Cases cited in which it has been decided that a person holding
public office may be compelled by writ of mandamus to perform the
duties imposed upon him by law.
When the duty which the court is asked to enforce by mandamus is
plainly ministerial, and the right of the party applying for the
writ is clear, and he is without other adequate remedy, the writ
may issue; but where the effect of the writ is to discharge or
control the head of an Executive Department in the discharge of a
duty involving the exercise of judgment or discretion, it should
not issue.
Page 137 U. S. 637
Cases cited and referred to in which a writ of mandamus will not
be issued to compel the performance of even a purely ministerial
act.
M. furnished material and performed labor for the United States
under a contract, and when the work was done and the materials
furnished, he presented his account to the proper officer for
adjustment and settlement. The balance was found to be correct so
far as the labor and material were concerned, but it was also found
that, through penalties and forfeitures, that balance was liable to
be materially reduced. It also appeared that M. was indebted to
mechanics, subcontractors, laborers, and materialmen in a large
amount for work done and materials furnished under the contract.
The Treasury officials agreed with M. that this account should be
adjusted without enforcing the penalties and forfeitures if he
would consent that his said indebtedness should be paid out of the
sum so allowed, and that the control of the money should not be
given up until those claims were satisfied. He assented, and a
draft was prepared accordingly. He did not comply with those
conditions, but instead thereof applied to the Supreme Court of the
District of Columbia for leave to file an application for a writ of
mandamus to compel the Secretary of the Treasury to deliver the
draft to him, without first making the agreed payments. That
officer made a return to the petition, setting forth the foregoing
facts.
Held:
(1) That the return showed disputed questions of law and fact
which ought not to be tried in a proceeding for a mandamus, and
that this was sufficient cause for the discharge of the rule and
the refusal to issue the writ.
(2) That the agreement between M. and the accounting officers
was lawful, and, if carried out, would have been proper.
The case is stated in the opinion.
MR. JUSTICE LAMAR delivered the opinion of the Court.
This is a writ of error to the Supreme Court of the District of
Columbia, to reverse a judgment of that court dismissing the
relator's petition for a peremptory writ of mandamus against the
respondent, William Windom, Secretary of the Treasury, commanding
him to deliver to the relator a Treasury draft for $12,536, which
had been lawfully assigned to the relator by William Mitchell, the
payee
Page 137 U. S. 638
The petition and its amendments allege that William Mitchell, in
pursuance of a contract made with the United States on the 3d of
September, 1886, furnished certain material and performed certain
labor for the Life-Saving Service in the construction and repair of
seven houses on the coast of Long Island, in the State of New York;
that his account therefor was adjusted on the 11th of February,
1886, by the Treasury Department, as shown by a letter from the
Commissioner of Customs to Mitchell, stating that the sum of
$12,536 was due to Mitchell, and adding, "draft will be remitted;"
that the account having been so adjusted, nothing remained to be
done by the Treasury officials but the ministerial duty of issuing
a warrant and remitting to Mitchell a draft for the amount so found
to be due, and that a draft, dated the 15th of February, 1888, was
issued to Mitchell, but instead of being delivered to him or paid,
it was sent to Captain George W. Moore, of the Life-Saving Service
at New York, with instructions not to deliver said draft nor to pay
its amount to Mitchell until Mitchell should pay certain claims
presented against him at the Treasury Department, to persons
alleging his indebtedness to them for materials and labor. The
petition further averred that there was no discretion residing in
the respondent, the Secretary of the Treasury, or in any other
government officer, as to the delivery of said draft; that none of
those officers had any right or authority to interfere with
Mitchell's private business or to adjust any claims against him;
that such an attempt on their part was a violation of Mitchell's
rights and of the rights of the relator as his assignee; that
Moore, in pursuance of the Secretary's instructions, did not
deliver the draft or pay the amount of it to Mitchell, but returned
it to the Secretary of the Treasury, who still retains the same in
his possession and still refuses to deliver it or to pay any part
thereof to either Mitchell or the relator; that the said claims
against Mitchell are unjust, and amount to $12,503, or within $33
of the amount of said draft; that even if they were not unjust, the
relator has no authority, under the terms of the assignment, to pay
them, and has no means to pay them until the said draft is either
delivered or
Page 137 U. S. 639
paid to him; that the respondent does not deny the correctness
of the account, the amount found to be due to Mitchell, but bases
his refusal to deliver the draft simply upon the ground that
Mitchell has not paid the sums demanded of him by the persons who
presented their claims at the Treasury Department; that about the
27th day of February, 1888, Mitchell, under certain proceedings
under the laws of New York, set forth the indebtedness of the
United States to him, and the detention of the draft as herein
stated; that the Supreme Court of the City and County of New York,
in the course of those proceedings, appointed the relator receiver
of all of Mitchell's property, debts, equitable rights, interests,
and effects, real and personal; that he, the relator, was duly
qualified, and, by virtue of said order, was entitled to demand and
to receive the said draft for $12,536, and that Mitchell, for the
purpose of enabling the relator to demand and receive said draft,
and to apply the proceeds thereof according to the order appointing
him receiver, assigned said draft to relator, giving him thereby
full power to demand and receive it or the amount expressed in
it.
By an amendment, the petition further alleged that
"a general appropriation was made by act of Congress to provide
for the payment of work to be done in the building and repairing of
life-saving stations prior to the performance of the work done
under the said contract of September 3, 1886, and that there is
sufficient money now in the Treasury of the United States
applicable to the payment of the said work so done under said
contract."
The prayer is for a writ of mandamus against Hon. William
Windom, Secretary of the Treasury, commanding him to deliver or
cause to be delivered to the relator the said draft, or show cause
at an early date, and that such further order may be made in the
premises as law and justice may require, or show cause, etc.
This petition and the order to show cause having been agreed by
stipulation to be taken as the alternative writ, a demurrer was
interposed, which was overruled by the court, and the respondent
ordered to make return. Before the return was made, the relator was
allowed to make further amendments,
Page 137 U. S. 640
designed to reply to what was expected to be set forth in the
return.
The facts stated in the return are averred mainly upon
information and belief, as they occurred under a former Secretary,
the predecessor of the respondent. It admits that an account was
stated by the accounting officers of the Treasury Department on the
11th of February, 1888, under his predecessor, but that said
account was stated, and a draft prepared for delivery upon
condition, and under the circumstances expressed in the letters of
certain officials of the Treasury Department, which are filed by
the relator as exhibits. It then sets out in substance, though not
in the order as here stated, that the respondent is advised and
believes that the said amount of $12,536 is not justly due and
owing by the United States to Mitchell or his lawful assignee for
the work done and materials furnished; that the account referred to
in the petition was adjusted, and a draft prepared for delivery,
upon the condition, previously agreed to by Mitchell, that part of
the $12,536 so allowed should be applied to the satisfaction of the
claims of certain mechanics, laborers, and materialmen, by whose
work and materials the houses were built and repaired; that
Mitchell, under his contract with the government, was liable to a
penalty of thirty dollars per day for any delay in completing the
work within the time stipulated; that he had actually incurred
penalties for delays amounting to $6,240; that the remission of
these penalties would not have been approved or recommended, and
said adjustment of the account would not have been made, and said
draft would not have been prepared, but for the above-mentioned
conditions agreed to by Mitchell, that he should allow the
disbursing officer, to whom the draft was sent, to pay the
subcontractors and workmen out of the proceeds of the draft; that
the conditions of the proposed waiver were not complied with by
Mitchell or the relator; that the government has the right to
insist upon them, and deduct the penalties from the amount of said
account, and that it is the legal right of the respondent to secure
a restatement of said account, to cancel said draft, or to take
such other course to secure said penalties and
Page 137 U. S. 641
forfeitures to the government as the laws and regulations of the
Treasury Department may require. He further averred that to leave
the relator to his remedy at law would enable the government to
avail itself of the said forfeitures, or other just damages in the
premises.
On the hearing, the court discharged the rule, and denied the
writ.
The main assignment of error is that the court erred in not
deciding that the duty of the Secretary to deliver the draft was
purely a ministerial duty of which the court should enforce the
performance by a writ of mandamus. In order to determine whether
the case presented by the record is a proper one for a mandamus, it
is necessary to recur to certain statutory provisions bearing upon
the powers and duties of the Secretary of the Treasury respecting
the accounts to be settled in that department, and especially upon
his relations to the accounting officers thereof.
The Act of June 18, 1878, 20 Stat. 163, c. 265, to organize the
Life-Saving Service, and that of May 4, 1882, 22 Stat. 55, c. 117,
to promote its efficiency, provide that the keepers of life-saving
stations and the superintendents thereof shall have the powers and
perform the duties of inspectors of customs. The sections of the
Revised Statutes material to be considered are the following:
Section 277 provides that
"The First Auditor shall receive and examine all accounts
accruing in the Treasury Department relating to the receipts from
customs, including accounts of collectors
and other officers of
the customs . . . and after examination of such accounts
relating to the receipts from customs, including the accounts of
collectors and other officers of the customs, he shall certify the
balances, and transmit the same, with the vouchers and
certificates, to the
Commissioner of Customs for his decision
thereon, and he shall certify the balances of all
other accounts, and transmit the same in like manner to
the First Comptroller for his decision thereon."
Section 317 provides that
"The Commissioner of Customs shall examine all accounts
Page 137 U. S. 642
settled by the first Auditor relating to the receipts from
customs, including accounts of collectors and other officers of the
customs, and certify the balances arising thereon to the register,
[and shall perform all the acts and exercise all the powers
relating to the receipts from customs and the amounts of
collectors, and the other officers of the customs as connected
therewith, devolved by section two hundred and sixty-nine, upon the
First Comptroller, in regard to other receipts and other
accounts.]"
"SEC. 191. The balances which may from time to time be stated by
the Auditor, and certified to the heads of departments by the
Commissioner of Customs, or the Comptrollers of the Treasury, upon
the settlement of public accounts, shall not be subject to be
changed or modified by the heads of departments, but shall be
conclusive upon the executive branch of the government, and be
subject to revision only by Congress or the proper courts. The head
of the proper department, before signing a warrant for any balance
certified to him by a Comptroller, may, however, submit to such
Comptroller any facts in his judgment affecting the correctness of
such balance, but the decision of the Comptroller thereon shall be
final and conclusive, as hereinbefore provided."
The contention of the counsel for the relator is that Mitchell
performed his contract with the United States to construct and
repair certain houses for the Life-Saving Service; that his account
for the work done and the materials furnished was examined by the
proper accounting officer; that a balance was found in Mitchell's
favor in the amount of $12,536; that this balance was certified by
the Commissioner of Customs to the Secretary of the Treasury, and
that the Secretary did not dispute this indebtedness of the United
States to Mitchell, nor submit to the proper accounting officers
any facts affecting the correctness of the said balance, but
assented to its correctness by issuing a warrant and having
prepared a draft for its payment. It is insisted that the
Secretary, after issuing this warrant, has no power to change or
modify the balance thus found and certified; but that his duty to
deliver the draft to Mitchell, or his assignee, is purely a
ministerial one, and that
Page 137 U. S. 643
the writ of mandamus should issue to compel the performance of
that duty.
This argument would be conclusive as to the right of the relator
to the remedy prayed for if the facts which it assumes comprised
all the facts presented by the record. The statutes which we have
quoted are very explicit in designating the officers to whom the
right and duty belong of examining and auditing the accounts
therein referred to, and of certifying and transmitting the
balances of the same to the Commissioner of Customs for his
decision thereon, and they expressly provide that when those
accounts are examined by those accounting officers in successive
grades, the balances stated by the Auditor and certified to the
heads of department by the commissioner shall be conclusive upon
the executive branch of the government. There is nothing in the
language of these provisions which expressly or by implication
vests in the Secretary the power to revise or disallow any part of
these accounts. On the contrary, it is clearly his duty to issue a
warrant for the payment of any balance without any change or
modification, except that, before issuing a warrant for any balance
certified to by a Comptroller, he may submit to such Comptroller
any facts in his judgment affecting the correctness of such
balance; but the decision of the Comptroller thereon shall be final
and conclusive.
The principle upon which persons holding public office may be
compelled by a writ of mandamus to perform duties imposed by law
have been distinctly defined and strictly adhered to in a great
number and variety of cases before this Court.
Marbury v.
Madison, 1 Cranch 137;
Kendall v.
United States, 12 Pet. 524;
Decatur v.
Paulding, 14 Pet. 497;
Brashear v.
Mason, 6 How. 92,
47 U. S. 101;
United States v.
Guthrie, 17 How. 284;
Ex Parte
De Groot, 6 Wall. 497;
Georgia v.
Stanton, 6 Wall. 50;
Gaines v.
Thompson, 7 Wall. 347;
United
States v. Seaman, 17 How. 225,
58 U. S. 230;
Ex Parte
Bradstreet, 7 Pet. 634;
Harrington v.
Haller, 111 U. S. 796;
Reeside v.
Walker, 11 How. 272,
52 U. S. 290;
United States v. Schurz, 102 U. S. 378,
102 U. S.
394-395;
Butterworth v. United States,
112 U. S. 50;
United States v. Black, 128 U. S. 40.
Page 137 U. S. 644
That principle is that the writ of mandamus may issue where the
duty which the court is asked to enforce is plainly ministerial and
the right of the party applying for it is clear and he is without
any other adequate remedy, and it 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. The doctrine to be gathered from these
cases , as well those in which mandamus was granted as those in
which it was refused, especially from the two leading cases,
Kendall v. United States, supra, and
Decatur v.
Paulding, supra, is thus enunciated in
United States v.
Black supra, by MR. JUSTICE BRADLEY, who delivered the opinion
of the Court.
"The court will not interfere by mandamus with the executive
officers of the government in the exercise of their ordinary
official duties even where those duties require an interpretation
of the law, the court having no appellate power for that purpose;
but when they refuse to act in a case at all, or when, by special
statute or otherwise, a mere ministerial duty is imposed upon them
-- that is, a service which they are bound to perform without
further question -- then if they refuse, a mandamus may be issued
to compel them."
It is proper here to remark, as applicable to the determination
of this case, that in the extreme caution with which this remedy is
applied by the courts, there are cases when the writ will not be
issued to compel the performance of even a purely ministerial act.
In a case, for instance, where the intention of the officer, though
acting within the scope of his duty, had been frustrated by a
clerical mistake,
United States v. Schurz, supra, or where
the case is one of doubtful right,
N.Y. Life
& Fire Ins. Co. v. Wilson, 8 Pet. 291,
33 U. S. 302,
or in a case where, the relator having another adequate remedy, the
granting of the writ may in this summary proceeding affect the
rights of persons who are not parties thereto, or where it will be
attended with manifest hardship and difficulties,
People v.
Forquer, Breese [1 Ill.] 68 (2d ed., 104);
Van Renesselaer
v. Sheriff of Albany, 1 Cowen 501, 512;
Oakes v.
Hill, 8 Pick. 46. In
King v. Lords Commissioners of the
Treasury,
Page 137 U. S. 645
4 Ad. & El. 295, Lord Denman, C.J., said:
"If, as has been suggested, it should on any occasion be unsafe,
with reference to the public service, to make a payment of this
kind, the fact may be stated on return to the mandamus. There might
perhaps be occasions on which the Lords Commissioners would be
bound to apply the money to particular purposes of a more pressing
nature."
We repeat that if we confine our view of this case, as the
counsel for appellee contends that we should, to the adjustment of
the account of Mitchell, as stated by the Auditor, the certificate
of the balances of the Commissioner of Customs to the Secretary of
the Treasury, the issue of the warrant by the latter for the
payment of the balance so certified, the preparation of the draft,
its transmission to the disbursing officer, the subsequent
withholding of it by the Secretary of the Treasury, and his refusal
to deliver it either to Mitchell or his assignee, the relator, the
case is clearly one of ministerial duty. But the facts,
circumstances, and conditions set forth in the return of the
Secretary of the Treasury place the matter in another and quite a
different light. He states in his return that under the contract of
Mitchell with the United States, Mitchell had actually incurred, by
defaults, penalties, and forfeitures to a large amount, the
deduction of which from the amount of his account, as rendered,
would reduce that amount largely; that the entire adjustment of
that account, including the waiver of the penalties incurred, the
certification of the balances, and the issuing of the warrant and
preparation of the draft for delivery was upon the condition,
agreed to by Mitchell, that out of the sum thus allowed by the
department, the claims of the mechanics, subcontractors, laborers,
and materialmen for work and material furnished by them in the
erection of the station buildings should be satisfied; that an
essential part of this agreement with Mitchell was that the control
of the money to be paid was not to be given up until these claims
of the aforesaid parties should in some way be settled; that the
draft for the amount agreed upon should be sent to the officer of
the Life-Saving Service at New York, by whom, with Mitchell, these
parties at some appointed time,
Page 137 U. S. 646
were first to be paid or satisfied out of said draft, and that
if this was not done, the draft was not to be delivered to
Mitchell. He further states that Mitchell refused to perform this
condition, and that the penalties would not have been waived but
for that agreement, and says:
"In the opinion of the respondent, said forfeitures and
penalties may legally be insisted upon by the government, and the
amount thereof deducted from said draft, and it is the legal right
of the respondent, in his opinion, to secure a restatement of said
account, or to cancel said draft, or to take such other course to
secure said penalties and forfeitures to the government as the laws
and the regulations of the Treasury Department may require, and he
avers that to leave the relator to his remedy at law would, in the
respondent's opinion, enable the government to avail itself of the
said forfeitures or other just damages in the premises."
We think that this return showed sufficient cause for a
discharge of the rule, and a refusal to issue the writ. It
certainly raises disputed questions of law and fact as to the
amount of the actual indebtedness of the United States to Mitchell;
as to his agreement that the draft should not be delivered until
the claims of the subcontractors, mechanics, and materialmen should
be satisfied out of the proceeds of said draft; as to whether the
remission of the forfeiture was absolute or conditional; as to the
validity of such agreement, and as to the legal effect of
Mitchell's nonfulfillment of the contract. We concur with the court
below that these disputed questions of law and fact should not be
tried in this proceeding, and that this is not a case in which the
power of the court should be exercised.
We have given due consideration to the ingenious argument of
counsel for appellee to show that the return in terms does not
assert that the remission of the penalties was conditioned as
stated by the court below, and that if such condition was agreed to
between the accounting officers and Mitchell, such agreement was
illegal and void. We think neither of these points is well taken.
As to the first, the court below correctly stated the substance of
the return, as we have also attempted
Page 137 U. S. 647
to do. The objection really is that the averments of the return,
upon this point, lack the essential requisites of good pleading. It
does not appear that any such ground was taken in the court below.
As to the second point, it is our opinion that the agreement
between Mitchell and the accounting officers, as stated in the
return, was lawful, and if carried out by Mitchell, would have been
fair and proper. It was simply that the amount which would
otherwise have been excluded by reason of Mitchell's default from
the balance certified and from the warrant for payment should go in
part to the payment of the men by whose labor and means the houses
of the Life-Saving Service had been built for the United States.
The judgment of the court below is
Affirmed.