United States ex Rel. Boynton v. Blaine
139 U.S. 306 (1891)

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U.S. Supreme Court

United States ex Rel. Boynton v. Blaine, 139 U.S. 306 (1891)

United States ex Rel. Boynton v. Blaine

No. 1149

Argued March 5-6, 1891

Decided March 23, 1891

139 U.S. 306

Syllabus

The writ of mandamus cannot issue in a case where its effect is to direct or control the head of an executive department in the discharge of an executive duty, involving the exercise of judgment or discretion.

When a mere ministerial duty is imposed upon the executive officers of the government -- that is, a service which they are bound to perform without further question -- then if they refuse, the mandamus may be issued to compel them.

Page 139 U. S. 307

A writ of mandamus confers no new authority, and the party to be coerced must have the power to perform the act.

The Act of June 18, 1878, 20 Stat. 124, c. 262, subjects specifically the payment of the Weil and La Abra awards under the Mexican Claims Commission of July 4, 1868, 15 Stat. 679, to the control of the President, and the subject being thus confided to his judgment and discretion, mandamus will not lie to compel their payment.

Frelinghuysen v. Key,110 U. S. 63, affirmed and applied.

Sylvanus C. Boynton filed his petition in the Supreme Court of the District of Columbia, November 23, 1889, against the Secretary of State, for a mandamus to compel him to pay the petitioner, as assignee of one Weil, certain moneys in respect of a claim allowed under the convention between the United States and Mexico for the adjudication of claims of citizens of either country upon the government of the other, of July 4, 1868, 15 Stat. 679. The petition set forth from Art. II of the treaty this clause:

"The President of the United States of America and the President of the Mexican Republic hereby solemnly and sincerely engage to consider the decision of the commissioners conjointly or of the umpire, as the case may be, as absolutely final and conclusive upon each claim decided upon by them or him respectively, and to give full effect to such decisions without any objection, evasion, or delay whatsoever,"

and also Art. V, as follows:

"The high contracting parties agree to consider the result of the proceedings of this commission as a full, perfect, and final settlement of every claim upon either government arising out of any transaction of a date prior to the exchange of the ratifications of the present convention, and further engage that every such claim, whether or not the same may have been presented to the notice of, made, preferred, or laid before the said commission, shall, from and after the conclusion of the proceedings of the said commission, be considered and treated as finally settled, barred, and thenceforth inadmissible."

The petition averred that it was stipulated that if the aggregate of claims allowed on one side exceeded the aggregate of those allowed on the other, the balance should be paid by the government against whom it so resulted in equal annual installments, and that

"the government so receiving such balance

Page 139 U. S. 308

undertook to make distribution and payment pro rata to the claimants in whose favor awards had been made."

The petition then stated the sum total of the awards, the balance to be paid over by Mexico to the United States, the payments made by Mexico, the final installment still remaining due, and an amount remaining undistributed in the State Department paid by Mexico on awards as to the claims of Benjamin Weil and La Abra Silver Mining Company. It was further alleged that the commissioners failed to agree as to the claim of Benjamin Weil, which was referred to an umpire, who heard the case on the proofs submitted, and made an award in favor of Weil, which, "together with all the other findings and proceedings of the commission," was duly reported to and filed in the State Department, and thereupon the said award became final and conclusive under the clause of the treaty hereinbefore recited. Petitioner further averred that on November 5, 1875, a part of the award made in favor of Weil was assigned to him by an instrument in writing, which, soon after its execution, was filed in the State Department, where it still remained, and that the Secretary of State paid to petitioner on August 16, 1880, and March 8, 1881, certain sums applicable to the award in favor of Weil, leaving a balance due.

The petition then showed that on the 13th of July, 1882, on a complaint by Mexico that the award in favor of Weil was made on a false and fraudulent claim, a convention was negotiated and signed with that government, which recited that the President, after considering the circumstances of the case, and in view of the statute of June 18, 1878, being of opinion that the cases of Weil and La Abra Company should be reopened and retried, had concluded the convention with the President of Mexico for that purpose, which convention was, on the 26th day of July, 1882, submitted by the President in a special message to the Senate of the United States for its constitutional assent and concurrence, and that, while it was pending in the Senate, one Key, an assignee of a portion of the award in favor of Weil, instituted a proceeding in the Supreme Court of the District of Columbia for a writ of

Page 139 U. S. 309

mandamus on the Secretary of State, and a peremptory writ was granted, but the Secretary of State appealed to the Supreme Court of the United States, which pronounced its decision January 7, 1884, reversing the judgment of the court below, and denying the mandamus, "as will appear by reference to the case of Frelinghuysen v. Key, reported vol. 110 U.S. Reports, page 63."

The petitioner then gave his view of the decision of the Supreme Court of the United States, and said that the Senate of the United States had notice of it and of the grounds and reasoning on which the court reached its conclusions, but after due consideration and full deliberation, on April 21, 1886,

"refused to assent to and concur in the said convention of July 13, 1882, less than two-thirds of the senators present voting in favor thereof, and a quorum of the senators being present,"

and he contended that this made it certain that the Senate

"held that there was no sufficient ground, reason, or cause for excepting the said award made in favor of the said Weil from the per action of the finality clause of the treaty of July 4, 1868, or for repealing or rendering that clause inoperative as to the said award."

But petitioner said that nevertheless, the Secretary of State refused to make distribution and payment to the said Weil and his representatives or assigns "of their distributive shares of the moneys now lying in the State Department, and due to him or them as aforesaid," and on November 20, 1889, in response to a written demand therefor, replied "that, for causes deemed lawful and sufficient," he was unable to comply therewith. Finally, petitioner averred that the moneys paid into the Department of State in respect of the Weil award were so paid in trust to distribute and pay the same to Weil or his representatives or assigns in satisfaction of his original claim against Mexico. Petitioner thereupon prayed for process, and that a peremptory writ of mandamus be granted upon hearing.

A rule to show cause having been entered, the Secretary of State answered, stating, among other things, the amount that would be paid to relator

"if the President of the United States, in whose control is the said undistributed balance, should determine

Page 139 U. S. 310

that it is not inconsistent with the public interests to pay the same, or so much thereof as would be ratably payable to the said Boynton,"

but saying

"that the President of the United States had forbidden the payment of any part of the said net balance, on the ground hereinafter stated, and that for that reason no scheme of distribution of the said net balance has been made."

The answer then alleged that the money paid by Mexico became, upon receipt, the money of the United States, and not in any way subject to the demand or control of the original claimants, who were not recognized by the said commission, the only parties to which and who appeared before the commission being the governments of the United States and the Republic of Mexico, each represented by one person, in virtue of Article II of the treaty.

It was further stated that the allegation of the petition that the United States was under some obligation "to make distribution and payment pro rata to the claimants in whose favor awards had been made" was not founded on any provision of the said treaty, and further that the United States was

"invested with the entire control of said claims to enable it to discharge any international duty that may attach thereto or to any part thereof, and that if the President of the United States has probable cause to think that good faith toward the Republic of Mexico and a proper regard for the honor of the United States require that any part of the money so paid by the Republic of Mexico should be with held from distribution, this respondent is advised that it is the duty of the President to withhold payment of the same until a proper investigation can be had, and this respondent, answering, saith that so it is that grave charges and representations impeaching the integrity of the evidence on which the award in the case of said Weil was made have been brought to the notice of the government of the United States in a way to command its earnest attention, and that it is the desire of the President to have the said charges and representations investigated so soon as the Congress shall have provided the means for doing so."

The answer also averred that a bill had been reported to the Senate on June 20, 1888, "to provide for the desired

Page 139 U. S. 311

investigation by investing the Supreme Court of the District of Columbia with jurisdiction over the subject," that

"while the said charges and representations are pending, the President of the United States hath concluded that payment of the money now demanded by the relator should be withheld,"

and that the course thus taken by the President was in harmony with § 5 of the Act of June 18, 1878.

The inference set up in the petition as deducible from the rejection by the Senate of the convention of July 13, 1882, was denied, and the contrary inference suggested, in view of the bill reported in the Senate, that

"the refusal of the Senate to ratify the said convention was the result of a desire that the proposed investigation into the said charges and representations should be made by a tribunal deriving jurisdiction over the subject from a law of the United States."

It was then averred that the money awarded was not held by respondent impressed with a trust for the parties claiming to be entitled to the same, but as the agent of the President, whose control over it was complete, and who could at any time withdraw it from the control of the respondent; that to hold him accountable as a trustee might be to subject him to personal liability for the money, and that it would cause an embarrassing conflict to adjudge him responsible to private parties for a fund which it might be the duty of the United States to return to the Republic of Mexico, as decided in the case of Frelinghuysen v. Key, referred to by relator. The answer finally alleged that the petition related to a matter

"which falls exclusively within the powers and competency of the President of the United States and this respondent as subordinate to him and subject to his direction and control, and which doth in no wise fall within the jurisdiction and competency of the judicial department of the government of the United States, and that it would involve an interference of the said judicial department with a matter which is exclusively committed by the Constitution to its coordinate, the executive department, for this honorable court to take cognizance of the matter of the relator's petition."

The cause having been heard, the mandamus was refused

Page 139 U. S. 312

and the petition dismissed, whereupon a writ of error was allowed to this Court.

The following may be taken as a sufficiently comprehensive statement of the matters upon which the judgment proceeded.

The time for decision fixed by the convention of July 4, 1868, was from time to time extended, finally until November 20, 1876, and payment of the first installment to the government in favor of whose citizens the greater amount might have been awarded was provided to be made on or before January 31, 1877. 19 Stat. 642.

On the 19th of January, 1877, Mr. Secretary Fish invited the attention of Congress to the necessity of making provision for carrying the awards into effect, and pointed out that

"an appropriation by Congress will be necessary for the payment of the amount of the awards against the United States, which sum, by the terms of the treaty, is to be deducted from the awards against Mexico and from the amount to be paid by Mexico. Provisions should also be made for the distribution among the several parties entitled to the money as it may be received, and also for the reimbursement to the United States of the amount paid by the United States towards the joint expenses of the commission, and which, by the terms of the treaty, is to be deducted from the awards."

A bill to carry out the secretary's recommendation passed the house during the forty-fourth Congress, and was favorably reported in the Senate, but was recommitted to enable the committee to consider the complaints made by the Mexican government as to the manner in which the awards in favor of La Abra Company and Weil were procured. The Mexican government had in the meantime notified the secretary of State of the existence of evidence, not within its possession before the awards were rendered, which, it was claimed, would establish the fact that the awards in the cases of La Abra Company and Benjamin Weil were procured by fraudulent imposition upon the commission and upon the government of the United States on the part of the claimants. The finality of the awards as between the two governments was not denied by Mexico, and the Mexican minister announced the intention

Page 139 U. S. 313

of the government to comply with the treaty by paying the installments as they became due. At the next session, a bill passed both houses entitled

"An act to provide for the distribution of the awards made under the convention between the United States of America and the Republic of Mexico concluded on the fourth day of July, eighteen hundred and sixty-eight,"

which was approved June 18, 1878. 20 Stat. 144. Sections 1 and 5 of this act are as follows:

"That the Secretary of State be, and he is hereby, authorized and required to receive any and all moneys which may be paid by the Mexican Republic under and in pursuance of the conventions between the United States and the Mexican Republic for the adjustment of claims, concluded July fourth, eighteen hundred and sixty-eight, and April twenty-ninth, eighteen hundred and seventy-six, and whenever, and as often as, any installments shall have been paid by the Mexican Republic on account of said awards, to distribute the moneys so received in ratable proportions among the corporations, companies, or private individuals respectively in whose favor awards have been made by said commissioners, or by the umpires, or to their legal representatives or assigns, except as in this act otherwise limited or provided, according to the proportion which their respective awards shall bear to the whole amount of such moneys then held by him, and to pay the same, without other charge or deduction than is hereinafter provided, to the parties respectively entitled thereto. And, in making such distribution and payment, due regard shall be had to the value at the time of such distribution of the respective currencies in which the said awards are made payable, and the proportionate amount of any award of which, by its terms, the United States is entitled to retain a part shall be deducted from the payment to be made on such award, and shall be paid into the Treasury of the United States as a part of the unappropriated money in the Treasury."

"SEC. 5. And whereas the government of Mexico has called the attention of the government of the United States to the claims hereinafter named with a view to a rehearing, therefore be it enacted that the President of the United [States] be, and

Page 139 U. S. 314

he is hereby, requested to investigate any charges of fraud presented by the Mexican government as to the cases hereinafter named, and if he shall be of the opinion that the honor of the United States, the principles of public law, or considerations of justice and equity require that the awards in the cases of Benjamin Weil and La Abra Silver Mining Company, or either of them, should be opened, and the cases retried, it shall be lawful for him to withhold payment of said awards, or either of them, until such case or cases shall be retried and decided in such manner as the governments of the United States and Mexico may agree, or until Congress shall otherwise direct. And in case of such retrial and decision, any moneys paid or to be paid by the Republic of Mexico in respect of said awards respectively shall be held to abide the event, and shall be disposed of accordingly, and the said present awards shall be set aside, modified, or affirmed as may be determined on such retrial, provided that nothing herein shall be construed as an expression of any opinion of Congress in respect to the character of said claims, or either of them."

Under the provisions of the fifth section, President Hayes caused the charges of fraud preferred by the Mexican government to be investigated, and Mr. Evarts, then Secretary of State, made a careful examination of the supplemental evidence presented by Mexico, and submitted his conclusions to the President in August, 1879, which were, in substance, that neither the principles of public law nor considerations of justice and equity required or permitted, as between the United States and Mexico, that the awards should be opened and the cases retried before a new international tribunal or under any new convention or negotiation respecting the same; that, however, the matters called to the attention of the government on the part of Mexico brought into grave doubt the substantial integrity of the claim of Benjamin Weil and the sincerity of the evidence as to the measure of damages insisted upon and accorded in the case of La Abra Silver Mining Company; that the honor of the United States required that these two cases should be further investigated by the United States to ascertain whether this government had been made the

Page 139 U. S. 315

means of enforcing against a friendly power claims of our citizens based upon or exaggerated by fraud; that if further investigation should remove the doubts, the honor of the United States would have been completely maintained, but if, on the other hand, the claimants should fail in removing these doubts, or they should be replaced by certain condemnation, the honor of the United States would be vindicated by such measures as might then be dictated, and that as the executive had not the means of instituting and pursuing methods of investigation which could coerce the production of evidence or compel the examination of parties and witnesses, and the authority for such an investigation must proceed from Congress, the proofs and conclusions the President might come to thereon, if adverse to the immediate payment on these awards of the installments received from Mexico, "should be laid before Congress for the exercise of their plenary authority in the matter." These views were adopted by President Hayes, and on the 15th of April, 1880, were communicated to Congress with another report of Mr. Secretary Evarts, under date of April 13, 1880, recapitulating his report of the preceding August, and concluding:

"Unless Congress should now make this disposition of the matter and furnish thereby definite instructions to the department to reserve further payments upon these awards till the conclusion of such investigation, and to take such further order with the same thereafter as Congress might direct, it would appear to be the duty of the executive to accept these awards as no longer open to reconsideration and to proceed in the payment of the same pro rata with all other awards under the convention."

On April 27, 1880, a bill was introduced in the Senate directing the Court of Claims to investigate the claims in question, and was referred to the committee on the judiciary, which reported adversely, and in effect that the proper remedy was in a new convention, in which provision should be made for doing justice to all claimants. On a bill of like character, the house committee on foreign affairs made a favorable report. In August, 1880, Mr. Secretary Evarts, having been notified through the Mexican legation of the intention of the Mexican

Page 139 U. S. 316

government to commence suits to impeach and set aside the two awards, objected to such proceeding as in contradiction of the whole purpose of the convention, as well as of explicit provisions thereof, and accordingly no further steps were taken in that direction.

No definitive instructions were given by Congress in respect to the matter during that session, but after its close payments were made upon these awards by the direction of the President, the same as on the others. Another installment was paid by the Mexican government and distributed to these claimants, with the rest, during President Garfield's administration. In this way, five installments were distributed. After President Arthur came into office, he examined the cases further, and, "believing that said award was obtained by fraud and perjury," negotiated a treaty with Mexico providing for a rehearing. On January 31, 1882, the sixth installment was paid by Mexico to Mr. Frelinghuysen, then Secretary of State, but a distribution of this installment to these claimants was withheld by order of the President.

The cases of Frelinghuysen v. Key and La Abra Silver Mining Company v. Frelinghuysen,110 U. S. 63, were decided by this Court January 7, 1884. President Arthur negotiated the convention with Mexico for a rehearing of the cases by a joint commission, July 13, 1882, and sent it to the Senate for its consideration. This convention was rejected by the Senate April 21, 1886. On May 11, 1886, President Cleveland transmitted to Congress a report of the then Secretary of State, dated May 6th, in respect to the claims in question. Mr. Bayard, in his communication, gave a resume of the various proceedings touching the claims and suggested that the President "notify Congress of the condition of the law and facts." He said:

"It is within the province of the legislative branch of this government now to review the history of the proceedings -- legislative, executive, and Judicial -- connected with the two claims,"

and, referring to the Act of June 18, 1878, thus concluded:

"This last-mentioned act of Congress contained the further provision, stated not additionally but in the alternative to those above recited, 'or until Congress

Page 139 U. S. 317

shall otherwise direct.' To relieve the action of our government from any ambiguity of legislative expression, or the executive from any uncertainty as to his line of duty in relation to the awards in favor of Benjamin Weil and La Abra Silver Mining Company under the treaty with Mexico promulgated February, 1869, I suggest that the attention of Congress should be earnestly invoked to the consideration of the present status of these claims referred to, and the duty of the executive under an existing treaty, to which the force and effect of paramount law is given by the Constitution, in the event of the adjournment of the two houses without further action in reference thereto."

March 5, 1888, President Cleveland, in a special message, transmitted a recommendation from the Secretary of State that

"Congress take action to provide expressly for the reference of the claims in question to the Court of Claims or such other court as may be deemed proper, in order that a competent investigation of the charges of fraud may be made."

The Secretary's communication referred to Frelinghuysen v. Key and enclosed a letter from the chairman of the Senate committee on foreign relations, dated March 5, 1887, containing a resolution embodying the views of a majority of that committee and requesting the President to withhold further payments on the awards in question until the allegations of fraud "shall have been duly investigated by the courts of the United States, under the direction of the President, or under the further direction of Congress," and letters from members of the House of Representatives upon the same subject, dated March 5, and 7, 1887. The Secretary stated that it was thought that a proper judicial investigation of the claims in question might be secured under the twelfth section of the Act approved March 3, 1887, entitled "An act to provide for the bringing of suits against the government of the United States," and that the department had sought the consent of the claimants in the Weil and La Abra cases to an investigation and decision of the allegations of fraud in relation thereto, by the Court of Claims, which was declined. The President's message closed with these words:

"If for any reason this proceeding be considered

Page 139 U. S. 318

inadvisable, I respectfully ask that some final and definite action be taken directing the executive department of the government what course to pursue in the premises. In view of the long delay that has already occurred in these cases, it would seem but just to all parties concerned that the Congress should speedily signify its final judgment upon the awards referred to, and make the direction contemplated by the act of 1878, in default of which the money now on hand applicable to such awards remains undistributed."

New bills were introduced providing for a judicial investigation of the charges of fraud in connection with these claims, and on June 20, 1888, the Senate committee on foreign relations made a report recommending the passage of a bill for that purpose, in the Weil case. An inquiry was subsequently ordered by the Senate with reference to the La Abra claim, which commenced September 24, 1888, and extended to February 27, 1889, and was reported upon March 1, 1889. The petition in this case was filed November 23, 1889.

Page 139 U. S. 319

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