10 D.C. 172 (D.C.D.C. 1879), 8694, United States ex rel. Work v. Boutwell

Docket NºAT LAW.— 8694.
Citation10 D.C. 172
Opinion JudgeMr. Justice HUMPHREYS
Party NameTHE UNITED STATES, ON THE RELATION OF GEORGE F. WORK, v. GEORGE S. BOUTWELL, SECRETARY OF THE TREASURY.
AttorneyGeorge Taylor, M. F. Morris , and F. C. Wood , for petitioner, George P. Fisher , for respondent.
CourtSupreme Court of District of Columbia

Page 172

10 D.C. 172 (D.C.D.C. 1879)

THE UNITED STATES, ON THE RELATION OF GEORGE F. WORK,

v.

GEORGE S. BOUTWELL, SECRETARY OF THE TREASURY.

AT LAW.— No. 8694.

Supreme Court, District of Columbia.

September Term, 1879

I. A writ of mandamus will not be issued by this court to compel the Secretary of the Treasury to draw his warrant for the payment of money when the act involves the exercise of judgment or discretion.

II. This court will not compel the Secretary of the Treasury, by a writ of mandamus, to draw his warrant upon the Treasurer for the payment of money unless there has been a specific appropriation for the particular claim, and a direction by Congress for its payment.

STATEMENT OF THE CASE.

This is a proceeding instituted by petition for a writ of mandamus to compel the Secretary of the Treasury to pay to the relator a certain amount of money found to be due to the latter from the United States.

The petition sets forth that in 1863, by a charter-party or contract in writing, Work chartered a steamboat to the War Department for use as a transport in the military service, covenanting in the charter-party that the government should assume the war risks and pay the owner the value of the vessel if it happened to be destroyed by the contingencies of war incident to its employment, and that the owner should assume the marine risks. The vessel having caught fire, was blown up in the Potomac River by order of the military authorities. The petitioner thereupon, in accordance with law, presented to the Third Auditor of the Treasury his claim against the United States for the value of the vessel. The Third Auditor allowed the claim to the extent of $8,200, and the Second Comptroller confirmed the award. The Secretary of War— to whom, as the head of the department against which the claim arose, the balance was then certified by the Second Comptroller— approved the decision, and drew his requisition on the Secretary of the Treasury for the amount, to be paid out of the funds in the Treasury appropriated to the support of the War Department. The Secretary of the Treasury refused to honor the requisition.

The respondent, in his answer or return to the rule served on him to show cause why the writ should not issue, sets up a plea denying the jurisdiction of the court and its right to control him as an executive officer of the government; that the matter of drawing a warrant for the amount of the award is a matter involving judgment and discretion; that, under the law, he has the right to return the papers to the auditing officer with his objections, or send it to the Court of Claims for adjudication; and that he holds the case under advisement for such disposal of it, and he claims the right of reviewing the decision of the auditing officers, and of absolutely refusing to allow the claim or draw his warrant , if he considers the claim unfounded.

The case has been certified up to be argued in the general term in the first instance.

George Taylor, M. F. Morris , and F. C. Wood , for petitioner, presented the following points:

1st. This honorable court has jurisdiction in this case. The act the performance of which is sought to be enforced by the writ of mandamus, is merely a ministerial duty affecting an individual right, and does not admit of the exercise of judgment or discretion on the part of the honorable Secretary of the Treasury. This court, therefore, has jurisdiction and authority to compel him to perform that act and to issue his warrant for the payment of the claim on the requisition of the Secretary of War. ( Marbury v. Madison , 1 Cr. 137; Kendall, Postmaster-General , v. The United States , 12 Pet. 527; State of Mississippi v. Johnson , 4 Wall. 498; Gaines v. Thompson , 7 Id. 353; Secretary v. McGarrahan , 9 Wall. 312; Reeside v. Walker , 11 How. R., 272; Smyth's case , 5 Nev. & Man. R., 589; 6 Id. 509.)

2d. This is a claim against the War Department for loss or expenditure incurred in that department, and was properly presented to the Third Auditor, certified to and approved by the Second Comptroller, and the balance found to be due certified by the said Comptroller to the Secretary of War, who approved of the settlement and issued his requisition on the Secretary of the Treasury for the payment of the claim out of an appropriation subject to his requisition and unexpended. These acts were in accordance with the acts of Congress providing for the settlement and payment of such claims. And this settlement of the accounting officers is final and conclusive on the executive branches of the government, and cannot be changed or modified by the Secretary of the Treasury. No discretion is left in that officer as to the correctness of the settlement. (Act September 2, 1789, 1 Stat. 65; act March 3, 1817, 3 Stat. 366; act May 7, 1822, 3 Stat. 689; act March 3, 1849, 9 Stat. 414; act March 3, 1863, 12 Stat. 743; act of 1866; act of March 30, 1868, 15 Stat. 54.)

3d. Independent of the acts of March 30, 1868, and June 25, 1868, neither the Secretary of the Treasury, nor even the head of the department to whom such claims were required by law to be certified, had any discretion— as claimed in the answer of the honorable Secretary of the Treasury in this case— in the matter of drawing his warrant or requisition, but was compelled in the performance of his duty under the law, as it stood prior to these acts, to issue the same. (Act September 2, 1789, 4 Stats. 65; act March 3, 1817, 3 Stats. 366; opinion of Attorney-General Wirt of October 20, 1823, Opinions of Attorneys-General, 471, 475; Id., 479, 506, 528; opinion of Attorney-General Taney of April 5, 1832, Opin's, 871, 872; act March 30, 1868, 15 Stats. 54; report of committee, 3d sess., 40th Congress, Report No. 26, made February 15, 1869.)

4th. By the act of March 30, 1868, section 1, (15 Stats. 54,) Congress declared this to be the true construction of the law, and, instead of giving such discretion to the honorable Secretary of the Treasury, expressly declares that he shall not have such discretion, and makes the settlement of the accounting officers final and conclusive, and beyond the control of the heads of departments. Nor does the proviso of this act authorize the Secretary of the Treasury to exercise any discretion or judgment in the matter, or to submit the case to the Comptroller for review. Nor does the seventh section of the act of June 25, 1868, (15 Stats. 76,) give to the honorable Secretary of the Treasury any discretion or authority to refer the case to the Court of Claims. ( Delaware River Steamboat Co. v. The United States , 5 Nott & Huntingdon, 55.)

George P. Fisher , for respondent.

1. Independently of the act of Congress of March 30, 1868, (15 Stats. at Large, p. 54,) and independently of act of June 25, 1868, (Id., p. 76,) the Secretary of the Treasury is not subject to the jurisdiction of this court; because the drawing of a warrant is in the line of the general duties of his office, in regard to the discharge of which he is not subject to the control of the court. ( Decatur v. Paulding , 14 Pet. 515.)

2. By the act of March 30, 1868, the Secretary of the Treasury may submit to the Comptroller any facts in his judgment affecting the claim for the review of the Comptroller; and whether he will do so or not is a matter of judgment and discretion.

3. By section 7 of the act of June 25, 1868, the Secretary of the Treasury may transmit a claim of the class of the one under consideration, with vouchers, & c., to the Court of Claims for adjudication there; and whether he will do so or not, or whether he act under the statute of March 30, or the statute of June 25, 1868, is a matter involving judgment and discretion.

OPINION

Mr. Justice HUMPHREYS

The petitioner asks this court for a writ of mandamus to compel the Secretary of the Treasury of the United States to draw his warrant on the Treasurer for $8,200 in favor of the petitioner, the same being a sum of money for which the Secretary of War made requisition on the Secretary of the Treasury, to be paid out of the funds appropriated to the support of the War Department; but there has been no specific appropriation for this particular claim.

The nature and character of the writ presupposes, before its issuance, a final, definite judicial determination in favor of the party applying, leaving...

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