Wailes v. Smith

• Decision Date: 12 January 1893
• Citation: 25 A. 922,76 Md. 469
• Parties: WAILES v. SMITH, COMPTROLLER.
• Court: Maryland Court of Appeals

25 A. 922

76 Md. 469

WAILES v. SMITH, COMPTROLLER.

Court of Appeals of Maryland

January 12, 1893

Appeal from circuit court, Anne Arundel county.

Petition by Sidney S. Wailes for mandamus to Marion de Kalb Smith, state comptroller, to compel the issue of a warrant. Judgment denying the petition. Petitioner appeals. Affirmed.

Argued before ALVEY, C.J., and ROBINSON, BRYAN, MCSHERRY, and FOWLER, JJ.

W Pinkney Whyte, Ch. Marshall, and Jas. T Briscoe, for appellant.

Atty. Gen. Poe and E. C. Gantt, for appellee.

ROBINSON J.

This case has been very fully argued, and the interests involved are of more than ordinary importance. At the same time however, it does not seem to us that any great difficulties present themselves in the consideration of the several questions upon which the petitioner's right to a mandamus depends. Now, what is this case? By an act of congress approved 5th of August, 1861, a direct tax of $20,000,000 was levied upon real property, and this tax was apportioned among the several states according to representation, as prescribed by the federal constitution; the apportionment of this state being $436,823.33. Provision was made for the assessment and collection of this tax against the individual owners of such property, but any state was allowed to assume and pay its quota of said tax; and under this provision the state of Maryland assumed and paid into the treasury of the United States $371,299.83, being its apportionment, less 15 per cent. allowed oy the act for the cost of collection; and thus the tax against the property of her citizens was thereby satisfied and extinguished. Thirty years afterwards, by an act of congress approved 2d March, 1891, entitled "An act to audit and to pay to the several states and territories and the District of Columbia all moneys collected under the direct tax levied by the act of 1861," the $371,299.83 thus paid was refunded to the state. This is an application by the petitioner for a writ of mandamus to compel the comptroller of the state to issue a warrant on the treasurer for the payment to him of $111,389.94, being 30 per cent. commissions on $371,299.83, paid by the United States to Maryland, and to which he claims to be entitled under Act 1878, c. 224. By this act he was appointed commissioner, with authority to prosecute the settlement of all claims of the state against the United States, and for his services as such he was allowed 30 per cent. commissions on all sums recovered by him and paid by the United States into the treasury of this state. Among the claims which he was thus authorized to prosecute to a settlement, the petitioner contends, was a claim of the state for the repayment of its quota of the direct tax; and that it was through his efforts and the efforts of agents of other states with whom he was associated that the act of 1891 was passed, whereby this tax was refunded to the state; and this being so, it was the duty of the comptroller, as soon as the money was paid to the state, to have issued a warrant on the treasurer for $111,389.94, being the commissions to which the petitioner was entitled, and for the payment of which appropriation had already been made by the act of 1878. Briefly stated, the comptroller, in his answer, in the first place, denies that the payment by the state of its quota of the direct tax constituted a claim against the United States, within the meaning of the act of 1878; and he denies also that the refunding act of 1891 was passed through the efforts of the petitioner, or that he was in any manner instrumental in its passage; and he further denies that at the time the demand was made upon him for the warrant in question there was any appropriation by law, as required by the constitution, for the payment of the commissions claimed by the petitioner. The case was heard by the court below on bill, answer, and proof, and, as thus presented, the question is whether the petitioner is entitled to a writ of mandamus as prayed.

Now, it can hardly be necessary to say that a mandamus is a mandatory writ, and only lies where the ordinary and usual modes of proceeding and forms of remedy are powerless to afford redress, and where, without its aid, there would be a failure of justice; and even in such cases it only lies to enforce the performance of a strictly ministerial duty; and by "ministerial" we mean where one is intrusted with the performance of an absolute and imperative duty, the discharge of which requires neither the exercise of official discretion nor judgment. As, for instance, where a specific sum of money is appropriated by law for the payment of certain defined services rendered the state, no one questions that in such a case the payment for such services by the proper officer may be enforced by mandamus. Where however, the duty is one which necessarily requires the exercise of discretion and judgment, it is well settled that a mandamus will not lie to control or reverse the decision of one to whom the discharge of such duty is confided. It will not lie, because it is his discretion and judgment which is to be exercised, and not the discretion and judgment of the court. But while this distinction will be found to run through all the cases, there is, it must be admitted, some conflict of opinion, in this country at least, as to what constitutes, strictly speaking, a ministerial duty, as distinguished from a discretionary duty, within the meaning of the rule, and it may not be easy to reconcile the principles which are supposed to govern these decisions. Be that as it may, we take it to be settled by the best-considered cases that, where the duty is such as necessarily requires the examination of evidence and the decision of questions of law and fact, such a duty is not ministerial, and, not being ministerial, the decision of a public officer to whom the discharge of such duty has been confided cannot be reviewed or reversed in a mandamus proceeding. In the leading case of U.S. v. Seamen, 17 How. 230, where the relator, or printer to the United States senate, applied for a mandamus to compel the superintendent of public printing to deliver to him certain public documents, the printing of which he claimed to be entitled under an act of congress, Mr. Chief Justice TANEY said: "Now, it is evident that this case is not one in which the superintendent had nothing to do but to obey the order of a superior authority. He had inquiries to make before he could execute the authority he possessed. He must examine evidence,--that is to say, he must ascertain in which house the order to print was first passed; and after he had made up his mind upon this point it was still necessary to examine into the usages and practice of congress in marking a communication in their proceedings as a document, to make up his mind whether separate communications upon the same subject or different subjects from the same office, when made at different times, were, according to the usages of congress, described as the document or different documents in printing and publishing their proceedings. He was obliged, therefore, to examine evidence and form his judgment before he acted; and, whenever that is to be done, it is not a case for mandamus." And the rule thus laid down was approved and adopted by this court in Green v. Purnell, 12 Md. 329, where it...