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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 ...

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