United States Ex Rel Emily Parish v. Franklin Macveagh

• Decision Date: 17 May 1909
• Docket Number: No. 111,111
• Parties: UNITED STATES EX REL. EMILY E. PARISH, Executrix of Joseph W. Parish, Deceased, Plff. in Err., v. FRANKLIN MACVEAGH, Secretary of the United States Treasury
• Court: U.S. Supreme Court

214 U.S. 124

29 S.Ct. 556

53 L.Ed. 936

UNITED STATES EX REL. EMILY E. PARISH, Executrix of Joseph W. Parish, Deceased, Plff. in Err.,

v FRANKLIN MACVEAGH, Secretary of the United States Treasury.

No. 111.

Argued March 11, 12, 1909.

Decided May 17, 1909.

This is a writ of error directed to review the judgment of the court of appeals of the District of Columbia, affirming a judgment of the supreme court, dismissing a petition for mandamus to require Leslie M. Shaw, then Secretary of the Treasury, to issue a draft in favor of the petitioner, plaintiff in error here, for the sum of $181,358.95, in payment of a claim referred to him by an act of Congress approved February 17, 1903. [32 Stat. at L. 1612, chap. 559.] Shaw, pending the appeal, resigned, and Cortelyou, his successor in office, was made a party in his stead, and subsequently, Franklin MacVeagh becoming Secretary, he was substituted for Cortelyou. We shall call plaintiff in error relator and defendant in error respondent, they having occupied that relation in the trial court.

J. W. Parish, of whose estate relator is executrix, entered into a contract with the United States, as J. W. Parish & Company, to deliver, for the use of the United States medical department at Memphis, St. Louis, and Cairo, the whole amount of ice required to be consumed during the remainder of the year 1863. The quality of the ice was to be 'A No. 1,' and the contract stated the prices to be paid at the designated points respectively. On March 25, 1863, Joseph B. Brown, by instruction of the Assistant Surgeon General, issued an order directing Parish to deliver the ice as follows: St. Louis, 5,000 tons, Cairo, 5,000 tons, Memphis, 10,000 tons, and Nashville 10,000 tons, 'Making a total,' the order recited, 'of 30,000 tons which you have contracted to deliver. The ice to be delivered at Nashville and Memphis is for the use of the sick of the armies in the field, and should be furnished without delay.' Parish immediately proceeded to execute the order, and was performing it when, on the 31st of March, 1863, he received a letter from the Assistant Surgeon General, under the instructions of the Surgeon General, suspending the order of March 25th until instructions should be received from the Surgeon General. At the date of this letter 12,768 tons of ice had been delivered and paid for at the contract price. The order of suspension was never recalled. Under the authority of an act of Congress approved May 31, 1872 [17 Stat. at L. 195, chap. 245], Parish brought suit against the United States to enforce his demand under the contract. The court of claims dismissed the suit. 12 Ct. Cl. 609. This court reversed the judgment and remanded the case, with directions to ascertain the damages sustained by Parish. 100 U. S. 500, 25 L. ed. 763. The court of claims rendered judgment for the claimant for the sum of $10,444.91. 16 Ct. Cl. 642. Parish then petitioned Congress to satisfy as much of his claim as had not been satisfied by the court of claims. Responding to a reference by a committee of the House of Representatives, the War Department, through the Surgeon General, reported that the whole of the undelivered ice, through the order of suspension, amounted to 17,232 tons, and the same had been lost by the contractor. The report also stated that, under the evidence before the court of claims, and additional evidence before the Department, Parish was entitled to be reimbursed, in addition to the judgment of the court of claims, in the sum of $58,341.85, for the loss he had sustained because of the nondelivery of the 17,232 tons. After this report, on February 20, 1886, Congress passed an act directing payment of said sum of $58,341.85 to Parish, in addition to said sum of $10,444.91, being the balance of money laid out and expended by him in the purchase of 17,232 tons of ice for the use and at the request of the government of the United States, which were not afterwards called for, but were wholly lost to the said Parish. 24 Stat. at L. 653, chap. 11. Parish again applied to Congress for relief, and, on February 17, 1903, the act in controversy was passed. It will be given in the opinion.

Messrs. Holmes Conrad and Leigh Robinson for plaintiff in error

[Argument of Counsel from pages 127-128 intentionally omitted] Assistant Attorney General Russell for defendant in error.

[Argument of Counsel from pages 128-130 intentionally omitted] Mr. Justice McKenna delivered the opinion of the court:

It will be observed that the controversy in this case started in a contract of no uncertainty of meaning, and an ordinary action for damages for its breach, but has accumulated incidents and complexity, and has finally terminated in a dispute over an ambiguous statute.

The case was submitted in the supreme court of the District upon what may be called a demurrer to the return, which was regarded, and is now regarded, as presenting the question of the power of the Secretary of the Treasury under the act of Congress. This is the ultimate question. If that officer had the power, which he asserts in his return, to review the evidence taken in the court of claims, and to 'make such findings' as might 'seem right and proper to him,' the judgment of the court of appeals must be affirmed. As we may not control the Secretary's discretion (United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 47 L. ed. 1074, 23 Sup. Ct. Rep. 698), we can have no concern with the reasoning advanced by him to support its exercise.

As we have seen, in the first suit brought by Parish, the court of claims decided against him. It based its decision on the ground that the Assistant Surgeon General had no 'right to interpret the contract and decide that it called for 30,000 tons of ice, and direct how it should be delivered.' The court, however, found the facts. It found as follows: '9. The said Parish was prepared and willing [italics ours] to deliver the said 30,000 tons of ice, in conformity with the conditions and obligations of his said contract and the terms of said letter of March 25, 1863, of which the defendant had notice, but they would not, nor did, receive more than the 12,768 tons aforesaid.' This finding is quoted in the reports of the congressional committees as one of the elements inducing their recommendation of the passage of the bill.

This court disagreed with the court of claims upon the question of the authority of the Assistant Surgeon General, and reversed that court, but decided that the measure of Parish's damages was 'the cost of ice purchased at Lake Pepin and lost, the expense bestowed upon its care, and the time and expense of making that purchase, and any sum actually lost in regard to the other 17,232 tons of ice purchased to enable them to meet the requirements.' This ruling was based on the assumption that Parish 'neither delivered nor offered to deliver the remainder.'

The court of claims, upon the return of the case to it, found obstruction in its rules to taking additional evidence, but, on that before it, made an award in favor of Parish in the sum of $10,444.91.

He was dissatisfied, and justly dissatisfied. He appealed to Congress, the petition alleges, and respondent does not deny the allegation, for 'the means of satisfying so much of his claim as the court of last resort had adjudicated to be his unquestionable right.' The petition further alleges (again with no denial by respondent) that his 'claim was referred by the House committee to the War Department for report. The Surgeon General found that the whole amount of undelivered ice, viz., 17,232 tons, was lost to said Parish, and ascertained the cost thereof.' Congress passed an act February 20, 1886, appropriating the sum of $58,341.85 to pay that loss. 24 Stat. at L. 653, 654, chap. 11. By the payment of the money appropriated, Parish received the contract price on the ice actually delivered, namely, 12,768 tons, and, in addition, what he had actually spent and actually lost on account of the balance, namely, 17,232 tons of ice. This is not denied, nor that that which was paid to him was only that which this court had decided should have been paid to him January 1, 1864. 'That is to say,' to quote from the petition, 'the said Parish had not only lost the interest on this large sum of money for more than two decades, but had been forced to meet the expense of litigating the claim, and had been subjected to the labors and anxieties and trials of prosecuting the same.'

The next step was the passage of the act in controversy; and we come to its consideration and the determination of how its ambiguity, if indeed it have any, is to be resolved. It had, we may say at the start of our discussion, its impulse in the belief that injury had been done to Parish, and it was intended to provide a means of redress. Keeping in view this purpose, we may get light by which to interpret the act.

As we have already said, the ruling of this court in Parish v. United States, 100 U. S. 500, 25 L. ed. 763, was based on the assumption that Parish had 'neither delivered nor offered to deliver' the 17,232 tons of ice, the nonacceptance of which has given rise to this controversy. Commenting on that declaration, the committees of Congress called it a 'mistaken allegation' and a 'false assumption,' and said that the decision of the court turned upon it. The committees further said that the court 'entirely overlooked' finding 9 of the court of claims, and that the 'result of this oversight...