(dissenting).
If we had the right to act in this case, I’ would agree with the conclusion of the majority. I do not think a right of action within the jurisdiction of the District Court is stated. We do not come to the Tucker Act until we first have a right of action against the Government for the vindication of which the sovereign has given its consent to be sued. Section 300 of Title 39 U.S.C.A. gives no such right of action against the United States. It simply provides that whenever it is shown to the satisfaction of the Postmaster General that any postage, among other things, is collected in excess of the lawful rate, he may in his discretion authorize a refund. Congress did not provide for judicial review. On the contrary, it left the decision to the discretion of the Postmaster General. It is his discretion and not ours that has received the sanction of Congress. The Postmaster General has decided against the appellees. That exhausts their remedy. No resort to the courts is authorized. If we undertook to review the action of the Postmaster General, the statutory provision placing the decision in him at his discretion would be nullified, and the decision would be in our discretion.
The right to review the action of the Postmaster General under Section 300 was attempted in a recent case before the Court of Claims in Montgomery Ward, etc., v. United States, 94 Ct.Cl. 309, and denied by that court. In that case the court said:
“We see nothing in the statute that in the first instance creates the right to sue. The right of action, we think, exists only when the Postmaster General has been satisfied that the requirements of the statute have been met, and this, under the terms of the statute, depends entirely upon the discretion of the Postmaster General. * * *
“There is a special feature in the instant case not found in any of the cases cited, which is decisive in favor of the defendant. The statute upon which the claim is based provides for payment only when the Postmaster General in his discretion authorized it to be made. It is well settled that where a special remedy is provided by the statute creating a right, that special remedy is exclusive, and where the statutory benefit is allowed only in the discretion of an administrative officer, his decision is final and the courts will not review it. See Williamsport Wire Rope Co. v. United States, 277 U.S. 551 [48 S.Ct. 587, 72 L.Ed. 985]; John B. Kelly, Inc., v. United States 87 Ct.Cl. 271; Dismuke v. United States, 297 U.S. 167 [56 S.Ct. 400, 80 L.Ed. 561].”
This seems to me to be the proper construction of the statute, and for this reason I would reverse the judgment of the District Court.