been caused by their retention as above | On August 13, 1894, Congress passed an ing to show upon what claim or claims either of the said judgments was based." Nothing but a transcript of the decree contained in the judgment roll was annexed to the return. The relator demurred to the return, and upon these pleadings the cause came on for hearing before the supreme "That the Treasurer of the United States is hereby directed to pay to the owners, hold-court, which ordered a writ of mandamus to [225]ers, or assignees of all board of audit *certificates redeemed by him under the act approved June 16, 1880, the residue of two and thirty-five hundredths per centum per an num of unpaid legal rate interest due upon said certificates from their date up to the date of approval of said act providing for their redemption." The relator as assignee, by her attorney, made demand upon the Treasurer for the payment of the balance of the interest as provided for in the above act, and on November 3, 1897, the Treasurer refused such demand, and wrote the following letter to the attorney: Sir: Your letter of the 27th ultimo, inclosing a petition for the payment of interest on certain board of audit certificates, under the act of Congress approved August 13, 1894, is received. You will note that the act referred to provides for additional interest to be paid only upon board of audit certificates redeemed by the Treasurer under the act of June 16, 1880. Neither of the certificates recited in your petition was redeemed by the Treasurer, and they are not in his possession. You state that certain judgments of the court of claims were issued in lieu of these certificates. These judgments were paid by this office in the manner prescribed by law, but neither of them states that they were issued in lieu of or upon debts of the District of Columbia represented by board of audit certificates. The Treasurer has therefore no authority to pay the additional interest you demand. The foregoing facts were set forth in the petition of the relator to the supreme court of the District of Columbia asking for a mandamus to compel the Treasurer to make the payment demanded. issue as prayed for. Upon appeal to the court of appeals that court affirmed the judg ment, and the Treasurer applied for and obtained a writ of certiorari for the purpose of procuring a review of the judgment by this court. Upon reading the return made by the Treasurer to the petition for the writ it will be seen that the facts upon which he bases his defense are that he did not redeem the certificates in question, and that the only moneys paid by any Treasurer of the United States were paid on this judgment of the court of claims already mentioned, and that it did not appear in any official record in his office upon what claim or claims the judgment of the court of claims was based. The first question which arises, therefore, on this record is whether the Treasurer did redeem these certificates within the meaning of the act of 1894. The act of 1884 (23 Stat. at L. 131, chap. 227, supra) did not prohibit their redemption, for they were in suit under the provisions of § 1 of the act of 1880, long before the passage of the act of 1884, and provision was made in the act of 1880 for the payment of the judgments rendered by the court of claims upon presentation to the Secretary of the Treasury of a certified copy of such judgments. That they might be founded upon certificates was immaterial, for it *can-[227] not be supposed that Congress by the act of 1884 meant to prohibit the payment of certificates which were in suit under the act of 1880, and upon which judgment might thereafter be rendered by the court of claims. Full effect can be given to the act of 1884 by confining it to the prohibition of payment of certificates which might, after the year, be presented in that form for payment, leaving the provisions for payment on suit brought under the act of 1880 in full force. Taking this case as made by the record, we find that it is not disputed that the cerIn answer to the petition the Treasurer tificates were issued under the act of 1874, alleged "that the certain board of audit cer- duly signed by the board of audit therein tificates, so called, in the said petition men- provided for, and delivered (without the contioned, namely, the certificates numbered sent of Evans) to the authorities of the Dis8879 and 19,429, were not redeemed by him trict upon their unfounded claim that they [226]or any person holding the office of Treas were entitled to their possession as collaterurer of the United States at any time, and al security as already stated. It is not disthat the only moneys paid by any Treasurer puted that an action was commenced in the of the United States on account of any of the court of claims under the act of 1880 to rematters or things in the said petition men- cover against the District of Columbia upon tioned as having relation to the said certifi- the certificates, as well as upon other claims cates, or either of them, were paid upon cer- against the District. It is not disputed tain judgments of the court of claims of the that upon a compromise made, all other United States, as appears by the transcript causes of action were stricken from the pe from the records of the Treasury Depart-tition, that the petition as amended conment of the United States, hereto annexed and made part hereof, and that the defendant has no official knowledge, nor has he any official record in his office, showing or tend tained a full description of the certificates, and an allegation that they were issued by the board of audit under the act of 1874, and that judgment was recovered upon such cer tificates, and upon them only, and for their payment pursuant to the act of 1874, and that pursuant to that judgment the Treasurer paid the amount thereof, together with interest on the certificates from the date of their issue in 1874 to September 11, 1890, the day before their payment. Upon these facts we have no doubt that the certificates were redeemed within the meaning of the act of 1894. At the time of the judgment in the court of claims they were in the hands of the plaintiff in the action mentioned, and were valid instruments in his hands, and his sole cause of action was based upon them, and the judgment entered by the court of claims necessarily declared their validity and the right of plaintiff to have the same paid as stated in the judgment. When the Treasurer subsequently paid that judgment, did he not therein and thereby redeem these [228]certificates? If the certificates *themselves had been presented to the Treasurer and he had paid them, they would then, of course, have been redeemed. Were they any the less redeemed because an action had been brought upon them and the court had declared their validity and directed their payment, by a judgment duly entered to that effect, which judgment was subsequently paid by the Treasurer? Such payment, it seems to us, was a redemption of the certificates within the meaning of the act. The evident purpose of the act of 1894 was to give the balance of interest between 3.65 and 6 per centum to those persons, or their assignees, to whom certificates had been given and the interest upon which had been paid only at the former rate. In all such cases where the certificates had been re deemed by the Treasurer, the additional interest was to be paid, and we cannot doubt that under this act the certificates were re ment was recovered upon those specific certificates, and upon nothing else, and when the Treasurer pays such judgment there is thus record evidence that he has paid the certificates *mentioned in the judgment roh,[229] upon which certificates the judgment itself was recovered. This is all the defense upon the facts that is made to the issuing of the writ so far as appears by the return made by the Treasurer to the application for mandamus, but upon the argument in this court the further objection was taken that the relator was not such an assignee as was within the contemplation of the act of 1894, because, as was stated, she was not such assignee at the time of the payment of the certificates made by the Treasurer. It is somewhat late to raise this defense, but we think there is nothing in the objec tion. These certificates had been paid at the rate of interest of 3.65 only, and the act of 1894 intended to give to those people who were their original owners, or who had become assignees of such owners, although subsequent to the payment of the certificates, the right to recover this additional interest. Put if the act were construed as intending to provide for the payment of interest to those persons who were the owners of the certificates at the time when they were redeemed, it could not with any force be argued that such persons might not assign their claim to the balance of the interest provided for in the act of 1894 after the passage of that act. Hence if the defendant had set up in his return any such objection, it might have been obviated by proof that the owners of the certificates when redeemed had, after the passage of the act of 1894, assigned their right to the interest mentioned therein to the relator. The Treasurer made no such objection to payment, either in his letter to the attorney for the relator before this proceeding was commenced, or in his return herein. The right of relator, as assignee, has been admitted, and the Treas urer placed his objections on grounds alto deemed when paid by the Treasurer by virtue of the judgment which had been recov. ered on them and which was directed to be paid pursuant to the act of 1874. The act of 1894 did not limit the payment to those who had succeeded in exchanging their certifi-gether different. cates for bonds bearing interest at the rate of 3.65 per centum. It was through no fault of the holders of these particular certificates that they had not been exchanged for such bonds, but the exchange had not been effected because the authorities of the District improperly retained custody of them, and refused to deliver them to their rightful own er. The act of 1894 plainly relates to and speaks of the certificates which had been redeemed under the act of 1880, and these certificates had been so redeemed. The further objection made by the Treasurer, that he had in his office no official record showing or tending to show upon what claim or claims the judgment of the court of claims was based, is, under the admitted facts in this case, wholly immaterial. The judgment roll in the action is of record in the court of claims, and that roll showed precisely and in detail that the judg tion is that this is not a case in which the The remaining and most important objec writ of mandamus can properly be issued to one of the executive officers of the govern ment. The law relating to mandamus against a public officer is well settled in the abstract, the only doubt which arises being whether the facts regarding any particular case bring it within the law which permits the writ to[230] issue where a mere ministerial duty is imposed upon an executive officer, which duty he is bound to perform without any further question. If he refuse under such circumstances, mandamus will lie to compel him to perform his duty. This is the principle upheld by this court in United States ex rel. Dunlap v. Black, 128 U. S. 40, 32 L. ed. 354, 9 Sup. Ct. Rep. 12, and upon the authority of that case the defendant claims that ne mandamus can be issued against him. The writ was refused in the Black Case, because, as the court held, the decision which that the performance of the duty involved the construction of a statute by him, and therefore it was not ministerial, and the court would on that account be powerless to give relief. Such a limitation of the powers of the court, we think, would be most unfortunate, as it would relieve from judicial supervision all executive officers in the per was demanded from the Commissioner of In this case the facts are quite different. There is but one act of Congress to be examined, and it is specially directed to the Treasurer. We think its construction is quite plain and unmistakable. It directs the Treasurer to pay the interest on the certificates which had been redeemed by him, and the only question for him to determine was whether these certificates had been redeemed within the meaning of that act. That they were, we have already attempted to show, and the duty of the Treasurer seems to us to be at once plain, imperative, and entirely ministerial, and he should have paid the interest as directed in the statute. This case comes within the exception stated in the Black Case, that where a special statute imposes a mere ministerial duty upon an executive officer, which he neglects or refuses to perform, then mandamus lies to compel its performance; but the court will not interfere with the executive officers [231] of *the government in the exercise of their ordinary official duties, even when those duties require an interpretation of the law, the court having no appellate power for that purpose. On this last ground the court denied the writ. should plead that the duty required of them arose upon the construction of a statute, no matter how plain its language, nor how plainly they violated their duty in refusing to perform the act required. In this case we think the proper construction of the statute was clear, and the duty of the Treasurer to pay the money to the relator was ministerial in its nature, and should have been performed by him upon demand. The judgment of the Court of Appeals must be affirmed. *BALTIMORE & POTOMAC RAILROAD[232] COMPANY, Plff. in Err., v. CHARLES EMMET CUMBERLAND. (See S. C. Reporter's ed. 232-241.) Railroads―duty to fence track in street under act of Congress-road approximately even with the surface of the street-sufficiency of light on tender of engine running backward-variance-trespasser on track. 1. 2. 3. The question whether a steam-railroad track is "approximately even with the adjacent surface" of a street in which it is laid, within the meaning of the act of Congress of January 26, 1887, and joint resolution of February 26, 1892, requiring fences on both sides of a track approximately even with be surface, must be submitted to the jury, where the track was not more than 2 feet 2 inches higher than the level of the street. An averment that there was no light on the rear part of an engine is satisfied by proof that there was no such light as the law required. Unless the writ of mandamus is to become practically valueless, and is to be refused even where a public officer is commanded to do a particular act by virtue of a particular statute, this writ should be granted. Every statute to some extent requires construction by the public officer whose duties may be defined therein. Such officer must read the law, and he must therefore, in a certain sense, construe it, in order to form a judgment from its language what duty he is directed by the statute to perform. But that does not necessarily and in all cases make the duty of the officer anything other than a purely ministerial one. If the law direct him to perform an act in regard to which no discretion is committed to him, and which, upon the facts existing, he is bound to per- Argued December 19, 1899. Decided Febru form, then that act is ministerial, although depending upon a statute which requires, in A person is not ipso facto a trespasser in crossing railroad tracks laid through the streets of a city upon, or substantially upon, the level of the street, although he crosses at any point where it is convenient for him to do so, instead of going to a regular street crossing. [No. 87.] ary 5, 1900. some degree, a construction of its language (NWRIT OF ERROR to the Court of Ap by the officer. Unless this be so, of this writ is very greatly impaired. Every executive officer whose duty is plainly devolved upon him by statute might refuse to perform it, and when his refusal is brought before the court he might successfully plead peals of the District of Columbia affirming a judgment of the Supreme Court in fa NOTE.-A8 to duty of railroad companies to wards persons or trespassers on their tracks,— vor of plaintiff in an action for damages. | about the line of Fourteenth street, there Affirmed. See same case below, 12 App. D. C. 598. was a switchman's box which to some slight Statement by Mr. Justice Brown: the northernmost track towards the ing so near the track that he thought prop- The fireman testified that when he first The engineer testified that, when he was between Fourteenth street and the place where the accident happened, he saw the The accident occurred about dark on the form of a person moving at a brisk walk in evening of December 10, 1894. the direction of the tracks, about 15 feet The weather was misty, according to some of the witness-away from them and about 50 or 60 feet in es; rainy, foggy, and very cold, according to front of the train. He could not tell whether others. The plaintiff, having lighted a lamp it was a man or boy. When in the neighon the south side of Maryland avenue, be-borhood of 30 feet away, he saw he was com tween Thirteenth-and-a-half and Fourteenth streets, started across Maryland avenue and the tracks of the company, for the purpose of lighting a lamp directly opposite on the north side of the street. There was a curve in the tracks at this point, made by a turn in the railroad from Long Bridge into Maryland avenue. There was no crossing for persons or vehicles between Thirteenthand-a-half and Fourteenth streets, and the street on either side of the right of way was separated therefrom by curbs which projected 8 inches above the adjacent roadway. These curbs were about 5 feet from the outer rails on either side, and the tracks were car-attention by "hollering." ried upon ties, elevated about 18 inches above the level of the curbs and about 2 feet higher than the surface of the street. The plaintiff, having lighted a lamp on the south side, started across the street, mounted the elevated roadway in front of a train coming up from Long Bridge with the tender ahead of the engine, and just as he stepped upon the track was struck by the tender, knocked down, and run over. There was a hand sig nal lantern swung on the advancing end of the tender, and at the time of the accident it appeared to have been burning. saw the boy he was approaching the track The defense rested chiefly upon the contributory negligence of the plaintiff in crossing the track at this point without sufficient care in looking out for the approach of trains. The trial resulted in a verdict for the plaintiff in the sum of $8,000, upon which judgment was entered. The case was car ried by the defendant to the court of ap-[235] peals, and the judgment of the supreme court affirmed. 12 D. C. App. 598. Whereupon defendant sued out a writ of error from this court. Messrs. Frederick D. McKenney and Wayne McVeagh argued the cause and, with Mr. John Spalding Flannery, filed a brief for plaintiff in error: Negligence of the company's employees was no excuse for negligence on the part of defendant in error. At this part of the avenue there are four or five railway tracks-two main tracks on the north side, used for passenger trains; a third to the south of these two, used for freight trains, which was the one on which the accident occurred; south of that a track diverging eastwardly into the freight station of the Richmond & Danville Railroad Company to the south of the avenue; and still further south, and south even of the gas Chicago, R. I. & P. R. Co. v. Houston, 95 lamp which the boy had lit, a switch diverg-U. S. 697, 24 L. ed. 542; Northern P. R. Co. ing from the east into a private coal yard. v. Freeman, 174 U. S. 379. 43 L. ed. 1014, 19 About the place of the accident, and thence Sup. Ct. Rep. 763; Cullen v. Baltimore & westward towards Fourteenth street, the P. R. Co. 8 App. D. C. 69. tracks begin a curve so as to reach the Long [234]Bridge at the foot of that street, and to the south, upon the inner side of this curve and Except at street crossings where the public has a right of way, a railroad company has the right to a clear track and owes no duty to trespassers, whether they be adults, | O. S. W. R. Co. v. Bradford, 20 Ind. App. minors, or children of tender years. Johnson v. Boston & M. R. Co. 125 Mass. 75; Nicholson v. Erie R. Co. 41 N. Y. 525; Mason v. Missouri P. R. Co. 27 Kan. 83; Union P. R. Co. v. Rollins, 5 Kan. 168; Baltimore & O. R. Co. v. Depew, 40 Ohio St. 121; Cauley v. Pittsburgh, C. & St. L. R. Co. 95 Pa. 398, 40 Am. Rep. 664. 348, 49 N. E. 388; Masser v. Cuicago, R. 1. & P. R. Co. 68 Iowa, 602, 27 N. W. 776; Morrissey v. Eastern R. Co. 126 Mass. 377, 30 Am. Rep. 686; Wright v. Boston & A. R. Co. 142 Mass. 296, 7 N. E. 866; Mugford v. Boston & M. R. Co. 173 Mass. 10, 52 N. E. 1078; McMahon v. Northern C. R. Co. 39 Md. 438; Ex parte Stell, 4 Hughes, 157, Fed. Cas. No. 13,358; Wendell v. New York C. & H. R. R. Co. 91 N. Y. 420; Hestonville Pass. R. Co. v. Connell, 88 Pa. 520, 32 Am. Rep. 472; Cauley v. Pittsburgh, C. C. & St. L. R. Co. 95 Pa. 398, 40 Am. Rep. 664; Baltimore & O. R. Co. v. Schwindling, 101 Pa. 258, 47 Am. Rep. 706; Nolan v. New York, N. H. & H. R. Co. 53 Conn. 461, 4 Atl. 106. Whether the light carried was sufficient or such a one as was necessary to give a proper warning of the approach of the train was a question of law and not of fact, and before the jury should have been allowed to pass upon the question there should have been some competent evidence offered upon that subject. This rule is applicable to trespassers upon railroad tracks within city limits which are not imbedded in or level with the city streets. Glass v. Memphis & C. R. Co. 94 Ala. 582, 10 So. 215; Montgomery v. Alabama G. S. R. Co. 97 Ala. 305, 12 So. 170; Louisville & N. R. Co. v. Hairston, 97 Ala. 351, 12 So. 299; Jeffersonville, M. & I. R. Co. v. Goldsmith, 47 Ind. 43; McClaren v. Indianapolis & V. R. Co. 83 Ind. 319; Palmer v. Chicago, St. L. & P. R. Co. 112 Ind. 250, 14 N. E. 70; Dull v. Cleveland, C. C. & St. L. R. Co. 21 Ind. App. 571, 52 N. E. 1013; Tennenbrock v. South Pacific Coast R. Co. 59 Cal. 269; Toomey v. Southern P. R. Co. 86 Cal. 374, 10 L. R. A. 139, 24 Pac. 1074; Masser v. Chicago, R. I. & P. R. Co. 68 Iowa, 602, 27 N. W. Delaware, L. & W. R. Co. v. Converse, 139 776; Galena & C. U. R. Co. v. Jacobs, 20 Ill. U. S. 469, 35 L. ed. 213, 11 Sup. Ct. Rep. 478; Illinois C. R. Co. v. Godfrey, 71 Ill. 500, 569; Grand Trunk R. Co. v. Ives, 144 U. S. 22 Am. Rep. 112; Illinois C. R. Co. v. Hether- 427, 36 L. ed. 492, 12 Sup. Ct. Rep. 679; ington, 83 Ill. 510; Lake Erie & W. R. Co. Springman v. Baltimore & P. R. Co. 5 Mackv. Zoffinger, 10 Ill. App. 252; Moore v. Wa-ey, 1; Baltimore & P. R. Co. v. Golway, 6 bash, St. L. & P. R. Co. 84 Mo. 481; Dahl-App. D. C. 143; Eckington & S. H. R. Co. v. strom v. St. Louis, I. M. & S. R. Co. 96 Mo. Hunter, 6 App. D. C. 287; Baltimore & O. R. 99, 8 S. W. 777; Barker v. Hannibal & St. J. Co. v. Adams, 10 App. D. C. 97; Dyer v. Erie R. Co. 98 Mo. 50, 11 S. W. 254; Candelaria | R. Co. 71 N. Y. 228; Beisiegel v. New York v. Atchison, T. & S. F. R. Co. 6 N. M. 266, 27 C. R. Co. 40 N. Y. 9; State use of Foy v. PhilPac. 497; Baltimore & O. R. Co. v. State use adelphia, W. & B. R. Co. 47 Md. 76; Haas v. of Allison, 62 Md. 479, 50 Am. Rep. 233; Grand Rapids & I. R. Co. 47 Mich. 401, 11 N. Johnson v. Boston & M. R. Co. 125 Mass. 75; W. 216. Wright v. Boston & M. R. Co. 129 Mass. 440; Morrissey v. Eastern R. Co. 126 Mass. 377, 30 Am. Rep. 686; Mugford v. Boston & M. R. Co. 173 Mass. 10, 52 N. E. 1078; Flower v. Pennsylvania R. Co. 69 Pa. 210, 8 Am. Rep. 251; Duff v. Allegheny Valley R. Co. 91 Pa. 458. 36 Am. Rep. 675; Baltimore & O. R. Co. v. Schwindling, 101 Pa. 258, 47 Am. Rep. 706; McMullen v. Pennsylvania R. Co. 132 Pa. 107, 19 Atl. 27; Cauley v. Pittsburgh, C. C. & St. L. R. Co. 95 Pa. 398, 40 Am. Rep. 664; Moore v. Pennsylvania R. Co. 99 Pa. 301, 44 Am. Rep. 106; Beers v. Housatonic R. Co. 19 Conn. 566; Nolan v. New York, N. H. & H. R. Co. 53 Conn. 461, 4 Atl. 106; Spicer v. Chesapeake & O. R. Co. 34 W. Va. 514, 11 L. R. A. 385, 12 S. E. 553; Christy v. Chesapeake & O. R. Co. 35 W. Va. 117, 12 S. E. 1111; State use of Ricketts v. Baltimore & O. R. Co. 69 Md. 494, 16 Atl. 210; John v. Louisville & N. R. Co. 10 Ky. L. Rep. 757, 10 S. W. 417; May v. Central R. & Blg. Co. 80 Ga. 363, 4 S. E. 330. It is immaterial whether the person injured while trespassing upon railroad tracks be an adult or infant of tender years. The rule applies with equal force in either case and as certainly bars a recovery. Moore v. Pennsylvania R. Co. 99 Pa. 301, 44 Am. Rep. 106; Philadelphia & R. R. Co. v. Hummell, 44 Pa. 375, 84 Am. Dec. 457; Dull v. Cleveland, C. C. & St. L. R. Co. 21 Ind. App. 571, 52 N. E. 1013; Baltimore & 176 U. S. U. S., Book 44. Mr. A. S. Worthington argued the cause and filed a brief for defendant in error: The court did not err in refusing to hold as a matter of law that the plaintiff was bound to exercise the same degree of care and prudence that an adult would have been bound to exercise under like circumstances. Washington & G. R. Co. v. Gladmon, 15 Wall. 401, 21 L. ed. 114; Sioux City & P. R. Co. v. Stout, 17 Wall. 660, 21 L. ed. 748; Metropolitan R. Co. v. Falvey, 5 App. D. C. 176; Reiners v. Washington & G. R. Co. 9 App. D. C. 19; Baltimore & P. R. Co. v. Webster, 6 App. D. C. 182; McMahon v. Northern C. R. Co. 39 Md. 451; Crane Elevator Co. v. Lippert, 24 U. S. App. 186, 63 Fed. Rep. 942, 11 C. C. A. 521; Plumley v. Birge, 124 Mass. 57, 26 Am. Rep. 645. The court did not err in refusing to direct the jury to render a verdict for defendant. Grand Trunk R. Co. v. Ives, 144 U. S. 429, 36 L. ed. 493, 12 Sup. Ct. Rep. 679: Teras & P. R. Co. v. Gentry, 163 U. S. 353, 41 L. ed. 186, 16 Sup. Ct. Rep. 1104. See also Baltimore & P. R. Co. v. Carrington, 3 App. D. C. 112; Baltimore & P. R. Co. v. Webster, 6 App. D. C. 182. The objection as to the variance between the proof and the pleadings was properly overruled, as the differences, if any, "were not of a character which could have misled the defendants at the trial." |