Kimberlin v. Commission to Five Civilized Tribes

• Decision Date: 15 October 1900
• Docket Number: 1,388.
• Citation: 104 F. 653
• Parties: KIMBERLIN v. COMMISSION TO FIVE CIVILIZED TRIBES et al.
• Court: U.S. Court of Appeals — Eighth Circuit

104 F. 653

KIMBERLIN v. COMMISSION TO FIVE CIVILIZED TRIBES et al.

No. 1,388.

United States Court of Appeals, Eighth Circuit.

October 15, 1900

Ablert Rennie and John A. McClure, for plaintiff in error.

William B. Johnson, for defendants in error.

Mary Jane Kimberlin, a white woman, the plaintiff in error, seeks by this writ of error to obtain a writ of mandamus to the commission to the Five Civilized Tribes, commanding it to enroll her as a citizen of the Chickasaw Nation. Her right to the writ rests upon the facts disclosed by her amended complaint, which were admitted by a demurrer. Those facts were these: William G. Kimberlin, a white man, married Lizzie Mitchell, a Chickasaw Indian by blood, in the year 1870, and she died. After her death, and in the year 1890, Kimberlin married the plaintiff in error. Both these marriages were solemnized in conformity with the laws and rules of the Chickasaw Nation. The plaintiff in error's name has been upon the judicial records of that nation as a citizen of the tribe by intermarriage ever since November 19, 2890, through the record of her marriage license and marriage certificate. But the Chickasaw Nation has no official and settled roll of its citizens approved by its legislature. The plaintiff in error presented these facts to the commission to the Five Civilized Tribes by petition on August 28, 1897, and obtained a hearing thereon on September 21, 1898, in accordance with the published notices, rules, and regulations of the commission. At this hearing the facts relative to the marriages and their records were admitted, but nevertheless the commission refused to enroll the plaintiff in error as a citizen of the Chickasaw Nation; and thereupon she filed her complaint for a mandamus to compel it to do so, in the United States court in the Indian Territory. That court sustained a demurrer to her amended complaint, and denied the application for the writ of mandamus. This decision was removed by writ of error to the United States court of appeals in the Indian Territory, where it was affirmed by the latter court (53 S.W 467), and that judgment is now here for review. The plaintiff in error insists that it was the clear duty of the commission, under the acts of congress, the treaty with the Chickasaw Nation, and the laws of that nation, to enroll her as a member of that tribe, and that the courts below ought to have enforced the performance of that duty by the issue of the writ of mandamus.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

The writ of mandamus issues to compel the performance of a plain duty imposed by law. Where that duty is the exercise of judgment or discretion by an officer in the decision of a question of law or fact, or both, it may issue to compel a decision, but it may not command him in what particular way that decision shall be rendered. When a question has been decided by the officer or person to whose judgment or discretion the law has intrusted its determination, the writ of mandamus may not issue to review or reverse that decision or to compel another. It may issue to command judicial officers to hear and to decide a question within their jurisdiction, but courts have no power by writ of mandamus to direct such officers how they shall decide such a question, or in whose favor they shall render their judgment, because such action would result in the substitution of the judgment and opinion of the commanding court for that of the judicial officers to whose judgment and discretion the law intrusted the decision of the issue. For the same reason it cannot be invoked to compel a court or a judicial officer to reverse a decision already rendered, to correct an erroneous conclusion, or to render another decision, even though there may be no other method provided by the law for the review or correction of the error. In re Harless, 85 F. 177, 180, 29 C.C.A. 78, 81, 56 U.S.App. 33, 37; In re Rice, 155 U.S. 396, 403, 15 Sup.Ct. 149, 39 L.Ed. 198; American Const. Co. v. Jacksonville, T. & K.W. Ry. Co., 148 U.S. 372, 379, 13 Sup.Ct. 758, 37 L.Ed. 486; In re Parsons, 150 U.S. 150, 156, 14 Sup.Ct. 50, 37 L.Ed. 1034; Ex parte Morgan, 114 U.S. 174, 5 Sup.Ct. 825, 29 L.Ed. 935; Ex parte Whitney, 13 Pet. 404, 10 L.Ed. 221; In re Atlantic City R.Co., 164 U.S. 633, 635, 17 Sup.Ct. 208, 41 L.Ed. 579; In re Westervelt, 98 F. 912, 39 C.C.A. 350. The extent to which this writ is available to control the action of executive officers has been the subject of repeated consideration and decision in this country, until it is no longer doubtful. The leading cases upon the question are Marbury v. Madison, 1 Cranch, 137, 158, 161, 2 L.Ed.

60; Kendall v. U.S., 12 Pet. 524, 613, 9 L.Ed. 1181; Decatur v. Paulding, 14 Pet. 497, 514, 516, 10 L.Ed. 354. In Marbury v. Madison, 1 Cranch, 137, 158, 161, 2 L.Ed. 60, President Adams had nominated, the senate had confirmed, and the president had commissioned, Marbury as a justice of the peace of the District of Columbia, but his commission remained undelivered in the office of the secretary of state when the government passed under the administration of President Jefferson. Mr. Madison, the new secretary of state, refused to deliver the commission, and Marbury applied to the supreme court for a writ of mandamus to compel him to do so. The court held that the appointment was complete, that Marbury was entitled to his commission, that it was Mr. Madison's duty to deliver it, that its delivery involved the exercise of no discretion or judgment, and that it could be compelled by a writ of mandamus issued by the proper court. In Kendall v. U.S., 12 Pet. 524, 613, 9 L.Ed. 1181, Stockton and Stokes held certain claims against the United States for extra services as contractors for carrying the mails, which they insisted should be credited to their accounts in the post-office department of the government. Thereupon congress passed an act for their relief, which provided that the solicitor of the treasury should examine all the evidence relative to this claim, and should find and determine the amounts of the allowances to which they were equitably entitled, and that the postmaster general should credit them in their account in his department with the sums which the solicitor should find to be due to them. Under this act the solicitor examined the evidence and found the amounts due to the contractors; but Kendall, the postmaster general, refused to credit them with these sums, and a writ of mandamus was sought to compel him to do so. The supreme court held that the act of congress imposed upon the postmaster general the clear duty to credit the contractors with the sums found due to them by the solicitor, that this was a mere ministerial act, that it did not involve the exercise of any judgment or discretion on his part, and that the peremptory writ commanding him to ender this credit was lawfully issued by the court below. In delivering the opinion of the supreme court, Mr. Justice Thompson said:

'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 has no discretion whatever.'

In Decatur v. Paulding, 14 Pet. 497, 514, 516, 10 L.Ed. 559, congress passed on the same day a general law giving to the widow of any officer who had died in the naval service a pension equal to half of his monthly pay from the time of his death until her death or marriage; and a resolution granting a pension to Mrs. Decatur, widow of Stephen Decatur, for five years, commencing June 30, 1834, and the arrearages of the half pay of a post captain from Commodore Decatur's death to June 30, 1834. Mrs. Decatur reserved her rights under the general law. Thereafter she applied for her pension under the resolution, the secretary of the navy refused to allow it, and she sought a writ of mandamus to compel him to do so. The circuit court refused to issue the writ, and the supreme court sustained its action, because the acts of congress had vested the power and imposed the duty upon the secretary of the navy, in the allowance or disallowance of this pension, to exercise his judgment and discretion in the construction of the law and the resolution, and in the decision of the question whether Mrs. Decatur was entitled to her pension under the law only, or under both the law and the resolution. It was strenuously argued in that case, as it is in the case at bar, that the true construction of the legislation constituted the law of the case, that it was the duty of the officer to comply with that law, and that, as the facts were not in dispute, his compliance with the law was a mere ministerial act, and he had no power to exercise his judgment or discretion in the construction of the act and the resolution. This contention, however, was not sustained. Chief Justice Taney, in delivering the opinion of the supreme court, said:

'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.'

And after reviewing the case of Kendall v. U.S., and calling attention to the act of entering the credit in the account which was in question in that case, he further said:

'The court were unanimously of opinion that in its character the act was merely ministerial. In the case before us it is clearly otherwise. The resolution in favor of Mrs. Decatur imposed a duty on the secretary of the navy

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