Under the joint resolutions of Congress providing for the
annexation of Texas to the United States, the officers of the Navy
of Texas did not pass into the naval service of the United States.
The transfer of the Navy of Texas related exclusively to the ships
of war and their armaments.
A mandamus against the Secretary of the Navy will not lie at the
instance of an officer to enforce the payment of his pay.
This was an application to the circuit court for a mandamus
under circumstances which are thus stated by that court in its
William C. Brashear petitioned the court for a rule on John Y.
Mason Secretary of the Navy of the United States, to show cause why
a mandamus should not issue commanding him, as Secretary of the
Department of the Navy, to cause payment to the petitioner of his
just dues as an officer in the navy for the time past since the
annexation of Texas to the United States.
The petitioner states that in pursuance of the Constitution and
laws of the Republic of Texas, he was, on 23 June, 1845, by the
then president of the said republic, commissioned as a commander in
the navy of the republic, and forthwith entered into service under
orders from the Department of War in Texas, and continued in that
service from 23 September, 1844, thenceforth, and was so in service
when the joint resolution of the Congress of the United States
passed for annexing Texas to the United States was approved and
when the said State of Texas was admitted into the Union and
Confederacy of the United States of America, and was actually in
service and a commander in the Navy of Texas when the ship
schooner San Bernard,
armed vessels of war of and
belonging to the Texan Navy, were delivered over to the United
States under the terms and articles of compact and agreement
between the United States of America and the Republic of Texas, and
as such he is advised that he is in good faith, and in accordance
with the said articles of agreement, compact, and treaty of
annexation, an officer in the navy and entitled to his pay and
emoluments from the United States.
The petitioner further states that he never has resigned his
commission nor been cashiered nor dismissed, that he has regularly
reported himself for duty under the said commission
Page 47 U. S. 93
to the Secretary of the Navy of the United States, and has
demanded his pay as an officer, but the Secretary of the Navy of
the United States has hitherto refused and yet refuses to pay him
or to recognize him as an officer of the navy. He states further
that he is informed and advised by counsel learned in the law that
for his pay and emoluments as an officer of the Navy of Texas,
transferred to the United States by the terms of the annexation
aforesaid, he is entitled to have and receive, up to 1 October,
1847, the sum of $2,100, whereof he has received from the Treasury
of the United States no more than the sum of $689.20, which was
paid him by order of the Secretary of the Navy of 19 March, 1847.
And he is also advised that he is entitled to his continuing pay
and rank as an officer in the Navy of the United States by virtue
of the said agreement, compact, treaty, and transfer before
Notwithstanding all which, the Secretary of the Navy of the
United States refuses to order payment to him for the time past
since the said annexation and transfer or to recognize him as an
officer in the Navy of the United States.
That part of the second section of the joint resolution of 1
March, 1845, for annexing Texas to the United States, which is
applicable to this case, is in the following words:
"Said state, when admitted into the Union, after ceding to the
United States all public edifices, fortifications, barracks, ports
and harbors, navy and navy yards, docks, magazines, arms,
armaments, and all other property and means pertaining to the
public defense belonging to said Republic of Texas, shall retain
all the public funds, debts, taxes, and dues of every kind, which
may belong to, or may be due and owing, said republic, and shall
also retain all the vacant and unappropriated lands lying within
its limits, to be applied to the payment of the debts and
liabilities of the said Republic of Texas, and the residue of said
lands, after discharging the said debts and liabilities, to be
disposed of as the said state may direct, but in no event are said
debts and liabilities to become a charge upon the government of the
The circuit court overruled the motion for a mandamus and
rejected the prayer of the petition, to which judgment Brashear
excepted, and upon this exception the case came up to this
Page 47 U. S. 99
MR. JUSTICE NELSON delivered the opinion of the Court.
The plaintiff made application to the court below for a mandamus
against the defendant, to compel the payment of $2,100 arrearages
of pay due him from the government as a commander in the Navy of
the United States, which application was founded on the following
state of facts.
The plaintiff was appointed a commander in the Navy of the
Republic of Texas on 23 September, 1844, and continued in its
service down to the annexation of the republic to the United States
in pursuance of the joint resolutions of Congress, March 1, 1845,
and until Texas was admitted into the Union as one of the states of
the confederacy, and was in the actual service of that republic at
the time when its navy, consisting of four vessels of war, was
delivered over to the authorities of the United States, according
to the terms of annexation.
The plaintiff insists that, according to the terms and
conditions of the compact between the two countries, on the
transfer of the Navy of Texas to the United States, and their
acceptance of the same, he became an officer of the United States
Navy, and entitled to his pay and emoluments as such.
He further states that he had reported himself to the Secretary
of the Navy for duty, and had demanded his pay of the same, but
that the secretary had refused to recognize him as an officer of
the navy or to make any payment to him as such.
The court below refused the mandamus, and dismissed the
The case is now before us for review.
It is not pretended that there has been any stipulation either
by act of Congress or by treaty between this government and Texas
by which the officers of her navy were to become incorporated into
the Navy of the United States as a consequence of the annexation,
but it is supposed to result from a proper construction and
understanding of one of the stipulations contained in the second
joint resolution of March 1, 1845. The part material is as
"Said state [Texas], when admitted into the Union, after ceding
to the United States all public edifices, fortifications, barracks,
ports and harbors, navy and navy yards, docks, magazines,
Page 47 U. S. 100
arms, armaments, and all other property and means pertaining to
the public defense belonging to Texas, shall retain all the public
&c. 5 Stat. 797.
The argument is that the term "navy" properly includes not only
the vessels of war, their armaments and equipments, but also the
usual complement of officers and crew on board the respective
vessels, and that it is in this sense the term is used and should
be understood in the joint resolutions.
We think not, but, on the contrary, are of opinion that it
relates exclusively to the ships of war and their armaments
belonging to the naval establishment of Texas, which, according to
the compact, were to become the property of the United States.
The two governments were not negotiating about persons holding
public employments in Texas, or in respect to any place or
provision for that class, on the breaking up of the old government
and its reconstruction for admission into the Union, but in respect
to her public property, which she was generally disabled from
holding under the Constitution of the United States after her
admission, as it fell under the jurisdiction and direction of the
The resolution provides for ceding to the United States all
public edifices, fortifications, barracks, ports and harbors, navy
and navy yards, docks, magazines &c., and all other property
and means pertaining to the public defense.
The phraseology is appropriate for the purpose of conveying the
property of the one government to the other, but exceedingly inapt
and unfortunate if intended to embrace persons or public officers,
as contended for by the plaintiff.
The argument in favor of including the officers of the Navy of
Texas in the transfer of the ships might be urged with equal force
by the officers and hands in charge of the navy yard, or of those
at the time in charge of the fortifications, for the term "navy,"
in the connection in which it is used, no more includes, ex vi
the officers and crew on board than the term "navy
yard" includes the officers and hands in charge of that part of the
public property, or the term "fortifications" includes the officers
and soldiers of the republic engaged in manning them.
The construction contended for we think altogether inadmissible,
and properly rejected by the court below.
We are also of opinion that if the plaintiff had made out a
title to his pay as an officer of the United States Navy, a
mandamus would not lie in the court below to enforce the
The Constitution provides that no money shall be drawn from the
Treasury but in consequence of appropriations made
Page 47 U. S. 101
by law. Art. I. § 9. And it is declared by Act of Congress, 3
Stat. 689, § 3, that all moneys appropriated for the use of the War
and Navy Departments shall be drawn from the Treasury by warrants
of the Secretary of the Treasury, upon the requisitions of the
Secretaries of these departments, countersigned by the Second
And by the Act of 1817, 3 Stat. 367, §§ 8, 9, it is made the
duty of the comptrollers to countersign the warrants only in cases
when they shall be warranted by law. And all warrants drawn by the
Secretary of the Treasury upon the Treasurer shall specify the
particular appropriations to which the same shall be charged, and
the moneys paid by virtue of such warrants shall, in conformity
therewith, be charged to such appropriations in the books kept by
the comptrollers; and the sums appropriated for each branch of
expenditure in the several departments shall be solely applied to
the object for which they are respectively appropriated, and no
others. 2 Stat. 535, § 1.
Formerly, the moneys appropriated for the War and Navy
Departments were placed in the Treasury to the credit of the
respective secretaries. That practice has been changed, and all the
moneys in the Treasury are in to the credit or in the custody of
the treasurers, and can be drawn out, as we have seen, only on the
warrant of the Secretary of the Treasury, countersigned by the
In the case of Decatur v.
14 Pet. 497, it was held by this Court
that a mandamus would not lie from the circuit court of this
district to the Secretary of the Navy to compel him to pay to the
plaintiff a sum of money claimed to be due her as a pension under a
resolution of Congress. There was no question as to the amount due
if the plaintiff was properly entitled to the pension, and it was
made to appear in that case affirmatively on the application that
the pension fund was ample to satisfy the claim. The fund also was
under the control of the Secretary, and the moneys payable on his
Still the Court refused to inquire into the merits of the claim
of Mrs. D. to the pension or to determine whether it was rightfully
withheld or not by the Secretary on the ground that the court below
had no jurisdiction over the case, and therefore the question not
properly before this Court on the writ of error.
The Court said that the duty required of the Secretary by the
resolution was to be performed by him as the head of one of the
executive departments of the government in the ordinary discharge
of his official duties; that in general such
Page 47 U. S. 102
duties, whether imposed by act of Congress or by resolution, are
not mere ministerial duties; that the head of an executive
department of the government, in the administration of the various
and important concerns of his office, is continually required to
exercise judgment and discretion, and that the Court could not by
mandamus act directly upon the officer and guide and control his
judgment or discretion in matters committed to his care in the
ordinary discharge of his official duties.
The Court distinguish the case from Kendall v.
12 Pet. 524, where there was a
mandamus to enforce the performance of a mere ministerial act not
involving on the part of the officer the exercise of any judgment
The principle of the case of Mrs. Decatur is decisive of the
present one. The facts here are much stronger to illustrate the
inconvenience and unfitness of the remedy.
Besides the duty of inquiring into and ascertaining the rate of
compensation that may be due to the officers under the laws of
Congress, no payment can be made unless there has been an
appropriation for the purpose. And if made, it may have become
already exhausted or prior requisitions may have been issued
sufficient to exhaust it.
The secretary is obliged to inquire into the condition of the
fund, and the claims already charged upon it, in order to ascertain
if there is money enough to pay all the accruing demands, and if
not enough, how it shall be apportioned among the parties entitled
These are important duties, calling for the exercise of judgment
and discretion on the part of the officer, and in which the general
creditors of the government, to the payment of whose demands the
particular fund is applicable, are interested, as well as the
government itself. At most, the secretary is but a trustee of the
fund for the benefit of all those who have claims chargeable upon
it, and, like other trustees, is bound to administer it with a view
to the rights and interests of all concerned.
It will not do to say that the result of the proceeding by
mandamus would show the title of the relator to his pay, the
amount, and whether there were any moneys in the Treasury
applicable to the demand, for upon this ground any creditor of the
government would be enabled to enforce his claim against it through
the head of the proper department by means of this writ, and the
proceeding by mandamus would become as common in the enforcement of
demands upon the government as the action of assumpsit to enforce
like demands against individuals.
For these reasons we think the writ of mandamus would
Page 47 U. S. 103
not lie in the case, and therefore, also, properly refused by
the court below, and that the judgment should be
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington and was argued
by counsel. On consideration whereof it is now here ordered and
adjudged by this Court that the judgment of the said circuit court
in this cause be and the same is hereby affirmed.