According to the practice in Pennsylvania, where a defendant
pleads setoff, the jury are allowed to find in their verdict the
amount that the plaintiff is indebted to the defendant, and
according to their mode of keeping records this result is entered
by way of note,
e.g. "new trial refused and judgment on
the verdict"
Although this may be a good record in the courts of
Pennsylvania, it does not follow that it is so in the courts of the
United States.
The effect of such a judgment, that the plaintiff is indebted to
the defendant, is merely to lay the foundation for a
scire
facias to try this new cause of action.
Where the United States were the plaintiffs, and a verdict was
rendered that they were indebted to the defendant, and an
application was made for a mandamus to compel the Secretary of the
Treasury to credit the defendant upon the books of the Treasury
with the amount of the verdict, and to pay the same, the mandamus
was properly refused by the circuit court. For a mandamus will only
lie against a ministerial officer to do some ministerial act where
the laws require him to do it and he improperly refuses to do
so.
Besides, there was no appropriation made by law, and no officer
of the government can pay a debt due by the United States without
an appropriation by Congress.
To sanction a judgment under a plea of setoff would virtually be
allowing the United States to be sued, which the laws do not
allow.
James Reeside, in his lifetime, was one of the contractors with
the Post Office department for the transportation of the mail, and
claimed sundry extra allowances, which were not allowed
Page 52 U. S. 273
by the department. In consequence, thereof, a dispute arose
between the parties, and in October, 1839, the United States
brought an action in the Circuit Court for the Eastern District of
Pennsylvania against Reeside, for the sum of $32,709.62, which they
claimed to have overpaid him.
The whole history of this suit is summed up in the following
transcript of the record:
"In the circuit court of the United States, in and for the
Eastern District of Pennsylvania, in the Third circuit, October
Session, 1839."
"
THE UNITED STATES OF AMERICA v. JAMES REESIDE"
"Summons case. -- Real debt $32,709.62, as per statement of
account from Auditor Post Office Department, as late mail
contractor. Exit 5 Sept. 1837."
"1837, Oct. 11. -- Returned, 'Served.'"
"1840, January 25. -- Interrogatories filed and ruled for comm'n
e.p. defendant to Bedford, Pennsylvania, sec.reg."
"1840, February 4. -- Rule on plaintiffs to declare, sec.reg.;
18 interrogatories filed and rule for comm'n e.p. defendants to
Hollidaysburg, Pennsylvania, sec.reg."
"1840, March 2. -- Narr. filed; 6th, defendant pleads payment;
replication
non solvit, and issues and rule for trial by
special jury and ca."
"1841, March 2. -- Agreement for taking the deposition of
Richard M. Johnson a witness for defendant at the City of
Washington, on forty-eight hours' notice to the Auditor Post Office
department, filed."
"1841, August 4. -- Agreement taking deposition of R. M. Johnson
at Frankfort, Kentucky; and interrogatories filed; deposition of R.
M. Johnson filed."
"1841, October 22. -- Defendant pleads
nonassumpsit and
setoff and issues and ca.; and now [a] jury being called, come,
to-wit, Edward C. Biddle, S. M. Loyd, Thomas Connell, George
McLeod, Michael F. Groves, John C. Martin William C. Hancock,
Joseph Harrison, Jr., Joseph Parker, William Parker, William
Gibson, and Thomas Cook, who are respectively sworn or affirmed
&c.; deposition of Pishey Thompson filed."
"1841, December 6. -- And now the jurors aforesaid, on their
oaths and affirmations aforesaid, respectively do say, that they
find for the defendant, and certify that the plaintiffs are
indebted to the defendant in the sum of $188,496.06; judgment
nisi. On motion of Messrs. Read & Cadwallader, for
plaintiffs, for a rule to show cause why a new trial should not be
granted, and for leave to move for such new trial, on exceptions to
the ruling of the court on questions of evidence and matters of
Page 52 U. S. 274
law, embraced in the charge of the court, without such motion
being deemed a waiver thereof, the motion is received; notice
thereof to be given to the opposite counsel; returnable 1st Monday
in January next."
"1841, December 9. -- Reasons for a new trial filed."
"1842, May 12. -- Motion for new trial overruled; new trial
refused, and judgment on the verdict; copy of assignment, James
Reeside to John Grey; and copy of notice, James Reeside to
Postmaster General, filed."
"1842, July 27. -- Praecipe for writ of error filed."
"
UNITED STATES, Eastern District of Pennsylvania,
sct."
"I certify the foregoing to be a true and faithful transcript of
the docket entries in the above-named suit."
"In testimony whereof, I have hereunto subscribed my name and
affixed the seal of said court at Philadelphia, this 4th day of
January, A.D. 1847, and in the seventy-first year of the
independence of the said United States."
"GEORGE PLITT"
In September, 1842, James Reeside died, and Mary Reeside, his
widow, became his executrix.
On 4 November, 1848, Mary Reeside filed a petition in the
Circuit Court of the United States for the District of Columbia, in
and for County of Washington. The petition stated the above facts,
and with it was filed the transcript of the record as it has been
set forth. It concluded as follows:
"Wherefore, your petitioner does respectfully pray that your
honors, the premises considered, will award the United States writ
of mandamus to be directed to the said Robert J. Walker, Secretary
of the Treasury Department of the United States, commanding him --
"
"First. That he shall enter or cause to be entered upon the
books of the Treasury Department of the United States, under date
of May 12, 1842, a credit to the said James Reeside of the sum of
$188,496.06."
"Second. That he shall pay to your petitioner, as executrix as
aforesaid, the said sum, with interest thereon from the said 12th
day of May, 1842."
"And your petitioner shall ever pray &c."
"MARY REESIDE"
The circuit court ordered that the motion for a mandamus be
overruled, and the prayer of the petitioner rejected. Whereupon
Mary Reeside sued out a writ of error, and brought the case up to
this Court.
Page 52 U. S. 287
MR. JUSTICE WOODBURY delivered the opinion of the Court.
The mandamus was asked for by the plaintiff, as executrix of
James Reeside, to direct the defendant, as Secretary of the United
States Treasury, to enter on the books of the Treasury Department
to the credit of said James the sum of $188,496.06, and pay the
same to the plaintiff as his executrix. The grounds for the
petition, as set out therein, were, that the United States had sued
Reeside in the Circuit Court of the United States for the Eastern
District of Pennsylvania, on certain post office
Page 52 U. S. 288
contracts, and on 22 October, 1841, he pleaded a large setoff,
and the jury, on 6 December ensuing, returned a verdict in his
favor on the several issues which had been joined, and certified
that the United States were indebted to him in the sum of
$188,496.06; and that on 12 May, 1842, final judgment was rendered
in his favor on this verdict, which has never been paid, but still
remains in full force.
On an examination of the record, the first objection to the
issue of a mandamus seems to be, that no judgment appears to have
been given, such as is set out in the petition, in favor of Reeside
for the amount of the verdict.
Certain minutes were put in of the proceedings in that suit,
beginning with the writ in 1837, including the verdict, and coming
down to May 12, 1842, when it is said, "New trial refused, and
judgment on the verdict."
But these seem to be the mere waste docket minutes, from which a
judgment or a record of the whole case could afterwards be drawn
up. They do not contain a judgment
in extenso, nor are
they a copy of any such judgment. But if, by the laws or practice
of Pennsylvania, these minutes may be used instead of a full
record, it is difficult to see a good reason for allowing them to
control the forms and the principles of the common law applicable
to them in the courts and records of the United States, and
certainly they could not, unless private rights were involved in
having them thus considered, so as to come under the 34th section
of the Judiciary Act, 1 Stat. 92. Or unless, as a matter of
practice, it was well settled in this way as early as the process
law of 1789.
See 1 Stat. 93.
But without going into this point further -- means to do it not
having been furnished by the petitioner, who relies on it, and was
therefore bound to furnish such means -- there is another objection
to it paramount to this, and sufficient for barring its use to
support the present proceeding. In a case like this, in
Pennsylvania, where a setoff is pleaded and a balance found due to
the defendant, the judgment entered, if well proved by such
minutes, is not, as the petitioner supposes, that the United States
was indebted to Reeside in the amount of the verdict and should pay
it, but it merely lays the foundation for a
scire facias
to issue, and a hearing be had on that if desired. Penn.Laws by
Dunlap, ch. 20, § 2. The petitioner and her husband have
neglected to pursue the case in that way to a final judgment, and
hence have offered no evidence of one, on the verdict of
indebtedness to Reeside by the United States. The judgment so far
as regards that action would be, when no
scire facias
Page 52 U. S. 289
was sued out, that the defendant go without day; and so these
minutes should be drawn up, when put in a full and due form.
In
Ramsey's Appeal, 2 Watts 230, Ch.J. Gibson explains
this fully. "The reference," says he,
"was under the act of 1705, by the first section of which the
jury are directed, when a setoff has been established for more than
the plaintiffs demand, to find a verdict for the defendant, and
withal certify to the court how much they find the plaintiffs to be
indebted or in arrear to the defendant. The certificate thus made
is an appendage to the verdict, but no part of it or of the
premises on which the judgment is rendered; for the judgment is not
quod recuperet, but that the defendant go without day. On
the contrary, it is expressly made a distinct and independent cause
of action by a
scire facias; and though a debt of record,
it is not necessarily a lien, as was shown in
Allen v.
Reesor, 16 Serg. & Rawle 10, being made so only by
judgment on a
scire facias."
The gist of the prayer for a mandamus therefore fails. Because,
though this application is in form against the person who was
Secretary of the Treasury, November 4, 1848; yet it is to affect
the interests and liabilities alleged by the plaintiff herself to
exist on the part of the United States.
Furthermore, the judgment sought to be paid is one claimed to
have been rendered in form, as well as substance, against the
United States.
Now under these circumstances, though a mandamus may sometimes
lie against a ministerial officer to do some ministerial act
connected with the liabilities of the government, yet it must be
where the government itself is liable, and the officer himself has
improperly refused to act.
It must even then be in a case of clear, and not doubtful right.
Kendall v. United
States, 12 Pet. 525;
Life &
Fire Ins. Co. v. Wilson's Heirs, 8 Pet. 291. But
here, as no judgment of indebtedness existed against the United
States, the whole superstructure built on that must fall.
To save future expense and litigation in this case, with a view
to obtain the desired judgment, it seems proper to make a few
remarks on the other objections to the mandamus, resting on other
and distinct grounds.
A mandamus will not lie against a Secretary of the Treasury,
unless the laws require him to do what he is asked in the petition
to be made to do. But there is no law, general or special,
requiring him either to enter such claims as these on the books of
the Treasury Department, or to pay them.
The general statutes, cited by the counsel for the
petitioner,
Page 52 U. S. 290
in no case require the secretary to enter claims like these on
his books, or to pay them, when there has been no appropriation
made to cover them. This last circumstance seems overlooked by the
plaintiff, or sufficient importance is not attached to it, and it
will be further considered before closing.
Nor is any special law pretended directing the entry of this
claim on the books, or the payment of it either before or after
entry. The case of
Kendall v. United
States, 12 Pet. 524, was one of a special law
regulating the subject.
Again, a mandamus, as before intimated, is only to compel the
performance of some ministerial, as well as legal duty.
Kendall v. United
States, 12 Pet. 524;
Rex v. Waterworks
Company, 1 Nev. & Perry 493.
When the duty is not strictly ministerial, but involves
discretion and judgment, like the general doings of a head of a
department, as was the respondent here, and as was the case here,
no mandamus lies.
Decatur v.
Paulding, 14 Pet. 497;
Brashear v.
Mason, 6 How. 92.
It is well settled, too, that no action of any kind can be
sustained against the government itself, for any supposed debt,
unless by its own consent, under some special statute allowing it,
which is not pretended to exist here.
Briscoe v. Kentucky
Bank, 11 Pet. 321;
45 U. S. 4 How.
288;
50 U. S. 9 How.
389.
The sovereignty of the government not only protects it against
suits directly, but against judgments even for cost, when it fails
in prosecutions.
45 U. S. 4 How.
288.
Such being the settled principle in our system of jurisprudence,
it would be derogatory to the courts to allow the principle to be
evaded or circumvented.
They could not, therefore, permit the claim to be enforced
circuitously by mandamus against the Secretary of the Treasury,
when it could not be directly against the United States, and when
no judgment on and for it had been obtained against the United
States.
As little also would be the propriety of allowing by
scire
facias, or otherwise, a judgment to be entered against the
United States on a setoff, when it could not have been allowed in
an action against them on the subject matter of the setoff.
To permit a demand in setoff against the government to be
proceeded on to judgment against it would be equivalent to the
permission of a suit to be prosecuted against it. And however this
may be tolerated between individuals, by a species of reconvention,
when demands in setoff are sought to be recovered, it could not be
as against the government except by a mere evasion, and must be as
useless in the end as it would be
Page 52 U. S. 291
derogatory to judicial fairness. A setoff or reconvention is
often to be treated as a new suit by the defendant, and the
pleadings and judgment are to be made to correspond.
See
Louisiana Code of Practice, 374, §§ 371-377. In
Perry
v. Gerbeau, 5 Martin N.S. 18, the court said, "The claim set
up in the answer was one in reconvention, and too general. Such
demands should have the same certainty as a petition."
It would present also the inconsistency of the officers of a
government issuing precepts against it, and seizing and selling the
property under their own charge and protection.
Or it would present the other alternative, of entering a
judgment against a party which it could not enforce by execution,
and which none of its officers had been authorized to
discharge.
This last consideration is one of peculiar importance in this
proceeding, and in the proper measures to be adopted under our
political and fiscal system, as to a claim like this.
No officer, however high, not even the President, much less a
Secretary of the Treasury or Treasurer, is empowered to pay debts
of the United States generally, when presented to them. If,
therefore, the petition in this case was allowed so far as to order
the verdict against the United States to be entered on the books of
the Treasury Department, the plaintiff would be as far from having
a claim on the secretary or Treasurer to pay it as now. The
difficulty in the way is the want of any appropriation by Congress
to pay this claim. It is a well known constitutional provision,
that no money can be taken or drawn from the Treasury except under
an appropriation by Congress.
See Constitution, art. 1,
§ 9 1 Stat. 15.
However much money may be in the Treasury at any one time, not a
dollar of it can be used in the payment of anything not thus
previously sanctioned. Any other course would give to the fiscal
officers a most dangerous discretion.
Hence, the petitioner should have presented her claim on the
United States to Congress, and prayed for an appropriation to pay
it. If Congress after that make such an appropriation, the Treasury
can, and doubtless will, discharge the claim without any mandamus.
But without such an appropriation it cannot and should not be paid
by the Treasury, whether the claim is by a verdict or judgment, or
without either, and no mandamus or other remedy lies against any
officer of the Treasury Department, in a case situated like this,
where no appropriation to pay it has been made. The existence of
this other and ordinary mode of redress, by resort to Congress, may
be another reason against a mandamus, as that lies only
Page 52 U. S. 292
when no other adequate remedy exists.
Marbury v.
Madison, 5 U. S. 137;
Kendall v. United
States, 12 Pet. 525.
But, independent of this last consideration, which as a remedy
may not come within the usual meaning of another remedy, the
grounds for the petition are not sufficient, and the judgment below
dismissing it must be
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia, holden in and for the County of Washington, and was
argued by counsel. On consideration whereof, it is now here ordered
and adjudged by this Court, that the judgment of the said circuit
court in this cause be, and the same is hereby, affirmed, with
costs.
