delivered the opinion of the Court:
Our view of the question raised by the appellant on the effect of the dismissal of the petition as to the Secretary of the Interior, in the judgment appealed from, renders it unnecessary, if not improper, to express an opinion in respect of the rights of the relator, or the powers and duties of the Commissioner of Pensions, under the facts disclosed in the petition and return as stated above.
The Pension Office is a division or bureau of the Department of the Interior, and tbe Commissioner is required to perform his duties “ under the direction of the Secretary of the Interior.” P. S., Sec. 411.
*205Now whether, under some of the many subsequent acts and amendments of acts relating to pensions, he may be charged with certain plain, ministerial duties, the refusal to perform which would, without appeal to the Secretary for relief, subject him to the writ of mandamus at the suit of the aggrieved party, is also a question that is not necessary to be considered.
In accordance with what has, apparently, been the general practice in the Department, the relator did appeal to the Secretary from the refusal of the Commissioner to order the payment of the fee claimed in this case, and, as shown by the recitals of his petition, the action of the Commissioner was affirmed or approved.
A failure to exercise this right of appeal to the Secretary would of itself, apparently, be an effectual answer to a petition for a mandamus to the Commissioner alone. Lochren v. Long, 6 App. D. C. 486, 506.
Now, whilst the Commissioner might recall or change his own order or decision made in a particular case where no appeal has been taken, and take action accordingly, he loses that power when the order or decision has, through appeal, become that of his superior officer. It then becomes an order or direction to the Commissioner which he is bound to obey until recalled by the superior authority.
Nor this reason the Secretary of the Interior was properly made a party to the suit. He was a necessary party because the principal relief was necessarily against him. Belief against the Commissioner is merely incidental to that sought against the Secretary, because he is the agency through whom the Secretary would be compelled to act in the event of the issue of the writ.
We are not advised upon what special ground the petition was denied as against the Secretary, and sustained as to the Commissioner, but whatever it may have been, the relator acquiesced in the judgment that was rendered and is bound by its conditions.
The Secretary of the Interior being then, as we have seen, the principal party to the action, against whom, primarily, relief is sought, the inevitable effect of his dismissal there*206from must be to carry with it the merely incidental relief sought against his subordinate, the Commissioner of Pensions. Warner Valley Stock Co. v. Smith, 165 U. S. 28, 34.
In that case a bill had been filed against the Secretary of the Interior and the Commissioner of the Land Office to enjoin them from the exercise of further jurisdiction over, and from trespassing upon, certain public lands claimed by the plaintiff; and to compel the preparation and delivery to plaintiff of patents therefor. The Land Office is also a division of the Interior Department, and is under the immediate charge of a Commissioner who, like the Commissioner of Pensions, is charged with the performance of duties “ under the direction of the Secretary of the Interior.”
The bill was dismissed in the Supreme Court of the District, whose decree was affirmed by this court.
Whilst depending on appeal to the Supreme Court of the United States, Secretary Smith retired from office. The court, in accordance with its uniform practice in such cases, refused to permit his successor to be made a party, and entered a decree reversing the decree appealed from and directing the bill to be dismissed for want of proper parties. The reason for this action is thus stated: “As against the Commissioner of the General Land Office, the bill does not strictly abate, as upon the disappearance, by death or resignation, of the sole defendant in an action the cause of which does not survive against representatives or successors. But the bill can not be maintained against the Commissioner, because it shows no ground for relief against him alone, and the Secretary of the Interior is not and can not now be made a party.” Whilst that was a suit in equity for an injunction both preventive and mandatory, the governing principle of its decision is equally applicable in the case at bar.
Por the reasons given, the judgment appealed from will be reversed with costs, and the cause remanded with directions to dismiss the. petition as against the appellant. It is so ordered. - Reversed.