them as if that record had been duly certified to us by the clerk of the circuit court of appeals. The applications for certiorari are denied. on which the appeals mentioned in the petitions were heard and submitted to and decided by said circuit court of appeals. The clerk of the circuit court of appeals has certified the transcript of the record and proceedings in that court, "except the transeripts from the circuit court, and except [220]*also the printed briefs of counsel filed in my ELLIS H. ROBERTS, Treasurer of the office in said causes." It appears that the United States, Petitioner, v. ENTINE. (See S. C. Reporter's ed. 219-221.) Board of audit certificates of District of Columbia-redemption of, by payment of judgment-assignee of mandamus--ministerial act-construction of statute by officer. was duly certified by the clerk of the circuit UNITED STATES ex rel. MARIE A. VALcourt, was filed in the circuit court of appeals, and thereafter was printed under the supervision, direction, and control of the clerk of the circuit court of appeals under and pursuant to the rules of that court, and that after the decision of the cases there, which had been heard and decided on one record, petitioners requested the clerk to certify, for the purpose of these applications, the transcript so printed under his supervision without requiring petitioners to pay the entire cost of a reproduction of the same in manuscript, but that the clerk refused to make any deduction by reason of the premises, and insisted that he had no power or authority so to do. Under the third subdivision of rule 37 of this court, where application is made for certiorari under § 6 of the judiciary act of March 3, 1891, it is provided that a certified copy of the entire record of the case in the circuit court of appeals shall be furnished to this court by the applicant, as part of the application.' The table of fees and costs in the circuit court of appeals, established by this court in pursuance of the act of Congress of February 19, 1897 (169 U. S. 740, 42 L. ed. 1224, Appx. IV, 18 Sup. Ct. Rep. XLIX.) provides that the clerks of the circuit courts of appeals may charge, among other items, for: The record in these cases having been prepared for the printer, indexed, the printing supervised, and copies thereof distributed by the clerk of the circuit court of appeals, and the clerk having been paid therefor, we are [221]of opinion that our rule would have been fully complied with by the certificate of that clerk to one of the printed copies which he had so prepared, indexed, supervised, and distributed, and which he therefore knew was an accurate transcript of the record from the circuit court; and, as it is shown, and is not denied, that the printed copies furnished us are in fact correct copies of the circuit court record, we have treated 1. 2. 3. 4. Certificates of the board of audit of the District of Columbia, issued pursuant to the act of Congress of June 20, 1874, § 6, were redeemed, within the meaning of the act of August 13, 1894, providing for the payment of additional interest thereon, when a judg ment of the court of claims based solely on such instruments was paid by the Treasurer of the United States. A judgment roll of record in the court of claims, showing precisely the claim for which the judgment was recovered, is record evidence to the Treasurer of the United States, when he pays the judgment, that he has paid the claim for which it was rendered. Assignees of audit certificates, who are entitled under the act of Congress of August 13, 1894, to a residue of unpaid legal interest thereon, include an assignee who became such after the payment of the certificates. The duty of the Treasurer of the United States to pay interest on audit certificates pursuant to the act of Congress of August 13, 1894, is plain, imperative, and entirely ministerial, and therefore may be enforced by mandamus, although it requires in some degree a construction of a statute by the officer. [No. 86.] Argued December 15, 1899. Decided Febru N WRIT OF CERTIORARI to the Court to review a decision affirming a judgment of the Supreme Court of the District ordering a writ of mandamus to the Treasurer of the United States. Affirmed. See same case below, 13 App. D. C. 38. The facts are stated in the opinion. Mr. Robert A. Howard argued the cause and, with Solicitor General John K. Richards, filed a brief for petitioner. Mr. B. E. Valentine argued the cause and filed a brief for respondent. Contentions of counsel sufficiently appear in the opinion. *Mr. Justice Peckham delivered the opin-[228] ion of the court: A writ of certiorari was issued in this case to the court of appeals of the District 222-224 July 5, 1884 (23 Stat. at L. 123, 131, chap. of Columbia, for the purpose of reviewing a The facts upon which the controversy arises are uncontradicted, and are as follows: One Charles E. Evans, who, previous In June, 1890, a settlement of that action to 1874, had done a large amount of work for the District in laying concrete and brick was agreed upon, by the terms of which the pavements in the city of Washington, duly two certificates were to be delivered to the presented his claims on that account to the plaintiffs, and the other matters in dispute board of audit constituted under the act therein were to be withdrawn from the court above mentioned, which board, after an ex- by the discontinuance of the action. Pursu amination of such claims, executed on the 1st ant to that settlement and on June 9, 1890, of August, 1874, the two certificates which under the advice of the Assistant Attorney form the basis of the claim of the relator, General in charge of the case, the certificates were delivered to the plaintiff's attorney,[224] each certificate being dated on that day, one of which acknowledged an indebtedness to who thereupon presented them to the Treashim on the part of the District of Columbia urer and requested him, in his capacity as of $19,616.25 and the other $909.40. They ex officio conmissioner of the sinking fund of were not, however, delivered to Evans, be the District of Columbia, to issue in excause at the time they were made a claim change for them the 3.65 bonds authorized had been set up by the authorities of the Dis- by the act of Congress of 1874. The Treas trict that Evans was liable for the expense urer refused to redeem the certificates or to of repairs which were needed on pavements issue bonds for the payment thereof, or in laid by him (which claim, however, as it any way to pay the same, until the parties afterwards appeared, was not well founded), had obtained a judgment in the court of and the board of audit, instead of deliver-claims in the action already mentioned, ing the certificates to Evans, withheld them from him, and at or about their date delivered them to the commissioners of the District, who held them as collateral security for the payment of any liability of Evans for the repairs mentioned. They remained from August, 1874, until June 9, 1890, in a [223]*tin box in the office of the Treasurer of the United States, who held it and its contents subject to the control of the commissioners of the District. By reason of this refusal to deliver the certificates and their retention in the hands of the Treasurer. Evans was unable to avail himself of the right given by the act of 1874 to exchange such certificates for the 3.65 bonds mentioned in that act, and for the same reason he was unable to avail himself of the provisions of 9 of the act approved June 16, 1880 (21 Stat. at L. 284, chap. 243), providing for the redemption of the certificates created by the act of 1874. An action was therefore commenced in December, 1880, in the court of claims by the assignee of Evans to recover judgment against the District of Columbia upon those certificates, under the provisions of § 1 of the above act of 1880. In this action, in addition to the claims upon the certificates already mentioned, Fisher, the assignee, included a large amount of other claims against the District, which had also been assigned to him by Ev ans. In 1884, Congress passed an act, approved which should provide for their payment. 176 U. S. been caused by their retention as above | stated and by the refusal of the Treasurer to deliver them to their owner. On August 13, 1894, Congress passed an act (28 Stat. at L. 277, chap. 279), the first section of which reads as follows: "That the Treasurer of the United States is hereby directed to pay to the owners, hold[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 annum 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." 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 court, which ordered a writ of mandamus to 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 The relator as assignee, by her attorney, will be seen that the facts upon which he made demand upon the Treasurer for the bases his defense are that he did not redeem payment of the balance of the interest as the certificates in question, and that the only provided for in the above act, and on Novem-moneys paid by any Treasurer of the United ber 3, 1897, the Treasurer refused such de- States were paid on this judgment of the mand, and wrote the following letter to the court of claims already mentioned, and that attorney: it did not appear in any official record in his office upon what claim or claims the judg ment of the court of claims was based. 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. In answer to the petition the Treasurer alleged "that the certain board of audit certificates, so called, in the said petition mentioned, namely, the certificates numbered 8879 and 19,429, were not redeemed by him [226]or any person holding the office of Treas urer of the United States at any time, and that the only moneys paid by any Treasurer of the United States on account of any of the matters or things in the said petition mentioned as having relation to the said certificates, or either of them, were paid upon certain judgments of the court of claims of the United States, as appears by the transcript from the records of the Treasury Department 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 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 certificates were issued under the act of 1874, duly signed by the board of audit therein provided for, and delivered (without the consent of Evans) to the authorities of the District upon their unfounded claim that they were entitled to their possession as collateral security as already stated. It is not disputed that an action was commenced in the court of claims under the act of 1880 to recover against the District of Columbia upon the certificates, as well as upon other claims against the District. It is not disputed that upon a compromise made, all other causes of action were stricken from the petition, that the petition as amended contained 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. 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 roll,[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 Treas urer 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. But 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 ar gued 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 altodifferent. 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 redeemed by the Treasurer, the additional interest was to be paid, and we cannot doubt that under this act the certificates were redeemed when paid by the Treasurer by virtue of the judgment which had been recovered 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 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 objecwrit 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 no mandamus can be issued against him. The writ was refused in the Black Case, because, as the court held, the decision which was demanded from the Commissioner of In this case the facts are quite different. 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. 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 performance of their duties, whenever they 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 construc tion 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[238] 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. 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. 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 judg ment 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 Februform, then that act is ministerial, although depending upon a statute which requires, in some degree, a construction of its language [No. 87.] ary 5, 1900. by the officer. Unless this be so, the valueON WRIT OF ERROR to the Court of Ap peals of the District of Columbia affirmof this writ is very greatly impaired. Everying a judgment of the Supreme Court in faexecutive officer whose duty is plainly de- NOTE.-A8 to duty of railroad companies tovolved upon him by statute might refuse towards persons or trespassers on their tracks, perform it, and when his refusal is brought see note to Mitchell v. New York, L. E. & W. before the court he might successfully plead R. Co. 36 L. ed. U. S. 1064. |