MR. JUSTICE CATRON dissenting.
In this proceeding of the United States against the Postmaster
General at the relation of Stockton, Stokes & Company, I had
intended not to intimate that I differed in any respect from the
majority, having an aversion to dissenting opinions save on
constitutional questions. But my two brethren, with whom I agree,
having determined to do so; it follows I must express a concurrence
with the one side or the other.
On the merits, I think the Senate of the United States, and the
Solicitor of the Treasury, construed the special act of Congress
correctly, and that the solicitor's award is a final adjudication
and conclusive of the rights of the relators.
But the question whether the circuit court of this district had
power to compel the Postmaster General, by mandamus, to enter a
credit for the amount awarded lies at the foundation of our
institutions; a question more grave or important rarely arises.
Coercion by the writ of mandamus of the officers and agents of a
government, is one of the highest exertions of sovereignty known to
the British constitution and common law; it is truly declared to be
one of the flowers of the King's Bench, 3 Black.Com. 110, note, and
in England can only be enforced by that court, where the King
formerly sat in person and is now deemed to be potentially
present.
It is his command, in his own name, directed to a court, person,
or corporation, to do a particular thing therein specified which
appertains to their office or duty, as a means of compelling its
performance, 3 Black.Com. ch. 7. The proceeding there, as here, is
in the name of the government, and not that of the relators; it
stands on
Page 38 U. S. 608
the foot of contempt, and is intended to reform official
delinquency.
By the act of independence, this prerogative and portion of
sovereignty, unimpaired, devolved on the different states of this
Union, and by the Constitution of the United States, such portion
of it as was necessary to coerce the courts, officers, and agents
of the general government was withdrawn from the states and
conferred on the federal sovereignty. Here the power lay dormant
until Congress should act. On the legislature was imposed the duty
to give it effect; it was wide as the land, and extended to every
portion of it, and by the Judiciary Act of 1789, section 13,
Congress attempted to invest the Supreme Court of the United States
with the power to issue writs of mandamus to persons holding office
under the authority of the United States. But the Constitution
having restricted this Court to the exercise of certain original
powers, and this not being amongst them, it was holden in
Marbury v.
Madison, l Cranch 137, so much of the act was void.
The decision was made in 1803; up to that time, Congress and the
country did not question that a law existed proper and necessary to
give effect to the prerogative through the instrumentality of this
Court, and that it was properly vested in the highest tribunal in
the land, exercising a jurisdiction coextensive with our whole
territory. So the matter stood when the Act of 27 February, 1801,
was passed, organizing the Circuit Court for the District of
Columbia. And the question is did Congress by implication confer or
intend to confer this high prerogative, within the ten miles
square, on the circuit court? That concurrent power with the
Supreme Court was intended to be given it is difficult to believe.
The power is claimed by the first, third, and fifth sections of the
act.
The first section adopts and declares in force the laws of
Maryland as they then existed on the north side of the Potomac.
By the Constitution of the United States, the prerogative to
coerce by mandamus federal officers had passed from the State of
Maryland to the government of the Union. Her laws and courts, in
1801, were denuded of the power, and as it did not remain with the
courts of Maryland, so it was not transferred to the Circuit Court
of the District of Columbia. This is deemed settled by
McClung v.
Silliman, 6 Wheat. 598.
And substantially the same answer may be given to the argument
which relied on the 11th section of the Judiciary Act of 1789,
providing that the circuit courts should have original cognizance,
concurrent with the courts of the several states, of all
suits of a civil nature at common law or in equity.
Take it that Congress did not distinguish between the
cognizance of the courts to draw to them controversies to
be litigated and their
powers to coerce obedience to
judgments or decrees, and to compel the performance of duties where
ascertained rights existed; still the section cited cannot help the
relators.
Suppose the circuit court of the district, in 1801, did have
conferred on it powers "concurrent" with the courts of Maryland,
these
Page 38 U. S. 609
having been deprived, on the adoption of the Constitution of the
United States, of the prerogative to coerce by mandamus officers of
the United States, the concurrent powers of the circuit court of
the district, could rise no higher than those of the Maryland
courts. The argument is easily met by separating the prerogatives
and powers passed to the federal government by the Constitution
from those reserved to the states.
The third section of the Act of 27 February, 1801, provides:
"And the said court and the judges thereof shall have all the
powers by law vested in the circuit courts and the judges
of the circuit courts of the United States."
Power to issue the writ of mandamus to coerce obedience
to a sovereign command on the petition of a citizen to the
sovereignty is one thing:
jurisdiction to try a case at
law or in equity is the exercise of a very different authority. The
first enforces the performance of an official duty by an
independent writ against a person not sued where the relator shows
an ascertained right, as in this instance where the writ is asked
to enforce a decree. The second tries and ascertains the right and
establishes it by a judgment. But to enforce the judgment by
process is the exercise of power, being the means employed to carry
the jurisdiction into execution. So the Judiciary Act of 1789 and
subsequent ones conferring jurisdiction and powers on the courts of
the United States declare, and so they have been uniformly
construed, as the cases of
Marbury v.
Madison, 1 Cranch 137,
McIntyre
v. Wood, 7 Cranch 504, and
McClung v.
Silliman, 6 Wheat. 598, distinctly show without
going further. They treat of the subject before us, and need no
collateral aid.
What then are the powers to issue writs and coerce the
performance of duties vested in the circuit courts of the United
States, referred to and adopted by the third section of the
District Act of 1801?
By the fourteenth section of the Judiciary Act of 1789, they are
declared to have power to issue writs of
scire facias,
habeas corpus, and all other writs not specially provided for by
statute which may be necessary for the exercise of their respective
jurisdictions and which are agreeable to the principles and usages
of law.
The antecedent section having vested in the Supreme Court the
prerogative and power to issue writs of mandamus to persons holding
office under the authority of the United States, of course the
power was not vested or intended to be vested in the circuit courts
further than might be necessary for the exercise of the
jurisdiction conferred by the eleventh section, and so it was
settled by this Court in
McIntyre v. Wood.
But, it is insisted, the power is derived from the Judiciary Act
of 13 February, 1801, to which the act of 27 February establishing
the circuit court of the District must also have had reference, and
although the act of 13 February was repealed on the coming in of
Mr. Jefferson's administration in March, 1802, still, as the
District Act of 27 February was not repealed, the act adopted by it
became a part thereof so far as
Page 38 U. S. 610
it was adopted, and within the District of Columbia, the powers
and jurisdiction conferred by that of 13 February, continued in
force, notwithstanding the repeal, in all other parts of the
Union.
Suppose we imply parts of the Act of 13 February, 1801, not to
have been repealed within this District, can we found on this
implication the additional one that the act conferred on the
circuit court of the District the high prerogative power to issue
writs of mandamus, coercing the secretaries and other officers of
the United States to perform their various duties? Did the power
exist in the court of this District in 1803, when the Supreme Court
brought Mr. Madison, the Secretary of State, before it? That no
department of the government, judicial tribunal, or law officer of
the United States so apprehended at that time or for more than
thirty years thereafter has been abundantly established during the
progress of this investigation.
It is admitted, and was so decided in
McIntyre v. Wood,
that none other of the circuit courts of the United States, holden
by the judges of the Supreme Court have the power claimed for the
court in this District, and that throughout the twenty-six states
of the Union this high prerogative writ cannot be exerted, because
Congress, since the decision in 1803 in the case of
Marbury v.
Madison, has not seen proper to vest it in these inferior
tribunals; nor is it matter of surprise when we recollect to what
extent the executive departments would have been subjected to the
judicial power.
Should we then, by doubtful implication and a strained
construction, apply this highest of judicial powers, in its nature
broad as the Union, to this ten miles square?
That the power can only be maintained to exist by implication,
and not express enactment is admitted on all hands. It never was
attempted to be conferred in express terms save on the Supreme
Court, and is the construction that invokes it for the circuit
court of this District a strained one? The tenth section of the
repealed Act of 13 February, 1801, declares
"that the circuit courts [then established] shall have and are
hereby invested with all the powers heretofore granted by law to
the circuit courts of the United States unless otherwise provided
by this act."
There is no repealing clause to the act. The section quoted
refers directly to the fourteenth section of the act of 1789, for
the
powers common to all the circuit courts of the Union.
They have stood unaltered, and been recognized, with slight
exceptions, as the sole powers by which the jurisdiction of the
circuit courts has been enforced, from the year 1789 to this
time.
It is insisted, however, that the
jurisdiction
conferred on the circuit courts by the eleventh section of the
repealed Act of 13 February, 1801, is much broader than that given
to them by the eleventh section of the act of 1789; that the act of
1801 covers the whole ground of the Constitution. This is certainly
true, but the fifth section of the Act 27 February, 1801, declaring
what matters shall be cognizable in the Circuit Court for the
District of Columbia, confers jurisdiction quite as comprehensive.
Its cognizance,
Page 38 U. S. 611
or jurisdiction "to hold plea," extends to all crimes and
offenses, and to
all cases in law and equity, provided the
defendant be found in the district. Thus, as the eleventh sections
of the act of 1759, and 13 February, 1801, each have reference to
the exercise of jurisdiction in suits or actions between litigant
parties, or over matters in some form brought before the court to
try and ascertain a contested right; it would be a most unnatural
construction to hold (as I think) that the phrase "
cognizance
of all cases in
law and equity" authorized the court
to assume the high power of coercing by mandamus one of the
secretaries or the Postmaster General to the performance of some
specific public duty in case of an ascertained right by force of
the strong arm of sovereign power because he was a public officer,
and who was not a suitor in court or party to a case in law or
equity.
What is this proceeding? The relators applied to a tribunal
where a portion of sovereignty was supposed to have been vested,
stated their ascertained right, and made their complaint that an
ordinary remedy was wanting to enforce the right, and asked the
representative of sovereignty for the aid of the writ, and an
exertion of its power, in the name of the United States, on one of
its great officers, to compel him to do his duty, to prevent a
failure of justice. This is the nature of the demand and the writ
awarded for its enforcement.
5 U. S. 1 Cranch
168.
In no just sense can this writ of mandamus be deemed
a
case at law between the United States and the Postmaster
General. It differs in no material feature from a writ of
attachment issued by a court against one of its officers, where he
refuses to perform an official duty. That it is not "a case"
between the relators and the Postmaster General was decided by this
Court in
McClung v. Silliman. There, the relator set forth
that he was a citizen of one state, and the Register of the Land
Office in Ohio, of another, and therefore proper parties were
before the court, "who under the
description of person
were entitled to maintain suits in the courts of the United
States." To which the court responded that the application in that
instance for the writ of mandamus, as in the one referred to of
McIntyre v.
Wood, 7 Cranch 504, "were wholly uninfluenced by
any considerations drawn from the want of personal attributes of
the parties." Holding in substance, as the undoubted truth is that
the mandamus was not a
private remedy to the relator; but
the exertion at his request of a prerogative and attribute of
sovereignty through the instrumentality of a court of justice for
the sake of good government and to prevent an abuse of its
authority by those acting at its command.
Taken in this sense, the decision in
McClung v.
Silliman is easily understood; viewed in any other, it is
involved in all the confusion attributed to it by the argument and
the opinion of the court below.
Another consideration prominently presents itself. Congress has
jurisdiction, exclusive of the several states, over this district
of ten miles square, and so Congress has exclusive jurisdiction
over the territories of the United States, and upon the courts of
these, as
Page 38 U. S. 612
upon the courts of this District, the jurisdiction and powers of
the state courts, of which the territories were formerly a part,
have been conferred, and in addition thereto the territorial courts
have been invested with the jurisdiction and powers of the circuit
courts of the United States. There are two territories the courts
of which are now exercising such general jurisdiction and powers --
Florida and Wisconsin. These courts having coextensive powers with
that of the District of Columbia; it follows, if the sovereign
prerogative to exert the writ of mandamus to coerce executive
officers of the United States, pertains to the one court, it must
to the others, and that Congress has, by implication, entrusted to
the courts of the two territories named, as well as to the court of
this District, powers that have been unquestionably withholden from
the federal circuit courts of the twenty-six states. To say
Congress never so intended, and if the power exists it was
conferred by an oversight in the legislature, is perhaps asserting
what few would be found to deny. The truth (there can be little
room for doubt) is that Congress has been unwilling to expose the
action of the government in the administration of its vast and
complicated affairs, and its officers, who have charge of their
management, to the danger and indignity of being coerced and
controlled, at the ill-defined discretion of the inferior courts,
by the writ of mandamus, and that after the decision of
Marbury
v. Madison in 1803, holding that the Supreme Court had not the
power thus to coerce an officer of the United States, it has been
permitted to lie dormant, awaiting the action of the legislature.
The supposition is rendered highly probable when we consider the
delicacy its exercise would necessarily involve and the difficulty
of vesting so high and extensive a power in the inferior courts,
and especially in those of this District, in a modified and safe
form.
Such being my own opinion, I think the order awarding the
mandamus against the Postmaster General should be reversed for want
of jurisdiction in the court below to issue the writ.
* The words in this opinion which are printed in italic are done
so in conformity with the "List of Errata" put forth in First
Howard's Reports by direction of MR. JUSTICE CATRON.