92. ney. * * * do not cease to be part of the general mass of a pension of $31.25 per month should be al property in the state, subject, as such, to its lowed to all persons who, while in the mili jurisdiction, and to taxation in the usual tary or naval service, had lost their sight, or way, until they have been shipped or entered both hands or both feet, or had been perma-t with a common carrier for transportation to nently and totally disabled, so as to require another state, or have been started upon such the regular aid and attendance of another transportation in a continuous route or jour-person; and a pension of $24 per month to It is true, it was said in the those who had lost one hand and one foot; case of The Daniel Ball, 10 Wall. 557, 565: and $18 per month to those who had lost • Whenever a commodity has begun to move either one hand or one foot; and other less as an article of trade from one state to another, pensions for lesser injuries, -any increase of commerce in that commodity between the pension to commence from the date of the states has commenced.' But this movement examining surgeon's certificate. By the act does not begin until the articles have been of June 18, 1874, (Supp. Rev. St. 39,) it was shipped or started for transportation from provided that, in cases of blindness or loss of the one state to the other." The application both hands or both feet, or total helplessness, of the principles above announced to the case requiring the regular and personal aid of anunder consideration leads to a conclusion | other person, the pension should be increased against the contention of the plaintiff in error. The police power of a state is as broad and plenary as its taxing power, and property within the state is subject to the operations of the former so long as it is within the regulating restrictions of the lat-isting laws,-which made the total pension ter. The judgment of the supreme court of Iowa is affirmed. (128 U. S. 40) UNITED STATES ex rel. DUNLAP . BLACK, 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 ex $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 13, 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 Where, on application for an increased pen- its terms, rejected the application, but grantsion, the commissioner of pensions rerates the ed him a certificate for a pension of $50 per applicant, mandamus will not lie to the commis-month under the act of 1874, to be received sioner to assign him to a different class; the from May 25, 1881, the date of his medical decision of the commissioner rerating the ap- examination. The petition for mandamus plicant is an exercise of official discretion. (October 22, 1888.) 1. MANDAMUS-TO PUBLIC OFFICER - PENSIONSCOMMISSIONER-INCREASED RATE. 2. SAME. sets out the decision of the commissioner in Where the petition for mandamus avers that, full, in which it is conceded that the relator on appeal to the secretary of the interior, the has become permanently disabled. The folclaim was adjudicated, and his right to the increase established, but that the commissioner re-lowing is an extract from the decision, tofuses to carry out the order of the secretary, a wit: prima facie case is made for at least a rule to "WASHINGTON, D. C., October 15, 1887. show cause why mandamus should not issue. "In this case the application of the claim J. G. Bigelow, for plaintiffs in error. Atty. Gen. Maurey, for defendant in 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. Errors to the Supreme Court of the Dis-ant for rerating and for increase will be altrict of Columbia. lowed at $50 per month from May 25, 1881, Asst. the date of the first medical examination unerror.der 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. 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 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 The The decision proceeds to discuss further the reasons for the conclusion to which the commissioner had come. by the law, the claimant himself (neither on | of the peace of the District of Columbia; and his own motion, nor under the guidance of a commission in due form was signed by the those who are legally responsible for his ac- president appointing him such justice, and tions in this claim) had not made application the seal of the United States was duly af to be rated in pursuance of the act of June fixed thereto by the secretary of state; but 18, 1874, but, on the contrary thereof, had the commission had not been handed to Marasked to be rated and had been rated at $36 bury when the offices of the government were per month, under the act of February 28, transferred to the administration of Presi1877." dent 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 The relator, by his counsel, strenuously held that the appointment had been made contends that the concession made by the and completed, and that Marbury was enti commissioner with regard to the disability of tled to his commission, and that the delivery the relator shows that it was his clear duty of it to him was a mere ministerial act, to have granted a certificate for the larger which involved no further official discretion pension of $72 per month. The following on the part of the secretary, and could be enpassage in the petition for mandamus shows forced by mandamus. But the court did not the position taken by the relator: "And your issue the writ, because it would have been? relator further says that the respondent has an exercise of original *jurisdiction which it*. thus expressly found the facts in your rela- did not possess. While this opinion will altor's case to be (1) that while your relator was ways be read by the student with interest in the military service * * * he sus- and profit, it has not been considered as intained such wounds and injuries as resulted vested with absolute judicial authority, exin the loss of his right hand and right foot, cept on the question of the original jurisdic and at the same time sustaining injury to the tion of this court. The decision on this point head; (2) that your relator was thereby ren- has made it necessary for parties desiring to dered totally and permanently helpless, re- compel an officer of the government to perquiring from thence till now the regular aid form an act in which they are interested to and attendance of another person;' and (3) resort to the highest court of the District of that your relator applied to the commissioner Columbia for redress. It has been held in of pensions on June 26, 1880, for pension on numerous cases, and was held after special account thereof. And your relator says that discussion in the cases of Kendall v. U. S., 12 upon this finding of the facts whether he is Pet. 524, and U. S. v. Schurz, 102 U. S. 378, entitled to a rerating and an increase of pen- that the former circuit court of the District, sion from date of discharge, so as to give and the present supreme court of the Disunto him a pension commensurate with his trict, respectively, were invested with plendisabilities so found to exist by the respond-ary jurisdiction on the subject. On this ent, 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 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. | head of one of the executive departments of Kendall, refused to give them credit as di- the government, in the ordinary discharge of rected by the law. This the court held he his official duties. In general, such duties, could be compelled to do by mandamus, be- whether imposed by act of congress or by rescause it was simply a ministerial duty to be olution, are not mere ministerial duties. performed, and not an official act requiring The head of an executive department of the any exercise of judgment or discretion. This government, in the administration of the vacourt, through Mr. Justice THOMPSON, said: rious and important concerns of his office, is "The act required by the law to be done by continually required to exercise judgment the postmaster general is simply to credit the and discretion. He must exercise his judgrelators with the full amount of the award ment in expounding the laws and resolutions of the solicitor. This is a precise, definite of congress, under which he is from time to act, purely ministerial, and about which the time required to act. If he doubts, he has a postmaster general had no discretion whatev-right to call on the attorney general to assist er. The law upon its face shows the exist-him with his counsel; and it would be diffience of accounts between the relators and the cult to imagine why a legal adviser was propost-office department. No money was re- vided by law for the heads of the departquired to be paid, and none could be drawn ments, as well as for the president, unless from the treasury without further legisla- their duties were regarded as executive, in tive provision, if this credit should over-which judgment and discretion were to be balance the debit standing against the re- exercised. If a suit should come before this lators. But this was a matter with which court which involved the construction of any the postmaster general had no concern. He of these laws, the court certainly would not was not called upon to furnish the means of be bound to adopt the construction given by paying such balance, if any should be found. the head of a department; and, if they supHe was simply required to give the credit. posed his decision to be wrong, they would, This was not an official act in any other of course, so pronounce their judgment. But sense than being a transaction in the depart-their judgment upon the construction of a ment where the books and accounts were law must be given in a case in which they kept; and was an official act in the same sense that an entry in the minutes of a court, pursuant to an order of the court, is an official act. There is no room for the exercise of any discretion, official or otherwise; all that is shut out by the direct and positive command of the law, and the act required to be done is, in every just sense, a mere minis-ercise discretion or judgment. Nor can it terial act." In the other case (Decatur v. Paulding) the mandamus was refused by the circuit court, and that decision was also affirmed by this court. The case was this: On the 3d of March, 1837, congress passed an act giving to the widow of any officer who had died in the naval service a pension equal to half of his monthly pay from the time of his death until her death or marriage. On the same day congress passed a resolution granting a pension to Mrs. Decatur, widow of Stephen Decatur, for five years, commencing June 30, 1834, and the arrearages of the half pay of a post captain from Commodore Decatur's death to the 30th of June, 1834. Mrs. Decatur applied for and received her pension under the general law, with a reservation of her rights under the resolution, claiming the pension granted by that also. The secretary of the navy, acting under the opinion of the attorney general, decided that she could not have both. Thereupon she applied for a mandamus to compel the secretary to comply with the resolution in her favor. Chief Justice TANEY delivered the opinion of the court, and laid down the law in terms that have never been departed from. We can only quote a single passage from this opinion. The chief justice says: "The duty required by the resolution was to be performed by him [the secretary of the navy] as the have jurisdiction, and in which it is their duty to interpret the act of congress, in order to ascertain the rights of the parties in the cause before them. The court could not entertain an appeal from the decision of one of the secretaries, nor revise his judgment, in any case where the law authorized him to ex by mandamus act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official "du-* ties. The case before us illustrates these principles, and shows the difference between executive and ministerial acts." The chief justice then goes on to show that the decision of the secretary of the navy in that case was entirely executive and official in its character, and that in this respect the case differed entirely from that of Kendall v. U. S. The principle of law deducible from these two cases is not difficult to enounce. The court will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the court having no appellate power for that purpose; but when they refuse to act in a case at all, or when, by special statute or otherwise, a mere ministerial duty is imposed upon them, that is, a service which they are bound to perform without further question,-then, if they refuse, a mandamus may be issued to compel them. Judged by this rule, the present case presents no difficulty. The commissioner of pensions did not refuse to act or decide. He did act and decide. He adopted an interpretation of the law adverse to the relator, and his decision was confirmed by the secretary of the in terior, as evidenced by his signature of the certificate. Whether, if the law were properly before us for consideration, we should be of the same opinion, or of a different opinion, is of no consequence in the decision of this case. We have no appellate power over the commissioner, and no right to review his decision. That decision, and his action taken thereon, were made and done in the exercise of his official functions. They were by no means merely ministerial acts. of the patent was a ministerial matter for which a mandamus would lie. This case, like that of U. S. v. Schurz, is unlike the present. All deliberation had ceased; the right of Gill, the applicant, was adjudged; there was nothing to be done but to deliver to the party the documentary evidence of his title. That was a mere ministerial matter. We think that the mandamus was properly refused, and the judgment of the supreme court of the district is affirmed. No. 992 is similar in all essential respects to the preceding, and the decision must be the same. Judgment affirmed. The decisions of this court, which have been rendered since the cases referred to, corroborate and confirm all that has been said. The following are the most important, No. 993 differs materially from Nos. 991 to-wit: Brashear v. Mason, 6 How. 92; U. and 992. Charles R. Miller, the relator, havS. v. Guthrie, 17 How. 284; Commissioner ing made an unsuccessful application to the v. Whiteley, 4 Wall. 522; Georgia v. Stanton, commissioner of pensions for an increase 6 Wall. 50; Gaines v. Thompson, 7 Wall. of his pension, finally appealed to the secre347; U. S. v. Schurz, 102 U. S. 378; Butter-tary of the interior, and in his petition for worth v. Hoe, 112 U. S. 50, 5 Sup. Ct. Rep. mandamus says as follows, to-wit: "That 25. In the two last cases cited, the man- the secretary, upon a personal, careful indamus was granted; and they were cases in spection of the record, and all the evidence which it was held that a mere ministerial filed therein in his case, and on due considduty was to be performed by the officer. In eration thereof, made and rendered the folU. S. v. Schurz the question related to a pat-lowing official decision: DEPARTMENT OF ent for land claimed by a pre-emptor. All THE INTERIOR, WASHINGTON, D. C., Februthe proceedings had been gone through, the ary 12, 1885. The Commissioner of Pensions right of the applicant had been affirmed, the SIR: Herewith are returned the papers in patent had been made out in the land-office, the pension claim (certificate No. 55,356) of signed by the president, sealed with the land- Charles R. Miller. It appears from the paoffice seal, countersigned by the recorder of pers that Mr. Miller's claim was before this the land-office, recorded in the proper book, department on the 6th inst., and it was held and transmitted to the local land-officers for that the pensioner is greatly disabled, and it delivery; but delivery was refused because is evident from the papers in his case that he instructions had been received from the com- is utterly unable to do any manual labor, "and" missioner to return the patent. The plea | he is therefore entitled to $30 per month unwas that it had been discovered that the der the act of March 3, 1883, which has been lands belonged to a town-site. The court allowed him by your office. Since the deheld that this was an insufficient plea; that partmental decision above referred to, the the title had passed to the applicant, and he papers in the claim have been carefully rewas entitled to his patent, subject to any considered by the department, and a personal equity which other parties might have to the examination of the pensioner made; and it land, or to a proceeding for setting the pat-satisfactorily appears that he is unable to put ent aside; and that the duty of the commis- on his shoe and stocking on the foot of his sioner or secretary of the interior had become a mere ministerial duty to deliver the instrument, as was held in Marbury v. Madison, in relation to the commission of Marbury as justice of the peace. Of course, this case is entirely different from the case now under consideration. The case of Butterworth v. Hoe was very similar in principle to that of U. S. v. Schurz. The commissioner of patents had decided in favor of the right of one Gill, an applicant for a patent, in a case of interference, and adjudged that a patent should issue to his assigns accordingly. An appeal was taken to the secretary of the interior, who reversed the decision of the commissioner. The latter thereupon, and for that reason, refused to issue a patent. It was a question whether an appeal lay to the secretary of the interior, and this court held that it did not, and that he had no jurisdiction in the matter. The court, therefore, held that the patent ought to be issued in accordance with the decision of the commissioner, and that the mere issue injured leg, for the reason that the nearest point that can be reached by hand from foot is 23 inches, and for the further reason that from "necrosis of the lower vertebræ of spine, producing anchylosis of the spinal column and destruction of some of the spinal nerves," he is unable to bend his back. After a careful review of all the facts in this case, the department is constrained to think that the pensioner comes under the meaning of the laws granting pensions to those persons who require aid and attendance. The decision of the 6th inst. is therefore overruled. Very respectfully, H. M. TELLER, Secretary.' And your orator avers that the said official decision of the secretary of the interior, so made as aforesaid, was a final adjudication of his claim in his favor, and conclusively establishes his right under the laws to be rerated at $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,-and to be paid the difference monthly between these sums one of the cars between his post and the caboose, and at once notified the conductor, who promised to drop the car at a certain point if he found it did not contain perishable freight. Before reaching that point the train stopped at a station, and plaintiff went back to the caboose, as was the custom, to eat breakfast and warm himself. The train suddenly started, and plaintiff hastily ran out over the cars, to resume his post, as was his duty. When he reached the defective car he forgot about the missing step, and, in attempting to let himself down, fell, and was injured. Held, that the question of contributory negligence should have been submitted to the jury, and the court erred in granting a nonsuit on that ground. and what has been allowed him; and all that | remained for the commissioner of pensions to do in the premises was the simple ministerial duty of accordingly carrying the said final official decision of the secretary into execution." The petition goes on to state that the former commissioner of pensions refused to carry out the secretary's decision to its full extent, and that the present commissioner, the respondent, still refuses. If, as the petition suggests, the commissioner of pensions refuses to carry out the decision of his superior officer, there would seem to be prima facie ground for at least calling upon him to In Error to the Circuit Court of the United show cause why a mandamus should not is-States for the Eastern District of Pennsylvasue. This was all that the petitioner asked, nia. and this the court refused. As a general *This is an action to recover damages for rule, when a superior tribunal has rendered personal injuries sustained by the plaintiff a decision binding on an inferior, it becomes while in the discharge of his duties as an emthe ministerial duty of the latter to obey it ploye of the Northern Central Railway Comand carry it out. So far as respects the mat-pany. It is based upon the alleged negliter decided, there is no discretion or exer- gence of the company in not providing suitcise of judgment left. This is the constant able and safe appliances for the cars on which course in courts of justice. The appellate the plaintiff was assigned for duty. At the court will not hesitate to issue a mandamus conclusion of the evidence introduced in his to compel obedience to its decisions. The behalf the court directed a verdict for the appellate tribunal in the present case is the company. It was in evidence that at midsecretary of the interior, who has no power night, in the month of February, a train of to enforce his decisions by mandamus, or any freight cars, belonging to or being operated process of like nature; and therefore a resort by the defendant, left Marysville, on its line to a judicial tribunal would seem to be neces- of road, for the city of Baltimore. The rear sary, in order to afford a remedy to the party car was the caboose; the third car from the injured by the refusal of the commissioner to caboose was an ordinary "house car;" the carry out his decision. But it is suggested fourth one was laden with lumber. The car that removal of the contumacious subordinate upon which the plaintiff was required to from office, or a civil suit brought against take position while the train was in motion him for damages, would be effectual reme- was about the eighth or tenth one from the dies. We do not concur in this view. A caboose. His principal duty was to "brake” suit for damages, if it could be maintained, the train from that car back to the caboose. would be an uncertain, tedious, and ineffect- | When the train, moving southward, was goive remedy, attended with many contingen- ing into York Haven, 20 miles from Maryscies, and burdened with onerous expenses. ville, the plaintiff, while passing over it for Removal from office would be still more un- the purpose of putting down the brakes, dissatisfactory. It would depend on the arbi- covered that the third car from the caboose trary discretion of the president, or other ap- had one step off at the end nearest the enpointing power, and is not such a remedy as gine, and immediately called the attention of a citizen of the United States is entitled to the conductor to the fact. The conductor demand. We think that the case suggested promised to drop that car at the coal-yard or by the petition is one in which it would be junction beyond them in the direction of proper for the court to interfere by man- Baltimore, if, upon looking at his manifests, damus. Whether it will turn out to be such, he found that it did not contain perishable when all the circumstances are known, can | freight. When the train stopped, about 4 be ascertained by a rule to show cause; and or 5 o'clock in the morning, at Coldfelters, such a rule, we think, ought to have been granted. The judgment of the court below is therefore reversed, and the cause remanded, with instructions to grant a rule to show cause as applied for by the petitioner. Judgments will be entered separately in the several cases. (128 U. S. 91) KANE v. NORTHERN CENT. RY. Co. MASTER AND SERVANT-DEFECTIVE APPLIANCES Plaintiff, a brakeman on defendant's freight some miles north of the coal-yard or junction, the plaintiff went to the caboose, to eat his breakfast and warm himself. It was snowing, freezing, and sleeting. One of the witnesses testified that "it was a fearful cold night, raining and sleeting; the train was covered with ice and snow; * ** it was most bitter cold; the rain was freezing as it fell; a regular winter's storm." While the plaintiff was in the caboose, eating his breakfast, the train moved off. He immediately started for his post, leaving behind his coat and gloves. Upon reaching the south end of the third car from the caboose train, while making a trip on a very cold, stormy he attempted to let himself down from it, in night, discovered that a step was missing from order to reach the next car ahead of him, |