the decision of some other official conclusive on the question whether payment is authorized.
The ruling of the Supreme Court of the District of Columbia in the present case, in failing to recognize that it was the statutory official duty of the Comptroller General to decide the question of petitioner's right to pay, was in conflict with the precedents of that court. Likewise it was in conflict with the decisions of the Court of Appeals of the District, holding that the duty of the Comptroller General to decide for the executive branch of the Government whether payment on a claim against the United States is authorized involves judgment and discretion which will not be controlled by mandamus or injunction. U.S. ex rel. Margulies & Sons v. McCarl, 10 F. (2d) 1012; 56 App.D.C. 147; cert. den., 273 U.S. 696; McCarl v. Walters, 59 App.D.C. 237; 38 F. (2d) 942;
Argument for McCarl.
McCarl v. U.S. ex rel. Leland, 59 App.D.C. 362; 42 F. (20) 346; cert. den., 282 U.S. 839; McCarl v. Rogers, 60 App.D.C. 111; 48 F. (2d) 1023; McCarl v. Hoeppel, 62 App.D.C. 393; 68 F. (20) 440. Distinguishing: Smith v. Jackson, 241 Fed. 747, 761; aff'd 246 U.S. 388; McCarl v. Cox, 8 F. (20) 669; cert. den., 270 U.S. 652; McCarl v. Pence, 18 F. (2d) 809. Cf. U.S. ex rel. Lisle v. Lynch, 137 U.S. 280; Brashear v. Mason, 6 How. 92; U.S. ex rel. Goodrich v. Guthrie, 17 How. 284; Decatur v. Paulding, 14 Pet. 497; Case v. Terrell, 11 Wall. 199; Hagood v. Southern, 117 U.S. 52, 71; 22 R.C.L. 492, 494, SS 172, 173; Riverside Oil Co. v. Hitchcock, 190 U.S. 316, 324, 325.
The United States is bound by a decision of the Comptroller allowing active pay or retired pay to those claiming as officers or employees of the United States, whereas the claimants' substantive legal rights are not affected but they are left free to proceed against the United States in the Court of Claims to have their rights judicially decided, St. Louis, B. & M. Ry. Co. v. United States, 268 U.S. 169, 173–174; U.S. ex rel. Skinner & Eddy Corp. v. McCarl, 275 U.S. 1. This makes it even more clear why the courts have declared the Comptroller General may not be directed by mandamus or injunction to decide a claim in a particular way. See McElrath v. United States, 102
, U.S. 426; Geddes v. United States, 38 Ct. Cls. 428; Mullett v. United States, 21 Ct. Cls. 485; Longwill v. United States, 17 Ct. Cls. 288, 291; Charles v. United States, 19 Ct. Cls. 316, 319; Ex parte Rock, 171 Fed. 240, 241–242.
The record does not present any facts establishing it to be the plain legal duty of the Chief of Finance, an unbonded subordinate in the War Department, to pay, or to cause any bonded disbursing officer to pay, retired pay and allowances to petitioner.
A decree in accordance with the prayers of the petitioner's bill would be contrary to law.
Argument for McCarl.
The decision of the Comptroller General upon the allowance of accounts within his jurisdiction is conclusive upon the executive branch of the Government. Act of July 31, 1894, § 8, 28 Stat. 162, 207, following the provisions of the earlier Act of March 30, 1868, 15 Stat. 54; Act of June 10, 1921, $ 304, 42 Stat. 24; U.S. ex rel. Skinner & Eddy Corp. v. McCarl, 275 U.S. 1, 4–5; In re Departmental Reference No. 167, 59 Ct. Cls. 813.
Such a decision is required to be rendered “without direction from any officer.” Act of June 10, 1921, § 304, 42 Stat. 24; 31 U.S.C., § 44.
No court may direct the decision of the Comptroller General to be rendered in a particular way. James Howden & Co. v. Standard Shipbuilding Corp., 17 F. (2d) 530, 532; In re Departmental Reference No. 167, 59 Ct. Cls. 813; Brumback v. Denman, Law No. 3316, decided June 5, 1933, Dist. Ct. U.S., Nor. Dist. of Ohio, W.Div., refusing an order in the nature of a mandamus to the Comptroller General.
A decree in accordance with the prayers of the petitioner's bill would be contrary also to $ 267 of the Judicial Code. Hurley v. Kincaid, 285 U.S. 95, 104.
Reservation in decisions by the Comptroller General of doubtful questions, for judicial decision in direct proceedings under the Tucker Act, does not prejudice the claimants. See, e.g., Williams v. U.S., 289 U.S. 553; St. Louis, B. & M. Ry. Co. v. United States, 268 U.S. 169, 173-174; Longwill v. United States, 17 Ct. Cls. 288, 291; Major Collins's Cases, 14 Ct. Cls. 568, 15 id. 22. It does operate, however, to protect the interests of the United States and the authority of the legislative branch over the public moneys; Mullett v. United States, 21 Ct. Cls. 485, distinguishing McElrath v. United States, 102 U.S. 426; and also to make all interested parties secure from possible future litigation in case of unauthorized payments by disbursing officers. · Wisconsin Central R. Co.
Argument of the Solicitor General.
v. United States 164 U.S. 190; United States v. Keehler, 9 Wall. 83; Heidt v. United States, 56 F. (2d) 559, cert. den., 287 U.S. 601; Fidelity & Deposit Co. v. United States, 55 F. (2d) 100; United States v. Moore, 168 Fed. 36; United States v. Dempsey, 104 Fed. 197.
This is in reality an action against the United States. In re Ayers, 123 U.S. 443, 506; Belknap v. Schild, 161 U.S. 10, 25; Minnesota v. Hitchcock, 185 U.S. 373, 386–387; Letter of Attorney General Mitchell to the Secretary of War, of May 10, 1932. The United States is an indispensable party. Morrison v. Work, 266 U.S. 481, 485 486; Lambert Co. v. Baltimore & Ohio R. Co., 258 U.S. 377, 383; Hopkins v. Clemson College, 221 U.S. 636, 642–643; Oregon v. Hitchcock, 202 U.S. 60, 68; Belknap v. Schild, 161 U.S. 10; N.Y. Guaranty Co. v. Steele, 134 U.S. 230, 232; Louisiana v. Garfield, 211 U.S. 70, 78; Louisiana v. McAdoo, 234 U.S. 627, 628-629; Goldberg v. Daniels, 231 U.S. 218, 221–222.
Solicitor General Biggs, with whom Messrs. Erwin N. Griswold, of the Department of Justice, and Archibald King, of the Office of the Judge Advocate General of the War Department, were on the brief, argued that the judgment should be reversed.
The Philippine Scouts are a part of the regular Army. The petitioner enlisted for service in the Army. Not only is this plain from the express terms of the statute under which he enlisted, but it has also been recognized by Congress in the appropriation acts. The practice under these statutes has also been uniform.
It seems impossible therefore to say that there is any substantial basis for contending that the Philippine Scouts are not members of the Army. If it may fairly be regarded as plain that petitioner, as a Philippine Scout, is a member of the Army, then there can be no doubt of the authority of the Secretary of War to retire him.
Opinion of the Court.
The determination of the War Department as to petitioner's eligibility to retirement was not subject to reexamination by the Comptroller General.
The act of the Secretary of War retiring the petitioner with pay was an exercise of the President's jurisdiction in a matter committed to him by the Constitution and by the statutes, and was, we submit, binding and conclusive. The Comptroller General was without power or jurisdiction to review and revise this act or to make independent decision of the same questions of law and of fact that were committed by the Constitution and laws to the decision of the President through his agents; and mere doubts as to the correctness of that decision (if doubts can be said to exist) did not justify refusal upon the Comptroller General's part to accord it credit.
The Comptroller General's duty was purely ministerial and his refusal to follow the plain mandate of the statute may be coerced in mandamus or in equity. His attempted exercise of discretion in a field in which he had no discretion can not serve to shield him from those remedies.
The contention that this suit must fail because petitioner has a remedy at law through a suit in the Court of Claims is, we submit, not well taken. That a proceeding such as this may be maintained, although the claimant has a right of action in the Court of Claims, would seem to be established by this Court's decision in Smith V. Jackson, 246 U.S. 388. A similar result has been reached in many other cases.
MR. JUSTICE SUTHERLAND delivered the opinion of the court.
The petitioner served as an enlisted man in the Philippine Scouts under successive enlistments from October 1, 1901, until October 31, 1931, at which time, upon proper