United States Bernardin v. Butterworth

• Decision Date: 21 March 1898
• Docket Number: No. 404,404
• Citation: 18 S.Ct. 441,169 U.S. 600,42 L.Ed. 873
• Parties: UNITED STATES ex rel. BERNARDIN v. BUTTERWORTH
• Court: U.S. Supreme Court

169 U.S. 600

18 S.Ct. 441

42 L.Ed. 873

UNITED STATES ex rel. BERNARDIN

v BUTTERWORTH.

No. 404.

March 21, 1898.

J. C. Dowell, for plaintiff in error.

Sol. Gen. Richards, for defendant in error.

Mr. Justice SHR AS delivered the opinion of the court.

On March 23, 1895, John S. Seymour, commissioner of patents, on appeal in an interference proceeding between the applications of Alfred S. Bernardin and William H. Northall, decided that Bernardin was entitled to a patent for the invention involved in the interference. From this decision an appeal was taken by Northall to the court of appeals of the District of Columbia, and the decision of the commissioner was by that court reversed. Northall v. Bernardin, 7 App. D. C. 452.

Bernardin then instituted proceedings in the supreme court of the District of Columbia, seeking to compel the commissioner to issue a patent in accordance with his previous decision, claiming that the act of congress approved February 9, 1893, which, in form, confers jurisdiction upon the court of appeals of the District of Columbia to hear appeals from the action of the commissioner of patents, is unconstitutional and void, in that it attempts to confer jurisdiction upon that court to review or reverse the action of the commissioner.

The supreme court of the District of Columbia dismissed the petition for mandamus, and, on appeal, the court of appeals of the District sustained the judgment of the supreme court. U. S. v. Seymour, 10 App. D. C. 294.

Thereafter John S. Seymour resigned his office as commissioner of patents, and, on April 12, 1897, Benjamin Butterworth was appointed his successor. On April 17, 1897, Bernardin filed a new petition for mandamus in the supreme court of the District of Columbia, which was dismissed, and that decision was, on appeal to the court of appeals of the District, on May 11, 1897, affirmed.

On May 25, 1897, a writ of error was allowed from this court, and, while the case was here pending, on January 16, 1898, Benjamin Butterworth died, and C. H. Duell was thereafter appointed to the office thus left vacant, and a motion has been made for leave to substitute Duell in the stead of Butterworth, notwithstanding that by the death of the latter the action had abated.

The question thus presented is not a novel one. In Secretary v. McGarrahan, 9 Wall. 298, it was held that a judgment in mandamus ordering the performance of an official duty against an officer as if yet in office, when in fact he had gone out after service of the writ, and before the judgment, is void, and cannot be executed against his successor. In U. S. v. Boutwell, 17 Wall. 604, it was held that, 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, and that his successor in office cannot be brought in by way of amendment of the proceeding, or on an order for the substitution of parties. The conclusion reached was put upon two independent grounds, and we quote the reasoning of the court, expressed in its opinion delivered by Mr. Justice Strong, as follows:

'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 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 fact or relations the duty has grown, what the law requires, 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, 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 particulara ct an express or 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. Thus it is the personal default of the defendant that warrants the 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 the writ must abate in the absence of any statutory provision to the contrary. 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 default of his predecessor, without any delinquency of his own. Besides, were a demand made upon him, he might...