Loisel v. Mortimer

• Decision Date: 04 February 1922
• Docket Number: 3794.
• Parties: LOISEL, U.S. Marshal, v. MORTIMER.
• Court: U.S. Court of Appeals — Fifth Circuit

277 F. 882

LOISEL, U.S. Marshal, v. MORTIMER.

No. 3794.

United States Court of Appeals, Fifth Circuit.

February 4, 1922

Louis H. Burns, U.S. Atty., of New Orleans, La., for appellant.

George Janvier and William C. Dufour, both of New Orleans, La., for appellee.

Before WALKER, BRYAN, and KING, Circuit Judges.

KING Circuit Judge.

Frank H. Mortimer, the clerk of the United States Circuit Court of Appeals for the Fifth Circuit, filed his bill of complaint in the United States District Court for the Eastern District of Louisiana against Victor Loisel, the United States marshal for said district to restrain him from carrying out an order of the Comptroller of the Treasury of the United States directing said marshal to withhold from the salary of said Mortimer the sum of $380 until said Mortimer should pay to the credit of the treasury of the United States the sum of $380, charged in his account for the fiscal year ending June 30, 1920.

Said sum was charged by said clerk in his said account for actual expenses, not exceeding $10 per day, to cover travel and subsistence, for 38 days' attendance on the sessions of said Circuit Court of Appeals at Atlanta, Ga., Montgomery Ala., and Fort Worth, Tex., during said fiscal year. Said charges had been duly approved and allowed by the senior Circuit Judge of the Fifth judicial circuit, and were paid by said clerk out of the fees and emoluments of his office for said fiscal year; such approval, allowance, and payment from said fees and emoluments being as directed in three separate acts of Congress (Comp. St. Sec. 1118) providing respectively, for the holding of said terms of said United States Circuit Court of Appeals at each place, to wit, at Atlanta (Act June 30, 1902, 32 Stat. 548), at Fort Worth (Act Dec. 18, 1902, 32 Stat. 756), and at Montgomery (Act Jan. 30 1903, 32 Stat. 784). The fifth section of each act reads:

'That the clerk of said court is authorized and permitted to pay out of the fees and emoluments of his office (1) the necessary expenses incurred by him in transporting from his office in New Orleans, Louisiana, to * * * and in transporting from (Atlanta-- Fort Worth-- Montgomery) the records, books, papers, files, dockets, and supplies, necessary for the use of the court at its terms to be held in (said places); (2) an allowance for actual expenses not exceeding ten dollars per day, to cover travel and subsistence, for each day he may be required to be present at (said places) on business connected with his said office, such expenses and allowance to be approved and allowed by the senior Circuit Judge of the Fifth judicial circuit.'

This item of the account of said clerk was disallowed by the Auditor of the State and other departments on the ground that 'An act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30th, 1920, and for other purposes' (41 Stat. 163, 210), approved July 19, 1919, repealed so much of these special acts as provided for paying the expenses of travel and subsistence of the clerk. The general Appropriation Act read:

'For fees of clerks, $18,000: Provided, that after July 1, 1919, only actual expenses of travel and expenses of lodging and subsistence, not to exceed $5 per day, shall be allowed any clerk of a United States circuit court of appeals when absent from his official residence on official business.'

The clerk appealed from the Auditor's decision to the Comptroller of the Treasury, who approved and amended said disallowance, and on March 10, 1921, directed the clerk to deposit said sum of $380 to the credit of the treasury of the United States. The clerk declined to make such deposit, but advised said officials that he was ready to accept service of process, and aid in expediting an early determination of any suit which the government might file. He based his refusal to make said payment on the following clause in the instructions of the Attorney General of the United States to court officials, dated June 1, 1916 (section 1680):

'If items disallowed have been repaid and deposited and the Auditor has balanced and closed the account, revision of such items cannot be obtained. there being no outstanding difference.' On September 1, 1921, said clerk was notified by the defendant marshal that, as he had instructions from the Comptroller that no credit would be given in settlement of the marshal's accounts for any payment of compensation to said clerk until said alleged indebtedness was paid, he would withhold $380 from said clerk's salary. Authority for this action of the marshal, on demand of the Comptroller, is claimed under Revised Statutes of the United States, Sec. 1766 (U.S. Comp. St. Sec. 3239), which reads:

'No money shall be paid to any person for his compensation who is in arrears to the United States, until he has accounted for and paid into the treasury all sums for which he may be liable. In all cases where the pay or salary of any person is withheld in pursuance of this section, the accounting officers of the treasury, if required to do so by the party, his agent or attorney, shall report forthwith to the Solicitor of the Treasury the balance due; and the Solicitor shall, within sixty days thereafter, order suit to be commenced against such delinquent and his sureties.'

Upon the hearing in the District Court the grant of a preliminary injunction was resisted on the sole ground that there was no equity in the bill, and that complainant's only remedy was to proceed under said section 1766 of the Revised Statutes. The court granted a temporary injunction. The defendant has appealed to this court and raises the same question.

Appellant's counsel admits that on this appeal the facts alleged in the bill are to be taken as true. He contends: (1) That Revised Statutes, Sec. 1766, provides the only remedy for the clerk. That this suit is in effect a suit against the United States, and that it has not consened to be sued. (2) That said section of the Revised Statutes provides a complete legal remedy. (3) That the bill should be dismissed, as being without equity.

The first and second points can be discussed together. It is quite evident that section 1766, Revised Statutes, gives to the clerk no right to sue at law. It provides a right in him to require a report to be made to the Solicitor of the Treasury of the balance claimed to be due by him, and directs that officer within 60 days to order a suit to be brought 'against said delinquent and his sureties. ' This is not a plain, adequate, and complete remedy at law given to the plaintiff.

'The jurisdiction in equity attaches unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy which equity would confer under the same circumstances. ' Kilbourn v. Sunderland, 130 U.S. 505, 514, 9 Sup.Ct. 594, 596 (32 L.Ed. 1005); Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 12, 19 Sup.Ct. 77, 43 L.Ed. 341.

This is not a suit against the United States. It is a suit to restrain the United States marshal from refusing to perform a plain ministerial duty. He is required by law to pay to the clerk of the Circuit Court of Appeals his salary at the times fixed by law. The appropriation has been made by Congress of a specific sum to pay this salary, which was subject to the marshal's order for this purpose. The money has been appropriated, and will be paid on the order of the marshal, unless in obedience to the demand of the Comptroller he withholds the same.

If, therefore, there is no legal obligation resting on said marshal to withhold said payment, his refusal would be the unlawful act of an official in refusing to pay to another moneys which the United States had appropriated and placed under his control for that purpose, and his conduct could be restrained, or compelled, by the courts. The suit would not be one against the United States. Payne, etc., v. Central Pac. Ry. Co., 255 U.S. 228, 238, 41 Sup.Ct. 314, 65 L.Ed. . . .; Lane v. Watts, 234 U.S. 525, 540, 34 Sup.Ct. 965, 58 L.Ed. 1440; Noble v. Union River Logging Railroad, 147 U.S. 165, 176, 13 Sup.Ct. 271, 37 L.Ed. 123.

That the officer must construe an act of Congress in ascertaining his duty does not render it other than ministerial. Roberts v. United States, 176 U.S. 221, 230, 20 Sup.Ct. 376, 44 L.Ed. 443; Smith v. Jackson, 246 U.S. 388, 38 Sup.Ct. 353, 62 L.Ed. 788.

An injunction may compel the performance of a duty. Stevens v. Ohio State Tel. Co. (D.C.) 240 F. 759, 766, 769; In re Lennon, 166 U.S. 548, 556, 17 Sup.Ct. 658, 41 L.Ed. 1110.

Where the remedy by mandamus is not as available as relief in equity, a mandatory injunction will be granted. Bourke v. Alcott Water Co., 84 Vt. 121, 78 A. 715, 33 L.R.A. (N.S.) 1015, Ann. Cas. 1912D, 108. Here the withholding of this salary is due to a difference of opinion as to what is now the law in force. The items of account, because of which it has been withheld, have been allowed and approved by the senior Circuit Judge. It is not contended that they were not expended.

But it is insisted that, instead of the sum of $10 per day being allowed for actual expenses, covering travel and subsistence, the amount of actual traveling expenses, and not exceeding $5 per day for lodging and subsistence, should have been charged. On this difference the marshal is instructed to withhold the salary for the entire charge, pending a payment of the entire sum of the charge.

In the light of the language of section 1766 of the Revised Statutes, it is doubtful if it is intended to apply to a case like the present. Where such retention of compensation is directed, the party whose salary is withheld, if he requires suit to be ordered, is termed 'the delinquent.' This is...