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decided: March 23, 1891.



Author: Fuller

[ 139 U.S. Page 319]

 MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

The writ of mandamus cannot issue in a case where its effect is to direct or control the head of an executive department in the discharge of an executive duty involving the exercise of judgment or discretion. United States ex rel. Redfield v. Windom, 137 U.S. 636, 644. When by special statute, or otherwise, a mere ministerial duty is imposed upon the executive officers of the government; that is, a service which they are bound to perform without further question, then if they refuse, the mandamus may be issued to compel them. United States ex rel. Dunlap v. Black, 128 U.S. 40, 48. The writ goes to compel a party to do that which it is his duty to do without it. It confers no new authority, and the party to be coerced must have the power to perform the act. Brownsville v. Loague, 129 U.S. 493, 501.

In view of these settled principles was the relator entitled to the writ?

Upon establishing at the seat of government an executive department to be known as the Department of State, with a Secretary of State as its head, Congress provided:

"The Secretary of State shall perform such duties as shall from time to time be enjoined on or entrusted to him by the President relative to correspondences, commissions or instructions to or with public ministers or consuls from the United States, or to negotiations with public ministers from foreign states or princes, or to memorials or other applications from foreign public ministers or other foreigners, or to such other matters respecting foreign affairs as the President of the

[ 139 U.S. Page 320]

     United States shall assign to the Department, and he shall conduct the business of the Department in such manner as the President shall direct." Rev. Stat. ยงยง 199, 202; 1 Stat. pp. 28, 68.

It is contended, however, that, in this instance, the final custody of the money was vested by the act of June 18, 1878, solely in the Secretary of State, and that it was thereby made his duty to distribute and pay the awards to the claimants independently of the direction or control of the President. But the act thus referred to as the basis of this application, when considered throughout as it must be, not only does not undertake to impose the payment of these awards as an independent duty upon the Secretary, but specifically subjects such payment to the control of the President. The Secretary of State was, indeed, authorized and required by the first section to receive from Mexico the whole money awarded, and to distribute the same from time to time as the instalments came in, among those in whose favor awards had been made, or to their legal representatives or assigns, but this was accompanied by the restriction, explicitly expressed, out of abundant caution, "except as in this act otherwise limited or provided." And by section five, the payment and distribution were limited, so far as the cases of Weil and La Abra Company were concerned, by the request to the President to investigate any charges of fraud as to those claims, and the provision that if he should be of the opinion "that the honor of the United States, the principles of public law or considerations of justice and equity," required that the awards, thus specifically named, or either of them, should be reopened, and the cases retried, it should be lawful for him "to withhold payment of said awards, or either of them, until such case or cases shall be retried and decided in such manner as the governments of the United States and Mexico may agree, or until Congress shall otherwise direct."

Payment of the Weil award had been withheld by the President, after an investigation, but the case had not been retried and decided in a manner agreed upon by the United States and Mexico, nor had Congress otherwise directed. How

[ 139 U.S. Page 321]

     then could Weil or his assignee, the relator, insist upon payment under the first section of the act in disregard of the limitation imposed by the fifth? On what principle could it be held that the duty was imposed upon the Secretary to pay an award by an act expressly providing that payment should not be made in a specified contingency, which had occurred? What power had he to do the thing demanded in virtue of legislation which forbade it to be done?

The political trust with which every government is charged, as respects its own citizens, was not the ground of relator's contention, but he relied on the act of 1878 as giving him the right to enforce the alleged obligation by judicial proceedings, and it was essential to the maintenance of his position that the record should bring him within its terms.

The principal propositions urged by counsel are, that "the award made against Mexico in favor of Benjamin Weil remains a final and conclusive adjudication in favor of a citizen of the United States against a foreign government;" that "the United States have not now and never have had any property, right or interest in the original claim or the award, or in the money paid in by Mexico to meet and satisfy it;" that "the money so paid is, by the terms of a statute, in the official custody of the Secretary of State; the President of the United States has now no lawful control over it, and never had any lawful control over it, excepting for a temporary purpose during the pendency of a new treaty in the Senate; that control ended when the Senate rejected the new treaty."

These propositions have already been substantially disposed of by the decision of this court in Frelinghuysen v. Key, 110 U.S. 63, from the principles announced in which we have no disposition to recede. It was there ruled, Mr. Chief Justice Waite delivering the opinion, that there was no doubt as to the conclusiveness of the awards under the convention of July 4, 1868, but that the language of the treaty was to be construed as used in a compact betwee two nations for the adjustment of the claims of the citizens of either against the other; that citizens of the United States having claims against Mexico were not parties to the convention; that while the

[ 139 U.S. Page 322]

     claims of individual citizens were to be considered by the commission in determining amounts, the whole purpose of the convention was to ascertain how much was due from one government to the other on account of the demands of their respective citizens; that, as between the United States and Mexico, the awards were final and conclusive until set aside by agreement between the two governments or otherwise; that the right of the United States to treat with Mexico for a retrial was unquestionable; that each government, when it entered into the compact under which the awards were made, relied on the honor and good faith of the other for protection, as far as possible, against frauds and impositions by the individual claimants; and that where a fraudulent claim or false testimony was presented by a citizen for reference to the commission, this was an imposition on his own government, and it would be not only its right but its duty to repudiate the act, if it afterward discovered that it had in this way been made an instrument of wrong towards a friendly power.And the Chief Justice said: "International arbitration must always proceed on the highest principles of national honor and integrity. Claims presented and evidence submitted to such a tribunal must necessarily bear the impress of the entire good faith of the government from which they come, and it is not to be presumed that any government will for a moment allow itself knowingly to be made the instrument of wrong in any such proceeding. No technical rules of pleading as applied in municipal courts ought ever to be allowed to stand in the way of the national power to do what is right under all the circumstances. Every citizen who asks the intervention of his own government against another for the redress of his personal grievances must necessarily subject himself and his claim to these requirements of international comity." And considering the act of June 18, 1878, in its operation upon the question of further negotiations, it was remarked that no disposition was manifested "on the part of Congress to encroach on the power of the President and Senate to conclude another treaty with Mexico in respect to any or even all the claims allowed by the commission, if in their opinion the honor of the United

[ 139 U.S. Page 323]

     States should demand it. At most, it only provides for receiving and distributing the sums paid without a protest or reservation, such as, in the opinion of the President, is entitled to further consideration. It does not undertake to set any new limits on the powers of the Executive." As to the fifth section of that act, it was observed: "From the beginning to the end, it is, in form even, only a request from Congress to the Executive. This is far from making the President for the time being a quasi judicial tribunal to hear Mexico and the implicated claimants and determine once for all as between them, whether the charges which Mexico makes have been judicially established."

And it was added that, "as between the United States and the claimants, the honesty of the claims is always open to inquiry for the purposes of fair dealing with the government against which, through the United States, a claim has been made."

The new convention was then pending in the Senate, and it was clear that the discretion of the executive department of the government to withhold all further payments to the relators until the diplomatic negotiations between the two governments on the subject were finally concluded, could not be controlled by the judiciary.

This is conceded by the relator, and such a concession is inconsistent with the contention that the award was a final and conclusive adjudication in Weil's favor, as an individual, against Mexico. As between nations, the proprietary right in respect to those things belonging to private individuals or bodies corporate within a nation's territorial limits is absolute, and the rights of Weil cannot be regarded as distinct from those of his government. The government assumed the responsibility of presenting his claim, and made it its own in seeking redress in respect to it. Under this convention it was the balance that was to be paid, after deducting from what was found in favor of one government that which was found in favor of the other. So that the moneys paid in liquidation of that balance belonged to the United States, to be increased by appropriation to the extent of the amounts allowed Mexico,

[ 139 U.S. Page 324]

     and the aggregate to be distributed to the claimants as might be provided.

In United States ex rel. Angarica v. Bayard, 127 U.S. 251, 259, where a sum of money had been received by the Secretary of State as part of an award made by the Spanish-American Claims Commission, which sum of money had been eventually paid to the petitioner, but had in the meantime been invested and earned interest, it was held that the Secretary was not liable to pay such interest to the petitioner, because the sum in question was withheld by the United States and the petitioner's claim based on the withholding was a claim against the United States, and the case fell within the settled principle that interest is not allowed on claims against the United States, unless the government has stipulated to pay interest or it is given by express statutory provision. There, under the agreement for arbitration, as here, under the convention, the claim was laid before the arbitrators and umpire "on the part of the government of the United States," and was presented with the testimony in its favor "only through the government of the United States," and "by the government of the United States." So the two advocates were spoken of as "representing respectively the two governments," and it was stated that "the two governments will accept the awards." "Thus by the plain terms of the agreement," remarked Mr. Justice Blatchford, delivering the opinion of the court, "the amount of the award in the case of Angarica was to be paid by the Spanish government to the government of the United States. It was paid by the Spanish government to the Secretary of State of the United States, representing the government of the United States. If there was any unlawful withholding from the petitioner of the $41,129.74, the money was withheld by the government of the United States, acting through the Secretary of State, and any claim of the petitioner, based upon an unlawful withholding, was a claim against the government of the United States."

Congress in furnishing the auxiliary legislation needed to carry the results of the convention under consideration into effect, requested the President to so far investigate certain

[ 139 U.S. Page 325]

     charges of fraud as to determine whether a retrial ought to be had. This inquiry might have resulted in reopening the awards as between the two nations, or in such reexamination in a domestic forum as would demonstrate whether the honor of the United States required a different disposition of the particular amounts in question. The validity and conclusiveness of the awards remained unimpugned so long as they were permitted to stand, and the principle of res adjudicata could not be invoked against the United States by individual claimants while the controversy raised as to them remained in fieri.

In Frelinghuysen v. Key, while conceding the essential value of international arbitration to be dependent upon the certainty and finality of the decision, the court adjudged that this government need not therefore close its doors against an investigation into the question whether its influence had been lent in favor of a fraudulent claim. It was held that no applicable rule was so rigid as not to be sufficiently flexible to do justice, and that the extent and character of any obligation to individuals, growing out of a treaty, an award and the receipt of money thereon, were necessarily subject to such modification as circumstances might require.

So long as the political branch of the government had not lost its control over the subject matter by final action, the claimant was not in a position, as between himself and his government, to insist on the conclusiveness of the award as to him. And while it is true that for the disposition of the case of Frelinghuysen v. Key it was sufficient that it appeared that diplomatic negotiations were pending which, as the court demonstrated, the act of 1878 in no manner circumscribed, it does not follow that the political department of the government lost its control because those negotiations failed.

On the contrary, that control was expressly reserved, for it was made the duty of the President, if of opinion that the cases named should be retried, to withhold payment until such retrial could be had in an international tribunal, if the two governments so agreed, or in a domestic tribunal if Congress so directed, and, at all events, until Congress should

[ 139 U.S. Page 326]

     otherwise direct. The fact that a difference of view as to whether the retrial should be international or domestic may have arisen and led to delay, or that such difference may have existed on the merits, does not affect the conclusion. The inaction of Congress is not equivalent to a direction by Congress. The political department has not parted with its power over the matter, and intervention of the judicial department cannot now be invoked.

The judgment of the Supreme Court of the District is



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