If the reference by Congress to the Secretary of the Treasury to
ascertain the amount due to a claimant and pay the same requires
the exercise of discretion, the courts cannot control his decision,
Riverside Oil Company v. Hitchcock, 190 U.
S. 316, but where the statute simply requires him to
ascertain the amount, according to certain prescribed rules, the
duty is administrative, and, the amount being ascertained according
to those rules, the courts can by mandamus compel the Secretary to
issue his warrant therefor.
The statute involved in this case, referring the ascertainment
of the amount due a claimant to the Secretary of the Treasury,
construed on the supposition that Congress regarded the controversy
as over and that only the amount remained for ascertainment, as any
intricate judicial problem would naturally be referred to the
judicial tribunals.
The history of the litigation and legislation in regard to the
claim of Parish against the United States for damages on contract
for ice made in 1863 for use of armies in the field reviewed and
held that
Page 214 U. S. 125
under the Act of February 17, 1903, c. 559, 32 Stat. 1612,
directing the Secretary of the Treasury
"to determine and ascertain the full amount which should have
been paid to Parish if the contract had been carried out in full
without charge or default by either party"
and to issue his warrant therefor, no judicial duty devolved
upon the Secretary, nor has the Secretary power to determine what
was right or proper but only the administrative duty of
ascertaining the amount and paying the same; and, the amount having
been ascertained, the claimant is entitled to a writ of mandamus
directing the Secretary to issue his warrant therefor.
30 App.D.C. 45 reversed.
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. 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
Page 214 U. S. 126
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 March 31, 1863, he received a letter from
the Assistant Surgeon General, under the instructions of the
Surgeon General, suspending the order of March 25 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, 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. 100 U.S.
500. 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. 653. Parish again
Page 214 U. S. 127
applied to Congress for relief, and, on February 17, 1903, the
act in controversy was passed. It will be given in the opinion.
Page 214 U. S. 130
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.
Page 214 U. S. 131
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 (
Riverside Oil Co.
v. Hitchcock, 190 U. S. 316), 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:
"IX. 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."
Page 214 U. S. 132
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. 653, 654, c. 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, was
based on the assumption that
Page 214 U. S. 133
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 IX of the Court of Claims, and that the "result
of this oversight was to cause the Court to lay down a rule of
damages inconsistent with the facts and unjust to the parties." The
committees then reviewed certain cases, among others,
United
States v. Behan, 110 U. S. 338, and
declared that the latter case established the
prima facie
measure of damages for a breach of a contract sustained by the
injured party to consist of
"two distinct items or grounds of damage -- namely, first, what
he has already expended toward performance, less the value of
material on hand; secondly, the profits that he would realize by
performing the whole contract."
The report recognized that profits cannot always be recovered,
that they may be remote and speculative, incapable of that clear
and direct proof which the law requires. But it is manifest that
the committees did not think the case called for that limitation,
for it was said that the reasons for the application of the
"equitable rules in the
Behan case were not nearly so
clear and strong as in the
Parish case," and declared as
follows:
"In the latter case, the contract expressly provided what should
be paid for the ice delivered at the various places named. The
profits therefore were readily and easily ascertainable. In fact,
that was the theory of the plaintiff in making his case before the
Court of Claims, and the record of that court shows that the proofs
on that point were explicit, bringing the case properly within the
principles laid down in
United States v. Behan."
"In a word, it is perfectly clear that the Supreme Court quite
overlooked one of the most important findings of fact in the
Parish case. At all events, there is no doubt that the
law
Page 214 U. S. 134
is properly stated in the Behan case. And all the present bill
contemplates is a final and proper settlement on the rule of law
which is older than our republic and is everywhere recognized as
the only equitable one that can be applied in the premises."
It is manifest, therefore, that the act was passed under the
conviction that Parish had right which had not been satisfied, and
we are brought to the consideration of the act as the means of
satisfying them.
The act provides
"that the Secretary of the Treasury is hereby authorized and
directed to make full and complete examination into the claim of
Joseph W. Parish against the United States for balances alleged to
be due him by virtue of a contract made by J. W. Parish &
Company with Henry Johnson, medical storekeeper, acting on behalf
of the United States. . . . That the Secretary shall determine and
ascertain the
full amount which should have been paid said J.
W. Parish & Company if the said contract had been carried out
in full, without change or default made by either of the parties
thereto [italics ours] under the rule of the measure of
damages laid down by the Supreme Court of the United States in the
case of the
United States v. Behan, 110 U. S.
338, and
in accordance with the evidence in the
case, collected by the United States Court of Claims [italics
ours], and, after determining the full amount thus due . . . under
the said contract and rule of law aforesaid, to deduct therefrom
all payments . . . stating what balance, if any, is due under the
rule and evidence prescribed herein, and pay the said balance to
said Joseph W. Parish, the present owner of said claim, and
sufficient money to pay such balance is hereby appropriated out of
any money in the Treasury which has not been otherwise
appropriated."
32 Stat. 1612, c. 559, February 17, 1903
The issue between the parties in their ultimate statement is as
follows: relator contends that the Secretary was directed to
ascertain what amount Parish should receive under the contract,
"which he was ready, able, and willing to carry out." Respondent
contends that the Secretary was to pass on the
Page 214 U. S. 135
evidence taken in the Court of Claims, and make such finding as
might seem right and proper to him. In other words, to exercise
judgment and discretion.
To sustain their respective contentions, the parties do not urge
the same words as the tests of the meaning of the statute. The
relator, to determine the Secretary's duty, puts emphasis on the
provision that he was to ascertain the
"full amount which should have been paid . . . if the contract
had been carried out in full, without change or default made by
either of the parties thereto."
Respondent finds difficulty with that provision, and says that,
"at first glance," it "may look positive and arbitrary." But it is
urged that the clause
"does not say which would have been paid, but which 'should'
have been paid, and when we turn to the 'contract,' an ambiguity
immediately arises, because the contract, 'carried out in full,'
did not call for any particular quantity of ice."
And to remove the effect of the certainty in the quantity of ice
required, made by the order for 30,000 tons, it is said that the
"special act nowhere speaks of this order, but only of the
contract." The final comment is that "no other clause of the act
seems to be worth quoting as an unambiguous order to make an
arbitrary calculation and allowance," while the act "in places
unequivocally requires something different from an arbitrary
calculation." To support this, it is urged that the act directs a
full and complete examination of Parish's claim for a balance
alleged to be due him by virtue of the contract. To do this, it is
argued, "would require as much judgment and discretion as the
Secretary could muster." A striking contrast is exhibited to this
by declaring that the duty required of the Secretary under
relator's contention was
"to do a sum in arithmetic which any schoolboy could do in five
minutes -- that is, multiply the prices per ton with the 30,000
tons, and deduct the amount already paid, as per receipts on file
in the Treasury."
It is elementary that all the words of the statute must be
considered in determining its meaning, and we may not,
Page 214 U. S. 136
therefore, disregard the provision of the statute which directs
the Secretary to determine and ascertain the full amount which
should have been paid if the said contract had been carried out in
full, without change or default made by either of the parties. And
it seems to us that these words express the subject of inquiry, the
exact command to the Secretary to which the other provisions of the
statute are subordinate. He was not to determine if Parish was in
default. That inquiry was precluded. It had been adjudged otherwise
by the Court of Claims and by this Court. It had been declared
otherwise by the legislature. The Act of Congress of February 20,
1886, passed to complete the judgments of the courts, appropriated
the sum of $58,341.85,
"being the balance of money laid out and expended by him
[Parish] 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 said
Parish [the italics ours]."
The following things therefore had been determined: the
existence of a contract for the delivery of ice, quantity not
mentioned at different points and at different prices. The quantity
was afterwards fixed at 30,000 tons, and the contract made specific
in every particular -- quantity, quality, places of delivery, and
prices. Performance was undertaken, and 12,768 tons delivered. Then
came the order of suspension -- not revocation, it must be kept in
mind -- and Parish had to keep prepared. He was not permitted to
fulfill his contract; he dared not be unprepared to do so upon any
notice. This Court, in
Parish v. United States, supra, has
portrayed the situation. The demand upon him was "an unequivocal
demand," the Court said, for 30,000 tons, and "to enable him to
fulfill this demand . . . required promptitude and diligence in
securing the ice." The Court states why. A moment's reflection on
the situation shows us why. The ice was needed for the use of the
armies in the field. It might be demanded at any time. The
necessity for it might be imperative. If Parish could not have
supplied it, this Court said, the officers of the
Page 214 U. S. 137
government would have procured it at any price in the market --
a price which would have been enormously enhanced by that very
demand -- and Parish would have been liable for the difference
between such price and the contract price. He was therefore this
Court said, "under an imperative necessity to prepare to fulfill
this requirement." He realized his situation, and that he prepared
against its contingencies was the finding of the Court of Claims,
it was the declaration of Congress in the Act of February 20, 1886,
and it was the repeated declaration of the committees of Congress
in their recommendation of the passage of the act in controversy.
We see now the reason for regarding the opening clause of the act
as its principal and dominating clause. We see now why his
readiness to perform, the possession of the means of performance,
and the offer of performance, were to be assumed by the Secretary,
and the loss of profits only was to be determined. And the profits,
the committees said, "were readily and easily ascertainable."
Indeed, because they were, their calculation was referred to an
executive officer. If to ascertain them involved an intricate
judicial problem, the reference would have been to the judicial
tribunals, for we cannot agree with the intimation of the
government that Congress would imagine that the Court of Claims and
this Court were unable "to master the difficulties" of that
problem. The better supposition is that Congress regarded the
controversy as over, and that the time for reparation had arrived,
and, that it might be quick and complete, referred the matter to
that officer who could best state the balance due and pay it.
It does not militate with this conclusion that the duty enjoined
was simple. The committees of Congress believed it to be so,
believed that the extent of relief to which Parish was entitled and
the items of it had been established. The act in controversy was
the expression of that belief. Its purpose was relief shown to be
due from a problem already solved -- not to start another problem.
The duty enjoined required a reference in a sense to evidence, it
may be, but it was to evidence
Page 214 U. S. 138
whose probative force had been estimated and declared. It
conduced to but one conclusion. That conclusion was stated by the
Auditor of the War Department, following the direction of the
statute, to be a balance in Parish's favor of $181,358.95. This
amount represented the amount that Parish should have received over
and above what he was paid by direct payment, judgment, or
appropriation by Congress, and the balance due him under the rule
in the
Behan case.
The judgment of the Court of Appeals is reversed, and that
court is directed to reverse the judgment of the Supreme Court and
direct the latter court to sustain the demurrer of relator to the
return of respondent, and enter judgment as prayed for in the
petition of relator.
MR. JUSTICE Moody took no part in the decision.
