#### UNITED STATES EX REL. TODD *v.*GONGWER.

Mandamus; Accounting Officers of the Treasury Department.

X. Mandamus is an extraordinary writ that may be granted by courts to enforce a ministerial duty plainly defined and required by law. It cannot be used to serve the purpose of an ordinary suit, or to operate as a writ of error.

2. Where the duty to be performed is judicial in its nature, the courts may be invoked to compel the reception and consideration of the claim, demand, or action; that is, the taking of jurisdiction, and the grant of an opportunity for hearing in a proper case; but the courts cannot direct the officer in the decision that he may render after taking jurisdiction.

3. Mandamus will not lie at the instance of an officer of the Army against the Auditor of the Treasury for the War Department and the Comptroller of the Treasury, to compel them to consider and act upon his claim for longevity pay, where it appears that the claim had been made to and rejected by them on the ground that a similar claim by the relator had been rejected many years before by their predecessors in office, and that they had no power to review the action of the latter for mere mistake of law; and it also appeared that the relator’s right to an appeal to the court of claims from the first rejection was barred by the statute of limitations.

4. *Qucere,*whether the accounting officers of the Treasury Department have the power to reopen and review the decisions of their predecessors, except when, by reason of mistake or ignorance of fact, it would be clearly inequitable and unjust that the decision should stand.

No. 2340.

Submitted November 6, 1911.

Decided December 4, 1911.

*556Hearing on. an appeal by the relator from a judgment of the-Supreme Court of the District of Columbia dismissing a petition for the writ of mandamus.

*Affirmed.*

The Court in the opinion stated the facts as follows:

This is an appeal from a judgment dismissing a petition for a writ of mandamus.

The petition was filed on relation of Col. Albert Todd, an officer of the United States Army on the retired list, against Benjamin F. Harper, Auditor for the War Department in the United States Treasury, and Robert J. Traeewell, Comptroller of the said Treasury.

The material facts alleged in the petition are these: Relator entered the Army of the United States as a cadet of the-Military Academy, July, 1873; was appointed second lieutenant in the Artillery Corps on June 15, 1877, and promoted to the rank of first lieutenant April 18, 1882. His service was continuous. He was paid a salary as second lieutenant of $1,-400 per year.

That, by virtue of the provisions of sec. 1262, Rev. Stat. U. S. Comp. Stat. 1901, p. 896, he became entitled to an increase of 10 per cent of his current yearly pay, beginning five years after his entry into the service as a cadet, to wit, July 1, 1878.

That said increased pay from said date was not allowed him by the Treasury officials, because they held that the years of service in the academy were not to be counted in reckoning the increase under sec. 1262. On February 24, 1881, a provision was inserted in the appropriation bill of that date, to the effect that the additional pay to officers for length of service should be paid with their current monthly pay, and the actual time of service shall be allowed all officers in computing their pay.

Under this provision the Treasury officials refused to allow to officers the actual time of their service in the academy.

A test suit was brought in the court of claims by Captain Morton to recover pay that would be due him, if said service *557be taken into account. .The court of claims decided in his favor, and its judgment was affirmed by the Supreme Court of the United States. It was held that service as a cadet was service in the Army, and that the officer was entitled to have the years of service there computed as service in the Army under said act of February 24, 1881. *United States*v. *Morton,*112 U. S. 1, 28 L. ed. 613, 5 Sup. Ct. Rep. 1.

Thereafter, the Treasury officials allowed relator increase of pay after said 24th of February, 1881, based on service in the .academy, but refused to allow the same prior to that date, under sec. 1262, Rev. Stat. U. S. Comp. Stat. 1901, p. 896.

Thereafter, Captain Watson brought suit in the court of claims, claiming his longevity pay for the former period, under see. 1262, and recovered judgment therefor, for all arrears not barred by the statute of limitations. The decision was to the effect that longevity pay based on said service was authorized by said section. That judgment was affirmed on appeal to the Supreme Court, March 11, 1889. 130 U. S. 80, 32 L. ed. 850, 9 Sup. Ct. Rep. 430. Thereafter, the then Auditor and Comptroller allowed said service in settling the claims of ‘Generals Grant, Eosencrans, and Kilpatrick, under a decision rendered on the claim of General Grant by the Comptroller on May 8, 1889. No more allowances for such service were made and on June 20, 1890, the then Comptroller, Gilkerson, ren•dered a decision upon the general claims of officers, disallowing them all. Eelator’s claim was one of those pending, and •on December 15, 1890, he was officially notified of the denial •of his claim.

In January, 1910, relator again presented a claim for the increased pay due him between July 1, 1878, and February '24, 1881, based on his service in the academy, contending that the same was allowable under the law as declared in the decisions aforesaid. The same was brought before the Auditor, •defendant Harper, who, on February 10, 1910, refused to consider the claim on its merits by reason of the former decision of his predecessor on December 15, 1890. The same action was taken, after reapplication by relator, on November 10, *5581910. Thereupon application was made to defendant Trace-well, as Comptroller, to act upon said claim, and direct the Auditor to settle the same in accordance with the law as declared in the decisions aforesaid. That the defendant “denied said application, and refused to consider the claim of petitioner on its merits, alleging as a reason therefor the action of the Auditor and Comptroller of December 15, 1890.” That it was the duty of the defendants to receive and examine the claim of relator, and to certify the balance due him under the said acts and the interpretation thereof aforesaid. That they refused to perform a duty required of them by the act of March 4, 190?, which commanded them to follow the decisions aforesaid.

Eelator prayed that the writ of mandamus issue to defendants commanding them: First. To consider relator’s claim upon its merits, and. to render a decision thereon according to law. Second. In passing upon said claim, to follow the decision of’ the Supreme Court of the United States in the case of *United States*v. Watson, 130 U. S. 80, 32 L. ed. 852, 9 Sup. Ct. Rep. 430. As exhibits to the petition are attached the decision of Comptroller Gilkerson on June 20, 1890; the application to Auditor Harper and his decision of November 19, 1910; and the decision of the Comptroller on January 3, 1911. This later decision gives the history of the claim, and states that the dis-allowance of the same was based particularly upon the decision of Comptroller Gilkerson of June 20, 1890, and his refusal to* allow relator’s claim on December 15, 1890. After stating that the application for rehearing was based on an alleged error of law, the decision concludes as follows:

“I have read and considered carefully the able and exhaustive brief of claimant’s counsel, but I find nothing therein which in my opinion warrants a rehearing of the settlement made by Second Comptroller Gilkerson, December 15, 1890, which was based upon his decision of June 20, 1890, in which the question of the applicability of the decision in the *Watson Case*to this class of claims was fully and carefully considered. There is no principle of accounting more clearly or firmly es*559tablished in the accounting office than that the accounting officers are not authorized to reopen accounts settled by their predecessors, except for the purpose of correcting mistakes of fact arising from errors in calculation, or upon the production of newly discovered material evidence, or for fraud. (See the decision in the *Brodie Case*and authorities there cited.)

“It not appearing that there was any mistake of fact arising from error in calculation in the settlement of December 10,. 1890, and no newly discovered material evidence having been produced, and it not appearing that there was any fraud therein, a rehearing of such settlement is denied.”

Auditor Harper having resigned, his successor, Gongwer, was substituted as a defendant in his stead.

Answering the rule to show cause why the writ should not issue, the defendants Gongwer and Tracewell admitted the facts relating to relator’s service as a cadet and officer in the-regular Army, and the action on his claim therefor. They admit that in January, 1910, relator applied to Auditor Harper for the allowance of his claim for pay from July 1, 1878, to February 24, 1881, which he refused to consider by reason of' the prior action of his predecessor. The same was again refused on November 10, 1910. They further aver that the application was denied on January 3, 1911, the Comptroller refusing-to consider the same on its merits, by reason of the former action of his predecessor of December 15, 1890. Further answering, they say that the claim of relator could not be allowed by them because of the adverse decision thereon by their predecessors, on December 15, 1910, the only reason assigned for reopening said decision being that it was erroneous in law; no-error of fact was alleged as a ground for reviewing said decision. That it is a settled rule of the Treasury Department not to reopen and review the decisions of former officers, made in the line of official duty, save for ignorance or mistake of fact; and that, in rejecting said claim, defendants acted in a judicial capacity, and not as mere ministerial officers. They allege that the relator had a remedy by action in the court of claims, if any legal *560right has been, denied him; and that any right he may have had is now barred by laches and lapse of time.

The answer was demurred to by the relator. The court overruled the demurrer, holding that what is sought by the relator is not the performance of a mere ministerial act, but the reversal of the judgment of the accounting officers of the Treasury; and that the only remedy of relator was by action in the court of claims, which is now barred by limitations.

Relator, electing to stand upon his demurrer, the rule to show ■cause was discharged, and the petition dismissed.

*Mr. William R. King*for the appellant.

*Mr. Clarence R.*Wilson> United States District Attorney, *Mr. R. 8.*HuideTcoper, Assistant, and *Mr. C. W. Maupm*for the appellees.

Mr. Chief Justice Shepard

delivered the opinion of the Court:

Mandamus is an extraordinary writ that may be granted by courts to enforce a ministerial duty plainly defined and required by law. It cannot be perverted to serve the purpose of .an ordinary suit, or to operate as a writ of error.

The extent of the power that may be asserted by the Federal courts over executive officers, through this writ, has been plainly defined by the Supreme Court of the United States in numerous decisions, which it is unnecessary to cite. The effect of those decisions was thus stated by us in a former decision: “Where the duty prescribed is plain and specific, admitting of -no discretion, calling for the exercise of no judgment, and the •officer charged therewith refuses to perform it, to the injury -or deprivation of the right of another, mandamus will lie to compel him to its performance. It will lie where the duties are discretionary or even strictly judicial; never, however, to revise Action that has been taken, but to compel reception and consid*561eration, or the taking of jurisdiction.” *Seymour*v. *United States,*2 App. D. C. 240-246.

The principle directly applicable here may be restated as follows: Where the duty to be performed is judicial in its nature, the judicial power may be invoked to compel the reception and consideration of the claim, demand, or action; that is, the taking of jurisdiction and the grant of an opportunity for hearing in a proper case; but it cannot be exercised to direct the officer in the decision that he may render after taking jurisdition. In our opinion, the principles stated above were correctly applied by the learned trial justice to the facts disclosed by the pleadings in this case. Without consuming time with a recital of the several acts of Congress defining the powers and duties of the accounting officers of the Treasury, it is sufficient to say that they were charged with the duty of examining the claims of officers of the army, such as this, and settling their accounts for pay and allowances under the statutes providing therefor. Relator’s claim was therefore properly presented to them both first and last. When the claim was first presented in 1890, this duty was performed by the predecessors of defendants, who, after consideration, rejected the claim. This decision was made December 15, 1890, and certified to the claimant. There was no right of appeal from that decision to the district courts. But under the statutes conferring jurisdiction upon the court of claims of suits against the United States, the relator was entitled to an action in that court to establish the validity of his claim, after its rejection by the Treasury officials. Their adverse decision was no bar; it merely afforded the occasion for the exercise of the jurisdiction conferred upon the court. Instead of availing himself of that right, as some other officers did, the relator suffered his claim to slumber for nearly twenty years. His right of action in the court of claims having become barred by the statute of limitations relating to remedies in that court, he again presented his claim to the then Auditor and Comptroller, in October, 1910.

Contending that the former decision was in open disregard of the plain provisions of sec. 1262, U. S. Comp. Stat. 1901, p. *562896, and of the decisions heretofore mentioned, he demanded that they vacate or disregard the former decision, and resettle his account by allowing the sum claimed to be due. They did not refused to receive the claim or to consider it, but, after hearing, rejected it on the ground that it was beyond their power to set aside the decision of their predecessors for mistake of law made therein. In other words, their decision was that before the Treasury Department the demand had become *res judicata.*The *relator*contends that this was not the consideration of his case “upon its merits” that he was entitled to. What he regards as the consideration of the case upon its merits is expressed in the allegations and prayers of his petition. In short, it was to disregard the former decision because palpably erroneous; and, in obedience to the meaning of sec. 1262, as interpreted by the Supreme Court of the United States in the decision referred to, to resettle the account and allow the demand. Doubtless, if the defendants had felt themselves at liberty to re-adjudicate the claim, they would have allowed it; but before allowance they had to determine whether they were concluded by the former decision. As set out in the answer, it was decided many years ago by the accounting officers of the Treasury, that they have not the power to reopen and review the decisions of their predecessors save when, by reason of mistake or ignorance of fact, it would be clearly inequitable and unjust that the decision should stand. This rule, they say, has been followed for many years, and has been confirmed by judicial decisions. See *United States*v. *Bank of Metropolis,*15 Pet. 377— 400, 10 L. ed. 774-782. This involves an important question of law, which, however, we are not called upon to decide. Assuming, for the sake of the argument, that they did have the power, it does not follow that they were necessarily bound to exercise it. If they had the power, there was no law imposing its exereise upon them as a plain ministerial duty upon the demand of a claimant. Whether'they would do-so or not, therefore, involved the exercise of discretion, and that discretion is beyond the control of any judicial tribunal. *United States ex rel. Riverside Oil Co.*v. *Hitchcock,*190 U. S. 316—324, 47 *563L. ed. 1074-1078, 23 Sup. Ct. Rep. 698. Discussing, in that case, the decision of an executive officer, Mr. Justice Peckham said: “Whether he decided right or wrong is not the question. Having jurisdiction to decide at all, he had necessarily jurisdiction, and it was his duty, to decide as he thought the law was, and the courts have no power whatever, under those circumstances, to review his determination by mandamus or injunction.” And it was further said in language applicable to this case: “Nor does the fact that no writ of error will lie in such a case as this, by which to review the judgment of the Secretary, furnish any foundation for the claim that mandamus may therefore be awarded. The responsibility, as well as the power, rests with the Secretary, uncontrolled by the courts.” Id. p. 325.

If the relator, as would seem to be the case, was denied a just demand by the original decision of the Treasury officials, the Congress alone has the power to furnish relief.

By resting our decision upon the single ground stated, we are not to be understood as having considered, much less decided, any of the other questions that have been argued.

For the reasons given, the judgment will be affirmed, with costs. ' *Affirmed.*