The opinion of the court was delivered by: BYERS
This is a motion for judgment dismissing the plaintiff's complaint (petition) under New York Rules of Civil Practice, rule 106, because (1) it appears from the face of the pleading that the court lacks jurisdiction of the subject-matter, and (2) that no cause of action is stated against the defendant.
The notice of motion asserts a special appearance for the purpose of the motion only.
In effect, the defendant offers what would have been called a demurrer under earlier practice, but why that must be poised upon a special appearance where lack of jurisdiction over the person is not relied upon is not made to appear.
If the defendant's contentions are sound, it would seem that his arguments must proceed from a general appearance, and his presence in court will be so construed in order that there may be a determination of the questions which he has presented.
The plaintiff is a civil service employee; namely, a substitute letter-carrier, and has been since September, 1927. He performed 49 hours of labor between April 1st and 15th, 1933, and the compensation fixed by Congress in 1925 was at the rate of 65 cents per hour, which would have entitled him to receive, after certain deductions not now important, the sum of $30.84.
He was offered and declined to accept, in lieu thereof, $26.07, which is said to be 15% less than the sum to which he was entitled.
It is conceded that the reason for this is the so-called "Economy Act" of Congress, being Public Act No. 2 of the 73rd Congress, approved March 20, 1933 (see 5 USCA § 673 note), providing generally for the reduction of Federal employees' salaries, and the Executive Order dated March 28, 1933, declaring the said reductions effective, for reasons therein stated.
The enactment affected salaries and compensation of Federal employees for the fiscal year to end June 30, 1934, and superseded Public Act No. 428 of the 72nd Congress, approved March 3, 1933 (see 5 USCA § 673 note), intended to have a like scope; the latter provided for a reduction in salaries and compensation, but excluded from its operation those employees in receipt of less than $1,000.00 per year, or $83.33 per month. The plaintiff is in that category.
The theory of the action is that the "Economy Act" of the present Congress is unconstitutional and that the defendant, as acting postmaster, should have disregarded it for that reason, and have paid to the plaintiff, for his said services, the said sum which he would have received under the Public Act No. 506 of the 68th Congress (Act Feb. 28, 1925 [43 Stat. 1053]).
It should be stated that, under the "Economy Act", there is no exception recognized in favor of employees receiving less than $1,000.00 per year.
It will be seen that the plaintiff asserts that the defendant should be held at fault, not because he has failed to perform a ministerial duty in obedience to the clear mandate of the law, but because he has not construed the "Economy Act" to be unconstitutional, as the plaintiff thinks he should, and then proceeded to do something that an earlier law would have required.
In other words, the plaintiff seeks to mandamus the defendant into performing the judicial function of construing this Act as the plaintiff would have it construed, for that is the prayer of the petition.
That this court has no original jurisdiction to issue the writ of mandamus as an end in itself, appears alike from the statute conferring the power to issue writs, section 262, Judicial Code (28 USCA § 377), and from the cases in which the question has been examined. White v. County Democratic Executive Committee (D.C.) 60 F.2d 973, at page ...