#### IN THE MATTER OF PEARSON.

[ Original.

Decided May 24, 1909.]

[ 214 U. S. R., 505. ]

*On the claimant's Petition.*

The Senate refers under the Tucker Act (§ 14) a bill directing the Secretary of the Treasury “ *to re-examine and, readjust the claims of certain person ivho served in the Volunteer Army of the United States during the civil war, for three months’ extra pay*” under the act 3d March, 1865. The bill further directs that if any of such person, being in the military service on March 3d, 1865, was subsequently discharged “ *on account of disability*” he shall be paid the three months’ extra pay. The claimant not coming within the terms of the act 3d March, Í865, giving three months’ extra pay to certain military officers, the Court of Claims decides that *“ the claim is neither a legal nor an equitable claim against the United States and that the court is therefore without jurisdiction to liquidate the amount, the same resting in the bounty of Congress.”*The claimant files a motion in the Supreme Court for a mandamus to compel the Court of Claims “ *to find the liquidated amount to which the petitioner will be entitled,”*if the bill for his relief should be enacted as a law.

Ordered by the Supreme Court that the petitioner’s motion be denied.

*584
      *The Reporter's*statement of the case:

The following is the record presented by the claimant to the Supreme Court and the final order of the court:

In the Supreme Court of the United States. October term, 1908.

EX PARTE IN THE MATTER OE HENRY C. PEARSON.

Now come C. D. Pennebaker, Charles F. Carusi, and Eugene A. Jones, of counsel for Henry C. Pearson, and move this honorable court for leave to file the petition herewith exhibited of the said Henry C. Pearson for a writ of mandamus, and pray the court to direct a rule to issue to the honorable chief justice and associate justices of the United States Court of Claims to show cause why a writ of mandamus should not issue as in said petition prayed.

PETITION POR WRIT OP MANDAMUS.

*To the Honorable the Chief Justice and Associate Justices of the Supreme Court of the United States:*

Your petitioner, Henry C. Pearson, respectfully shows — ■

a the United States and a resident of the city of Washington, Uistrict of Columbia.

2. On July 1, 1868, your petitioner was enrolled as private, Company M, Twenty-first Pennsylvania Cavalry Volunteers, for six months; he reenlisted for three years as a veteran volunteer on February 10, 1864, was promoted to first lieutenant and adjutant February 26, 1864, and was in the service of the United States in such grade of first lieutenant and adjutant until April 7, 1865, when he was dischai'ged on account of disability.

3. At the first session of the Sixtieth Congress of the United States a bill ivas introduced the object of which, as shown by its terms, was to extend the provisions of the act of March 3, 1865, giving three, months’ extra pay to the class in said last-mentioned act enumerated, to your petitioner and 139 others, the said first-mentioned bill being in the words and figures following, to wit:

“ S. 7013.

“A BILL For the relief of George D. Acker and others.

“ *Be it enacted by the Senate and House of Representatives of the United States of America in Congress*assembled, That the Secretary of the Treasury be, and he is hereby, authorized *585and directed to re-examine and readjust the claims of certain persons, who served in the Volunteer Army of the United States during the civil war, as enumerated below, or of their legal representatives where dead, for three months’ extra pay under act of March third, eighteen hundred and sixty-five, and if it appear that any of such persons was in the military service in any grade on March third, eighteen hundred and sixty-five, and remained in said service until April tenth, eighteen hundred and sixty-five, and afterwards was honorably discharged, *or discharged between said dates on account of disability*or expiration of term of service, or if accepted into the service after March third, eighteen hundred and sixty-five, remained in service until honorably dis- • charged after April tenth, eighteen hundred and sixty-five, then, and in each of such cases, to pay, out of any money in the Treasury not otherwise appropriated, to the person entitled thereto three months’ extra pay proper of the grade held when honorably discharged, namely: (petitioner and 139 others).”

4. On the 22d day of May, 1908, by a resolution of the United States Senate said bill was referred to the United States Court of Claims for such proceedings as might be had therein,' in conformity with the act of Congress, approved March 3, 1887, commonly called the “ Titcker Act that thereafter your petitioner filed his petition in the said Court of'Claims, the same being Congressional No. 13824-96 on the docket of said court, in which he alleged in substance the foregoing facts, and prayed the court to hear and determine the facts and true report make to the Senate of the United States according to the purport and tenor of the 14th section of the said “ Tucker Act ” so called, and thereafter your petitioner filed in said cause, conformably with the rules of said court governing.such cases, his request for findings of fact, in which he prayed the court to find as follows:

“ The claimant considering the facts hereinafter set forth to be proven and deeming them material to a due presentation of this case, requests the court to find the same as follows:

“ 1. Henry C. Pearson was enrolled July 1,1863, as private, Company M, Twenty-first Pennsylvania Cavalry Volunteers, for six months. He re-enlisted for three years as a veteran volunteer on February 10,1864, was promoted first lieutenant and adjutant, February 26, 1864, and was in the service of the United States in such grade of first lieutenant and adjutant on March 3,1865. (Reply Treasury Department.)

“ 2. The said 'Henry C. Pearson continued in the service of the United States from March 3, 1865, until April 7. 1865. (Reply Treasury Department.)

*586“ 3. On April 7, 1865, the said Henry C. Pearson was discharged from the military service of the United States by order of the Secretary of War ‘ on account of physical disability from wounds received in action.’ (Reply Treasury Department.)

“ 4. Three months’ pay proper of claimant’s grade would amount to $189.66. (Official Army Register, 1866. Pay table, p. 156.)”

5. And thereafter such proceedings were had in said court, that on the 19th day of April, 1909, said court filed its findings of fact, in which it found as follows: First, that petitioner was loyal to the Government of the United States throughout the late civil war; second,

“ that said petitioner was enrolled July *1]*1863, as private, Co. M, Twenty-first Pennsylvania Cavalry Volunteers, for six months. He re-enlisted for three years as a veteran volunteer on February 10,1864, was promoted to first lieutenant and adjutant February 26, 1864, and was in the service of the United States in such grade of first lieutenant and adjutant on March 3, 1865. Said claimant continued in the service of the United States from March 3, 1865, until April 7, 1865, at which time he*was discharged from the military service by order of the Secretary of War on account of physical disability from wounds received in action.”

A copy of said findings is annexed hereto marked Exhibit A and prayed to be read as part heréof.

6. One of the material facts to be found by the said Court of Claims, under the “ Tucker Act ” so called and the said Senate resolution is the amount to which your petitioner would be entitled under said Senate bill 7013, which amount is $189.66; that said amount is certain, liquidated, undisputed, and of record in said Court of Claims; yet the said Court of Claims notwithstanding your petitioner’s demand, the Senate resolution and Tucker Act aforesaid, has refused and still refuses to find the amount thereof, as your petitioner is advised it is required to do under said act and resolution aforesaid; and your petitioner avers that further action by Congress for his relief and the 139 others mentioned in said bill, will be suspended until said fact is found by said court, and being advised that he has no remedy by appeal, or writ of error, or otherwise save in this honorable court, he prays

That the writ of mandamus be granted by this honorable court, directing the said honorable chief justice and associate justices of the United States Court of Claims to further proceed in the case of Plenry C. Pearson against the United States, Cong. 13824-96, and find and report in addition to such other facts as the court has or may see fit to find in the *587above entitled cause, the liquidated amount to which your petitioner will be entitled when said bill for the relief of this petitioner is enacted into law.

And for such other relief as may seem meet; and your petitioner will ever pray.

Henry C. PeaRSON.

C. D. PeNNEbaker,

Charles F. Carusi,

Eugene A. Jones,

*Counsel for Petitioner.*

Exhibit A.

Court of Claims.

FINDING OF FACT.

[Filed April 10, 1909.]

I. Claimant, Henry C. Pearson, was loyal to the Government of the United States throughout the late civil war.

II. Henry C. Pearson was enrolled July 1, 1863, as private, Company M, Twenty-first Pennsylvania Cavalry Volunteers, for six months. He reenlisted for three years as a veteran volunteer on February 10, 1864, was promoted to first lieutenant and adjutant February 26, 1864, and was in the service of the United States in such grade of first lieutenant and adjutant on March 3, 1865. Said claimant continued in the service of the United States from March 3, 1865, until April 7, 1865, at which time he was discharged from the military service by order of the Secretary of War “ on account of physical disability from wounds received in action.” The claim herein is neither a legal nor an equitable claim against the United States and the court is therefore without jurisdiction to liquidate the amount, the same resting in the bounty of Congress.

BRIEF IN SUPPORT OF PETITION.

Point I.

*Pearson has a clear legal right to have the Court of Claims report to the President of the Senate the amount which he will receive and the Government pay if Congress should see fit to enact into law Senate hill*7013, *first session Sixtieth Congress.*

The constitutional right of petition to Congress becomes a farce if the machinery provided by Congress for the dis*588position of such petitions is to be stopped. Congress was fully justified in refusing to legislate upon private claims without a full knowledge of the facts, one of the most important of which in the case of a petition for a gift, grant, or bounty alleged to be founded on some meritorious consideration is the amount of the public moneys demanded by the claimant or which will be withdrawn from the public treasury if some bill introduced for the payment of his claim should become a law. When, therefore, the Court of Claims is directed to ascertain in a judicial manner what the facts are in relation to any such claim it might well be argued that the amount of the claim is not the least important to them. To avoid, however, the slightest room for doubt Congress has expressly required that the Court of Claims find and report to it the amount. There is but one qualification imposed by the Tucker Act upon the duty thus to find the amount, and that is that the same can be liquidated. In the case at bar not only can the amount be liquidated, but it is already liquidated and requires of the court nothing but a statement of what the evidence, consisting of official records of the United States, show to be the amount.

The petitioner in his request to the court to find the facts material to a proper consideration of his claim by Congress asked the court to find and report.

“ 4. Three months’ pay proper of claimant’s grade would amount to $189.66.”

This the court declined to do on the sole ground that the claim was not “ legal or equitable.” Its determination that the claim is not “ legal or equitable ” is final and can not be inquired into by this court in this proceeding. The court below did, however, find that the bill was one to pay a gift, grant, or bounty, as otherwise it would have been without jurisdiction to find any of the facts. It is the petitioner’s contention that if Senate bill 1013 is for a gift, grant, or bounty it is equally the duty of the Court of Claims to find and report the amount to the Senate. It is submitted that the language of the Tucker Act is plain and unequivocal.

Great weight should be given to the practical and long continued- construction of this act given to it by the court to which it is uniquely addressed. From 1881 until 1907 it never appears to have been even suggested by the court that its duty to find the amount depended upon the court finding as a conclusion of law that the claim was legal or equitable, or that in addition to merely finding the facts it was its duty to advise Congress of the propriety or irnpro-*589priety of the proposed legislation. During that period of twenty years thousands of findings of facts have been transmitted to the Houses referring the bills. The new construction of the fourteenth section of the Tucker Act began with the following obiter in the case of *"Widmayer*v. *U. 8.,*42 Ct. Cls. 524:

“As the matter before us is not a legal or equitable demand against the District of Columbia or the General Government^ it is for Congress to proceed with the matter as an act of charity, if at all, and by way of exception to the policy of the Government in such cases. The amount of an appropriation, if . any shall be made, also, rests with Congress. For this reason and because the demand is not a legal or equitable claim, the court can not estimate an amount.”

*(WTidmayer*v. *U. 8.,*supra.)

If Senate bill 7013 has for its purpose making Pearson and the other volunteer officers therein named objects of the Government’s charity, such charity can not at least be truly said to be “ by way of exception to the policy of the Government in such cases.” The bounty or gratuity in question was given by the act of March 3, 1865, to some thousands of officers, and when that act was before this court in the case of *U. 8.*v. *Merrill,*9 Wall., 614, there was no suggestion that it involved an unconstitutional dissipation of the public moneys of the United States.

That a case of that kind might possibly arise is suggested but not passed upon by this court in *U. 8.*v. *Realty Go.,*163 U. S., 427. The benefits of the act of March 3, 1865, were afterwards extended by the act of July 3, 1884, to include the families of officers killed in action between March 3, 1865, and April 9, 1865, or even to those who died of disabilities incurred in the service between those dates. It is submitted that to further extend the benefit of the act of 1865 to an officer discharged, because of a gunshot wound received in battle two days before he would have become legally entitled to the three months’ extra pay, which this court in the Merrill case said was given to enable the volunteer officers to live until they could readjust themselves to civil life, would not be to perform' an act of charity by way of exception to the policy of the Government or make an unconstitutional use of the public moneys.

It is further submitted that if Senate bill 7013 became a law and the accounting officers refused to pay Pearson $189.66 because of the unconstitutionality of the law, then if Pearson sued in the Court of Claims that court might. *590find it necessary to pass upon the act in question as involving a mere “ gratuity ” or “ act of charity.” To do so in advance is not to comply with either the letter or spirit of the fourteenth section of the Tucker Act, which imposes no such duty upon the Court of Claims.

POINT II.

The duty of the Court of Claims, under the Tucker Act, to find the amount to which the petitioner would be entitled under Senate bill 7018, is plain and unequivocal. Congress has not called upon that court to express its opinion as to whether any amount should be appropriated by it for the relief of petitioner; it requests that court to furnish it information from which it may form its own opinion as to the propriety of the proposed legislation. This it has refused to do upon the mistaken theory that its jurisdiction extends only to references of such bills as have for their object the payment of a “ claim legal or equitable,” and not to bills conferring a “ grant, gift, or bounty.” Its action in such cases being final (there being no appeal or writ of error) operates as a partial repeal of the act, unless this court af-' fords a remedy. When a court refuses to take jurisdiction of a 'case properly before it, or having taken jurisdiction refuses to proceed and determine it, mandamus lies. This court has original jurisdiction to issue the writ to any federal court over which it has immediate appellate jurisdiction. (Ex parte Connaway, 178 U. S., 421; ex parte Ho-horst, 150 U. S., 653.)

_ The writ has twice issued from this court to the Court of Claims, once on the application of the claimant to compel the court to hear a motion for a new trial (Ex parte Roberts, 15 Wall., 384) and once on the application of the Attorney-General (16 Wall., 699).

Respectfully submitted.

Charles D. PeNNEbaker.

Charles F. Carusi.

EugeNe A. JoNes.

On consideration of the motion for leave to file a petition for a writ of mandamus herein,

It is now here ordered by the court that said motion be, and the same is hereby, denied.

May 24, 1909.