In the absence of statutory provision to the contrary, a
mandamus against an officer of the government abates on his death
or retirement from office. His successor in office cannot be
brought in by way of amendment of the proceeding or on an order for
the substitution of parties.
Mr. R. W. Corwine, in behalf of the owners of an order on the
Treasury of the United States, had applied
Page 84 U. S. 605
to the Supreme Court of the District of Columbia for a mandamus
on the Hon. G. S. Boutwell, then Secretary of the Treasury, to pay
it. That court refused the mandamus, and the case was brought, on
error, by the relators here. After it had got into this Court, Mr.
Boutwell resigned his place of Secretary and the Hon. W. A.
Richardson was appointed to it. Hereupon Mr. Corwine moved for
leave to bring in and substitute Mr. Richardson on the record as
defendant in the place of Mr. Boutwell. It did not appear that any
application had been made to Mr. Richardson as Secretary to pay the
draft. Mr. Richardson, by his counsel, opposed the motion.
Page 84 U. S. 607
MR. JUSTICE STRONG delivered the opinion of the Court.
The office of a writ of mandamus is to compel the performance of
a duty resting upon the person to whom the writ is sent. That duty
may have originated in one way or in another. It may, as is alleged
in the present case, have arisen from the acceptance of an office
which has imposed the duty upon its incumbent. But no matter out of
what facts or relations the duty has grown, what the law regards
and what it seeks to enforce by a writ of mandamus, is the personal
obligation of the individual to whom it addresses the writ. If he
be an officer, and the duty be an official one, still the writ is
aimed exclusively against him as a person, and he only can be
punished for disobedience. The writ does not reach the office. It
cannot be directed to it. It is therefore in substance a personal
action, and it rests upon the averred and assumed fact that the
defendant has neglected or refused to perform a personal duty, to
the performance of which by him the relator has a clear right.
Hence it is an imperative rule that previous to making application
for a writ to command the performance of any particular act, an
express and distinct demand or request to perform it must have been
made by the relator or prosecutor upon the defendant, and it must
appear that he refused to comply with such demand, either in direct
terms or by conduct from which a refusal can be conclusively
inferred. [Footnote 1
] Thus it
is the personal default of the defendant that warrants impetration
of the writ, and if a peremptory mandamus be awarded, the costs
must fall upon the defendant.
It necessarily follows from this, that on the death or
retirement from office of the original defendant, the writ must
abate in the absence of any statutory provision to the
Page 84 U. S. 608
When the personal duty exists only so long as the office is
held, the court cannot compel the defendant to perform it after his
power to perform has ceased. And if a successor in office may be
substituted, he may be mulcted in costs for the fault of his
predecessor, without any delinquency of his own. Besides, were a
demand made upon him, he might discharge the duty and render the
interposition of the court unnecessary. At all events, he is not in
privity with his predecessor, much less is he his predecessor's
personal representative. As might be expected, therefore, we find
no case in which such a substitution as is asked for now has ever
been allowed in the absence of some statute authorizing it. On the
contrary, after the statute of 9th Anne, chapter 20, sec. 1, it was
the acknowledged doctrine in England, that the rules and practice
as to abatement by death, resignation, or removal from office, were
the same in cases of mandamus as in personal actions. By that
statute, it was enacted that the prosecutor or relator may plead to
or traverse all or any of the material facts averred in the return,
the defendant having liberty to reply, take issue, or demur, and it
was directed that such further proceedings might be had as might
have been had if the prosecutor had brought his action on the case
for a false return. Thus mandamus became in effect a personal
action against the defendant. [Footnote 2
] This statute was in force in Maryland when the
District of Columbia was a part of that state, and hence it is in
force in the District now. Therefore, whatever may be the rule
elsewhere, here a writ of mandamus must abate whenever the
performance by the defendant of the personal duty it seeks to
enforce has become impossible.
The law was changed to some extent in England, by the later act
of Parliament of 1 William IV, chapter 21, sec. 5, by which it was
enacted that in case the return to any writ (of mandamus) within
the purview of the act should, in pursuance of an allowance made by
it, be expressed to be made on behalf of any other person than the
defendant, the further proceedings on such writ should not abate or
Page 84 U. S. 609
by death, resignation, or removal from office of the person who
made such return, but the same might be continued and carried on in
the name of such person, and if a peremptory writ should be
awarded, it might be directed to any successor of such person in
office or right. No similar statute exists with us, and its
enactment in England was a recognition of the rule that the death,
resignation, or removal from office of the defendant, worked an
abatement of the action. It required a statute to change the rule,
and to avoid injustice, the costs of the writ, when issued and
obeyed, were committed to the discretion of the court.
And, even if the retirement of the defendant from office and his
consequent inability to perform the act demanded to be done does
not abate the writ, or necessitate its discontinuance, there is
still an insuperable difficulty in the way of our directing the
substitution asked for. We can exercise only appellate power. We
have no original jurisdiction in the case. [Footnote 3
] But any summons issued, or rule upon Mr.
Richardson requiring him to become a party to the suit, would be
the exercise of original jurisdiction over both a new party and a
new cause, for the duty which he would be required to perform would
be his own, not that of his predecessor.
Tapping on Mandamus 283.
Chitty's General Practice, 3d ed., 1406-1409.
1 Cranch 137; Kendall v. United
12 Pet. 526.
The preceding case, in its principal form, being subsequently
reached in the regular call of the docket, the court decided that
the suit having abated must be dismissed; MR. JUSTICE CLIFFORD, who
announced this judgment, referring to the opinion just above given,
as showing the abatement of the suit by the resignation of Mr.
Boutwell and by the appointment of his successor, and referring to
that opinion and to the case of The Secretary v.
as all that was
necessary to support the conclusion to which the court had come in
thus finally disposing of the case.
* 76 U. S. 9