Opinion of the Court. 291 U.S. to, relate to "all officers of the Philippine Scouts," but it is expressly provided that nothing in the act shall alter the status of enlisted men. Section 17 of the Act of June 10, 1922, likewise relates to officers and former officers of the Philippine Scouts, according them the status of officers in the regular establishment; and again it is provided that the act shall not be construed as affecting the enlisted men. It is hard to see how it reasonably can be thought that these acts have any effect upon the status of the enlisted men, since they are limited, in express terms, to officers. They do not modify or purport to modify in any way the provisions of § 36 of the Act of 1901 in respect of such enlisted men. If that conclusion were not clear, the provisos would effectually settle the doubt. Putting aside those acts, therefore, as irrelevant, we have only to consider § 36 of the Act of 1901, which plainly establishes the status of petitioner as an enlisted man in the army, and the Act of March 2, 1907, which just as plainly directs that such an enlisted man, having served thirty years as such, shall be placed upon the retired list. In this situation the duty of the disbursing officer to pay the voucher in question "is so plainly prescribed as to be free from doubt and equivalent to a positive command," and, therefore, is "so far ministerial that its performance may be compelled by mandamus." Wilbur v. United States, supra, pp. 218-219. It seems unnecessary to add that this duty cannot be affected by a contrary decision of the Comptroller General. It is said by the Comptroller General that there was no existing appropriation of public money available for payment of retired pay and allowances to petitioner. But this statement quite evidently is made only in the view that the petitioner does not come within the retirement provision of the Act of March 2, 1907, since there was available an existing appropriation for retired pay and allowances of enlisted men retired under that provision. The Chief of Finance is charged by law with the duty of disbursing all funds of the War Department, including the pay of the army. U.S.C., Title 10, § 172. The disbursing officer to whom the voucher was presented for payment, therefore, is simply a subordinate of the Chief of Finance, subject to his control and direction, and the suit was properly brought against the latter. The purpose of the suit was to control the action of the Chief of Finance, that is, to compel him to pay or cause to be paid the voucher in question. The disbursing officer as the mere agent of his superior officer is not an indispensable, although he might have been joined as a proper, party. Compare Warner Valley Stock Co. v. Smith, supra, pp. 34-35; Gnerich v. Rutter, 265 U.S. 388, 391–393; Webster v. Fall, 266 U.S. 507; Alcohol Warehouse Corp. v. Canfield, 11 F. (2d) 214; Dami v. Canfield, 5 F. (2d) 533. We find no merit in the contention that the United States is a necessary party and this suit not maintainable without its consent, Payne v. Central Pac. Ry. Co., 255 U.S. 228, 238; or in the further contention that the suit cannot be maintained because petitioner has a remedy at law in the court of claims for his retired pay. Smith v. Jackson, 246 U.S. 388; 241 Fed. 747, 760. It follows that the decree of the court below, in so far as it directs a dismissal of the bill as against the respondent Coleman, must be reversed, and the decree of the supreme court of the District in respect of that respondent affirmed. As to the Comptroller General, a different situation is presented. The request for an advance decision from him came from the Chief of Finance at the request of the disbursing officer. U.S.C. (Supp.), Title 31, § 74. The Comptroller General undertook nothing on his own Opinion of the Court. 291 U.S. motion, and, as he asserts, did nothing either to coerce or invite the application for an advance decision. Having given that decision, his function in that regard ceased. The effect of the decision is a matter purely of law. Obviously, there is no occasion for compelling him by mandamus to recall his decision. However, he continues to retain possession of the voucher, upon the theory evidently that, having determined that the disbursing officers were without authority to make payment, it belongs in the files of his office. The view of the supreme court of the District, that a mandatory injunction will lie to compel a return of that voucher to the disbursing officer and to enjoin the Comptroller General from any interference with the Chief of Finance tending to prevent payment thereof to petitioner, has not, in the light of the case as now made, met with the concurrence of a majority of this court. In that situation, we, therefore, affirm, without discussion, the decree of the District court of appeals in so far as it relates to the Comptroller General. But it is not to be supposed that, upon having his attention called to our decision, the Comptroller General will care to retain possession of the voucher or that he will interfere in any way with its payment. The decree of the court below will accordingly be reversed as to the respondent Coleman, and affirmed as to the Comptroller General. But, in accordance with precedent, Wilbur v. Krushnic, supra, p. 319, the mandatory injunction to Coleman should issue directing a disposal of petitioner's application for pay upon the merits, unaffected by the opinion of the Comptroller General, and in conformity with the views expressed in this opinion as to the proper interpretation and application of the pertinent statutes. A writ in that form is better suited to the circumstances than that indicated by the supreme court of the District. Reversed in part. Counsel for Parties. UNITED STATES ET AL. v. ILLINOIS CENTRAL RAILROAD CO. ET AL. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF DELAWARE. No. 422. Argued February 8, 9, 1934.-Decided March 5, 1934. 1. The provision of § 3 (e) of the Inland Waterways Corporation Act, as amended, empowering the Interstate Commerce Commission, upon granting a certificate of public convenience and necessity to a prospective water carrier, to order all connecting common carriers to join with such water carrier in through routes and joint rates, and in such order to fix minimum differentials between allrail rates and joint rates in connection with the water service, does not deprive a rail carrier affected of due process, since the rates so prescribed are tentative and the railway, upon complaint, may have a full hearing concerning them and a plenary determination by the Commission before they go into effect. P. 460. 2. A suit to enjoin enforcement of the Commission's order before the administrative process has been completed, is premature. P. 463. 3. A carrier which has not first availed itself of the remedy before the Commission is not in a position to seek equitable relief against rates fixed by the Commission's order. P. 463. 4. The provision of the statute which puts the burden of proof upon carriers complaining of the rates fixed by the Commission's ex parte order is not inconsistent with the due process clause of the Fifth Amendment. P. 464. 3 F.Supp. 1005, reversed. APPEAL from a decree of the District Court, of three judges, setting aside an order of the Interstate Commerce Commission, in a suit brought by several railroad carriers against the United States and the Commission. Assistant Solicitor General MacLean, with whom Solicitor General Biggs, Assistant Attorney General Stephens, and Messrs. Elmer B. Collins, Ashley Sellers, Daniel W. Knowlton, and Harry L. Underwood were on the brief, for the United States and Interstate Commerce Commission, appellants. Opinion of the Court. 291 U.S. Mr. A. K. Shipe for American Barge Line Co. et al., appellants. Mr. Clark C. Wren filed a brief on behalf of the Inland Waterways Corp., appellant. Messrs. R. S. Outlaw and H. H. Larimore, with whom Messrs. Elmer A. Smith, A. B. Enoch, M. G. Roberts, M. Carter Hall, A. H. Kiskaddon, James Stillwell, Herbert S. Harr and M. B. Pierce, were on the brief, for appellees. MR. JUSTICE SUTHERLAND delivered the opinion of the Court. This is a suit brought by the Illinois Central Railroad Company and other railroad carriers, under the Urgent Deficiencies Act of October 22, 1913, U.S.C., Title 28, § 47, as amended by the Act of February 13, 1925, U.S.C., Title 28, § 345, to set aside, annul and enjoin the enforcement of an amended order of the commission, made under § 3 (e) of the Inland Waterways Corporation Act of June 3, 1924, c. 243, 43 Stat. 360, as amended, c. 891, § 2, 45 Stat. 978. That section provides that any person, etc., about to engage in conducting a common carrier service upon certain designated waters may, upon application to the commission, obtain a certificate of public convenience and necessity in accordance with § 1 of the Interstate Commerce Act; and that the commission "shall thereupon, by order, direct all connecting common carriers and their connections to join with such water carrier in through routes and joint rates," and shall, in such order, "fix reasonable minimum differentials between all rail rates and joint rates in connection with said water service," etc. The commission is further authorized to require the interested common carriers to enter into negotiations for the purpose of establishing equitable divisions |