Smith v. Jackson

• Decision Date: 15 February 1917
• Docket Number: 2997.
• Citation: 241 F. 747
• Parties: SMITH, Auditor, v. JACKSON.
• Court: U.S. Court of Appeals — Fifth Circuit

241 F. 747

SMITH, Auditor, v. JACKSON.

No. 2997.

United States Court of Appeals, Fifth Circuit.

February 15, 1917

[Copyrighted Material Omitted]

The petition for the writ of mandamus in this case was filed in the District Court of the Canal Zone, Balboa Division, on April 3, 1916, by William H. Jackson, relator, against H. A A. Smith, auditor of the Panama Canal, respondent.

Shortly thereafter the relator herein, who is also the judge for the District Court of the Canal Zone, filed his disqualification to act as judge in the case by reason of his pecuniary interest therein. Before the matter came on for trial, the President, in pursuance of the authority conferred by Panama Canal Act, Aug. 24, 1912, 37 Stat.L. 560, designated Hon Henry D. Clayton, United States District Judge for the Middle and Northern Districts of Alabama, to perform the duties of the judge of the District Court of the Canal Zone in the trial of this case, and also to perform the duties of said judge while such judge was absent on leave from the Canal Zone.

The relator in his petition as amended averred that he was the duly appointed, qualified, and acting judge of the District Court of the Canal Zone; that the act of Congress providing for the government of the Canal Zone, known as the Panama Canal Act, declares that the District Judge of the Canal Zone shall receive the same salary paid to the District Judges of the United States, that is the sum of $6,000 per annum, payable in monthly installments of $500 each; that Congress had appropriated funds for the payment of his salary, and that said funds were available for that purpose; that the respondent Smith was the duly appointed, qualified, and acting auditor of the Panama Canal; that it was the duty of said Smith, as auditor, to issue and deliver to the relator each month a voucher or warrant for the salary due relator; that notwithstanding the relator had well and truly performed his duties as judge of said court during the times mentioned in the petition, the said Smith, as auditor, failed and refused to issue and deliver to relator salary due him to the total amount of $1,131.76, but withheld the same unlawfully under the claim and pretense that the relator owes said sum to the United States. The petition also alleged due demand upon said Smith, as auditor, and his unlawful refusal to issue and deliver a warrant or pay check for the said sum.

The respondent Smith answered the petition for the writ of mandamus; admitted that he was the auditor for the Panama Canal and that the relator was the judge of the District Court of the Canal Zone; that the respondent withholds the said sum of $1,131.76 from the relator, but denied that he had withheld said sum unlawfully, and that the relator was entitled to the relief sought. The respondent justified his withholding of the said sum upon the ground that part of said sum was withheld to cover charges for house rent and electric current which the respondent alleged to be due the United States by the relator; that another part was withheld because the respondent, as auditor, had deducted same from the relator's salary as judge on account of the absence of the relator from the Canal Zone in excess of the annual six weeks' vacation allowed relator by law; and that another part was withheld in compliance with directions of the Comptroller of the Treasury.

The respondent insisted that he had the right to make the deductions from the salary of the relator; that the relator should file claim therefor with the auditor of the treasury and in the event of adverse decision by him should appeal to the Comptroller of the Treasury, or, else file suit against the United States in the Court of Claims, and denied the authority of the court to issue a writ of mandamus as prayed against him.

Upon the trial of the cause on the merits by the court and without a jury by agreement of the parties, the court decided that it was the legal duty of the respondent Smith, as auditor, to issue and deliver to the relator warrants or pay vouchers for the amounts of salary withheld; that his action in so withholding the said amounts from Judge Jackson's salary was without authority of law; that mandamus was the proper remedy to compel respondent to perform this ministerial duty, and, accordingly, issued the peremptory writ of mandamus as prayed. Whereupon respondent brought this writ of error.

The following is the opinion of HENRY D. CLAYTON, District Judge, Middle and Northern Districts of Alabama, presiding by designation of the President under Act Cong. Aug. 24, 1912 (37 Stat. 565, c. 390, Sec. 8 (Comp. St. 1916, Sec. 10044)):

Under the appointment by the President and confirmation by the Senate, William H. Jackson, the relator, duly qualified as District Judge of the Canal Zone on May 1, 1914, and has ever since continuously discharged the duties of his office. He became and is entitled to the same salary as that paid a District Judge of the United States. Section 8, act supra.

The relator avers 'that the Congress of the United States has heretofore appropriated funds for the payment of the salary of your petitioner, and has appropriated funds for salaries and expenses necessary for the civil government of the Canal Zone, including the expenses of your petitioner herein while engaged in the performance of his official duties, and that the funds appropriated as aforesaid, are now available for the payment of said salary and expenses. ' And this allegation is admitted by the respondent in his answer to the petition.

H. A. A. Smith, the respondent, is the auditor of the accounting department of the Panama Canal, and is charged with the collection, custody, and disbursement of funds for the Panama Canal and the Canal Zone, including the funds appropriated by Congress for the relator's salary. The respondent has paid to the relator his salary monthly and from time to time, but now withholds from him of his salary the sum of $1,131.76 for the payment of the following items of alleged indebtedness to the Panama Canal, namely: From the salary due the relator for the month of December, 1914, $170.07, for rent of residence, house No. 118, Ancon, C.Z., from May 1 to October 17, 1914, 5 months and 17 days at the rate of $25 per month, and electric current for the same period at the rate of $5.55 per month; from the salary due the relator for the month of January, 1916, $66.66, on account of alleged absence for a period of 4 days during said month of January beyond the 6 weeks' leave referred to in the Panama Canal Act; from the salary due the relator for the month of March, 1916, $500, to apply on account of rent for use of residence No. 311, Ancon; from the salary due the relator for the month of April, 1916, $341.97, alleged balance due for rent of house No. 311, Ancon, to April 30, 1916, and account of 1 days' alleged absence beyond the 6 weeks' leave referred to in the Panama Canal Act; and from the salary due the relator for the month of May, 1916, $53.06, account of rent for house No. 311, Ancon, and electric current-- or a total sum of $1,131.76.

The relator avers that he is not indebted to the Panama Canal or the United States in any sum or sums whatsoever, and denies specifically every item of the above-mentioned claim of indebtedness, and alleges that the before-mentioned sum of $1,131.76 of his salary is being unlawfully withheld from him by the respondent.

The prayer is that the respondent, the auditor of the Panama Canal, be compelled by peremptory mandamus to audit, approve, issue, and deliver to the relator warrants, vouchers, or pay checks for his salary as District Judge of the Canal Zone, as required by law and the practice, without regard to said claim of indebtedness set up by the respondent, which, as before stated, is denied by the relator.

The respondent admits the appointment and service of the relator as District Judge of the Canal Zone, but he claims that he has the right, and that it is his duty, to withhold the said sums described on the ground of the relator's alleged indebtedness for house rent and electric lights, and the sums deducted and withheld on account of 5 days' alleged absence from the Canal Zone in excess of the 6 weeks' leave of absence specially provided for in section 8, Act of August 24, 1912.

1. This act is entitled 'An act to provide for the opening, maintenance, protection, and operation of the Panama Canal, and the sanitation and government of the Canal Zone. ' It is sometimes referred to as the Panama Canal Act, but is commonly called the Adamson Act after its distinguished author.

It is provided in this act: 'Section 2. That all laws, orders, regulations, and ordinances adopted and promulgated in the Canal Zone by order of the President for the government and sanitation of the Canal Zone and the construction of the Panama Canal are hereby ratified and confirmed as valid and binding until Congress shall otherwise provide. The existing Courts established in the Canal Zone by executive order are recognized and confirmed to continue in operation until the courts provided for in this act shall be established. ' Comp. St. 1916, Sec. 10038.

And it is pertinent to quote the following section of the act 'Section 8. That there shall be in the Canal Zone one District Court with two divisions, one including Balboa and the other including Christobal; and one district judge of the said district, who shall hold his court in both divisions at such time as he may designate by order, at least once a month in each division. The rules of practice in such District Court shall be prescribed or amended by order of the President. The said District Court shall have original jurisdiction of all felony cases, of offenses arising under section ten of...