On 3 March, 1837, Congress passed an act giving to the widow of
any officer who had died in the naval service of the United States
authority to receive, out of the navy pension fund, half the
monthly pay to which the deceased officer would have been entitled
under the acts regulating the pay in the navy in force on 1
January, 1835. On the same day, a resolution was adopted by
Congress giving to Mrs. Decatur widow of Captain Stephen Decatur, a
pension for five years out of the navy pension fund, and in
conformity with the act of 30 June, 1834, and the arrearages of the
half-pay of a post captain, from the death of Commodore Decatur to
the 30 June, 1834, the arrearages to be vested in trust for her by
the Secretary of the Treasury. The pension and arrearages, under
the Act of 3 March, 1837, were paid to Mrs. Decatur on her
application to Mr. Dickerson, the Secretary of the Navy, under a
protest by her that by receiving the same she did not prejudice her
claim under the resolution of the same date. She applied to the
Secretary of the Navy for the pension and arrears under the
resolution, which were refused by him. Afterwards, she applied to
Mr. Paulding, who succeeded Mr. Dickerson as Secretary of the Navy,
for the pension and arrears, which were refused by him. The Circuit
Court of the County of Washington, in the District of Columbia,
refused to grant a mandamus to the Secretary of the Navy,
commanding him to pay the arrears, and to allow the pension under
the resolution of March 3, 1837.
Held that the judgment of
the circuit court was correct.
In the case of
Kendall v. United
States, 12 Pet. 527, it was decided by the Supreme
Court that the Circuit Court of Washington County for the District
of Columbia, has the power to issue a mandamus to an officer of the
federal government commanding him to do a ministerial act.
In general, the official duties of the head of one of the
executive departments, whether imposed by act of Congress or by
resolution, are not mere ministerial duties. 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. He must exercise his
judgment in expounding the laws and resolutions of Congress, under
which he is from time to time required to act. If he doubts, he has
a right to call on the Attorney General to assist him with his
counsel, and it would be difficult to imagine why a legal adviser
was provided by law for the heads of departments, as well as for
the President, unless their duties were regarded as executive, in
which judgment and discretion were to be exercised.
If a suit should come before the Supreme Court which involved
the construction of any of the laws imposing duties on the heads of
the executive departments, the Court certainly would not be bound
to adopt the construction given by the head of a department. And if
it supposed his decision to be wrong, it would, of course, so
pronounce their judgment. But the judgment of the Court upon the
construction of a law must be given in a case in which it has
jurisdiction, and in which it is their duty to interpret the act of
Congress, in order to ascertain the rights of the parties in the
cause before them. The Court could not entertain an appeal from the
decision of one of the secretaries, nor revise his judgment in any
case where the law authorized him to exercise his discretion or
judgment. Nor can it, by mandamus, act directly upon the officer,
or guide and control his judgment or discretion in the matters
committed to his care, in the ordinary discharge of his official
duties. The interference of the court with the performance of the
ordinary duties of the executive departments of the government
would be productive of nothing but mischief, and this power was
never intended to be given to them.
The principles stated and decided in the case of
Kendall v. United
States, 12 Pet. 610 and
37 U. S. 614,
relative to the exercise of jurisdiction by the Circuit Court of
the District of Columbia, where the acts of officers of the
executive departments of the United States may be inquired into for
the purpose of directing a mandamus to such officers, affirmed.
Page 39 U. S. 498
On 3 March, 1837, an act was passed by Congress giving to the
widow of any officer who had died in the naval service of the
United States, out of the navy pension fund, half the monthly pay
to which the deceased officer had been entitled to receive under
the laws in force on 1 January, 1835, the half-pay to commence from
the death of such officer, the pension so allowed to cease on the
intermarriage or death of the widow, &c.
On the same 3 March, 1837, a resolution was passed by Congress,
"granting a pension to Susan Decatur, widow of the late Stephen
Decatur." The resolution directs that Mrs. Susan Decatur be paid
from the navy pension fund a pension for five years, commencing
from 30 June, 1834, in conformity with the provisions
"of the act concerning naval pensions and the navy pension fund,
passed thirtieth June, eighteen hundred and thirty-four, and that
she be allowed from said fund the arrearages of the half-pay of a
post captain, from the death of Commodore Decatur to 30 June,
eighteen hundred and thirty-four, together with the pension hereby
allowed her, and that the arrearage of said pension be invested in
the Secretary of the Treasury in trust for the use of the said
Susan Decatur, provided that the said pension shall cease on the
death or marriage of the said Susan Decatur."
Under the law of March 3, 1837, Mrs. Decatur applied to Mahlon
Dickorson, Esq., then Secretary of the Navy, and trustee of the
navy pension fund, and received out of the navy pension fund the
whole amount of the pension, which, as the widow of Commodore
Decatur, she was entitled to by the provisions of the law. This was
received by her under a reservation of her rights under the
resolution of 3 March, 1837, she at the same time claiming the
benefit of that resolution.
Mr. Dickerson, the Secretary of the Navy, referred the question
whether Mrs. Decatur was entitled to both pensions, to the Attorney
General of the United States, and he decided that she might make
her election to receive either pension, but that she was not
entitled to both. On the retirement of Mr. Dickerson from the Navy
Department, he was succeeded by Mr. Paulding, the defendant in
error. In the autumn of 1838, Mrs. Decatur applied to Mr. Paulding,
requiring him, as the trustee of the navy pension fund, to pay the
sum claimed to be due to her under the resolution of Congress of
March 3, 1837, stated in an amended petition filed in the circuit
court to be eighteen thousand five hundred and ninety-seven
dollars, with interest on the same. It was stated that there were
ample funds and money of the navy pension fund to pay the amount
claimed.
The Secretary of the Navy refused to comply with this demand,
and on 25 November, 1837, Mrs. Decatur applied by petition to the
Circuit Court of the County of Washington setting forth all
Page 39 U. S. 499
the circumstances of the case, and asking from the court a writ
of mandamus,
"to be directed to the said James K. Paulding, Secretary of the
Navy of the United States, commanding him, that he shall fully
comply with, obey, and execute the aforesaid resolution of Congress
of 3 March, 1837, by paying to your petitioner and to the Secretary
of the Treasury, in manner and form as said act or resolution
provides, or as your honors shall think proper, the full and entire
amount of the aforesaid sum or sums of money, with interest
thereon, or such part or portion thereof as your honors may
direct."
The circuit court granted a rule on the Secretary of the Navy to
show cause why the writ of mandamus, as prayed for, should not be
issued, and to this rule the Secretary made the following
return:
"To the honorable the judges of the circuit court of the
District of Columbia for Washington County."
"The undersigned, James K. Paulding, Secretary of the Navy of
the United States, respectfully states: "
"That he hath been served with notice of an order or rule from
this honorable court requiring him to show cause why a writ of
mandamus should not be issued from the said court, directed to him
as Secretary of the Navy of the United States, upon the petition of
Mrs. Susan Decatur, commanding him to pay certain sums of money out
of the navy pension fund, claimed by said petitioner to be due to
her under a certain resolution of Congress referred to in the
aforesaid petition."
"The undersigned considers it his duty in the first place to
protest against the jurisdiction of the circuit court invoked on
this occasion, for the following reasons: "
"1st. Because, as Secretary of the Navy of the United States, he
is not subject, in the discharge of the duties of his office by the
Constitution and laws of the United States, to the control,
supervision, and direction of the said court."
"2d. Because, as such Secretary, he is by law constituted the
trustee of the navy pension fund, and it is made his duty, as such,
'to receive applications for pensions, and to grant the same
according to the terms of the acts of Congress in such cases
provided.' He is also required to cause books to be opened, and
regular accounts to be kept, showing the condition of the navy and
privateer pension funds, the receipts and expenditures thereof, the
names of the pensioners, and the dates and amount of their
respective pensions, with a statement of the act or acts of
Congress under which the same may be granted, and he shall annually
report to Congress an abstract showing the condition of these funds
in all these particulars, and the receipts and expenditures during
the year, and there is no law authorizing the circuit court of this
district to control and direct him in the discharge of these
duties."
"3d. Because such jurisdiction in this Court would, if assumed,
operate as such an interference with the discharge of the
official
Page 39 U. S. 500
duties of the undersigned, as to make it impossible for him to
perform them as required and intended, and would transfer to the
said court the discharge of the said duties, and the whole
management and disposition of the said fund, and subject all
applicants for pensions to the delay, expense, and embarrassments
of legal controversies as to their rights, and to a suspension of
the provisions to which they might be entitled under the laws, till
these controversies were judicially decided."
"4th. Because such a jurisdiction in the circuit court would
make the United States suable in that court, and subject the money
of the United States, in the Treasury of the United States, to be
taken therefrom by the judgments of said court."
"5th. Because if the circuit court assumes the jurisdiction of
compelling the Secretary of the Navy, or the head of any other
department, to revise and reverse the decisions that may have been
made by their predecessors in office, these officers will
necessarily be taken off from the discharge of their immediate and
most urgent public duties, and made to apply their time and
attention, and that of their clerks in the departments, in an
endless review and reconsideration of antiquated claims and settled
questions, to the delay and hindrance of measures of vital
importance to the national welfare and safety."
"For these and other reasons, which he trusts will be obvious,
on further consideration, to the court, he respectfully objects to
the jurisdiction assumed in this case, and will now proceed under
such protest to show cause why the mandamus prayed for should not
be issued."
"The undersigned was somewhat surprised to see it stated in the
petition of the relatrix that"
"he had been often requested by her to pay the two several sums
of money stated in the petition, amounting to the aggregate sum of
twenty-three thousand four hundred and twenty-two dollars and
twenty-five cents,"
"and that he had refused so to do; and, that 'he pretended to
say that the petitioner was not entitled to the same, or any part
thereof.' The undersigned has no recollection of ever having
refused the payment of any sum, or any sums of money demanded in
behalf of Mrs. Decatur, except so far as this may have been
inferred from his declining to reconsider her claim on grounds
which he will now proceed to state."
"Sometime in September, 1838, the undersigned received a
communication from the counsel of Mrs. Decatur informing him that
they had examined the documents connected with her claims, and the
opinion of the late Attorney General, Mr. Butler, upon the strength
of which the claim appeared to have been disallowed by his
predecessor, and that they were satisfied that the decision which
had been made was not warranted by law."
"A reconsideration of the case was then asked of the
undersigned, 'if he felt himself at liberty to revise the decision
of his predecessor.' And if this could not be complied with, he has
then asked "
Page 39 U. S. 501
"to give such instructions to the district Attorney as will
enable him to concur with them in bringing the subject before a
competent tribunal, in order to obtain a judicial decision upon the
case."
"To this application the undersigned replied,"
"that the claim having been examined and decided by his
predecessor, in conformity with the opinion of the late Attorney
General, he did not feel himself authorized to disturb that
decision, as no new facts had been adduced to call for a
re-examination."
"And further, that he also declined the second proposition of
the counsel"
"being unwilling to give a precedent, which, if once
established, will place every executive officer of the government
in the attitude of a defendant, in all cases where individuals are
dissatisfied with his decisions."
"After this reply, no further application was made to the
undersigned, but in February last, a memorial was presented to the
President of the United States in behalf of the claimant, by her
counsel, in which a reconsideration of the case and his
interference were requested, and that"
"if he should be of opinion that the claim was lawful and proper
to be allowed, that he would direct the Secretary of the Navy to
execute the resolution in favor of the claimant without further
delay."
"In this memorial, the opinion of the late Attorney General, and
the decision of the late Secretary of the Navy were stated, and it
was added that"
"the claim had been recently renewed before the present
Secretary of the Navy, and again rejected, not upon a consideration
of its merits, but because it had been before acted upon and
denied, and no new matter shown upon the new application."
"On this memorial the President decided that 'he did not find in
the papers submitted to him, sufficient to justify the interference
asked for,' and of this the counsel for the claimant was
informed."
"The undersigned has been thus particular, for the purpose of
showing distinctly the nature of the application and its refusal.
He desires it should be seen that he placed this refusal solely
upon the ground that his predecessor had decided it, after a full
consideration, and after calling for the official opinion of the
Attorney General, and that no new facts were adduced to authorize
him to reconsider it, and he desires now that this shall be
considered by the court as a distinct ground of objection to the
relief now prayed for."
"He presumes that even if the court shall decide that it
possesses the jurisdiction claimed, it will not consider that it is
bound to exercise it in all cases, and under all circumstances, and
that after a claim has been heard and rejected by the officer
authorized to decide upon it, it still remains in the power of the
claimant to call it up, and compel, a reconsideration of it from
every successive officer, who may be subsequently appointed in the
place of the officer making the decision. It is obvious, that if
such a course is allowed, there can be no such thing as the final
decision of a controverted claim."
"The executive officers must always continue to consider it as
an
Page 39 U. S. 502
open claim, and the funds of the government as still liable to
its demands. Nor is it possible for the affairs of the government
to be properly administered if the executive officers, instead of
devoting themselves to the discharge of the duties brought before
them, and which are abundantly sufficient to occupy all their time
and attention, are to be called upon to go back to the times of
their predecessors and determine whether they have properly
discharged the duties they were required to execute."
"These considerations, and an experience of the impossibility of
thus conducting the public business committed to them, have long
since obliged all the executive departments, under every
administration, with the sanction, as the undersigned believes, of
several successive attorneys general to adopt the rule that no
claim once fully heard and rejected by the competent officer can be
considered open to the review and reconsideration of the successor
to such officer unless new matter can be shown to justify such
reexamination."
"It is evidently as important to the public interests, if the
courts shall be considered as invested with the jurisdiction
claimed on this occasion, that they should respect this rule."
"The inconveniences resulting from disregarding it by the courts
in the exercise of such a jurisdiction are the same. The same
unsettled state of controverted claims, the same uncertainty as to
the national funds, kept open to rejected demands, which may
interfere with the rights of other claimants and with the public
interests, and the same misemployment of the time and attention of
the public officers to cases already decided by their predecessors,
must continually occur, for although the decision is ultimately
made by the court, yet the officer to whom the command is to be
directed must examine the case and everything connected with it, so
as to present it to the consideration of the court. Indeed, much
more of his time and attention may be withdrawn from the immediate
duties of his station by his being called to answer before a
judicial tribunal on such occasions, and make that defense against
the proceedings which he may feel bound to do than by a
reconsideration of the claim."
"Under such circumstances it has been heretofore thought
necessary by claimants whose demands have been rejected, and who
were dissatisfied with such rejection, to make their application to
Congress, and where it has been thought reasonable and just by the
legislature that their claims should be allowed, acts have passed
for their allowance or the accounting officers have been authorized
to open and reconsider their claims. And it appears to the
undersigned that there would be a peculiar propriety in seeking
that mode of redress in relation to the present claim, which arises
from the circumstance of there being two legislative enactments of
the same date making nearly similar provisions for the claimant,
and the question being whether she is entitled to one or both of
these"
Page 39 U. S. 503
provisions. The decision of that question by the late Secretary
of the Navy, and the opinion of the Attorney General upon which it
is founded, are herewith presented to the court.
"The undersigned observes that a specific sum is stated in the
petition as being the amount of the pension claimed. He has already
stated that no sum was stated in the application made to him. It
appears from the amount stated that the petitioner claims not only
half the pay to which the deceased was entitled, but half the pay
and rations or pay and emoluments."
"This will present to the court, in case it should assume the
jurisdiction, and decide in favor of the petitioner, a question
under the pension laws as to the construction of the words 'half
the pay' and 'half the monthly pay,' in those acts of Congress. The
uniform construction of all these laws, in all the departments of
the government, has invariably been such as to confine the pension
to the pay proper, the expression being in all these acts 'pay,'
and not pay and rations or pay and emoluments. The undersigned is
not aware that any claimant of a pension has ever before suggested
a different construction."
"In conclusion, he admits, in relation to the state of the navy
pension fund, that there is at present a sufficient amount to pay
the claim of the petitioner if it was now to be paid. What may be
its state when the payment may be ordered, if it should be ordered,
it will be impossible for him to state, inasmuch as it will depend
on the number of applicants whose claims may be made and allowed in
the meantime. And he thinks it proper to state that if the payment
of the sum stated in the petition shall be commanded by the
decision of the court, in consequence of the court's deciding that
the pensioners under these acts of Congress are entitled to
half-pay and rations, or pay and emoluments, of the deceased
officers and seamen, then he apprehends the navy pension fund would
be greatly insufficient to pay the present claimant and the other
pensioners whose claims have been allowed, but who have only
received half the pay proper, exclusive of rations or emoluments.
All which he respectfully submits."
"J. K. PAULDING"
"
OPINION OF THE ATTORNEY GENERAL"
"Attorney General's Office, April 11, 1837"
"Sir -- I have had the honor to receive your letter of the 15
ult'o relative to the case of Mrs. Susan Decatur."
"It is assumed in your statement of the case that Mrs. Decatur
would be entitled to the pension granted by the act of the 3 ultimo
for the equitable administration of the navy pension fund"
"were it not for the doubt created by the passage, on the same
day, of the joint resolution for her special benefit. And on these
two laws you inquire whether she is entitled under the resolution,
or under the act, or under both."
"This case differs from that of Mrs. Perry, referred to in the
note of Mrs. Decatur, accompanying your letter, inasmuch as the
law
Page 39 U. S. 504
under which Mrs. Perry ultimately obtained her pension was in
existence at the time of his death, at which time she was also
entitled (although not then aware of the fact) to its benefits. It
held in her case that the law granting her an annuity, for such it
was called, could not deprive her of the pension given by a
preexisting law, and that as Congress was presumed to be acquainted
with the laws in force, the legal intendment must be that the
annuity was designed as an additional provision; and, consequently,
that she was entitled to both."
"After maturely considering the history of the general and
special provisions on which the present case depends, I am of
opinion that but one pension can be allowed; but if the general
provision includes the case of Mrs. Decatur, then I am of opinion
she is entitled to take, under that provision, or under the joint
resolution, at her election."
"I am, very respectfully, your ob't serv."
"B. F. BUTLER"
"The Hon. MAHLON DICKERSON"
"
Secretary of the Navy"
"
LETTER FROM SECRETARY OF THE NAVY TO MRS. DECATUR"
"Navy Department, 14 April, 1837"
"Dear Madam -- The Attorney General has given his opinion that
in your case but one pension can be allowed; he however thinks that
you have your selection to take under the general law, or under the
resolution in your particular case, as soon as your pleasure upon
this subject shall be known, the warrant for pension shall be made
out."
"I am, with great respect and esteem, your ob't h'le s't,"
"M. DICKERSON"
"Mrs. SUSAN DECATUR"
"
Georgetown, D.C."
The circuit court overruled the order to show cause to the
Secretary of the Navy, and refused the application of Mrs. Decatur
for a mandamus, and this writ of error was prosecuted by her.
Page 39 U. S. 513
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This case is brought here by a writ of error, from the judgment
of the circuit court of the United States for the District of
Columbia, refusing to award a peremptory mandamus.
The material facts in the case are as follow:
By an Act of Congress passed on 3 March, 1837, the widow of any
officer who died in the naval service became entitled to receive
out of the navy pension fund half the monthly pay to which the
deceased officer would have been entitled, under the acts
regulating the pay of the navy, in force on 1 January, 1835, the
half-pay to commence from the time of the death of such officer,
and upon the death or intermarriage of such widow, to go to the
child or children of the officer.
On the same day the following resolution was passed by
Congress:
"No. 2. Resolution granting a pension to Susan Decatur, widow of
the late Stephen Decatur."
"Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled that Mrs. Susan
Decatur, widow of the late Commodore Stephen Decatur, be paid from
the navy pension fund a pension for five years, commencing from the
thirtieth day of June, eighteen hundred and thirty-four, in
conformity with the provisions of the act concerning naval
pensions
Page 39 U. S. 514
and the navy pension fund, passed the thirtieth June, eighteen
hundred and thirty-four, and that she be allowed, from said fund,
the arrearages of the half-pay of a post captain, from the death of
Commodore Decatur to the thirtieth of June, eighteen hundred and
thirty-four, together with the pension hereby allowed her, and that
the arrearage of said pension be vested in the Secretary of the
Treasury, in trust for the use of the said Susan Decatur, provided
that the said pension shall cease on the death or marriage of the
said Susan Decatur."
"Approved, March 3, 1837"
By the Act of Congress of July 10, 1832, the Secretary of the
Navy is constituted the trustee of the navy pension fund, and as
such it is made his duty to grant and pay the pensions, according
to the terms of the acts of Congress.
After the passage of the law and resolution of March 3, 1837,
Mrs. Susan Decatur, the widow of Commodore Decatur, applied to
Mahlon Dickerson, then Secretary of the Navy, to be allowed the
half-pay to which she was entitled under the general law above
mentioned; and also the pension and arrearages of half-pay
specially provided for her by the resolution passed on the same
day.
The Secretary of the Navy, it appears, doubted whether she was
entitled to both, and referred the matter to the Attorney General,
who gave it as his opinion that Mrs. Decatur was not entitled to
both, but that she might take under either, at her election. The
Secretary thereupon informed her of the opinion of the Attorney
General, offering at the same time to pay her under the law, or the
resolution, as she might prefer. Mrs. Decatur elected to receive
under the law, but it is admitted by the counsel on both sides that
she did not acquiesce in this decision, but protested against it,
and by consenting to receive the amount paid her, she did not mean
to waive any right she might have to the residue.
Sometime afterwards, Mr. Dickerson retired from the office of
Secretary of the Navy, and was succeeded by Mr. Paulding, the
defendant in this writ of error, and in the fall of 1838 Mrs.
Decatur applied to him to revise the decision of his predecessor,
and to allow her the pension provided by the resolution. The
Secretary declined doing so, whereupon Mrs. Decatur applied to the
Circuit Court for Washington County, in the District of Columbia,
for a mandamus to compel him to pay the amount she supposed to be
due to her. A rule to show cause was granted by the court, and upon
a return made by him, stating, among other things, the facts above
mentioned, the court refused the application for a peremptory
mandamus. It is this decision we are now called on to revise.
In the case of
Kendall v. United
States, 12 Pet. 524, it was decided in this Court
that the Circuit Court for Washington County in the District of
Columbia, has the power to issue a mandamus to an officer of the
federal government, commanding him to do a ministerial act. The
first question, therefore, to be considered
Page 39 U. S. 515
in this case is whether the duty imposed upon the Secretary of
the Navy, by the resolution in favor of Mrs. Decatur, was a mere
ministerial act.
The duty required 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. In general, such
duties, whether imposed by act of Congress or by resolution, are
not mere ministerial duties. 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. He must exercise his judgment in
expounding the laws and resolutions of Congress, under which he is
from time to time required to act. If he doubts, he has a right to
call on the Attorney General to assist him with his counsel, and it
would be difficult to imagine why a legal adviser was provided by
law for the heads of departments, as well as for the President,
unless their duties were regarded as executive in which judgment
and discretion were to be exercised.
If a suit should come before this Court which involved the
construction of any of these laws, the Court certainly would not be
bound to adopt the construction given by the head of a department.
And if they supposed his decision to be wrong, they would, of
course, so pronounce their judgment. But their judgment upon the
construction of a law must be given in a case in which they have
jurisdiction, and in which it is their duty to interpret the act of
Congress, in order to ascertain the rights of the parties in the
cause before them. The Court could not entertain an appeal from the
decision of one of the Secretaries, nor revise his judgment in any
case where the law authorized him to exercise discretion, or
judgment. Nor can it by mandamus, act directly upon the officer,
and guide and control his judgment or discretion in the matters
committed to his care, in the ordinary discharge of his official
duties.
The case before us illustrates these principles, and shows the
difference between executive duties and ministerial acts. The claim
of Mrs. Decatur having been acted upon by his predecessor in
office, the Secretary was obliged to determine whether it was
proper to revise that decision. If he had determined to revise it,
he must have exercised his judgment upon the construction of the
law and the resolution, and have made up his mind whether she was
entitled under one only, or under both. And if he determined that
she was entitled under the resolution as well as the law, he must
then have again exercised his judgment, in deciding whether the
half-pay allowed her was to be calculated by the pay proper, or the
pay and emoluments of an officer of the Commodore's rank. And after
all this was done, he must have inquired into the condition of the
navy pension fund, and the claims upon it, in order to ascertain
whether there was money enough to pay all the demands upon it; and
if not money enough, how it was to be apportioned among the parties
entitled. A resolution of Congress, requiring the exercise of
so
Page 39 U. S. 516
much judgment and investigation can with no propriety be said to
command a mere ministerial act to be done by the Secretary.
The interference of the courts with the performance of the
ordinary duties of the executive departments of the government
would be productive of nothing but mischief, and we are quite
satisfied that such a power was never intended to be given to them.
Upon the very subject before us, the interposition of the courts
might throw the pension fund, and the whole subject of pensions,
into the greatest confusion and disorder. It is understood from the
Secretary's return to the mandamus that in allowing the half-pay,
it has always been calculated by the pay proper, and that the
rations or emoluments to which the officer was entitled have never
been brought into the calculation. Suppose the court had deemed the
act required by the resolution in question a fit subject for a
mandamus, and, in expounding it, had determined that the rations
and emoluments of the officer were to be considered in calculating
the half-pay? We can readily imagine the confusion and disorder
into which such a decision would throw the whole subject of
pensions and half-pay, which now forms so large a portion of the
annual expenditure of the government, and is distributed among such
a multitude of individuals.
The doctrines which this Court now hold in relation to the
executive departments of the government are the same that were
distinctly announced in the case of
Kendall v.
United States, 12 Pet. 524. In page
37 U. S. 610 of
that opinion, the Court said
"We do not think the proceedings in this case interferes in any
respect whatever with the rights or duties of the executive, or
that it involves any conflict of powers between the executive and
judicial departments of the government. The mandamus does not seek
to direct or control the Postmaster General in the discharge of any
official duty, partaking in any respect of an executive character,
but to enforce the performance of a mere ministerial act, which
neither he nor the President had any authority to deny or
control."
And in page
37 U. S. 614,
the Court still more strongly state the mere ministerial character
of the act required to be done in that case, and distinguish it
from official acts of the head of a department, where judgment and
discretion are to be exercised. The Court there said
"He was simply required to give the credit. This was not an
official act in any other sense than being a transaction in the
department where the books and accounts were kept, and was an
official act in the same sense that an entry in the minutes of a
court, pursuant to an order of the court, is an official act. There
is no room for the exercise of any discretion, official or
otherwise; all that is shut out by the direct or positive command
of the law, and the act required to be done is, in every just
sense, a mere ministerial act."
We have referred to these passages in the opinion given by the
Court in the case of
Kendall v. United States in order to
show more clearly the distinction taken between a mere ministerial
act, required to be done by the head of an executive department,
and a
Page 39 U. S. 517
duty imposed upon him in his official character as the head of
such department, in which judgment and discretion are to be
exercised. There was in that case a difference of opinion in the
Court, in relation to the power of the circuit court to issue the
mandamus. But there was no difference of opinion respecting the act
to be done. The Court was unanimously of opinion that in its
character the act was merely ministerial. In the case before us, it
is clearly otherwise, and the resolution in favor of Mrs. Decatur
imposed a duty on the Secretary of the Navy, which required the
exercise of judgment and discretion, and in such a case the circuit
court had no right by mandamus to control his judgment and guide
him in the exercise of a discretion which the law had confided to
him.
We are therefore of opinion that the circuit court were not
authorized by law to issue the mandamus, and committed no error in
refusing it. And as we have no jurisdiction over the acts of the
Secretary in this respect, we forbear to express any opinion upon
the construction of the resolution in question.
The judgment of the circuit court, refusing to award a
peremptory mandamus, must be
Affirmed.
MR. JUSTICE McLEAN.
The answer of the Secretary of the Navy to the rule to show
cause why a mandamus should not issue is conclusive, and I entirely
concur with the decision of the circuit court, in refusing the
writ. The relatrix having received a pension under the general law,
is not entitled to receive one on the same ground under the special
law. My impression is that Congress having acted upon her case and
made a special provision, she cannot claim under the general
law.
An individual applies to Congress for compensation for services
rendered to the public, and a special provision is made for his
relief. And if a law should be passed at the same session, making
general provision for the payment of similar services, I should
think that it could not be successfully contended, that such
individual could claim under the general law. The merits of his
claim having been considered and decided by Congress, he can only
claim under the special provision made for him. But in the present
case, the claimant having received under the general law as large
if not a larger benefaction than was given under the special law,
her right under the latter is extinguished.
I differ from a majority of the judges, who hold that the
construction of this resolution, giving to the relatrix a pension,
is a duty in the discharge of which an executive discretion may be
exercised. The law is directory and imperative, and admits of the
exercise of no discretion on the part of the Secretary. The amount
of the half-pay pension given in the resolution, is fixed by law,
and is therefore certain. I am authorized to say that my brother
Story agrees with this view of the case.
Page 39 U. S. 518
MR. JUSTICE CATRON.
Between the circuit court of this district and the executive
administration of the United States there is an open contest for
power. The court claims jurisdiction to coerce by mandamus in all
cases where an officer of the government of any grade refuses to
perform a ministerial duty, and of necessity claims the right to
determine, in every case, what is such duty; or whether it is an
executive duty; when the power to coerce performance is not
claimed. Where the line of demarcation lies the court reserves to
itself the power to determine. Any sensible distinction applicable
to all cases it is impossible to lay down, as I think; such are the
refinements, and mere verbal distinctions, as to leave an almost
unlimited discretion to the court. How easily the doctrine may be
pushed and widened to any extent this case furnishes an excellent
illustration. The process of reasoning adopted by those who
maintain the power to assume jurisdiction, is that where a right
exists by law to demand money of an officer, and he refuses to pay,
the court can enforce the right by mandamus, and to ascertain the
existence of the right it is the duty of the court to construe the
law; and if by such construction the right is found, and the
refusal to pay ascertained to have been a mistake, then the officer
will be coerced to pay out the money as a ministerial duty.
In most cases, as in this, the court will be called on to try a
contest only fit for an action of assumpsit. First, it must
ascertain the existence of the right, from complicated facts, and
the construction of doubtful laws; this found, the duty follows, it
being a duty, it is for the court to say whether it is clear; if
so, being an ascertained duty, and clear, then coercion, of course,
would follow.
What few cases of contested claims against the government would
escape investigation were these assumptions recognized is free from
doubt.
The great question, then, standing in advance of all others in
this cause, and the only one I feel myself authorized to examine is
the broad one, whether the Circuit Court of the District of
Columbia can, by a writ of mandamus, force one of the secretaries
of the great departments, contrary to the opinion and commands of
the President of the United States, to pay money out of the
Treasury. Mrs. Decatur claimed a double pension; a single one was
paid by the Secretary of the Navy; she demanded the additional one,
amounting to nearly twenty thousand dollars; the Secretary refused
to pay it; she then memorialized the President, and he concurred
with, and affirmed the decision of the Secretary that the claim
could not be allowed, and from this final decision of the executive
department of the nation, Mrs. Decatur appealed in the form of a
petition
Page 39 U. S. 519
for a mandamus to the Circuit Court of the District of Columbia,
to reverse and annul the decision, made by the Secretary, and
sanctioned by the President.
The court assumed jurisdiction, compelled the United States,
through the Secretary of the Navy, to file a long answer, and in a
tedious law suit to defend the United States. That he did so
successfully is of little consequence; the evil lies not in the
loss of eighteen thousand six hundred dollars to the government,
but in the concession by this Court that the circuit court of the
District has the power to sit in judgment on the Secretary's
decision; to reverse the same at its pleasure, and to order the
money to be paid out of the Treasury, contrary to his will and to
the will of the President and that of all those entrusted by the
Constitution and laws with the safekeeping of the public
moneys.
Stripped of the slight disguise of legal forms, such is the case
before us; the conflict between the executive and judiciary
departments could not well be more direct nor more dangerous. The
idea that they are distinct, and their duties separate, is
confounded, if the jurisdiction of the court below is sustained;
placing the executive power at its mercy, in case of all contested
claims. Few can be more contested than the one before us; if
jurisdiction can be exercised in this instance, it is difficult to
see in what others it does not exist; to establish which, we will
briefly recapitulate the leading facts. On 3 March, 1837, a
resolution was passed by Congress giving a pension of the half-pay
of the late Captain Decatur, to the petitioner, his widow, and on
the same day a bill passed, giving an equal pension to all the
widows of naval officers, and seamen, who had died in the service:
with this difference in the general law and the resolution, that by
the former, the half-pay continued for life, and by the resolution
only for five years, if the petitioner so long lived, and continued
a widow. She claims by her petition, not only the half-monthly pay
proper of a post captain of the navy, but for daily rations, eight,
at twenty-five cents each, amounting to one-half of seven hundred
and thirty dollars per annum, and also interest on the sum
withheld. These claims for back rations and interest are contrary
to the construction given by the government to the navy pension
acts, for more than forty years. To cover a failure, should the
court concur with the executive departments in rejecting these
claims, the petition has a double aspect in the form of a bill in
equity: first, praying for the whole sum of eighteen thousand five
hundred and ninety-seven dollars, or such part or portion thereof
as the court may direct.
It was first called on to decide whether the United States owed
the petitioner anything; secondly, how much; and thirdly whether
there was any money in the Treasury belonging to the navy fund, out
of which the claim could then be satisfied.
The Secretary answers he had money enough of the fund at his
control when he made the answer, if the old construction was
adhered to by the court; but if he was adjudged to pay the
petitioner
Page 39 U. S. 520
for rations, and interest, then all other widows and orphans
provided for by the various acts of Congress, and entitled to
half-pay out of the fund, would likewise be entitled to come in for
half rations and interest, in which case he would not have money to
pay the claim, but that the fund would be greatly in arrear. A more
complicated and difficult law suit than is found in this cause
rarely comes before a court of justice, and to be compelled to
defend which the Secretary protests:
"Because such jurisdiction in this Court would, if assumed,
operate as such an interference with the discharge of the official
duties of the undersigned as to make it impossible for him to
perform them as required and intended, and would transfer to the
said court the discharge of the said duties, and the whole
management and disposition of the said fund and subject all
applicants for pensions to the delay, expense, and embarrassments
of legal controversies as to their rights and to a suspension of
the provisions to which they might be entitled under the laws, till
these controversies were judicially decided."
"Because such a jurisdiction in the circuit court would make the
United States suable in that court, and subject the money of the
United States, in the Treasury of the United States, to be taken
therefrom by the judgments of said court."
"Because if the circuit court assumes the jurisdiction of
compelling the Secretary of the Navy or the head of any other
department to revise and reverse the decisions that may have been
made by their predecessors in office, these officers will
necessarily be taken off from the discharge of their immediate and
most urgent public duties, and made to apply their time and
attention, and that of the clerks in the departments, in an endless
review and reconsideration of antiquated claims and settled
questions, to the delay and hindrance of measures of vital
importance to the national welfare and safety."
"For these and other reasons which he trusts will be obvious, on
further consideration to the court, he respectfully objects to the
jurisdiction assumed in this case, and will now proceed, under such
protest, to show cause why the mandamus prayed for should not be
issued."
He was, however, compelled to defend the suit, and defeated the
claim upon its merits, the discussion of which took up two days in
this Court.
But the great question was decided below that the court has
jurisdiction and power to order money to be paid out of the
Treasury of the United States, by a writ in the nature of an
execution, running in the name of the United States, commanding the
government to obey its own authority. This prominent feature of the
writ demanded it is impossible to disguise. That no other federal
circuit court in the Union has power to issue such a writ was
recognized as settled in the case of
Stockton and Stokes v.
Postmaster General, by this Court in 1838. The power claimed
is confined to this ten miles square. And what is the extent of
the
Page 39 U. S. 521
power? To overrule the decisions of the five great departments
and of the President extending to the payment of money, the
delivery of commissions, and innumerable other matters involved in
the complicated operations of this government, amounting each year
to a hundred thousand separate transactions, to say the least; the
validity of all debatable and contested claims are holden to be
subjected to the ordeal, and, on their rejection, to the
supervision of the circuit court of this district. Beyond doubt,
this is the breadth of the assumption of jurisdiction put forth by
the cause before us. The entertaining such a cause is calculated to
alarm all men who seriously think of the consequences. It is an
invitation to all needy expectants, with pretensions of claim on
the government, to seek this superior and controlling power (the
circuit court of this district) and invoke its aid to force their
hands into the Treasury, contrary to the better judgment of the
guardians of the public money. Thousands of claims exist quite as
fair on their face, and as simple in their details, as is this of
Mrs. Decatur's, that have been rejected. She has been allowed to
appeal to the court, and been heard, and so can all others. The
assumption of powers need not be pushed further, to let suitors
enough into the court to consume the time and absorb the attention
of the secretaries; a principal business of theirs presently must
be to sit at the bar of the court to ward off its mandate, and keep
its officers from forcing the money out of the public treasury,
unless this Court arrests the attempt, whether well or ill intended
is aside from the purpose; the assumption and exercise of the power
is equally poisonous in its consequences to the country; it takes
from the hands of those the administration of public affairs that
the laws and the people of this nation have entrusted with them; it
brings to the bar of the court the nation itself, for it cannot be
denied that the United States government is the real defendant in
this cause and that if it was cast, it would be forced (on this
cause's being remanded for execution) to open the treasury
according to the dictates of the circuit court.
The origin of the opinion that the public money could be reached
through such instrumentality is of recent date; its history will be
found in the case of
Stockton and Stokes v. Postmaster
General. Money was not there asked in a direct form, and the
Court put the case upon the express ground that the defendant
"was not called upon the furnish the means of paying any balance
that was awarded against the department by the Solicitor of the
Treasury. He was simply, [said the Court] required to give the
credit,"
and this was no more an official act than the making of an entry
by a clerk, by order of a court of justice; it was, in every just
sense, a mere ministerial act.
37 U. S. 12
Pet. 614. Had it not been placed on this narrow ground, the
decision could not have been made. That it falls short of this
case, is admitted; still, it was then manifest that the attempt to
push the doctrine of ministerial duties further, so as to reach the
money in the Treasury, would follow; the case has occurred, and
must be met.
Page 39 U. S. 522
I maintain that the executive power of this nation, headed by
the President, and divided into departments in its administration
of the finances of the country, acts independently of the courts of
justice in paying the public creditors, and that the decision of
the Secretary of the Navy in this case, affirmed by the President,
under the advice of the Attorney General, was final on the laws as
they stood, and that the petitioner could only appeal to
Congress.
And here it may be safely asked whether the Secretary and
President, the latter elected by the nation and responsible to the
people directly, and to their representatives in Congress, each
exercising an undoubtedly legitimate authority, were not the safest
and best to decide on the rights of the nation, and of the
petitioner seeking justice at its hands? Is the country known, that
submits the administration of its finances to the courts of
justice, or permits them to control the operations of the Treasury?
What guarantee have the people of this country that the circuit
court of this district, will as faithfully perform the functions
they have assumed, when dealing out the public money to satisfy
rejected claims, as the heads of the departments? The court is
wholly irresponsible to the people for its acts; is unknown to
them; the judges hold appointments of an ordinary judicial
character, and are accidentally exercising jurisdiction over the
territory where the Treasury and public officers are located.
Furthermore, for nearly forty years, this fearful claim to power
has neither been exerted, nor was it supposed to exist, but now
that it is assumed, we are struck with the peculiar impropriety of
the circuit court of this district becoming the front of opposition
to the executive administration.
Every government is deemed to be just to its citizens; its
executive officers, equally with the judges of the courts, are
personally disinterested, and why should not their decisions be as
satisfactory and final. They must be final, in most instances, in
the nature of things, and the necessities of the government. Money
is appropriated for certain objects; none can be drawn from the
Treasury save according to some law; of the obligations, the
departments must judge in a prompt manner; they cannot await years
of litigation to learn their duties, and the responsibilities of
the governments from the courts; the Secretary of the Navy could
not subject to wants and miseries the whole of the widows and
orphans on the navy pension list, until he was informed by the
court of this district, whether Mrs. Decatur should be paid her
claim for rations and interest; he had to proceed, as for forty
years and more his predecessors had done, and pay out upon the old
construction; nor could the government submit to its alteration,
for the arrearages would have exhausted the fund, possibly for the
next ten years, and left most of the widows and orphans dependent
upon it for daily bread, in utter destitution. To permit an
interference of the courts of justice with the accounts and affairs
of the Treasury, would soon sap its very foundations; money would
not be drawn out according to its own rules, nor could the
Secretary of the Treasury ever inform
Page 39 U. S. 523
Congress of the amount needed. Congress would, of necessity, be
compelled to consult the court, not the Secretary, when making
appropriations. This case again furnishes the illustration: if the
courts were to hold that Mrs. Decatur should be paid the eighteen
thousand five hundred and ninety-seven dollars, and that the true
construction of the acts of Congress was that the widows and
orphans pensioned on the navy fund should receive, in addition to
the half-monthly pay, half rations, and interest on the arrearages;
then an addition of, possibly, a million to the fund would be
required.
For these and other reasons, the court below had no jurisdiction
of the subject matter, and of course no authority to issue the
mandamus to bring the Secretary before it, and therefore I hold the
suit must be
Dismissed and the judgment affirmed.
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.
