Kendall v. United States ex Rel. Stokes
37 U.S. 524

Annotate this Case

U.S. Supreme Court

Kendall v. United States ex Rel. Stokes, 37 U.S. 12 Pet. 524 524 (1838)

Kendall v. United States ex Rel. Stokes

37 U.S. (12 Pet.) 524

Syllabus

Contracts for carrying the mail of the United States were made by S. & S. with the Postmaster General of the United States out of which certain allowances and credits were made in favor of S. & S. by that officer, and the amount of the same was passed to the credit of S. & S. with the General Post Office. The successor of the Postmaster General struck out the allowances and credits in the accounts, and thus a large sum of money was withheld from the contractors. S. & S. presented a memorial to Congress, and an act was passed authorizing and directing the Solicitor of the Treasury of the United States to settle and adjust the claims of S. & S. according to the principles of equity and directing the Postmaster General to credit S. & S. with whatever sum of money the Solicitor should decide should be due to them. The Solicitor of the Treasury made a decision on the claims of S. & S., and communicated the same to the Postmaster General, who thereupon, carried to the credit of S. & S. a part, but refused to credit a part of the amount allowed by the Solicitor. S. & S. applied to the President of the United States, who referred the subject to Congress, and the Senate of the United States determined that no further legislation on the subject was necessary and that the decision of the Solicitor of the Treasury ought to be complied with by the Postmaster General. The Postmaster General continued to withhold the credit. S. & S. applied to the Circuit Court of the United States for the District of Columbia for a mandamus, to be directed to the Postmaster General commanding him to credit them with the amount found to be due to them from the United States according to the decision of the Solicitor of the Treasury. A peremptory mandamus was finally ordered, and the Postmaster General brought the case before the Supreme Court by a writ of error.

By the court.

"It has been considered by the counsel on the part of the Postmaster General that this is a proceeding against him to enforce the performance of an official duty, and the proceeding has been treated as an infringement on the Executive Department of the government, which has led to a very extended range of argument on the independence and duties of that department, but which, according to the view taken by the Court of the case, is entirely misapplied. We do not think the proceeding in this case interferes in any respect whatever with the rights and duties of the executive or that it involves any conflict of powers between the executive and judicial departments of the government. The mandamus does not seek to direct or control the Postmaster General in the discharge of his official duty partaking in any respect of an executive character, but to enforce the performance of a mere ministerial act, which neither he nor the President had any authority to deny or control."

The judgment of the circuit court was affirmed.

By the act of Congress directing the Solicitor of the Treasury to adjust and settle the accounts of S. & S., the Postmaster General is vested with no discretion or control over the decision of the Solicitor, nor is any appeal or review of that decision provided for by the act. The terms of the submission was a matter resting entirely in the discretion of Congress, and if it thought proper to vest such a

Page 37 U. S. 525

power in anyone, and especially as the arbitrator was an officer of the government; it did not rest with the Postmaster General to control Congress or the Solicitor in that affair. It is unnecessary to say how far Congress might have interfered by legislation after the report of the Solicitor, but if there was no fraud or misconduct in the arbitrator -- of which none is pretended or suggested -- it may well be questioned whether S. & S. had not acquired such a vested right as to be beyond the power of Congress to deprive them of it.

The right of S. & S. to the full amount of the credit, according to the report of the Solicitor of the Treasury, having been ascertained and fixed by law, the enforcement of that right falls properly within judicial cognizance.

It was urged at the bar that the Postmaster General was alone subject to the direction and control of the President of the United States with respect to the execution of the duty imposed on him by the law under which the Solicitor of the Treasury acted, and this right of the President was claimed as growing out of the obligation imposed upon him by the Constitution to take care that the laws be faithfully executed.

By the Court

"This doctrine cannot receive the sanction of this Court. It would be vesting in the President a dispensing power which has no countenance for its support in any part of the Constitution, and is asserting a principle which, if carried out in its results to all cases falling within it, would be clothing the President with a power to control the legislation of Congress and paralyze the administration of justice."

To contend that the obligations imposed on the President to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and is entirely inadmissible.

The act required by the law to be done by the Postmaster General is simply to credit S. & S. with the full amount of the award of the Solicitor of the Treasury. This is a precise, definite act, purely ministerial, and about which the Postmaster General has no discretion whatever. This was not an official act in any other sense than being a transaction in the department where the books and accounts were kept, and was an official act in the same sense that an entry in the minutes of the court pursuant to an order of the court is an official act. There is no room for the exercise of discretion, official or otherwise. All that is shut out by the direct and positive command of the law, and the act required to be done is in every just sense a mere ministerial act.

The common law, as it was in force in Maryland when the cession of the part of the state within the District of Columbia was made to the United States, remained in force in the District. The writ of mandamus which issued in this case in the District Court of the District of Columbia must be considered as it was at common law with respect to its object and purpose, and varying only in the form required by the different character of the government of the United States. It is a writ, in England, issuing out of the King's Bench in the name of the King, and is called a prerogative writ, but considered a writ of right, and is directed to some person, corporation, or inferior court, requiring them to do some particular thing therein specified which appertains to their office and which is supposed to be consonant to right and justice, and where there is no other adequate, specific remedy, such a writ and for such a purpose would seem to be peculiarly appropriate to the present case. The right claimed is just and established by positive law, and the duty required to be performed is clear and specific, and there is no other adequate remedy.

The cases of McIntire v. Wood, 7 Cranch 504, and McClung v. Silliman, 6 Wheat.

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590, have decided that the circuit courts of the United States in the several states have no power to issue a mandamus against one of the officers of the United States.

The result of the cases of McIntire v. Wood and McCluny v. Silliman clearly is that the authority to issue the writ of mandamus to an officer of the United States commanding him to perform a specific act required by a law of the United States is within the scope of the judicial powers of the United States under the Constitution, but that the whole of that power has not been communicated by law to the circuit courts of the United States in the several states. It is a dormant power, not yet called into action and vested in those courts. And there is nothing growing out of the official character of a party that will exempt him from this writ if the act to be performed is merely ministerial.

It is a sound principle that in every well organized government the judicial powers should be coextensive with the legislative, so far at least as they are to be enforced by judicial proceedings.

There is in the District of Columbia no division of powers between the general and state governments. Congress has the entire control over the district for every purpose of government, and it is reasonable to suppose that in organizing a judicial department in this District, all the judicial power necessary for the purposes of government would be vested in the courts of justice. The circuit court in the District is the highest court of original jurisdiction, and if the power to issue a mandamus in such a case as that before the Court exists in any court, it is vested in that court.

At the date of the act of Congress establishing the government of the District of Columbia, the common law of England was in force in Maryland, and of course remained and continued in force in the part of the District ceded by Maryland to the United States. The power to issue a mandamus in a proper case is a part of the common law, and it has been fully recognized as in practical operation in a case decided in the court of that state.

The power to issue the writ of mandamus is, in England, given to the King's Bench only, as having the general supervising power over all inferior jurisdictions and officers, and is coextensive with judicial power. And the same theory prevails in the state governments of the United States, where the common law is adopted and governs in the administration of justice, and the power of issuing this writ is generally confided to the highest court of original jurisdiction.

There can be no doubt but that in the State of Maryland, a writ of mandamus might be issued to an executive officer commanding him to perform a ministerial act required of him by the laws, and if it would lie in that state, there can be no good reason why it should not lie in the District of Columbia in analogous cases.

The powers of the Supreme Court of the United States and of the circuit courts of the United States to issue writs of mandamus, granted by the 14th section of the Judiciary Act of 1789, is only for the purpose of bringing the case to a final judgment or decree so that it may be reviewed. The mandamus does not direct the inferior court how to proceed, but only that it must proceed, according to its own judgment, to a final determination; otherwise it cannot be reviewed in the appellate court. It is different in the Circuit Court of the District of Columbia, under the adoption of the laws of Maryland, which included the common law.

The power of the circuit Court of the District of Columbia to exercise the jurisdiction to issue a writ of mandamus to a public officer to do an act required of him by law results from the 3d section of the Act of Congress of February 27, 1801,

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which declares that the court and the judges thereof shall have all the power by law vested in the circuit courts of the United States. The circuit courts referred to were those established by the Act of February l3, 1801. The repeal of that law fifteen months afterwards, and after the Circuit Court for this District had been organized and had gone into operation under the Act of 27 February, 1901, could not in any manner affect that law any further than was provided by the repealing act.

It was not an uncommon course of legislation in the states at an early day to adopt by reference, British statutes, and this has been the course by legislation in Congress in many instances when state practice and state process has been adopted. And such adoption has always been considered as referring to the law existing at the time of adoption, and no subsequent legislation has ever been supposed to affect it; and such must necessarily be the effect and operation of such adoption.

No court can, in the ordinary administration of justice in common law proceedings, exercise jurisdiction over a party unless he shall voluntarily appear or is found within the jurisdiction of the court so as to be served with process. Such process cannot reach the party beyond the territorial jurisdiction of the court. This is a personal privilege which may be waived by appearance, and if advantage is to be taken of it, it must be by plea or some other mode at an early stage of the cause.

On the twenty-sixty day of May, 1837, William B. Stokes, Richard C. Stockton, Lucius W. Stockton, and Daniel Moore presented a petition to the Circuit Court of the District of Columbia for the County of Washington stating that under contracts duly and legally made by them with the late William T. Barry, then Postmaster General of the United States, and duly authorized by law, they were entitled to certain credits and allowances on their contracts for the transportation of the mail of the United States; that the credits and allowances were made and given to them on their contracts and amounts of money actually paid on such accounts; that sometime in 1835, William T. Barry resigned his situation as Postmaster General and Amos Kendall was appointed to the office; that after he had entered on the duties of his office, he undertook to reexamine the contracts entered into by his predecessor and the credits and allowances made by him, and ordered and directed the allowances and credits to be withdrawn and the petitioners recharged with divers payments they had received.

The petitioners state that they were dissatisfied with these proceedings of Amos Kendall as Postmaster General, and believing he had

Page 37 U. S. 528

exceeded his authority, and being unable to adjust their differences with him, they addressed a memorial to the Congress of the United States. A copy of the memorial was annexed to the petition.

The memorial stated at large all the circumstances which the petitioners considered as affecting their case, the proceedings of the Postmaster General in the matter, and the heavy grievances done to the memorialists by the course adopted by the Postmaster General. They ask such proceedings on the part of Congress as its wisdom and justice may direct.

The petition states that Congress passed an Act which was approved by the President of the United States on 2 July, 1836, which act provided

"That the Solicitor of the Treasury be and he is hereby authorized and directed to settle and adjust the claims of William B. Stokes, Richard C. Stockton, of Maryland, and Lucius W. Stockton, and Daniel Moore of Pennsylvania for extra services performed by them as contractors for carrying the mail under and by virtue of certain contracts therefor alleged to have been made and entered into with them by William T. Barry, late Postmaster General of the United States, and for this purpose to inquire into and determine the equity of the claims of them or any of them for or on account of any contract or additional contract with the said Postmaster General on which their pay may have been suspended by the present Postmaster General, and to make them such allowances therefor as upon a full examination of all the evidence may seem right according to the principles of equity, and that the said Postmaster General be and he is hereby directed to credit such mail contractors with whatever sum or sums of money, if any, the said Solicitor shall so decide to be due to them for or an account of any such service or contract, and the Solicitor is hereby authorized to take testimony, if he shall judge it to be necessary to do so, and that he report to Congress at its next session the law and the facts upon which his decision has been founded, provided the said Solicitor is not authorized to make any allowance for any suspension or withholding of money by the present Postmaster General for allowances or overpayments made by his predecessor on route number thirteen hundred and seventy-one from Philadelphia to Baltimore for carrying the mail in steamboats when it was not so carried by said Stockton and Stockes, but by the steamboat company, nor for any suspension or withholding of money as aforesaid for allowances or overpayments made as aforesaid for carrying an express mail from Baltimore

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to York or Lancaster, nor for any suspension or withholding of money as aforesaid for allowances or overpayments made as aforesaid on route number thirteen hundred and ninety-one, from Westminster to McConnerston, as described in the improved bid, nor for any suspension or withholding of money as aforesaid for allowances or overpayments as aforesaid on the route from Baltimore to Wheeling for running a certain daily line to Hagerstown and Wheeling, from the first of September, eighteen hundred and thirty-two to the first of April, eighteen hundred and thirty-three, when the line referred to only run tri-weekly, nor for any suspension or withholding of money as aforesaid for allowances or overpayments, made as aforesaid on the route from Baltimore to Washington under the contract of eighteen hundred and twenty-seven, but nothing in this proviso shall prejudice any application they may make hereafter in reference to these routes, if they shall think it proper to make such application."

The petition states that in pursuance and in execution of this act, Virgil Maxey, being Solicitor of the Treasury, did proceed to examine adjust and settle the said claims, and on 12 November, 1836, did make out and transmit to the said Amos Kendall, Postmaster General, in part, his award and decision upon certain items of said claims so referred to him, and on 23 November, 1836, he communicated to the Postmaster General his decision and award on the residue of the claims of the petitioners.

The decision of the Solicitor of the Treasury of 12 December, 1836, after stating the particular items of account, from which the balances arose, was as follows:

"I therefore, in pursuance of the authority conferred on me by the aforementioned act of Congress, make allowance to said Richard C. Stockton for his said claims up to 1 April, 1835, of the above sum of eighty-three thousand two hundred and seventy-eight dollars."

"I also, by virtue of the same authority, make allowance to said Stockton, for his said claims for extra services, from 1 April to 31 December, 1835, of the said sum of twenty-six thousand eight hundred and sixty-two dollars."

"A claim for interest having been made, I have postponed the consideration of it until the equity of the other claims of the gentlemen

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named in the title of the act shall have been inquired into and determined."

On 22 November, 1836, the Solicitor made a final award, which was also communicated by him to the Postmaster General. That award, after setting forth the items of the accounts presented and established in the judgment of the Solicitor of the Treasury against the United States, was:

"I have examined the evidence touching the above claims, and find due to the petitioners or to Richard C. Stockton the following sums: for additional daily mail to Washington, thirty-four thousand two hundred dollars. For compensation for carrying the mail in the spring of 1831 between Baltimore and Philadelphia and for other services connected therewith, less two hundred and ninety-four dollars, the sum of eleven thousand seven hundred and ninety-seven dollars and sixteen cents. Claims for interest, four thousand eight hundred and thirty-six dollars and eighty-nine cents, one thousand six hundred and sixty-four dollars and seventy cents, and three hundred and ninety-two dollars and thirty-four cents."

The petitioners state that under and by virtue of the award of the Solicitor of the Treasury, they became entitled to have the sum of one hundred and sixty-two thousand seven hundred and twenty-seven dollars and five cents carried to their credit, or at least, after allowing some deductions therefrom made by the said Solicitor with their assent, the sum of one hundred and sixty-one thousand five hundred and sixty-three dollars and eighty-nine cents, as the amount of principal and interest due to them by the terms of the award and decision.

"But the said Postmaster General, although fully notified of the premises and after a considerable delay, only so far obeyed and carried into execution the said act of Congress and said award as to direct and cause to be carried to the credit of the petitioners the sum of one hundred and twenty-two thousand one hundred and one dollars and forty-six cents, which said last mentioned sum of money has been accordingly paid or credited to the petitioners, and he has from that time, and does still refuse, omit, and neglect, notwithstanding the provisions of said act of Congress, and the said award and decision of said Solicitor of the Treasury, so made, communicated and reported, as aforesaid, to pay, or credit to the petitioners the residue of the said sum so awarded, being the sum of thirty-nine thousand four hundred and sixty-two dollars and forty-three cents, or to credit or

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pay to the petitioners or either of them the interest upon the said balance so unjustly and illegally withheld."

The petition states that after the refusal, omission, or neglect of Amos Kendall to execute his duty by obeying the act of Congress in passing the amount awarded to his credit, the petitioners communicated the facts of their case to the President of the United States, requesting him to cause the said act of Congress to be executed, who thereupon transmitted the same to Amos Kendall, the Postmaster General, and having received a reply to the same, stating why he had thus refused to comply with the award and suggesting an application to Congress for further legislation. The President, in December, 1836, transmitted this reply to the petitioners, and in his communication says:

"It appearing that there is a difference of opinion between the Solicitor and the Postmaster General, upon the extent of the reference under the law to the Solicitor, the Postmaster General having yielded to what he believes to be all that was submitted by the law to the Solicitor's decision, and paid the same. But, Congress being now in session, and the best expounder of the intent and meaning of its own law, I think it right and proper under existing circumstances to refer it to that body for its decision. I deem this course proper as the difference in opinion about the extent of the submission, under the law, arises between the head of the Post Office Department and the Solicitor of the Treasury, and as it appears the Solicitor has reversed in part his decision and award."

The petitioners, in consequence of this correspondence, presented to Congress a memorial which in the Senate was referred to the committee on the judiciary.

The petition refers to the reports of the Judiciary Committee of the Senate of January 20, 1837, and February 17, 1837, and to the correspondence between the Postmaster General and the chairman of the committee, copies of which are annexed to the petition. The concluding part of the report of the judiciary committee of January 20, 1837, was as follows:

"That Congress intended the award of the Solicitor to be final is apparent from the direction of the act"

"That the Postmaster General be and he is hereby directed to credit such mail contractors with whatever sum or sums of money, if any, the said Solicitor shall so decide to be due to them. . . . If Congress had intended to revise the decision of the Solicitor, the Postmaster General would not have been directed to make the payment without the intervention or further

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action of Congress. Unless it appeared, which is not suggested by anyone, that some cause exists which would vitiate or set aside the award between private parties before a judicial tribunal, the committee cannot recommend the interference of Congress to set aside this award, and more especially as it has been made by a high officer selected by the government and the petitioners have been subjected to the trouble and expense of investigating their claims before a tribunal created by Congress itself."

"It appears that since the award was made by the Solicitor, the Postmaster General has paid to the petitioners the sum of one hundred and twenty thousand nine hundred and thirty-eight dollars and thirty cents, leaving the balance of forty thousand six hundred and twenty-five dollars and fifty-nine cents unpaid of the sums awarded in favor of the petitioners. From the view which the committee has taken, the conclusion at which it has arrived is that the whole amount decided to be due and owing to the petitioners by the Solicitor of the Treasury ought to be paid to them out of the funds of the Post Office Department according to the directions of the act entitled 'An act for the relief of William B. Stokes, Richard C. Stockton, Lucius W. Stockton, and Daniel Moore,' and that no further action of Congress is necessary; therefore the committee recommend the adoption of the following resolution: "

"Resolved that the Postmaster General is fully warranted in paying and ought to pay to William B. Stokes and others, respectively, the full amount of the award of the Solicitor of the Treasury."

The report of February 17, 1837, on the message of the President of the United States of 15 February, 1837, with the accompanying documents in relation to the claims of Stockton and Stokes and others, contain the following:

"The committee has considered the documents communicated, and cannot discover any cause for changing its opinion upon any of the principles advanced in its former report upon this subject, nor the correctness of its application to this case. It therefore recommends the adoption of the resolution heretofore reported by the committee."

The petition to the court proceeds to state that the principal ground of the refusal, neglect, and omission of the Postmaster General to execute and obey the act of Congress and to give the petitioners credit for the full amount of the award of the Solicitor of the Treasury was, as represented by him, that the said Solicitor had transcended

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the authority created and conferred on him by the act in so awarding and deciding, whereas the contrary is the fact, and the Solicitor, on being apprised that a doubt existed as to the extent of his authority, he did submit the said question to the Attorney General of the United States to obtain his opinion. The opinion of the Attorney General confirmed the construction of the law given by the Solicitor of the Treasury.

The petition proceeds to state that the

"petitioners conceiving and believing that they are and have been entitled to the whole sum so awarded by the said Solicitor passed to their credit on the books of the Post Office Department, and to receive the amount which, after the said entry, should appear justly due to them, with legal interest upon the balance, have applied to the said Amos Kendall, Postmaster General, as aforesaid, to have the said credits, so entered, and the said moneys so paid, which he has continually refused, and still refuses and neglects to do, and the Congress of the United States will not pass any other or further law, as it is believed, merely because they have already passed one sufficient to meet the case, so that the only means of obtaining the money which is justly due to the petitioners is by application to your Honorable Court."

"Wherefore, your petitioners do respectfully pray that your Honors, the premises considered, will award the United States writ of mandamus to be directed to the said Amos Kendall, Postmaster General of the United States, commanding him:"

"1. That he shall fully comply with, obey, and execute, the aforesaid Act of Congress of July 2, 1836, by crediting your petitioners with the full and entire sum so awarded, as aforesaid, in their favor by the Solicitor of the Treasury, as aforesaid, in conformity with said award and decision."

"2. That he shall pay to your petitioners the full amount so awarded with interest thereon, deducting only the amount which shall be justly charged or chargeable to your memorialists against the same."

On 26 May, 1837, the District Court of the County of Washington made a rule in the case on the motion of the relators by their counsel:

"That the said Amos Kendall, Postmaster General of the United States, show cause on Thursday, the first of June next, why the said writ of mandamus should not issue as prayed by the said memorialists, and that a copy of this order be served on the said Amos Kendall, Postmaster General, as aforesaid. "

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A copy of the rule was served as directed, and was so certified by the Marshal of the District of Columbia. Afterwards, on 7 June, 1837, on the motion of the relators by their counsel, the court ordered a mandamus nisi to issue directed to the Postmaster General, which writ was issued on the same day.

The mandamus nisi, after stating the proceedings which had taken place in the case, proceeded as follows:

"Therefore you are hereby commanded and enjoined that immediately after the receipt of this writ and without delay, you do fully comply with, obey, and execute on your part the aforesaid Act of Congress of 2 July, 1836, by crediting said mail contractors with the full and entire sum so awarded and decided as aforesaid to be due to them by the Solicitor of the Treasury according to the true intent and meaning of the said award and decision, so that complaint be not again made to the said circuit court, and that you certify perfect obedience to and due execution of this writ to the said circuit court on Saturday the tenth day of June instant, or that you do at ten o'clock of that day show cause to the said court why you have not so done as commanded."

On 10 June, 1837, the relators, by their counsel, and Amos Kendall, by his counsel, appeared in court, and further time was given, on motion, to Amos Kendall to file his answer.

On 24 June, 1837, the answer of the Postmaster General was filed.

The answer contained the following causes "for declining obedience to the order of the court," with a full argument upon each of them:

"First. It is doubted whether, under the Constitution of the United States, it confers on the judiciary department of the government authority to control the Executive Department in the exercise of its functions of whatsoever character."

"Second. If according to the Constitution the Circuit Court for the District of Columbia might be clothed by law to issue a mandamus in such a case, no such power has been conferred upon it by the act of Congress."

"Third. If, by the Constitution, Congress can clothe the courts with authority to issue writs of mandamus against executive officers as such, and if it has vested the general power in this Court by law, this is not a case in which that power can be lawfully exercised. "

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"Fourth. The court has ordered the Postmaster General to perform a legal impossibility."

To this answer of the Postmaster General, the opinion of the Attorney General of the United States on the whole of the case, and sustaining the views of the Postmaster General, was annexed

On 13 July, 1837, the circuit court ordered a peremptory mandamus, to be directed to the Postmaster General to be issued. The Postmaster General prosecuted this writ of error.

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