Wailes v. Smith

• Decision Date: 25 March 1895
• Docket Number: No. 872,872
• Citation: 39 L.Ed. 698,15 S.Ct. 624,157 U.S. 271
• Parties: WAILES v. SMITH, Comptroller of Treasury of Maryland
• Court: U.S. Supreme Court

157 U.S. 271

15 S.Ct. 624

39 L.Ed. 698

WAILES

v SMITH, Comptroller of Treasury of Maryland.

No. 872.

March 25, 1895.

In 1872 the general assembly of Maryland passed an act to ratify and confirm the governor's appointment of Daniel Clarke and Sidney I. Wailes as commissioners on behalf of the state to prosecute to settlement all her claims against the government of the United States under the act of congress approved July 27, 1861, which provided for the payment by the federal government to the governor of any state, etc., of any expenses properly incurred by the state for enrolling, equipping, etc., and transporting its troops employed in aiding to suppress 'the present insurrection against the United States, to be settled upon proper voucher,' etc.

In 1878 the general assembly repealed the act of 1872, and enacted as follows: 'That Sidney I. Wailes, * * * the surviving commissioner of the state of Maryland under said act [the repealed act of 1872], be and he is hereby authorized to prosecute to settlement all of the claims of the state against the government of the United States, and he is hereby allowed a commission of 30 per cent. upon any sum that shall be recovered by him and paid by the government of the United States into the treasury of the state of Maryland, as full compensation for his services and expenses in the prosecution of said claims of said state against the United States, it being the intent and meaning of this general assembly that said commissioner shall not claim or receive any other or further compensation for his services rendered and expenses incurred, or to be incurred in the prosecution of said claims, except the commission contingent upon his success, as hereinbefore allowed him on such amount as may be recovered by him as aforesaid, and paid into the treasury of said state.' The third section of the act directed the comptroller of the treasury 'to issue his warrant to pay said Wailes a commission of 30 per cent. on such sum as shall be recovered by him and paid by the government of the United States into the treasury upon said claims, and that said commission shall be payable upon the several amounts received on said claims as they are paid into the treasury.' Laws Md. 1878, p. 359, c. 224.

In 1891 the amounts which had been colected from the several states and territories and the District of Columbia by the federal government under what was known as the 'Direct Tax Act of 1861' were refunded. The act of congress authorizing this refunding contained the proviso 'that no part of the money hereby appropriated shall be paid out by the government of any state or territory, or any other person, to any attorney, or agent under any contract for services now existing or heretofore made between the representative of any state or territory and an attorney or agent.' The act, moreover, provided that none of the moneys directed to be paid to any state or territory should be so paid 'until the legislature thereof shall have accepted by resolution the sum herein appropriated and the trusts imposed in full satisfaction of all claims against the United States on account of the levy and collection of said tax, and shall have authorized the government to receive said money for the use and purposes aforesaid.' Stat. 1889-91, c. 496, p. 822.

The general assembly of Maryland accepted these terms and provisions, and $371,299.83 were paid to the state by the federal government. Subsequently thereunder the general assembly directed that $202,645.71 of the amount thus received should be applied to the payment of the state debt, and that the balance should be invested for the benefit of the sinking fund.

The plaintiff in error began proceedings by petition for mandamus against the defendant, comptroller of the state, to compel him to draw a warrant on the treasurer in his favor for the payment of $111,389.94, being 30 per cent. on the $371,299.83 which had been paid to the state by the federal government. The petition was dismissed, and an appeal was taken to the court of appeals of Maryland. In that court (at the October term, 1892), the judgment below was affirmed. Wailes v.Smith, 76 Md. 475, 25 Atl. 922.

The court of appeals rested its conclusion upon the following grounds:

(1) That the duties imposed on the comptroller by the act upon which the plaintiff relied involved discretion and judg- ment, and therefore their performance could not be compelled by mandamus.

(2) That under the constitution of the state no money could be drawn from the treasury without a specific appropriation, and the comptroller could not be compelled by mandamus to draw a warrant on the treasurer where,...