AMOS KENDALL, POSTMASTER GENERAL OF THE UNITED STATES, PLAINTIFF IN ERROR V. THE UNITED STATES, ON THE RELATION OF WILLIAM B. STOKES ET AL.

Contracts for carrying the mail of the United States, were made by S. & S., with the postmaster general of the United States, out of which certain allowances and credits were made in favour of S. & S., by that officer; and the amount of the same was passed to the credit of S. & S., with the general post office. The successor of the postmaster general struck out the allowances and credits in the accounts, and thus a large sum of money was withheld from the contractors. S. & S. presented a memorial to congress; and an act was passed, authorizing and directing the solicitor of the treasury of the United States to settle and adjust the claims of S. & S., according to the principles of equity; and directing the postmaster general to credit S. & S. with whatever sum of money the solicitor should decide should be due to them. The solicitor of the treasury made a decision on the claims of S. & S., and communicated the same to the postmaster general; who, thereupon, carried to the credit of S. & S. a part, but refused to credit part of the amount allowed by the solicitor. S. & S. applied to the President of the United States, who referred the subject to congress; and the senate of the United States determined that no further legislation on the subject was necessary, and that the decision of the solicitor of the treasury ought to be complied with by the postmaster general. The postmaster general continued to withhold the credit. S. & S. applied to the circuit court of the United States for the District of Columbia, for a mandamus, to be directed to the postmaster general, commanding him to credit them with the amount found to be due to them from the United States, according to the decision of the solicitor of the treasury. A peremptory mandamus was finally ordered, and the postmaster general brought the case before the Supreme Court, by a writ of crror. By the Court-It has been considered by the counsel on the part of the postmaster general that this is a proceeding against him to enforce the performance of an official duty, and the proceeding has been treated as an infringement on the executive department of the government; which has led to a very extended range of argument on the independence and duties of that department; but which, according to the view taken by the Court of the case, is entirely misapplied. We do not think the proceeding in this case interferes, in any respect whatever, with the rights and duties of the executive; or that it involves any conflict of powers between the executive and judicial departments of the government. The mandamus does not seek to direct or control the postmaster general in the discharge of his official duty, partaking, in any respect, of an executive character; but to enforce the performance of a mere ministerial act, which neither he nor the President had any authority to deny or control. The judgment of the circuit court was affirmed.

By the act of congress directing the solicitor of the treasury to adjust and settle the accounts of S. &. S., the postmaster general is vested with no discretion or control over the decision of the solicitor; nor is any appeal or review of that decision provided for by the act. The' terms of the submission was a matter resting entirely in the discretion of congress; and if they thought proper to vest such a

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power in any one, and especially as the arbitrator was an officer of the government; it did not rest with the postmaster general to control congress, or the solicitor, in that affair. It is unnecessary to say how far congress might have interfered by legislation after the report of the solicitor : but if there was no fraud or misconduct in the arbitrator; of which none is pretended or suggested; it may well be questioned whether S. & S. had not acquired such a vested right as to be beyond the power of congress to deprive them of it.

The right of S. & S. to the full amount of the credit, according to the report of the solicitor of the treasury, having been ascertained and fixed by law; the enforcement of that right falls properly within judicial cognizance.

It was urged at the bar, that the postmaster general was alone subject to the direction and control of the President of the United States with respect to the execution of the duty imposed on him by the law under which the solicitor of the treasury acted; and this right of the President was claimed as growing out of the obligation imposed upon him by the constitution, to take care that the laws be faithfully executed. By the Court-This doctrine cannot receive the sanction of this Court. It would be vesting in the President a dispensing power, which has no countenance for its support in any part of the constitution; and is asserting a principle, which, if carried out in its results to all cases falling within it, would be clothing the President with a power to control the legislation of congress, and paralyze the administration of justice.

To contend that the obligations imposed on the President to see the laws faithfully executed, implies a power to forbid their execution; is a novel construction of the constitution, and is entirely inadmissible.

The act required by the law to be done by the postmaster general is, simply to credit S. & S. with the full amount of the award of the solicitor of the treasury. This is a precise, definite act, purely ministerial; and about which the postmaster general has no discretion whatever. This was not an official act in any other sense than being a transaction in the department where the books and accounts were kept: and was an official act in the same sense that an entry in the minutes of the Court, pursuant to an order of the Court, is an official act. There is no room for the exercise of discretion, official or otherwise. All that is shut out by the direct and positive command of the law; and the act required to be done is, in every just sense, a mere ministerial act.

The common law, as it was in force in Maryland when the cession of the part of the state within the District of Columbia was made to the United States, remained in force in the district. The writ of mandamus which issued in this case in the district court of the District of Columbia, must be considered as it was at common law, with respect to its object and purpose; and varying only in the form required by the different character of the government of the United States. It is a writ, in England, issuing out of the king's bench, in the name of the king, and is called a preroga. tive writ, but considered a writ of right; and is directed to some person, corporation, or inferior court, requiring them to do some particular thing, therein specified, which appertains to their office, and which is supposed to be consonant to right and justice: and where there is no other adequate, specific remedy, such a writ, and for such a purpose, would seem to be peculiary appropriate to the present case. The right claimed is just, and established by positive law; and the duty required to be performed is clear and specific; and there is no other adequate remedy.

The cases of M'Intire v. Wood, 7 Cranch, 504, and M'Cluny v. Silliman, 6 Wheat.

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349, have decided that the circuit courts of the United States, in the several states, have no power to issue a mandamus against one of the officers of the United States.

The result of the cases of M'Intire v. Wood, and M'Cluny v. Silliman clearly is, that the authority to issue the writ of mandamus to an officer of the United States, commanding him to perform a specific act, required by a law of the United States, is within the scope of the judicial powers of the United States, under the constitution but that the whole of that power has not been communicated by law to the circuit courts of the United States in the several states. It is a dormant power, not yet called into action and vested in those courts. And there is nothing growing out of the official character of a party, that will exempt him from this writ; if the act to be performed is merely ministerial

It is a sound principle, that in every well-organized government the judicial. powers should be co-extensive with the legislative; so far, at least, as they are to be enforced by judicial proceedings.

There is, in the District of Columbia, no division of powers between the general and state governments. Congress has the entire control over the district for every purpose of government; and it is reasonable to suppose, that in organizing a judicial department in this district, all the judicial power necessary for the purposes of government would be vested in the courts of justice. The circuit court in the district is the highest court of original jurisdiction; and, if the power to issue a mandamus in such a case as that before the Court exists in any court, it is vested in that court.

At the date of the act of congress establishing the government of the District of Columbia, the common law of England was in force in Maryland; and of course remained and continued in force in the part of the district ceded by Maryland to the United States. The power to issue a mandamus in a proper case, is a part of the common law; and it has been fully recognised as in practical operation in a case decided in the court of that state.

The power to issue the writ of mandamus is, in England, given to the king's bench only, as having the general supervising power over all inferior jurisdictions and officers; and is co-extensive with judicial power. And the same theory prevails in the state governments of the United States, where the common law is adopted, and governs in the administration of justice; and the power of issuing this writ is generally confided to the highest court of original jurisdiction.

There can be no doubt but that, in the state of Maryland, a writ of mandamus might be issued to an executive officer commanding him to perform a ministerial act required of him by the laws: and, if it would lie in that state, there can be no good reason why it should not lie in the District of Columbia, in analogous cases. The powers of the Supreme Court of the United States, and of the circuit courts of the United States to issue writs of mandamus, granted by the 14th section of the judiciary act of 1789, is only for the purpose of bringing the case to a final judg ment or decree, so that it may be reviewed. The mandamus does not direct the inferior court how to proceed, but only that it must proceed, according to its own judgment, to a final determination; otherwise it cannot be reviewed in the appellate court. It is different in the circuit court of the District of Columbia, under the adoption of the laws of Maryland, which included the common law. The power of the circuit court of the District of Columbia to exercise the jurisdiction to issue a writ of mandamus to a public officer to do an act required of him by law, results from the 3d section of the act of congress, of February 27, 1801;

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which declares that the court and the judges thereof shall have all the power by law vested in the circuit courts of the United States. The circuit courts referred to were those established by the act of February 13th, 1801. The repeal of that law, fifteen months afterwards, and after the circuit court for this district had been organized, and had gone into operation, under the act of 27 February, 1801; could not, in any manner, affect that law any further than was provided by the repealing act.

It was not an uncommon course of legislation in the states, at an early day, to adopt, by reference, British statutes; and this has been the course by legislation in congress, in many instances, when state practice and state process has been adopted. And such adoption has always been considered as referring to the law existing at the time of adoption: and no subsequent legislation has ever been supposed to affect it; and such must, necessarily, be the effect and operation of such adoption.

No court can in the ordinary administration of justice, in common law proceedings, exercise jurisdiction over a party unless he shall voluntarily appear, or is found within the jurisdiction of the court, so as to be served with process. Such process cannot reach the party beyond the territorial jurisdiction of the court. This is a personal privilege, which may be waived by appearance; and if advantage is to be taken of it, it must be by plea, or some other mode, at an early stage of the

cause.

IN error to the circuit court of the United States in the District of Columbia, for the county of Washington.

On the twenty-sixth day of May, 1837, William B. Stokes, Rich-, ard C. Stockton, Lucius W, Stockton, and Daniel Moore, presented a petition to the circuit court of the District of Columbia, for the county of Washington, stating, that under contracts duly and legally made by them with the late William T. Barry, then postmaster general of the United States, and duly authorized by law, they were entitled to certain credits and allowances on their contracts for the transportation of the mail of the United States; that the credits and allowances were made and given to them on their contracts, and amounts of money actually paid on such accounts; that some time in 1835, William T. Barry resigned his situation as postmaster general, and Amos Kendall was appointed to the office; that after he had entered on the duties of his office, he undertook to re-examine the contracts entered into by his predecessor, and the credits and allowances made by him; and ordered and directed the allowances and credits to be withdrawn, and the petitioners recharged with divers payments they had received.

The petitioners state that they were dissatisfied with these proceedings of Amos Kendall, as postmaster general; and, believing he had

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exceeded his authority, and being unable to adjust their differences with him, they addressed a memorial to the congress of the United States. A copy of the memorial was annexed to the petition.

The memorial stated, at large, all the circumstances which the petitioners considered as affecting their case; the proceedings of the postmaster general in the matter; and the heavy grievances done to the memorialists by the course adopted by the postmaster general. They ask such proceedings on the part of congress as its wisdom and justice may direct.

The petition states that congress passed an act, which was approved by the President of the United States on the 2d of July, 1836, which act provided," that the solicitor of the treasury be and he is hereby authorized and directed to settle and adjust the claims of William B. Stokes, Richard C. Stockton, of Maryland, and Lucius W. Stockton, and Daniel Moore, of Pennsylvania; for extra services performed by them, as contractors for carrying the mail, under and by virtue of certain contracts therefor, alleged to have been made and entered into with them by William T. Barry, late postmaster general of the United States; and for this purpose to inquire into, and determine the equity of the claims of them, or any of them, for or on account of any contract or additional contract with the said postmaster general, on which their pay may have been suspended by the present postmaster general; and to make them such allowances therefor, as upon a full examination of all the evidence may seem right, according to the principles of equity; and that the said postmaster general be, and he is hereby directed to credit such mail contractors with whatever sum or sums of money, if any, the said solicitor shall so decide to be due to them for or on account of any such service or contract; and the solicitor is hereby authorized to take testimony, if he shall judge it to be necessary to do so; and that he report to congress, at its next session, the law and the facts upon which his decision has been founded: Provided, the said solicitor is not authorized to make any allowance for any suspension, or withholding of money by the present postmaster general for allowances. or overpayments made by his predecessor, on route number thirteen hundred and seventy-one, from Philadelphia to Baltimore, for carrying the mail in steamboats, when it was not so carried by said Stockton and Stokes, but by the steamboat company; nor for any suspension or withholding of money as aforesaid, for allowances or overpayments made as aforesaid, for carrying an express mail from Balti