United States Dunlap v. Black Same Rose v. Same Same Miller v. Same

• Decision Date: 22 October 1888
• Docket Number: No. 993,No. 991,No. 992,991,992,993
• Citation: 32 L.Ed. 354,9 S.Ct. 12,128 U.S. 40
• Parties: UNITED STATES ex rel. DUNLAP v. BLACK, Commissioner of Pensions. SAME ex rel. ROSE v. SAME. SAME ex rel. MILLER v. SAME
• Court: U.S. Supreme Court

128 U.S. 40

9 S.Ct. 12

32 L.Ed. 354

UNITED STATES ex rel. DUNLAP v. BLACK, Commissioner of Pensions.

No. 991.

SAME ex rel. ROSE

v. SAME.

No. 992.

SAME ex rel. MILLER

v. SAME.

No. 993.

October 22, 1888.

J. G. Bigelow, for plaintiffs in error.

Asst. Atty. Gen. Maurey, for defendant in error.

BRADLEY, J.

These cases were argued together, but it will be convenient to consider them separately, in the order in which they stand on the docket.

No. 991 was an application by Oscar Dunlap, the relator, to the supreme court of the District of Columbia, for a writ of mandamus to be directed to the respondent, Black, as commissioner of pensions, commanding him to reissue to the relator his pension certificate for $25 per month from June 6, 1866; $31.25 per month from June 4, 1872; $50 per month from June 4, 1874; and $72 per month from June 17, 1878,—first deducting all sums paid relator under previous pensions. By the act of March 3, 1873, (Rev. St. § 4698,) it was provided that a pension of $31.25 per month should be allowed to all persons who, while in the military or naval service, had lost their sight, or both hands or both feet or had been permanently and totally disabled, so as to require the regular aid and attendance of another person; and a pension of $24 per month to those who had lost one hand and one foot; and $18 per month to those who had lost either one hand or one foot; and other less pensions for lesser injuries,—any increase of pension to commence from the date of the examining surgeon's certificate. By the act of June 18, 1874, (Supp. Rev. St. 39,) it was provided that, in cases of blindness or loss of both hands or both feet, or total helplessness, requiring the regular and personal aid of another person, the pension should be increased from $31.25 to $50 per month. By the act of February 28, 1877, (Supp. Rev. St. 282,) it was provided that those who had lost one hand and one foot should be entitled to a pension for each of such disabilities at the rate of existing laws,—which made the total pension $36 per month. The relator, in April, 1877, applied for the benefit of this law, and it was granted to him. By the act of June 16, 1880, (Supp. Rev. St. 560,) it was enacted that all those then (at the date of the act) receiving a pension of $50 per month under the act of June 18, 1874, should receive $72 per month from June 17, 1878. After the last act was passed, the relator applied for the increase allowed by it. The commissioner of pensions, being of opinion that he did not come within its terms, rejected the application, but granted him a certificate for a pension of $50 per month under the act of 1874, to be received from May 25, 1881, the date of his medical examination. The petition for mandamus sets out the decision of the commissioner in full, in which it is conceded that the relator has become permanently disabled. The following is an extract from the decision, to-wit:

'WASHINGTON, D. C., October 15, 1887.

'In this case the application of the claimant for rerating and for increase will be allowed at $50 per month from May 25, 1881, the date of the first medical examination under the claimant's application of June 26, 1880. This rating is allowed under the act of June 18, 1874; it sufficiently appearing by the evidence in this case that the claimant has lost both a hand and a foot, and at the same time has been so additionally injured in the head as, from a period prior to the rerating or increase in this case, to render him totally and permanently helpless, requiring from thence until now the regular personal aid and attendance of another person. The reason why the claimant's rating is not advanced to $72 per month is that he was not on the 16th of June, 1880, [the date of the act,] receiving pension at the rate of $50 per month, nor was he entitled to receive a pension of $50 per month at that date, for the reason that, while the degree of helplessness which has been shown was that contemplated by the law, the claimant himself (neither on his own motion, nor under the guidance of those who are legally responsible for his actions in this claim) had not made application to be rated in pursuance of the act of June 18, 1874, but, on the contrary thereof, had asked to be rated and had been rated at $36 per month, under the act of February 28, 1877.'

The decision proceeds to discuss further the reasons for the conclusion to which the commissioner had come.

The relator, by his counsel, strenuously contends that the concession made by the commissioner with regard to the disability of the relator shows that it was his clear duty to have granted a certificate for the larger pension of $72 per month. The following passage in the petition for mandamus shows the position taken by the relator: 'And your relator further says that the respondent has thus expressly found the facts in your relator's case to be (1) that while your relator was in the military service * * * he sustained such wounds and injuries as resulted in the loss of his right hand and right foot, and at the same time sustaining injury to the head; (2) that your relator was thereby rendered 'totally and permanently helpless, requiring from thence till now the regular aid and attendance of another person;' and (3) that your relator applied to the commissioner of pensions on June 26, 1880, for pension on account thereof. And your relator says that upon this finding of the facts whether he is entitled to a rerating and an increase of pension from date of discharge, so as to give unto him a pension commensurate with his disabilities so found to exist by the respondent, is a question of law; and that it does not lie in the discretionary power of the respondent, as commissioner of pensions, to deny or in anywise abridge his rights with respect thereto.'

This extract shows the theory of the petitioner, and the doctrine which he invokes in support of his application. We have been more full in stating the facts of the case in order that the legal grounds on which that application is based may clearly appear. The case does not require an extended discussion. The questions of law on which it depends have been closed by repeated decisions of this court. The amenability of an executive officer to the writ of mandamus, to compel him to perform a duty required of him by law, was discussed by Chief Justice MARSHALL in his great opinion in the case of Marbury v. Madison, 1 Cranch, 137; and the radical distinction was there pointed out between acts performed by such officers in the exercise of their executive functions, which the chief justice calls political acts, and those of a mere ministerial character; and the rule was distinctly laid down that the writ will not be issued in the former class of cases, but will be issued in the latter. In that case President Adams had nominated, and the senate had confirmed, Marbury as a justice of the peace of the District of Columbia; and a commission in due form was signed by the president appointing him such justice, and the seal of the United States was duly affixed thereto by the secretary of state; but the commission had not been handed to Marbury when the offices of the government were transferred to the administration of President Jefferson. Mr. Madison, the new secretary of state, refused to deliver the commission, and a mandamus was applied for to this court to compel him to do so. The court held that the appointment had been made and completed, and that Marbury was entitled to his commission, and that the delivery of it to him was a mere ministerial act, which involved no further official discretion on the part of the secretary, and could be enforced by mandamus. But the court did not issue the writ, because it would have been an exercise of original jurisdiction which it did not possess. While this opinion will always be read by the student with interest and profit, it has not been considered as invested with absolute judicial authority, except on the question of the original jurisdiction of this court. The decision on this point has made it necessary for parties desiring to compel an officer of the government to perform an act in which they are interested to resort to the highest court of the District or Columbia for redress. It has been held in numerous cases, and was held after special discussion in the cases of Kendall v. U. S., 12 Pet. 524, and U. S. v. Schurz, 102 U. S. 378, that the former circuit court of the District, and the present supreme court of the District, respectively, were invested with plenary jurisdiction on the subject. On this point there is no further question.

The two leading cases which authoritatively show when the supreme court of the District may, and when it may not, grant a mandamus against an executive officer, are the above-cited case of Kendall v. U. S., 12 Pet. 524, and Decatur v. Paulding, 14 Pet. 497. The subsequent cases have followed the principles laid down in these, and do little more than illustrate and apply them. In the former case the mandamus was granted, and the decision was affirmed by this court. The case was shortly this: Stockton & Stokes, as contractors for carrying the mails, had certain claims against the government for extra services, which they insisted should be credited in their accounts, and a controversy arose between them and the post-office department on the subject. Congress passed an act for their relief, by which the solicitor of the treasury was authorized and directed to settle and adjust their claims, and make them such allowances as upon a full examination of all the evidence might seem to be equitable and right; and the postmaster general was directed to credit them with whatever sums the solicitor should decide to be due them. The solicitor, after due investigation, made his report, and stated the sums due to Stockton & Stokes on the claims made by them; but the postmaster general, Mr. Kendall, refused to give them credit...