McElrath v. McIntosh

The first question in natural order is that of jurisdiction. It is, therefore, the first which the court will consider. It is understood, as admitted in argument, that if the act intended to be enjoined be not a merely ministerial act, the court has not jurisdiction to enjoin the officers of the treasury against performing it. This doctrine was first promulgated by the supreme court of the United States in the case of Marbury v. Madison, 1 Cranch [5 U. S.] 105, where Marshall, C. J., says: “If some acts be examinable and others not, there must be some rule of law to guide the :ourt in the exercise of its jurisdiction.” And in page 106 he says: “Where the heads of departments are the political or confidential agents of the executive merely to execute the will of the president, or rather to act in eases in which the executive possesses no constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable.” And again, in page 170, he says: “The province of the court is solely to decide on the rights of individuals not to inquire how the executive, or executive officers, perform duties in which théy have a discretion. Questions in their nature political, or which are by the constitution and láws submitted to the executive, can never be made in this court.” The chief justice then proceeds to show that the act required to be done (the delivery of the commission to Mr. Marbury) was purely a ministerial act, in respect to which the executive had no discretion.

In the case of Kendall v. U. S., 12 Pet. [37 U. S.] 609, Mr. Justice Thompson, in delivering the opinion of the supreme court of the United States, says: “Under the first head •of inquiry it has been considered by the counsel on the part of the postmaster-general that this is a proceeding against him to enforce the performance of an official duty, and the proceeding has been treated as an infringement upon the executive department of the government, which has led to a very ■extensive range of argument upon the independence and duties of that department; but which, according to the view taken by the court of the case, is entirely misapplied. We do not think that the proceedings in this case interfere 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.” Again he says: “The executive power is vested in a president; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power. But it by no means follows that every officer in every branch of that department is under the exclusive direction of the president. Such a principle, we apprehend, is not and certainly cannot be claimed by the president. There are certain political duties imposed upon many officers of the executive department, the discharge of which is under the direction of the president But it would be an alarming doctrine that congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such eases the duty and the responsibility grow out of, and are subject to, the control of the law. and not to the direction of the president. And this is emphatically the case where the duty enjoined is of a mere ministerial character. Let us proceed, then,” he says, “to an examination of the act required by the mandamus to be performed by the postmaster-general; and his obligation to perform, or his right to resist the performance, must depend upon the act of congress of the 2d of July, 1836. This is a special act for the relief of the re-lators, Stockton and Stokes, and was passed, as appears on its face, .to adjust and settle certain claims which they had for extra services, as contractors for carrying the mail. These claims were, of course, upon the United States, through the postmaster-general. The real parties to the dispute were, therefore, the relators and. the United States. The United States could not, of course, be sued, or the claims in any way enforced against the United States, without their consent, obtained through an act of congress, by which they consented to submit these claims to the solicitor of the treasury to inquire into the equity of the claims, and -to make such allowance therefor as, upon a full examination of all the evidence, should seem right according to the principles of equity; and the act directs the postmaster-general to credit the relators with whatever sum, if any, the solicitor shall decide to be due to them, for or on account of any such services or contract.” Again (page 611), the court say: “Under this law the postmaster-general is vested with no discretion or control over the decisions of the solicitor; nor is any appeal or review of that decision provided for by the act. The terms of the submission was a matter entirely in the discretion of congress, and if they thought proper to vest such a power in any one, and especially as the ar*80bitrator was an officer of the government, it did not rest with the postmaster-general to control congress or the solicitor in that affair.” Again (page G13), the court say: “The act required by the law to be done by the postmaster-general is simply to credit the relators with the full amount of the award of the solicitor. This is a precise, definite act, purely ministerial, and about which the postmaster-general had no discretion whatever. The law, upon its face, shows the existence of accounts between the' re-lators and the postoffice department. No money was required to be paid, and none could have been drawn out of the treasury without further legislative provision, if this credit should overbalance the debit standing against the relators. But this was a matter with which the postmaster-general had no concern. He was not called upon to furnish the means of paying such balance, if any should be found. He was simply required to give the credit. This was not an otheial act in any other sense than being a transaction in the department where the books and accounts were kept; and was an official act »n 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 and positive command of the law, and the act required to be done is, in any just sense, a mere ministerial act.”

But the case now before the circuit court of the District of Columbia is very different from that of Stockton & Stokes. This is an application niton a bill in equity filed for an injunction to inhibit the secretary of the treasury and the second comptroller from paying to Betsy McIntosh the sum of $3,840, less by the sum which has been paid to the defendant, John H. Eaton, so that, including the sum so already paid to him, the one half of the said certificate in favor of Betsey McIntosh may be held subject to the final decree of this court. This application is founded upon the supposition that this court may, by its final decree, order the secretary of the treasury to pay to the complainant, McElrath, half the amoun, of the said certificate, including what has been paid to the defendant. Eaton; for if this court cannot make such a final decree, the injunction, if granted, will be vain and nugatory. This, then, is a question of jurisdiction, and depends upon the question whether the payment of this claim by the secretary of the treasury is an official, executive act, or is purely a ministerial act, as in the ease of Stockton & Stokes.

The difference between ministerial acts and executive official acts is clearly stated by the supreme court in the case of Decatur v. Paulding, 14 Pet. [39 U. S.] 514. 515. Mr. Chief Justice Taney, in delivering the opinion of the court, says: “In the ease of Kendall v. U. S., 12 Pet. [37 U. S.] 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 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. 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 guide and control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official duties.” Again (page 51G), he said: “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. 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. U. S., 12 Pet. [37 U. S.] 524.” Again (page 51G), he said: "We have referred to these passages in the opinion of the court in the case of Kendall v. U. S., 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 duty imposed upon him in his official character as the head of an executive 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 a 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 judgments, and guide him in the exercise of a discretion which the law had confided to him.”

The same doctrines are affirmed by the supreme court in the case of Bashaar v. Mason, 6 How. [47 U. S.] 100, where Mr. Justice Nel*81son, in delivering the opinion of the court, says: “We are also of opinion that if the plaintiff has made out a title to his pay as an officer of the United States navy, a mandamus would not lie in the court below to enforce the payment. The constitution provides that no money shall be drawn from the treasury but in consequence of appropriations made by law. Article 1, § 9. And it is declared by act of congress (3 Stat. 689, § 3), that all moneys appropriated for the use of the war and navy departments shall be drawn from the treasury by warrants of the secretary of the treasury, upon requisitions of the secretaries of these departments, countersigned by the second comptroller.” And (inpage 101)he says: In the case of Decatur v. Paulding, 14 Pet. [39 U. S.] 497, it was held by this court that a mandamus would not lie from the circuit court of this district to the secretary of the navy to compel him to pay to the plaintiff a sum of money claimed to be due her as a pension under a resolution of congress. There was no question as to the amount due, if the plaintiff was properly entitled to the pension; and it was made to appear in that case, affirmatively, on the application, that the pension fund was ample to satisfy the claim. The fund, also, was under the control of the secretary, and the money payable on his own warrant. Still, the court refused to inquire into the merits of the claim of Mrs. Decatur to the pension, or to determine whether it was rightfully withheld or not by the secretary, on the ground that the court below had no jurisdiction over the case, and therefore the question was not properly before this court on the writ of error. The court say that the duty required of the secretary by the resolution was to be pea-formed by him as the head of one of the executive departments of the government in the ordinary discharge of his official duties; that, in general, such duties, whether imposed by act of congress or by resolution, are not mere ministerial duties; that the head of the executive department of the government, in the adminstration of the various and important concerns of his office, is continually required to exercise judgment and discretion; and that the court could not by mandamus act directly upon the officer, and guide and control his judgment or discretion in matters committed to his care in the ordinary discharge of his official duties. The court distinguish the case from Kendall v. U. S., 12 Pet. [37 U. S.] 524, where there was a mandamus to enforce the performance of a mere ministerial act, not involving on the part of the officer the exercise of any judgment or discretion. The principle of the case of Mrs. Decatur is decisive of the present one. The facts here are much stronger to illustrate the inconvenience and unfitness of the remedy. Besides, the duty of inquiring into and ascertaining the rate of compensation that may be due to the officers, under the laws of congress, no payment can be made unless there has been an appropriation for the purpose; and if made, it may have become already exhausted, or prior requisitions may have been issued sufficient to exhaust it. The secretary is obliged to inquire into the condition of the fund, and the claims already charged upon it, in order to ascertain if there is money enough to pay all the accruing demands; and if not enough, how it shall be apportioned among the persons entitled to it. These are important duties, calling for the exercise of judgment and discretion on the part of the officer, and in which the general creditors of the government (to the payment of whose demands the particular fund is applicable) are interested, as well as the government itself. At most, the secretary is but a trustee of the fund for the benefit of all those who have claims chargeable upon it. and like other trustees is bound to administer it with a view to the rights and interests of all concerned. It will not do to say that the result of the proceeding by the mandamus will show the title of the relator to his pay, the amount, and whether there were any moneys in the treasury applicable to the demand; for upon this ground any creditor of the government would be enabled to enforce his claim against it through the head of the proper department by means of this writ; and the proceeding by mandamus would become as common in the enforcement of demands upon the government as the action of assumpsit is to enforce like demands against individuals.”

In the case before this court the secretary of the treasury, in executing the resolution of congress of the 14th March, 1S4S, was called on by the complainant to pay to him, as assignee of Betsey McIntosh, one half the sum appropriated by that resolution, less the sum already paid to the defendant, J. H. Eaton. The validity and construction of the power of attorney and assignment set up by McElrath, and the applicability and construction of the act of congress of the 29th July, 1S40 (chapter 00) entitled “An act in relation to the payment of claims,” are necessarily involved in the duty required by the secretary of the treasury to execute the resolution aforesaid of March, 1848. It may be observed, also, that the resolution of the 14th of March, 1848, requires the secretary to pay the money to Betsey McIntosh (herself), not to her executors, administrators, or assigns. That the supposed assignment to McElrath, if it be an assignment, purports to be of only a part of the debt due by the United States, and that the power of attorney to McElrath does not expressly authorize him to receive tlie money, or any part of it, but purports to be only a power to . prosecute the claim to allowance, or judgment; so that, upon these points also, it would be necessary that the secretary, before ordering the payment of the money, should decide whether he could lawfully pay the money to any other person than Betsey McIntosh herself, whether it would not be contrary to the policy of the *82law, especially in the case of an Indian claim, to pay a part only of the claim, and he must also decide whether the power of attorney was duly executed. These are all acts of executive discretion, in which the secretary has sought the advice and opinion of the attorney-general of the United States, and can in no just sense be said to be mere ministerial acts. In the exercise of this discretion, this court has no right to guide or control the executive officer, or to entertain any appeal from his decision.

Upon these authorities and by these reasons, this court is satisfied that the payment of the claim of Betsey McIntosh is not a mere ministerial act, but is a duty appertaining to the office of secretary of the treasury, in the discharge of which he has a discretion which this court has not jurisdiction to control; and being of that opinion the court deems it unnecessary, as it would be unavailing, to give any opinion upon the other questions which have been raised in argument.

The court, therefore, refuses to grant the injunction prayed for against the secretary, and second comptroller of the treasury.