On a petition for a writ of mandamus to the Secretary of State
to compel him to pay to the petitioner the interest or income
derived from the investment of a sum of money received by a
predecessor of his in office as part of an award made by the
Spanish-American Claims Commission, which sum of money had been
eventually paid to the petitioner,
held that the Secretary
was not liable to pay such interest or income because
(1) The award was to he paid by the Spanish government to the
government of the United States.
(2) It was paid by the Spanish government to the Secretary of
the United States, representing the government of the United
States.
(3) The money withheld was withheld by the United States, and
the petitioner's claim, based on the withholding, was a claim
against the United States.
(4) The case fell within the well settled principle that
interest is not allowed on claims against the United States unless
the government has stipulated to pay interest or it is given by
express statutory provision.
(5) No claim for the allowance of interest could be predicated
on the language of any notification, or circular or letter which
issued from the Department of State during the administration of a
predecessor of the Secretary, no binding contract for the payment
of interest was thereby created, and the present Secretary was at
liberty to act on his own judgment, irrespective of anything
contained in any such notification, circular or letter.
This was a petition for a mandamus. The writ was refused, and
the relator sued out this writ of error. The case is stated in the
opinion.
Page 127 U. S. 252
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
In this case, Lutzarda Angarica de la Rua, executrix of the
estate of Joaquin Garcia de Angarica, deceased, presented a
petition to the Supreme Court of the District of Columbia praying
for a writ of mandamus to be issued to Thomas F. Bayard, Secretary
of State of the United States, to pay the petitioner the amount of
the interest or income derived from a certain investment of money.
The case was heard in the first instance by the general term of
that court, which rendered a judgment on the 7th of December, 1885,
dismissing the petition, with costs on the ground that mandamus was
not the remedy applicable to the case stated in the petition. 4
Mackey 310. The petitioner has brought a writ of error in the name
of the United States, on her relation, to reverse that
judgment.
The following are the material facts of the case:
On the 12th of February, 1871, an agreement was concluded
between the United States and Spain for the settlement of certain
claims of citizens of the United States, 17 Stat. 839, of which a
copy is set forth in the margin.
*
Page 127 U. S. 253
Pursuant to the agreement, the arbitrators and the umpire were
appointed, and a commission thus composed, generally
Page 127 U. S. 254
known as the "Spanish-American Claims Commission," was
established. Angarica filed a claim before the commission, and it
decided that he had a right to recover damages to the amount of
$748,180, with interest at 6 percent per annum thereon from
November 1, 1875, to the day of payment. The full amount of the
award was paid to the Secretary of State of the United States in
two installments, namely March 27, 1877, $406,894.96, and October
8, 1877, $415,699.75, making a total of $822,594.71. The whole
amount was paid over by the Secretary, except $41,129.74, being 5
percent of the amount received, which sum the Secretary retained
until the government of Spain should make provision for paying the
expenses of the commission. Of the $41,129.74 so retained, so much
as could be utilized for the purpose was invested in securities of
the United States, and thereafter the surplus, with the interest
which accrued on the first investment, was similarly invested, and
so were subsequent accumulations of interest.
In a circular letter addressed by the then Secretary of State to
Angarica, when the 5 percent was withheld, it was said:
"Five percentum of the amount due in each case will be reserved
for the present, to meet the expenses of the commission, until a
payment to cover such expenses shall have been made by Spain in
conformity with the provision in that regard of said agreement of
February 12, 1871, between the United States and Spain."
In a report made by Mr. Evarts, Secretary of State, to the
President dated February 16, 1880, and transmitted by him
Page 127 U. S. 255
to the Senate, the Secretary stated that
"This retention of 5 percentum may be regarded as provisional
only, the commission not having yet taken the final step of adding
a percentage to the amount of its awards in order to meet the
expenses of the commission."
The then Secretary of State also notified Angarica that
"It is hoped that no great delay will occur in receiving the
payment from Spain, which will liberate this reserve for expenses,
and the department will expect to keep this reserve invested in
interest-bearing securities of the United States, to cover the
delay in its distribution to the claimants."
On the 12th of February, 1885, Mr. Frelinghuysen, then Secretary
of State, paid to the petitioner the $41,129.74, but did not pay
any interest or income which had been earned by its investment.
Correspondence thereupon ensued between the attorneys for the
petitioner and Mr. Frelinghuysen in regard to the payment of such
interest in which such attorneys referred to a letter written to
them on the 13th of September, 1880, by Mr. Evarts, then Secretary
of State, in which they alleged that he had officially promised to
pay the interest earned on the money, but no copy of such letter is
found in the record. Mr. Frelinghuysen declined to pay any
interest. The attorneys renewed the correspondence with Mr. Bayard
in October, 1885, but he refused to pay the interest on the ground
that the matter had been decided by his predecessor, and that his
decision was in accordance with the almost unbroken rulings of the
executive and judicial departments of the government, citing the
opinion of Attorney General Cushing, 7 Opinions Attorneys General
523, and the case of
Gordon v. United
States, 7 Wall. 188. Further correspondence ensued,
and in one letter Mr. Bayard stated that the investment of the
retained moneys was in pursuance of the general system founded on §
2 of the Act of September 11, 1841, c. 25, 5 Stat. 465, now § 3659
of the Revised Statutes, by which it is prescribed that
"All funds held in trust by the United States, and the annual
interest accruing thereon, when not otherwise required by treaty,
shall be invested in stocks of the United States bearing a rate of
interest not less than five percentum per annum;"
that, the enactment being
Page 127 U. S. 256
silent as to the beneficiary by such a transaction, "the sole
competence of Congress, which prescribed the mode of investment, to
direct the disposition of the proceeds is beyond dispute;" that
Congress exercised its discretion in regard to the payment of
interest in the case of the Japanese indemnity fund and in the case
of the Alabama claims fund; that it is
res adjudicata that
the Secretary of State has no discretionary power to dispose of the
accumulations resulting from investments made in pursuance of the
Act of September 11, 1841, and that therefore he cannot be bound by
what he deems to have been the improvident intimation contained in
Mr. Evarts' letter of September 13, 1880. In reply to a further
letter from the attorneys, Mr. Bayard, while furnishing them with a
statement of the amount of the original award and its date, and of
the amount received from Spain and the date of its receipt, and of
the amount paid to the estate of Angarica, less the 5 percent
previously retained, and of the date of such payment, and of the
amount of the 5 percent retained, declined to state whether such 5
percent was invested in government or other securities, and if so
the date of the investment and what part of it was so invested, and
from what date it earned interest, or any other particulars in
regard to any investment except to state
"that, of the 5 percent retained by the Department of State, so
much as could be utilized for the purpose was invested in
securities of the United States, and that thereafter the surplus,
with the interest which accrued on the first investment, was
similarly invested, and so were subsequent accumulations of
interest,"
and that to give the further detailed information asked for
would be in effect conceding to private parties an accountability
which he owed to Congress alone.
The petition, after setting forth the foregoing facts, alleges
that as matter of law the said interest or income is an incident to
the principal fund, and follows the same; that the fund due and
payable to the petitioner is a liquidated and fixed sum of money,
involving no accounting, and which it is the ministerial duty of
the Secretary to pay to the petitioner, and that such payment does
not involve the exercise of any
Page 127 U. S. 257
discretion, nor concern any international matter connected with
the foreign relations of the United States. It also alleges that
the sum of $41,129.74 retained by the Secretary from the award in
favor of Angarica formed part of a general fund composed of various
sums similarly retained by the Secretary from awards made in favor
of other claimants and received in installments at different times,
the total of such reserves amounting to $77,887.04; that these
amounts were from time to time invested in such sums and in such
manner as was practicable, without reference to the separate and
individual interests involved; that the income on these investments
resulted in part from the sale of gold coin, in part from premiums
on United States bonds sold and exchanged without reference to the
shares of the several claimants, and in part from interest on such
bonds, and amounted in all to $14,485.50; that such increment is
not traceable in separate or respective amounts to any particular
percentages of individual claimants, and that no apportionment of
such increment has been made by the Secretary among the respective
claimants. The prayer of the petition is for a writ of mandamus
commanding the Secretary to apportion and pay to the petitioner her
proportion of the increment attributable to the sum of $41,129.74,
so reserved from the award made in favor of her testator.
The Secretary answered the petition as follows:
"This respondent, admitting the matters and things set forth and
averred in the said petition except as hereinafter excepted,
answering, saith that it is not true, as stated in the third
paragraph of the said petition, that the Spanish-American Claims
Commission"
"duly awarded a judgment in favor of said Joaquin Garcia de
Angarica, and against the said kingdom of Spain, for the sum of
$748,180, with interest at the rate of six percentum per annum from
the 1st day of November, 1875, until paid, but this respondent
saith that an award or judgment for a like sum of money, and for
like interest, was made and rendered by the said commission in
favor of the United States of America, and that the said Joaquin
Garcia de Angarica was no party to any proceedings at any time
pending before the said Spanish-American Claims
Page 127 U. S. 258
Commission, and, as a consequence, this respondent doth also
deny that the said sum of money, with the interest thereon, was
paid unto the Secretary of State of the United States to the use
of, or to be paid to, the said Joaquin Garcia de Angarica as is
averred in the fourth paragraph of the said petition, or that upon
the said payment it became the duty of the Secretary of State to
pay the same to the said petitioner's testator in satisfaction of
any judgment or award, for this respondent doth aver that when the
said money was received by the then Secretary of State, it came to
his hands coupled with duties to the United States and possible
duties to the Kingdom of Spain, which duties were, in the one case,
and would have been in the other case, paramount and superior to
any duty in the premises to the said petitioner or her testator.
And this respondent, further answering, saith that the said
petition proceeds upon a ground which wholly ignores certain grave
international elements and considerations that entered into the
claim of the petitioner's testator so soon as the government of the
United States began and assumed to urge and prosecute the same, and
that thenceforth the said claim became, in contemplation of law,
subject to the will of the government of the United States and
entirely beyond the control of the said petitioner's testator. And
this respondent, further answering, saith that the interest money
demanded in the said petition as the accretion of a part of the
said sum of money adjudged and awarded as aforesaid is the fruit of
an investment of the said principal money by the Secretary of
State, made in obedience to law and in the performance of a general
statutory duty, and not for the use and behoof of the said
petitioner's testator. And this respondent, protesting that no
agreement to pay the said petitioner or her testator the said
interest money was made by the Secretary of State as is averred in
the said petition, doth deny that the Secretary of State could have
made a valid agreement in that behalf. And this respondent, further
answering, saith that to place him under the stress of the writ of
mandamus as touching the said interest money would be subversive of
the established principle that the government of the United States
does not
Page 127 U. S. 259
pay interest to its citizens as damages for the detention of
money. And this respondent, further answering, saith, with all
deference and respect, that as the representative of the President
of the United States in carrying out a treaty, he cannot hold the
relation of trustee toward any citizen, saving in the larger sense
that every public functionary is clothed with a trust, and that he
cannot be controlled or directed in the performance of any such
duty at the suit of any citizen."
We are of opinion that the judgment of the court below must be
affirmed. Under the agreement for arbitration, the claim of
Angarica was to be laid before the arbitrators and umpire "on the
part of the government of the United States." The claim and the
testimony in its favor were to be presented "only through the
government of the United States." In another place, the claim is
spoken of as one presented to the arbitrators "by the government of
the United States." In the sixth clause, the two advocates are
spoken of as "representing respectively the two governments," and
in the seventh clause it is said that "the two governments will
accept the awards." Thus, by the plain terms of the agreement, the
amount of the award in the case of Angarica was to be paid by the
Spanish government to the government of the United States. It was
paid by the Spanish government to the Secretary of State of the
United States, representing the government of the United States. If
there was any unlawful withholding from the petitioner of the
$41,129.74, the money was withheld by the government of the United
States, acting through the Secretary of State, and any claim of the
petitioner based upon an unlawful withholding was a claim against
the government of the United States. That claim, in the present
controversy, assumes the shape of a claim for the increment or
income alleged to have been actually received by the United States
from the investment of the money for the time it was withheld, but
the claim in that respect is not different in character from what
it would have been if instead of being a claim for increment or
income actually received by the United States, it were a claim for
interest generally, or for increment or income which the United
Page 127 U. S. 260
States would or might have received by the exercise of proper
care in the investment of the money. The case therefore falls
within the well settled principle that the United States are not
liable to pay interest on claims against them in the absence of
express statutory provision to that effect. It has been established
as a general rule in the practice of the government that interest
is not allowed on claims against it, whether such claims originate
in contract or in tort and whether they arise in the ordinary
business of administration or under private acts of relief, passed
by Congress on special application. The only recognized exceptions
are where the government stipulates to pay interest and where
interest is given expressly by an act of Congress either by the
name of interest or by that of damages.
This appears from a succession of the opinions of the Attorney
General of the United States, given by Attorneys General Wirt,
Crittenden, Legare, Nelson, Johnson, Cushing, and Black and
appearing in the following volumes and pages of those opinions, as
published: 1, 268, 1, 550, 1, 554; 3, 635; 4, 14, 136, 286; 5, 105;
7, 523; 9, 57, 449.
Not only is this the general principle and settled rule of the
Executive Department of the government, but it has been the rule of
the Legislative Department, because Congress, though well knowing
the rule observed at the Treasury, and frequently invited to change
it, has refused to pass any general law for the allowance and
payment of interest on claims against the government. Such statutes
for the payment of interest as have been passed, apply to specific
cases enumerated in the several statutes, and do not cover the
present case.
The principle above stated is recognized by this Court. In
Tillson v. United States, 100 U. S.
43,
100 U. S. 47, this
Court, speaking of the rule that interest is recoverable between
citizens if a payment of money is unreasonably delayed, says that
with the government, the rule is different, and that the practice
has long prevailed in the departments of not allowing interest on
claims presented except it is in some way specially provided for.
See also Gordon v. United
States, 7 Wall. 188, and
Harvey v. United
States, 113 U. S. 243,
113 U. S.
248-249.
Page 127 U. S. 261
No claim for the allowance of interest can be predicated in this
case upon the language of any notification or circular or letter
which issued from the Department of State. No binding contract for
the payment of interest was thereby created, and the present
Secretary was at liberty to act on his own judgment in the
premises, irrespective of anything contained in any such
notification, circular, or letter. Upon these considerations, the
judgment of the court below in general term is
Affirmed.
*
"Memorandum of an arbitration for the settlement of the claims
of citizens of the United States or of their heirs against the
government of Spain for wrongs and injuries committed against their
persons and property, or against the persons and property of
citizens of whom the said heirs are the legal representatives by
the authorities of Spain, in the Island of Cuba or within the
maritime jurisdiction thereof since the commencement of the present
insurrection. "
"1. It is agreed that all such claims shall be submitted to
arbitrators, one to be appointed by the Secretary of State of the
United States, another by the Envoy Extraordinary and Minister
Plenipotentiary of Spain at Washington, and these two to name an
umpire, who shall decide all questions upon which they shall be
unable to agree, and in case the place of either arbitrator or of
the umpire shall from any cause become vacant, such vacancy shall
be filled forthwith in the manner herein provided for the original
appointment. "
"2. The arbitrators and umpire so named shall meet at Washington
within one month from the date of their appointment, and shall,
before proceeding to business, make and subscribe a solemn
declaration that they will impartially hear and determine, to the
best of their judgment and according to public law and the treaties
in force between the two countries, and these present stipulations,
all such claims as shall, in conformity with this agreement, be
laid before them on the part of the government of the United
States, and such declaration shall be entered upon the record of
their proceedings. "
"3. Each government may name an advocate to appear before the
arbitrators or the umpire, to represent the interests of the
parties respectively. "
"4. The arbitrators shall have full power, subject to these
stipulations, and it shall be their duty, before proceeding with
the hearing and decision of any case, to make and publish
convenient rules prescribing the time and manner of the
presentation of claims and of the proof thereof, and any
disagreement with reference to the said rules of proceeding shall
be decided by the umpire. It is understood that a reasonable period
shall be allowed for the presentation of the proofs; that all
claims and the testimony in favor of them shall be presented only
through the government of the United States; that the award made in
each case shall be in writing; and, if indemnity be given, the sum
to be paid shall be expressed in the gold coin of the United
States. "
"5. The arbitrators shall have jurisdiction of all claims
presented to them by the government of the United States for
injuries done to citizens of the United States by the authorities
of Spain, in Cuba, since the first day of October, 1868.
Adjudications of the tribunals in Cuba concerning citizens of the
United States, made in the absence of the parties interested or in
violation of international law or of the guarantees and forms
provided for in the Treaty of October 27, 1795, between the United
States and Spain may be reviewed by the arbitrators, who shall make
such award in any such case as they shall deem just. No judgment of
a Spanish tribunal disallowing the affirmation of a party that he
is a citizen of the United States shall prevent the arbitrators
from hearing a reclamation presented in behalf of said party by the
United States government; nevertheless, in any case heard by the
arbitrators, the Spanish government may traverse the allegation of
American citizenship, and thereupon competent and sufficient proof
thereof will be required. The commission having recognized the
quality of American citizens in the claimants, they will acquire
the rights accorded to them by the present stipulations as such
citizens. And it is further agreed that the arbitrators shall not
have jurisdiction of any reclamation made in behalf of a
native-born Spanish subject naturalized in the United States if it
shall appear that, the same subject matter having been adjudicated
by a competent tribunal in Cub, and the claimant having appeared
therein either in person or by his duly appointed attorney and
being required by the laws of Spain to make a declaration of his
nationality, failed to declare that he was a citizen of the United
States; in such case and for the purposes of this arbitration, it
shall be deemed and taken that the claimant, by his own default,
had renounced his allegiance to the United States. And it is
further agreed that the arbitrators shall not have jurisdiction of
any demands growing out of contracts. "
"6. The expenses of the arbitration will be defrayed by a
percentage to be added to the amount awarded. The compensation of
the arbitrators and umpire shall not exceed three thousand dollars
each; the same allowance shall be made to each of the two advocates
representing respectively the two governments, and the arbitrators
may employ a Secretary at a compensation not exceeding the sum of
five dollars a day for every day actually and necessarily given to
the business of the arbitration. "
"7. The two governments will accept the awards made in the
several cases submitted to the said arbitration as final and
conclusive, and will give full effect to the same in good faith,
and as soon as possible."