errors of law or fact, to correct them as justice shall appear to require. Acts of Postmaster-General,* 3 Op. Att'y Gen'l, 1.

§ 76. The right of the postmaster-general to review the decisions of his predecessor extends to mistakes in matters of fact arising from errors in calculation, but if a credit has been given or an allowance made by his predecessor, which, in his opinion, was wrongful, he must have suit brought. It is no longer a case between one officer's judgment and that of his successor. United States v. Bank of the Metropolis, 15 Pet., 377.

§ 77. To bind successors. Although postmasters-general have no authority to bind their successors, in matters of purely public concernment, the case is different in respect to transactions with individuals. Their authorized contracts with individuals, when not affected by fraud or material error, are obligatory upon successors, the change of incumbents not in anywise affecting nor impairing the rights of the contractors; but the incapacity to vary the contracts of predecessors in office is occasioned by the obligatory force of the contracts themselves, a force as operative upon the officer who made them as upon his successors, and not because they were made by predecessors. Frauds and material errors, however, may as lawfully be inquired into by successors as by him or them who shall have made the contracts. Acts of Postmasters-General,* 3 Op. Att'y Gen❜l, 1.

§ 78. To contract for postal-cards before appropriations made by congress. The authorization and direction contained in the one hundred and seventieth section of the act of June 8, 1872, chapter 335, to furnish and issue "postal-cards to the public, with postage stamps impressed thereon," is not sufficient to warrant the postmaster-general in making a contract for the same before a specific appropriation by congress has been made, without violating the seventh section of the act of July 12, 1870, which provides that no departnent shall involve the government in any contract for the future payment of money in excess of appropriations for that fiscal year, Postal Cards,* 14 Op. Att'y Gen'l, 107.

§ 79. To allow extra compensation to deputy.— Under the act of June 22, 1854 (10 Stat., 293, 299), authorizing the postmaster-general to allow extra compensation to postmasters in certain cases for extra labor, etc., and the act of July 1, 1864 (13 Stat., 335, sec. 5), providing that the postmaster-general shall allow to the postmaster a just and reasonable sum for the necessary cost, in whole or in part, of rent, fuel, lights,” etc., the allowance of the extra compensation rests in the discretion of the postmaster-general, and the subordinate cannot claim the allowance as a matter of right, nor set up a claim of this nature, once rejected by the postmaster-general, as a set-off in suit by the government on the postmaster's official bond. United States v. Davis, Deady, 294.

§ 80. Under the act of congress of March 3, 1863, which provides, "that whenever, by reason of the presence of a military or naval force near any postoffice, unusual business accrues thereat, the postmaster-general is hereby required to make a special order allowing proportionately reasonable compensation to the postmaster, and for clerical services during the period of such extraordinary business; " the postmaster-general is the sole judge to determine not only whether the exigencies in the case have arisen, but if they have, the manner and extent of the allowance; and it is not competent for court or jury to revise his decision, nor is it re-examinable anywhere else. So held, where, in an action against the principal and his sureties on a postmaster's bond, a set-off was claimed on account of extra and unusual business occasioned by "the presence of a military force,” which claim, upon presentation to the postmaster-general, had been disallowed. United States v. Wright, 11 Wall., 648.

§ 81. Re-adjustment of deputy's salary.— After a salary of a postmaster has been fixed it cannot be increased under the act of June 12, 1866, and prior acts, until re-adjusted by the postmaster-general, such re-adjustment being based upon the postmaster's quarterly returns. The re-adjustment is an executive act made necessary by the law in order to perfect any liability of the government. Hence, although the quarterly returns of a postmaster may warrant a re-adjustment of his salary, if the executive officer fails to do his duty by not making it, the government is not bound to pay an increased salary, as the courts cannot enforce rights which are dependent for their existence upon a prior performance, by an executive officer, of duties which he has failed to perform. United States v. McLean, 5 Otto, 750. ·

SS2. Performance of ministerial duties may be compelled by mandamus.—The postmaster-general may be compelled by mandamus to perform a duty merely ministerial in its character, enjoined upon him by an act of congress, and as to which he has no discretion. So held where the postmaster-general refused to carry to the credit of S. & S., certain mail contractors, amounts allowed by the solicitor of the treasury, who had been appointed to settle and adjust the claims of such contractors by congress, which at the same time directed the postmaster-general to credit S. & S. with whatever sum the solicitor should decide to be due them. Kendall v. United States, 12 Pet., 524.

§ 83. The circuit court of the District of Columbia has authority to issue a mandamus to the postmaster-general, commanding him to perform a ministerial duty required by an act of

congress, in which the right of an individual is concerned, if that right is clear and he has no other legal specific remedy. United States v. Kendall, 5 Cr. C. C., 163.

§ 84. Discretionary acts not subject to revision.— The sufficiency of excuses for failures in the delivery of the mails is by the regulations of the department submitted to the discretion of the postmaster-general, and the court of claims has no revisory power over decisions made in the exercise of such discretion. Buckles v. United States,* 20 Law Rep., 630.

§ 85. Liability of. A public officer, acting from a sense of duty in a matter where he is required to exercise discretion, is not liable to an action for an error of judgment. Accordingly, where a postmaster-general wrongfully, although in the conscientious discharge of his supposed duty, suspended on the books of the postoffice department credits which had been entered by his predecessor in favor of certain parties, whereby injury resulted to those parties, held, that he was not personally liable. Kendall v. Stokes, 3 How., 87.

III. POSTMASTERS.

SUMMARY - Marks on newspaper; letter postage, §§ 86-88.

§ 86. The thirteenth section of the act of 1825 (4 Stat. at L., 105), provides that "any memorandum which shall be written on a newspaper or other printed paper, pamphlet or magazine, and transmitted by mail, shall be charged with letter postage." The thirtieth section of the same act, providing a penalty for writing on a newspaper, etc., uses the terms "any writing or memorandum." Held, that a single letter or initial upon the wrapper of a newspaper is neither a memorandum nor a writing, within the meaning of the above act, and that a postmaster is not authorized to detain a paper thus marked, although a circular from the postoffice department relating to the same subject contains the terms, "marks or signs made in any way." Teal v. Felton, §§ 89-93.

§ 87. The postal act of 1825, authorizing postmasters to hold papers having "any writing or memorandum" upon them, reposes in postmasters no discretionary or judicial powers, and the act of a postmaster in arresting the transmission of a paper because of a letter or initial written upon it is purely ministerial, and he can claim no exemption from liability for his illegal detention on the ground that he was called upon to exercise discretion and judgment. Ibid.

§ SS. If a person tender to the postmaster the legal postage on mail matter addressed to him, and the postmaster refuses to deliver it, such unlawful detention amounts to conversion, for which trover will lie. Ibid.

[NOTES.-See SS 94-140.]

TEAL v. FELTON.

(12 Howard, 284-293. 1851.)

Opinion by MR. JUSTICE WAYNE.

STATEMENT OF FACTS.- This suit was brought in a justice's court to recover from the plaintiff in error the value of a newspaper, received by him as postmaster at Syracuse, which he refused to deliver to the defendant in error, to whom it was addressed. The plaintiff in error had charged the newspaper with letter postage, on account of a letter or initial upon the wrapper of it, distinct from the direction. This the defendant refused to pay, at the same time tendering the lawful postage of a newspaper. The postmaster would not receive it, and retained the paper against the will of the defendant; upon that demand and refusal the suit was brought. The action was trover, and the general issue was pleaded. In the course of the trial, when the defendant in error, who was plaintiff in the suit below, was introducing testimony in support of his case, the defendant objected to a further examination of the case by witnesses, upon the ground that the court had not jurisdiction of the The objection having been overruled, the trial of the case was continued; and after the plaintiff had proved that he demanded from the defendant the newspaper, tendering the lawful postage, and that the postmaster refused to deliver it to him, he rested his case.

case.

§ 89. Where the decision of the state court necessarily involves a denial of a defense claimed under a law of the United States, the supreme court has jurisdiction on writ of error under the twenty-fifth section of the judiciary act of 1789.

The defendant below then moved for a nonsuit, which having been denied, he offered in evidence a circular from the postoffice department, of the 4th December, 1846, marked in the record as A, and also the postoffice act of 1845. The case was submitted to a jury. A verdict was rendered by it against the defendant, upon which a judgment was entered. The defendant carried the case to the court of appeals, and the judgment of the lower court was affirmed. It is brought to this court by a writ of error. As the court of appeals could not have adjudicated the case without having denied to the defendant a defense which he claimed under a law of the United States, the case is properly here under the twenty-fifth section of the judiciary act of 1789.

The circular from the postoffice department is as follows: "The wrappers of all such newspapers, pamphlets and magazines, when they have reached their destination, should be carefully removed; and if, upon inspection, they are found to contain any manuscript or memorandum of any kind, either written or stamped, or by marks or signs made in any way, either upon any newspaper, etc., etc., or the wrapper upon which it is inclosed, by which information shall be asked or communicated, except the name of the person to whom it is directed, such newspaper, etc., etc., with the wrapper in which it is inclosed, shall be charged with letter postage by weight."

If the person to whom the newspaper is directed refuses to pay the letter postage, the postmaster is directed to transmit the same to the office whence. it came, with a request that the person who sent it may be prosecuted for the penalty of $5, according to the thirtieth section of the act of 1825. Those parts of the thirtieth section mentioned, upon which the circular was issued, and of the thirteenth section of the act directing that a memorandum which shall be written on a newspaper shall be charged with letter postage, are: "If any person shall inclose or conceal a letter or other thing, or any memorandum in writing in a newspaper, pamphlet or magazine, or in any package of newspapers, etc., etc., or make any writing or memorandum thereon, which he shall have delivered in any postoffice or to any person for that purpose, in order that the same may be carried by post, free of letter postage, he shall forfeit the sum of $5 for every such offense, and the letter, newspaper, package, memorandum or other thing shall not be delivered to the person to whom it is directed until the amount of single letter postage is paid for each article. of which the package is composed." That part of the thirteenth section of the act mentioned is: "Any memorandum which shall be written on a newspaper or other printed paper, pamphlet or magazine, and transmitted by mail, shall be charged with letter postage." 4 Laws of the United States, 105-111. Those parts of the law of 1845, in a way applicable to this case, are the first and second sections fixing the rates of postage upon letters and newspapers, and the sixteenth section, which defines a newspaper to be a printed publication issued in numbers, consisting of not more than two sheets, and published at short intervals of not more than a month, conveying intelligence of passing events, and the bona fide extras and supplements of any such publication. 5 U. S. L., 732, 737.

§ 90. A single letter on a wrapper is not "any writing or memorandum” within the postal act of 1825.

From the evidence in this case, we do not think that the initial or letter

upon the wrapper of the newspaper in this case, subjected it either under the thirteenth or thirtieth section of the act of 1825 to letter postage. Why it was placed there, supposing it not to have been accidental, cannot be found out from this record, and it must have been a meaningless mark to the postmaster. It may have excited a suspicion that it was a sign arranged between the person sending it and the person to whom it was directed, to convey information of some sort or other, for which letter postage would have been charged if it had been conveyed in words. The acts forbids a memorandum in the thirteenth section; and in the thirtieth, providing for a penalty, the terms are, "any writing or memorandum," but in neither are found the terms "marks or signs," as used in the circular. No provision is made for such a case. It must be obvious, too, that frauds of that kind cannot be prevented in the transmission of newspapers, without legislation by congress subjecting newspapers, conveyed by mail, to letter postage, whenever there shall be, either upon the newspaper or the wrapper of it, any letter, sign or mark, besides the address of the person to whom it is sent. A single letter or initial upon the wrapper of a newspaper is neither a memorandum nor a writing, in the sense in which either of those terms are ordinarily used, or as we think they are intended to be used, in the thirtieth section of the act. Both mean something in words to convey intelligence, a remembrance for one's self or to another. The act speaks of something concealed in a newspaper or package of newspapers, of a writing or memorandum, from which it may be seen to have been the intention of the sender to convey information clandestinely under the wrapper, or upon it in a form, though not disclosing what it is, which will leave no doubt of his intention.

§ 91. The postal act of 1825, authorizing postmasters to hold papers with "any writing or memorandum," reposed in them no discretion to determine that a single letter was such.

The initial in this case does not seem to have been one or the other. It is not a memorandum certainly, and a single letter of the alphabet can convey no other idea than that it belongs to it, unless it is used numerically. This was not a case in which judgment could be used to determine any fact, except by some other evidence than the letter itself. Nor was it one calling for discretion, in the legal acceptation of that term, in respect to officers who are called upon to discharge public duties. What was done by the postmaster was a mere act of his own, and ministerial, as that is understood to be, distinct from judicial. It could not have been the intention of congress to put it in the power of postmasters, upon a mere suspicion raised by a single letter or initial, to arrest the transmission of newspapers from the presses issuing them, or when they were mailed by private hands.

This view of the law disposes also of that point in the argument, claiming for the postmaster an exemption from the suit of the plaintiff, upon the ground that he was called upon, in the act which he did, to exercise discretion and judgment. In Kendall v. Stokes, 3 How., 97, 98, will be found this court's exposition upon that subject, with the leading authorities in support of it. The difference between the two must at all times be determined by the law under which an officer is called upon to act, and by the character of the act. It is the law which gives the justification, and nothing less than the law can give irresponsibility to the officer, although he may be acting in good faith under the instructions of his superior of the department to which be belongs. Here the instructions exceed the law, as marks and signs, of themselves, without

some knowledge of their meaning, and the intention in the use of them, are, as we have said, neither memoranda nor writings. Tracy v. Swartwout, 10 Pet., 80.

But it is said that the courts of New York had not jurisdiction to try the case. The objection may be better answered by reference to the laws of the United States, in respect to the services to be rendered in the transmission of letters and newspapers by mail, and by the constitution of the United States, than it can by any general reasoning upon the concurrent civil jurisdiction of the courts of the United States, and the courts of the states, or concerning the exclusive jurisdiction given by the constitution to the former.

§ 92. Where a person tenders to the postmaster the legal postage on mail matter addressed to him, and the postmaster refuses to deliver it, this is a conversion, and suit may be brought.

The United States undertakes, at fixed rates of postage, to convey letters and newspapers for those to whom they are directed, and the postage may be prepaid by the sender, or be paid when either reach their destination, by the person to whom they are addressed. When tendered by the latter, or by his agent, he has the right to the immediate possession of them, though he has not had before the actual possession. If, then, they be wrongfully withheld for a charge of unlawful postage, it is a conversion, for which suit may be brought.

$ 93. in trover.

and such suit may be brought in a state court having jurisdiction

His right to sue existing, he may sue in any court having civil jurisdiction of such a case, unless for some cause the suit brought is an exception to the general jurisdiction of the court. Now the courts in New York, having jurisdiction in trover, the case in hand can only be excepted from it by such a case as this having been made one of exclusive jurisdiction in the courts of the United States by the constitution of the United States. That such is not the case, we cannot express our view better than Mr. Justice Wright has done in his opinion in this case in the court of appeals. After citing the second section of the third article of the constitution, he adds: "This is a mere grant of jurisdiction to the federal courts, and limits the extent of their power, but without words of exclusion or any attempt to oust the state courts of concurrent jurisdiction in any of the specified cases in which concurrent jurisdiction existed prior to the adoption of the constitution. The apparent object was not to curtail the powers of the state courts, but to define the limits of those granted to the federal judiciary." We will add that the legislation of congress, immediately after the constitution was carried into operation, confirms the conclusion of the learned judge. We find, in the twenty-fifth section of the judiciary act of 1789, under which this case is before us, that such a concurrent jurisdiction in the courts of the states and of the United States was contemplated, for its first provision is for a review of cases adjudicated in the former, "where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity." We are satisfied that this was no error in the decision of the court of appeals in this case, and the same is affirmed by this court.

§ 94. In general.- The mere neglect of a postmaster to reasonably forward a letter does not create a cause of action. The plaintiff must show that damage has been sustained by him by reason of such neglect. Dunlop v. Munroe,* 7 Cr., 242.