United States ex Rel. Goodrich v. Guthrie, 58 U.S. 284 (1845)

U.S. Supreme Court

United States ex Rel. Goodrich v. Guthrie, 58 U.S. 17 How. 284 284 (1845) United States ex Rel. Goodrich v. Guthrie

58 U.S. (17 How.) 284

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF COLUMBIA

Syllabus

The Circuit Court of the United States for the District of Columbia had not the power to issue a writ of mandamus commanding the Secretary of the Treasury to pay a judge of the Territory of Minnesota his salary for the unexpired term of his office, from which he had been removed by the President of the United States.

No court has the power to command the withdrawal of money from the Treasury of the United States to pay any individual claim whatever.

A mandamus can issue only in cases where the act to be done is merely ministerial, and with regard to which nothing like judgment or discretion in the performance of his duties is left to the officer.

The question whether or not the President has power to remove a territorial judge argued but not decided in the present case.

The facts were these:

On the 19th March, 1849, the President appointed, by and with the advice and consent of the Senate, A. Goodrich, to be Chief Justice of the Supreme Court of the Territory of Minnesota for four years, which appointment was accepted.

On 21st of October, 1851, the President of the United States thought proper to remove Mr. Goodrich and to appoint Jerome Fuller to the office, of which removal Mr. Goodrich was informed by an official letter from the Department of State dated 22 October, 1851, and received by him on 30 November, 1851, as stated by him.

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Mr. Goodrich denied the power of the President to remove him from office during the term of four years, and claimed his salary from and after his removal. The accounting officers of the Treasury paid him his salary up to 30th November, 1851, and refused to pay beyond that day.

Mr. Goodrich moved the Circuit Court of the United States for the District of Columbia and County of Washington for a rule upon the Secretary of the Treasury to show cause why a mandamus should not issue to compel the payment of the salary to Mr. Goodrich up to 19th March, 1853, when the term named in his commission expired. The court refused to grant the rule.

From this refusal, Mr. Goodrich brought the case up to this Court by writ of error.

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MR. JUSTICE DANIEL delivered the opinion of the Court.

This case comes before us upon a writ of error to the Circuit Court of the United States for the District of Columbia and county of Washington. It originated in the denial by the court above mentioned of a writ of mandamus by which the Secretary of the Treasury should be ordered to pay to the relator a sum of money claimed by the latter as a portion of the salary due to him as Chief Justice of the Territory of Minnesota.

The facts which constituted the grounds of the application, few and simple in their character, were these:

That on the 19th of March, 1849, the relator had, with the advice and consent of the Senate, been commissioned by President Taylor, Chief Justice of the Supreme Court of the Territory of Minnesota, to which office there had been annexed by the act of Congress organizing the territorial government a compensation or salary of eighteen hundred dollars per annum, payable quarter-yearly. That the tenure of the appointment was, by the language both of the act of Congress and of the commission of the relator, declared to be for the term and duration of four years from the date of the commission. That the relator, having accepted his commission was afterwards, namely on 22d of October, 1851, informed by J. J. Crittenden, Acting Secretary of State, that the President had thought it proper to remove him from office and to substitute in his place Jerome Fuller.

That the relator, insisting upon the tenure of his office according to the literal terms of the commission, preferred a

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claim before the First Auditor of the Treasury for the sum of $2,343 as compensation from the period of his dismission up to the expiration of four years from the date of his appointment.

That the First Auditor having rejected the claim in these words: "That Aaron Goodrich is not entitled to the salary claimed by him." An appeal was taken by the relator to the Comptroller of the Treasury, by whom the decision of the First Auditor was sustained and by whom, in adjudging, it is remarked, that

"There can be only one chief justice of the supreme court in the territory, and the President of the United States having thought proper to remove Chief Justice Goodrich, and having nominated, and, by and with the consent of the Senate, appointed Jerome Fuller Chief Justice in the room and stead of the said Chief Justice Goodrich, he -- that is, the Comptroller -- was bound to consider the said removal and appointment as legal."

And in consideration of the facts and the law, his decision was that the United States were not indebted to the said Aaron Goodrich as Chief Justice of the Supreme Court of the Territory of Minnesota, and that the decision of the First Auditor in the premises was confirmed and established.

Upon the foundation of the facts above recited, and in opposition to the decisions of the auditor and Comptroller, and with the view of coercing the allowance by the Secretary of the Treasury of the claim preferred by the relator, the application, which has been refused by the circuit court, was made.

In considering this case it may be remarked at the threshold that it exhibits the anomalous predicament of a prosecution by and in the name of the United States adversary to the United States and to their authority, for it must be admitted that the Secretary of the Treasury can have no relation whatever, and is clothed with no powers and sustains no obligation incident to the present controversy, except as he is the representative of the United States or the guardian or custodian of their interests committed to his charge.

In their discussion of this cause, the counsel on either side have deemed themselves called upon to take a more extensive range of inquiry than is that by which we consider this controversy to be properly limited. They have supposed that in the regular line of this controversy, and therefore in its correct adjudication, were involved necessarily the tenure and character of the judicial power as created either by the Constitution or by the legislation of Congress, as likewise the powers of the executive department in the exercise of its constitutional functions to control or influence the judicial power, and in their examination by the counsel of these deeply important topics,

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much of research and ingenuity has been evinced. But within what we conceive to be the correct apprehension of this cause, neither of those important topics is embraced, and although, when regularly and directly presented for consideration, the responsibility of passing upon them can no more be avoided than can the adjudication of any minor subject of judicial cognizance, yet their very importance furnishes a cogent reason why any unauthorized proceeding in reference to them should be cautiously avoided; why there should be no attempt to affect them by proceedings extrajudicial in their character, and such as would deprive of binding authority the action of the Court in matters even of trivial concernment.

The true question presented for our consideration here relates neither to the tenure of the judicial office as created and defined by the Constitution or by acts of Congress nor to the powers and functions of the President as vested with the executive power of the government.

The only legitimate inquiry for our determination upon the case before us is this: whether, under the organization of the federal government or by any known principle of law, there can be asserted a power in the Circuit Court of the United States for the District of Columbia, or in this Court, to command the withdrawal of a sum or sums of money from the Treasury of the United States to be applied in satisfaction of disputed or controverted claims against the United States? This is the question, the very question presented for our determination, and its simple statement would seem to carry with it the most startling considerations -- nay, its unavoidable negation -- unless this should be prevented by some positive and controlling command, for it would occur a priori to every mind that a Treasury not fenced round or shielded by fixed and established modes and rules of administration, but which could be subjected to any number or description of demands asserted and sustained through the undefined and undefinable discretion of the courts would constitute a feeble and inadequate provision for the great and inevitable necessities of the nation. The government under such a regime -- or rather under such an absence of all rule -- would, if practicable at all, be administered not by the great departments ordained by the Constitution and laws and guided by the modes therein prescribed, but by the uncertain and perhaps contradictory action of the courts in the enforcement of their views of private interests.

But the question proper for consideration here has not been left for its solution upon theoretical reasoning merely. It has already been authoritatively determined.

The power of the courts of the United States to command

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the performance of any duty by either of the principal executive departments or such as is incumbent upon any executive officer of the government, has been strongly contested in this Court, and insofar as that power may be supposed to have been conceded, the concession has been restricted by qualifications which would seem to limit it to acts or proceedings by the officer not implied in the several and inherent functions or duties incident to his office -- acts of a character rather extraneous and required of the individual, rather than of the functionary.

Thus, it has been ruled that the only acts to which the power of the courts by mandamus extends are such as are purely ministerial, and with regard to which nothing like judgment or discretion in the performance of his duties is left to the officer, but that wherever the right of judgment or decision exists in him, it is he, and not the courts, who can regulate its exercise.

These are the doctrines expressly ruled by this Court in the case of Kendall v. Stockton, 12 Pet. 524; in that of Decatur v. Paulding, 14 Pet. 497; and in the more recent case of Brashear v. Mason, 6 How. 92 -- principles regarded as fundamental and essential, and apart from which the administration of the government would be impracticable. These principles just stated are clearly conclusive upon the case before us. The Secretary of the Treasury is inhibited from directing the payment of moneys not specifically appropriated by law. Claims against the Treasury of the United States like the present are, according to the organization of that department, to be examined by the First Auditor; from this officer they pass, either under his approval or by appeal from him, to the Comptroller; and from the latter they are carried before the Secretary of the Treasury, without whose approbation they cannot be paid, and who cannot, even by the concurring opinions of the inferior officers of the department, be deprived of his own judgment upon the justice or legality of demands upon public money confided to his care. Opposed to the claim under consideration, we have the decisions of three different functionaries, to each of whom has been assigned by law the power and the duty of judging of its justice and legality. By what process of reasoning, then, the authority to make those decisions, or those decisions themselves, can be reconciled or identified with the performance of acts merely ministerial we are unable to conceive, and unless so identified, or there could have been shown some power in the circuit court competent to the repealing of the legislation by Congress, in the organization of the Treasury Department -- competent, too, to the annulling of the explicit rulings of this

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court, in the cases hereinbefore cited -- the circuit court could have no jurisdiction to entertain the application for a writ of mandamus in this instance. As no such power has been shown, nor, in our opinion, could have been shown or ever had existence,

The decision of the circuit court overruling the application is approved and affirmed.

MR. JUSTICE McLEAN dissented. MR. JUSTICE CURTIS filed a separate opinion, in which MR. JUSTICE NELSON, MR. JUSTICE GRIER, and MR. JUSTICE CAMPBELL concurred.

MR. JUSTICE CURTIS.

I assent to the judgment of the Court in this case upon the ground that a writ of mandamus to the Secretary of the Treasury is not a legal remedy to try the title of the relator to the office claimed by him, and that until that title has been legally tried and determined, he can take no step to compel the payment of the salary attached by law to that office. I desire to be understood as expressing no opinion upon any other question argued by the counsel in this case.

MR. JUSTICE NELSON, MR. JUSTICE GRIER, and MR. JUSTICE CAMPBELL concurred in this opinion.

MR. JUSTICE McLEAN.

As this case involves important principles and as I differ from the opinion of the Court, I shall state my views.

The first inquiry that naturally arises in the case is whether the President had power to make the removal complained of? This is not the object of the mandamus applied for, but it is incidental to it.

The 2d section of the 2d article of the Constitution provides:

"That the President shall have power, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court and all other officers of the United States, whose appointments are not herein otherwise provided for and which shall be established by law."

In his argument, the Attorney General says:

"That the power of the President was discussed and settled by Congress in the commencement of the federal government, that the power of the President to remove all officers who, by the Constitution itself were not declared to hold their offices during good behavior was sustained by both houses, and that this power was recognized in the establishment of the department for foreign affairs. "

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In the 2d section of the act referred to, it was provided: "When the principal officer of the department should be removed, the chief clerk, during the vacancy, shall have custody of the records of the department." And a similar provision is contained in the other acts to establish the principal departments of the government. The heads of these departments constituted the cabinet of the President, and as they were not only his advisers, but discharged their duties under his direction, there was a peculiar propriety that their offices should be held at the will of the executive.

There was great contrariety of opinion in Congress on this power. With the experience we now have in regard to its exercise, there is great doubt whether the most enlightened statesmen would not come to a different conclusion.

The Attorney General calls this a constitutional power. There is no such power given in the Constitution. It is presumed to be in the President, from the power of appointment. This presumption, I think, is unwise and illogical. The reasoning is: the President and Senate appoint to office; therefore, the President may remove from office. Now the argument would be legitimate if the power to remove were inferred to be the same that appoints.

It was supposed that the exercise of this power by the President was necessary for the efficient discharge of executive duties. That to consult the Senate in making removals, the same as in making appointments, would be too tardy for the correction of abuses. By a temporary appointment, the public service is now provided for in case of death, and the same provision could be made where immediate removals are necessary. The Senate, when called to fill the vacancy, would pass upon the demerits of the late incumbent.

This, I have never doubted, was the true construction of the Constitution, and I am able to say it was the opinion of the late Supreme Court with Marshall at its head.

The numbers of the Federalist, though written before the Constitution was adopted, have been considered as among its ablest expositors. Publius, in one of his numbers, says,

"It has been mentioned as one of the advantages to be expected from the cooperation of the Senate in the business of appointments that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as appoint. A change of the chief magistrate, therefore, would not occasion so violent or so great a revolution in the offices of the government as might be expected if he were the sole disposer of offices; where a man in any station has given satisfactory evidence of his fitness for it, a new President would be restrained

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from attempting a change in favor of a person more agreeable to him by the apprehension that the discountenance of the Senate might frustrate the attempt and bring some degree of discredit upon himself. These who can best estimate the value of a steady administration will be most disposed to prize a provision which connects the official existence of public me, with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the body."

In this discussion in Congress Mr. Madison, one of the ablest and most enlightened statesmen of which our country can boast, considered the removal from office was an executive power, and that Congress could not restrict its exercise. He also considered the power of appointment an executive power, and that, had not the Constitution so provided, the concurrent action of the Senate could not have been required by act of Congress in making appointments. If this were admitted, it would not give strength to the argument in favor of the exercise of the power by the President.

If the power to remove from office be inferred from the power to appoint, both the elements of the appointing power are necessarily included. The Constitution has declared what shall be the executive power to appoint, and by consequence, the same power should be exercised in a removal. But this power of removal has been perhaps too long established and exercised to be now questioned. The voluntary action of the Senate and the President would be necessary to change the practice, and as this would require the relinquishment of a power by one of the parties, to be exercised in conjunction with the other, it can scarcely be expected.

The Attorney General says that

"The construction of the Constitution concurred in by the two houses of the first Congress and approved by President Washington resolved, among others, the following point:"

"That in a republican government, public offices are created for the benefit of the people; that the officer does not hold a private estate and property in the office, and when the officer is unfit for any cause whatever, he ought to be displaced and another appointed for the benefit of the people and their security, or if the office itself be found, upon experience, to be unnecessary, it should be abolished."

The soundness of the policy expressed in this resolution must be admitted by every intelligent individual who understands and appreciates our system of government, and if the power had been exercised under the limitations expressed in the resolution, it would have had a

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most salutary effect on office holders and on the public. For the truth of this, a reference may be made to the history of the earlier administrations.

But this power of removal from office by the President was neither exercised nor supposed to apply until recently to the judicial office.

In the establishment of the territories, the "Northwestern," "Indiana," "Illinois," "Mississippi," "Michigan," and "Wisconsin," it was provided that the judges should hold their offices during good behavior. The governor, secretary, and the other officers of these territories were appointed under the law for a term of years, "unless sooner removed."

By the act of Congress of August, 1789, to provide for the government of these territories, certain changes were made in the ordinance of 1787 to adapt it to the Constitution of the United States. It was provided that the President shall nominate and by and with the advice and consent of the Senate shall appoint all officers which by the said ordinance were to have been appointed by the United States in Congress assembled, and all officers so appointed shall be commissioned by him, and all cases where the United States,

"in Congress assembled, might by the said ordinance revoke any commission or remove from any office, the President is hereby declared to have the same power of revocation and removal."

In the Territories of "New Orleans," "Florida," "Iowa," "Oregon," "Washington," "Utah," "New Mexico," "Minnesota," "Nebraska," and "Kansas," the judges were appointed for four years, and the governor and all other officers of the territories were appointed for a term of years "unless sooner removed."

In the "Missouri" and "Arkansas" Territories only were the judges appointed for four years "if not sooner removed."

In the Constitution, no express provision was made for the government of territories. This no doubt was deemed unnecessary, as the ordinance of 1787, which was passed before the Constitution was adopted, provided for the government of all the territory then claimed by the United States.

Territorial judges are said not to be appointed under the Constitution, but by virtue of an act of Congress. In American Insurance Company v. Canter, 1 Pet. 546, Chief Justice Marshall said:

"The judges of the superior courts of Florida held their offices for four years. These courts, then, are not constitutional courts, in which the judicial power, conferred by the Constitution on the general government, can be deposited."

But all the judges of the territories, from 1787 to 1804, were appointed for good behavior, so that the term of service was not a safe criterion by which to determine the character of territorial judges.

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It is admitted that the judges of the Supreme Court cannot be appointed for a less period than good behavior, and the same may be said of the district judges.

The power under which the territorial governments is organized is a matter of some controversy. In the case above cited, Chief Justice Marshall said:

"Florida continues to be a territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress to make all needful rules and regulations respecting the territory or other property belonging to the United States."

This is the prevailing view of those who have examined the subject. But the Chief Justice proceeds:

"Perhaps the power of governing a territory belonging to the United States which has not, by becoming a state, acquired the means of self-government may result necessarily from the facts that it is not within the jurisdiction of any particular state, and is within the power and jurisdiction of the United States."

These facts exist in every territorial government, but it does not show the source of the power, unless by the doctrine of necessity, which does not seem to be a legitimate foundation for a civil government under our system. The Chief Justice further says: "The right to govern may be the inevitable consequence of the right to acquire territory." There is no special power given in the Constitution to acquire territory. This does not seem to have been within the view of the framers of the government, and the right was much contested in the acquisition of Louisiana, when the power was first exercised.

It seems to me that the power to govern a territory is a necessary consequence of the power given "to make all needful rules and regulations respecting the territory or other property belonging to the United States." No one doubts the power of Congress to sell the public lands beyond the limits of any state, and this renders necessary the organization of a government for the protection of the persons and property of the purchasers. This is an implied power, but it necessarily results from the power to sell the public lands.

It is difficult to say that any power can be exercised by Congress which is not derived from the Constitution. Without that instrument, it is as powerless as any other association of men. The laws of the Union protect our commerce wherever the flag of the country may float, and in some instances our own citizens may be made responsible for acts done in foreign seas and countries; but this is the exercise of powers given by the Constitution. Under the legislative power of Congress, territorial governments are organized and their functionaries are appointed by the President and Senate. Their laws emanate from Congress or are passed by a territorial legislature, subject

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to the approval of Congress. The government of the territory is a government of the United States, and although its courts do not exercise the judicial power to the same extent as the other courts of the United States, still they are courts of the United States and exercise such judicial powers as are conferred on them by law.

It is argued that as the President is bound to see the laws faithfully executed, the power to remove unfaithful or incompetent officers is necessary. This may be admitted to be a legitimate argument, as commonly applied to executive officers. My own view is that the power to see that the laws are faithfully executed applies chiefly to the giving effect to the decisions of the courts when resisted by physical force. But however strongly this may refer to the political officers of the government, how can it apply to the judicial office?

In the nature of his office, the President must superintend the executive department of the government. But the judiciary constitutes a coordinate branch of the government over which the President has no superintendence and can exercise no control. So far from this department's being subject to the executive, it may be called to pass on the legality of his acts. The President, like all the other officers of the government, is subject to the law, and cannot violate it with impunity. He is responsible for the infraction of private rights, and before a territorial court, the same as before the other courts of the Union. In no just and proper sense can the President be required to see that the judicial power shall be carried out except as controlling the physical power of the Union.

The effects of the control of the judicial by the executive power are seen in the history of England during the reign of the Stuarts. The most insupportable tyranny and corruption were realized under this paramount power of the executive government. It has always been the corrupting power of all free government. This in a great degree arises from the extent of its powers and patronage. And in the formation of our government, great care was taken to place the judicial power on an independent basis. Being without patronage and discharging the most onerous and delicate duties, nothing but a high and an impartial discharge of its functions can sustain it.

Whenever any portion of the judicial power shall become subject to the executive, there will be an end of its independence and purity. It will become the register of executive decrees and of a party policy. What could create a deeper degradation than to see any branch of the judiciary, which stands between the executive power and the rights of the citizen, become the mere instrument of that power?

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There can be little or no difficulty in coming to a correct conclusion on this important question by an examination of the acts of Congress creating the tenure of the judicial office in the territories. In the seven territories first enumerated, the judges were appointed during good behavior; the other officers were appointed for a term of years, "if not sooner removed." In ten territories, the law authorized the appointment of judges for the term of four years, and the other officers for a term of years "if not sooner removed." Whether in the above acts the judicial tenure was fixed for good behavior or a term of years, no one can fail to see the difference in regard to the tenure of the judges and of the other officers. The judges were appointed absolutely for good behavior or a term of years, whilst the other officers were appointed for a term of years "unless sooner removed." By the terms of the appointment, the political officers, such as the governor, secretary, marshal &c., were removable, but the judges were not. In this respect, these appointments stand in contrast, and show the unmistakable intention of Congress.

It is true that for the Territories of Missouri and Arkansas, the judges were appointed for the term of four years, "unless sooner removed." This language was first used for the Missouri territory, and as the Arkansas territory was taken from Missouri, the same language was incorporated into the organic law of Arkansas. These two territories out of the nineteen above named, would imply the power to remove the judges. But whether this language was the result of accident or design, it cannot authorize the construction of the law establishing the other territories, among which the Territory of Minnesota is included, as though the power of removal applied to them. The words used will not allow this construction, especially when taken in connection with the words in the same acts in relation to the appointment of officers in the territories other than the judges.

This view is greatly strengthened by the usage of the government. There have been, it is believed, but two judges of territories removed, and those recently, since the organization of the Union. And we may rely on the early practice of the government, to show its true theory in the exercise of federal powers. The great principles of our system were then understood and adhered to, and our safest axioms are found in this part of our history.

It is said the act of 1789, which modified the ordinance of 1787 so as to adapt it to the Constitution, gave the same power to the President in regard to appointments and removals which under the Confederation was exercised by Congress. This is

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true, but it can apply only to those officers which, under the Confederation, were removable by Congress. Under the ordinance, as above stated, the judges were appointed during good behavior, while all the other officers were appointed for a term of years "unless sooner removed."

If Congress has the power to create the territorial courts, of which no one doubts, it has the power to fix the tenure of office. This being done, the President has no more power to remove a territorial judge than he has to repeal a law. The duties of a judge of a territory are discharged as independently, and as free from executive control, as are the duties of a judge of this Court. This territorial judicial power was intended to be a check upon the executive power. And it would be inconsistent with the principles of our government for the judges to be subject to removal by the executive.

This is a great question, although it can only effect, as now maintained, the territorial bench. And I regret that from the want of jurisdiction, in the opinion of my brethren, they are not required to express an opinion as to the power asserted.

The other question in the case is whether the remedy by mandamus is appropriate and legal. In the case of Kendall v. the United States, 12 Pet. 608, which, in my judgment, is not distinguishable from this, the question was settled.

In that case, under a special act of Congress, a matter of controversy between William B. Stokes et al. and the Postmaster General was referred to a Commissioner, to examine the account and report any balance he might find due to the relators from the Post Office Department; and the Postmaster General was required to pay such balance, by entering a credit on the books of the department.

The duties of the Commissioner were performed, and he reported in favor of the relators, $161.563.89, all of which sum was credited by the Postmaster General except the sum of $39,462.43, which he refused to place to the credit of the relators on the books of the department. The petitioners prayed the Circuit Court of the District of Columbia to award a mandamus, directed to the Postmaster General commanding him to enter the credit.

A peremptory mandamus was issued by the circuit court, which decision was brought before this Court by a writ of error. All the members of this Court held that it was a proper case for mandamus, as the duty imposed was ministerial and positive, there being no other adequate remedy. Three only of the judges dissented on the ground that the Circuit Court of the District of Columbia had not power to issue the writ, but the other six judges held that it was not only a case for a mandamus, but that the circuit court had the power to issue it.

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The credit was required to be entered on the books of the auditor of the Post Office Department, whose duties were performed under the Treasury Department. But as the accounts were examined in the Post Office Department, the credit was required to be entered by the Postmaster General on the books of the auditor. It was known that an order of the Postmaster General, requiring the credit to be entered, would be obeyed by the auditor.

In the case before us, the salary of the judge was fixed by law and payable at the Treasury Department, where application for payment has been frequently made by the relator and refused by the Secretary of the Treasury. It is shown that an appropriation of the salary was made by act of Congress, and in such a case the payment is a ministerial act, and the Secretary has no discretion to withhold it. This would not be controverted, it is supposed, if the judge, who demanded payment, had remained in office. If, in such case, the Secretary may, at his discretion, refuse to pay the salaries of officers, he might suspend the action of the government. The duty to pay is enjoined on the Secretary by law; it is a ministerial duty, in which he can exercise no discretion, the appropriation having been made by law.

By the act of 2 September, 1789, the Secretary of the Treasury is required to "grant all warrants for moneys to be issued from the Treasury in pursuance of appropriations by law." And in the same act the Treasurer is required to

"receive and keep the moneys of the United States and to disburse the same upon warrants drawn by the Secretary of the Treasury, countersigned by the Comptroller, recorded by the register, and not otherwise."

These are all ministerial duties, performed under the Secretary of the Treasury. The money having been appropriated by law for the salary of the judge, the Secretary was bound to pay it.

The justification for the nonpayment by the Secretary is that the relator had been removed from office by the President, and that, by the President and Senate, his successor had been appointed, who, having entered upon the discharge of his duties, was entitled to the salary, and to whom it had been paid.

If the act of removal by the President was unauthorized, this can afford no justification for withholding the salary. It is admitted that, by mandamus, no act of an executive officer can be examined which invades the exercise of his judgment or discretion. The payment of the salary, being a mere ministerial duty positively enjoined by law, is subject to no such objection. But may not the objection apply to the removal of

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the judge? If such a power were within the exercise of the discretion of the President, it would be conclusive. But if the act be without authority and against law, it is void, and such was the act complained of. The President could exercise no discretion on the subject; the removal was beyond his power, and the act being void, it cannot be considered as the exercise of an executive discretion. The judgment and discretion which may not be interfered with by mandamus must be in the discharge of executive duties. These do not come within the judicial power. But an unlawful and consequently void act by the President by which an injury is done to an individual cannot be covered by executive discretion. And in this case the question is incidental to the object of the mandamus, which is to require the Secretary to perform a ministerial duty. The removal of the judge is set up by the Secretary as a reason why the relator has not been paid, and if the act of removal be void, it fails to justify the refusal to pay.

The case of Decatur v. Paulding, 14 Pet. 513, is altogether different from the one under consideration. In the opinion of the Court in that case, the Chief Justice showed that it was materially distinguishable from Kendall's Case.

It would be difficult to imagine a clearer case for mandamus than the one before us, in my judgment, and I think it should be issued. If the salary has been paid to the new judge, it has been illegally paid, and that is no reason why it should not be paid to the rightful claimant.

We have nothing to do with the conduct of the judge, nor had the President. The judge was liable to be impeached and removed from office in that form.

Order

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, with costs.