diction of all parties in interest by i>er8onal service of process, may,
by decree, determine the rights of the parties inter sese^ which decree
.gle
308 First ComptroUet^s Office^ Treasury Department
will be operative on them after payment, to settle the right to tbefand.
Executive officers are not boand to await the final decision of such pro^
ceeding before making pa^^ment (3 Op. Att.-Gen., 29 ; 11 id., 7), bat
will generally respect such decision, if made before payment, in two
classes of cases : first^ when the equitable title of a claimant is deter-
mined, because, as a general rule, accounting officers deal only with legal
rights (Kellogg v. United States, 7 Wall., 361; 3 Op. Att.-6en., 29; 5
Id,y 86 ; 11 Id.y 7) ; and second^ when the fund, from which payment is
to be made, is held by the United States as a trusteej such trust being
a subject of equity jurisdiction.
d. And a decree may perhaps be made in personam^ requiring an as-
signment of such claim after the issue of a Treasury warrant and draft,
when the right to such assignment is based on an equitable title. (Gib-
.«on's case, 3 Lawrence, Gompt, Dec., 289, n./ Ager v. Murray, 105 U. S.,
126.) Such actual assignment would, of course, be respected byezeca-
tive officers in making payment. A review of the adjudicated cases
will suppoii; the propositions stated.
In Yasse r. Gomegys (2 Granch, G. G., 564), decided in 1825, these
facts appeared : The board of commissioners under the treaty with Spain
of February 22, 1819, awarded to Gomegys and Petit, as assignees in
bankruptcy of Yasse, $8,846.14 for a claim which he had against Spain,
and which, with other claims, was to be paid out of money in the Treas-
ury of the United States received from Spain. March 12, 1824, Yasse
claimed this money in opposition to his assignees and to the award, and
filed his bill in equity in the circuit court of the United States at Wash-
ington Gity against the assignees and their agent, Mifflin, who were non-
residenta of the District of Golumbia, and Jandon, the agent of Mifflin,
and a resident, praying that the defendants may be enjoined from receiv-
ing the money, and that the Treasurer of the United States be enjoined
from paying it. The Treasurer was not a party. Publication was made
as to the non-residents, and Jaudon was personally served with process.
The court said:
^ The first question is, has this court jurisdiction as to any of the de-
fendants against whom it can make a final decree f The fund, out of
which the claims are to be paid, are [is] in the Treasury- of the United
States. Where is that ! The Treasurer resides at Washington, and the
head of the Department; but is the money there t Gan the fund be
said to be within the jurisdiction of the court!
We think not. The officers of the United States holding the public
money, as the money of the United States, are not accountable to any-
body but the United States, and are not liable, at the suit of an indi-
vidual, on account of having such money in their hands.
The defendants, Gomegys and Petit and Mifflin, against whom only
an effectual decree could be made, are not within the jurisdiction of
the court. Jaudon alone is within the jurisdiction, but there is no alle-
gation which will authorize a final decree against him. The allegation,
that he is the agent of Mifflin, the agent of the assignees, is not a suf-
ficient foundation for a decree against those assignees upon the merits
of the case.
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Authority over^ and Disposition ofy Treasury Drafts — Keyser^s Case, 309
We tbinky therefore, that the bill oaght to be dismissed.'^
The money was paid by the Treasurer to the assignees. Yasse then
broaght an action of assumpsit against them, and recovered judgment
(Vasse r. Comegys and Petit, 4 Wash., 0. 0., 570), which was reversed
by the Supreme Court, not for want of jurisdiction, but because the as-
signees were the rightful claimants. (Comegys v. Yasse, 1 Pet, 193).
And the syllabus of the case (2 Cranch, C. C, 564) declares, that, << unless
some party defendant, against whom an effectual decree can be made, be
foand [and personally served with process] within the District of Colum*
bia, the court • • • has no jurisdiction of the cause.^ It follows,
that, inasmuch as no court can obtain jurisdiction of money in the
Treasury, or of the Secretary of the Treasury, or of the Treasurer who
has the custody of the public money, no effectual decree can be made as
to such money in the Treasury.
Ridgway v. Hays, the Secretary of the Treasury, and the Treasurer
of the United States (5 Cranch, C. C, 23), was decided in 1836. This
was a bill in equity to restrain the defendants, Hays and others, from
receiving, and the Secretary of the Treasury and the Treasurer, from
paying, the amount awarded to the assignees and representatives of
Hays, under the French treaty of spoliations. The Secretary and Treas-
urer by answer objected to the jurisdiction of the court over them, but,
under protest, admitted that the money was in the Treasury a« a trust
fund for the benefit of individuals, and that it would " be duly paid to
the parties to whom it shall appear that the moneys, so awarded, are
legally and equitably due." The bill was dismissed on the merits, but
Cranch, C. J., in an obiter dictum, said:
"The fund is placed in the Treasury • • • as in a place of de-
posit only, and the United States are merely trustees^ and if the award
•f the commissioners is not conclusive between the conflicting Ameri-
can claimants of the fund, and if the ordinary judicial tribunals of the
country have jurisdiction to decide such conflicting claims, I cannot
see why the United States, in cases in which they are merely stakeholders^
should not submit to those decisions, and aid those tribunals in the due
administration of justice."
A part of the syllabus of this case is, that, "where the United States
are mere trustees of a fund for the benefit of .individuals, it seems that it
may be enjoined and stayed in the Treasury." (Ellis v. Lord Graj-, in
Equity, 6 Simons, 214, cited in this case.) See Greenville Murray v.
Earl of Clarendon, 9 Law Rep., Equity, 11 ; 14 International Review,
New York, May-June, 1883, 342; Gridley v. Lord Palmerston, 3 Broderip
and Bingham, 285.*
* In the case of Loaisiana v, Jiimel (107 U. S., 711), the Supreme Court, referring to
the case of Board of Liquidation r. McComb (92 U. S., 531), rests its decision upon
the ground that a tax-fund specifically set apart for bondholders by a State law is a
trust-fund, and that, as tni$tee8f the State officers are amenable to the courts. And
the court says :
** In fact, the board held the new issue of bonds in trttst^ and every one who gave up
his old obligations and accepted the new in settlement became a beneficiary under the
trnst, and might act accordingly" (14 International Review, New York, May-June,
1883, p. 339).
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310 First Oomptroller's Office^ Treasury Department.
Of the above case it may be said, (1) that the opiniou, that theflmd
might be enjoined, is merely an obiter dictum; (2) that it proceeds upon
the idea, that the Secretary and Treasurer coald be made parties, whick
is not now recognized as law (Case t^. Terrell, 11 Wall., 199; and other
oases cited in Safford & Go.'s case, 1 Lawrence, Compt. Dec, 2d ed.,
277, 283 n.) ; and (3) that the case is wholly inapplicable to the qaestions
arising between the rival administrators in this case.
Dutill's Administrator r. Oonrsanlt et al. (5 Granch, G.G., 349), was
decided in 1837. This was a bill in equity to recover from the adminis-
trator of Goursault one-half of the amount awarded to him under the
French treaty of July 4, 1831, as indemnification for the seizure and con-
fiscation of the brig Triphena and cargo. The Secretary of the Treas-
ury and the Treasurer were made defendants, and, by answer, denied
the jurisdiction of the court, but, under protest, expressed a willingness
to pay to the parties who should appear entitled. The decree does not
appear in the printed report; but an inspection of the original courts
records shows that such decree directly ordered the Secretary and Treas-
urer to pay the money in controversy as therein directed.
It may be said of this case, that the Secretary and Treasurer submit-
ted themselves to the jurisdiction, which submission would not now he
regarded as lawful, and without which the decree would have been in-
effectual.
Osbom V. United States Bank (9 Wheat, 738), was decided in 1824.
In this case the bank filed a bill to enjoin the Auditor of the State of
Ohio from paying into the State treasury money which ha<l been unlaw-
fully taken out of the bank by State officers for taxes illegally assessed.
One point in the syllabus is, that —
"A court of equity will interpose by injunction to prevent the trans-
fer of a specific thing, which, if transferred, will be irretrievably lost to
the owner, such as negotiable stocks and securities."
The Supreme Gourt, in commenting on this in Louisiana t>. Jumel (107
U. S., 725), says :
" Thus, the money seized was kept out of the treasury, because if it
got in it would be irretrievably lost to the bank, since the State could
not be sued to recover it back. No one pretended that if the money had
been actually paid into the treasury, and had become mixed with the
other money there, it could have been got back from the State by a suit
against the officers. They would have been individually liable for the
unlawful seizure and conversion, but the recovery would be against them
individually for the wrongs they had personally done, and could have
no effect on the money which was held by the State. Gertainly no one
would ever suppose that by a proceeding against the officers alone, tbey
could be held as trustees for the bank, and required to set apart from the
moneys in the treasury an amount equal to that which had been improp-
erly put there, and hold it for the discharge of the liability which the
State incurred by reason of the unlawful exaction."
One effect of all this is, that a court cannot control money in the
Treasury.
Milnor etal. v. Metz (16 Pet., 221), was decided by the Supreme Ooort
in 1842.
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Authority over^ and Disposition o/, Treasury Drafts— Keyset^s Case. 311
January 11, 1839, Milnor made an insolyent assignment of all his
property to Metz. The act of Congress of May 2, 1840, ordered the Sec-
retary of the Treasury to pay to Milnor a stated sam for services ren-
dered for the United States before the assignment. Milnor and Metz
both applied to the Treasury Department, claiming the fund. The De-
partment refused to examine the equities of the parties^ or to look beyond
the act of Congress giving the legal title to the claim to Milnor. Metz
ftled his bill in the circuit court of the United States for this District
against Milnor to eiyoin him from receiving the money and against the
Secretary of the Treasury, and an injunction issued sub silentio. The
circuit court records show that the court decreed that the preliminary
injunction be made perpetual, and ^^ that Metz be entitled to receive from
the Secretary of the Treasury the sum of money in said bill sought to
be recovered." The decree did not undertake to direct the Secretary
to pay. Milnor appealed to the Supreme Court, and the decree below was
<' affirmed." Of this case it may be said that, the whole case in the
Supreme Court turned on the single question whether the claim against
the United States passed by the insolvent assignment. "So other ques-
tion was made or considered by the court, so that the decree went be-
yond the opinion of the court. It does not appear that the Secretary
made any objection to the proceeding. The report of the case says that
^i Metz filed his bill, enjoining Milnor from receiving the money, and had
a decree for a perpetual inj unction." Nothing is said as to the inj unction
beyond this. Since this case was decided it is settled that the Secretary
of the Treasury cannot be a party in such proceedings. There is no
other case in which this court has ever sustained an injunction to restrain
the Secretary from paying money, except when authorized by statute.
Clark V. Clark et al. (17 How., 315), was decided in 1854, under the
act of March 3, 1849 (9 Stat., 394), which expressly provided that the
fund in controversy ''shall be and remain in the Treasury of the United
States subject to the decision of the courts of the United States thereon^'*^
and also that '' any injunction thereupon granted by the courts shall
be respected by the Treasury Department."
The act of July 3, 1852 (10 Stat., 11), extended these provisions of
the act of March 3, 1849 (9 Stat., 394), to awards under the treaty of
January 27, 1849, with Brazil. Lewis v. Bell (17 How., 616), was de-
cided under this act of July 3, 1852.
Murray's Lessee et al. v. Hoboken Land and Improvement Company
(18 How., 272, 281), decided, that the adjustment of claims against the
United States " was an exercise of executive and not of judicial power,"
and that judicial power as to them was only exercised by virtue of the
act of May 15, 1820 (3 Stat., 592).
The clear inference from these statutes is, that they were deemed ne-
cessary, because, without them, there could be no judicial interference
to determine the rights of claimants against the action of the Treasury
Department.
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312 First ContptroUet^s Office^ Treasury BepartmefU.
Pemberton v. Lockett et al, (21 How., 257), was decided in 1858.
In this case it appeared, that certain moneys were paid into the Treas-
nry by virtue of an award under the treaty of February 8, 1853, with
Oreat Britain. The complainants, Lockett and others, filed a bill in
equity in the circuit court, for the purpose of establishing title to one-
half of $28,460 allowed by the award in favor of Pemberton. The title
asserted was for compensation as attorneys in the prosecution of the
claim for the award. The bill filed in the circuit court prayed for an
injunction to restrain Pemberton from receiving, and the Secretary of
the Treasury from paying to Pemberton the money. A preliminary in-
unction was granted sub silentio, as prayed. But the Secretary was
not served with process. The final decree was, simply, that Pemberton
pay to the complainants the money claimed. On appeal, the decree was
reversed on the merits, and no question was considered as to the Secre-
tary. The decree below recognized the right of the Secretary to pay Pem-
berton without judicial interference. See Trist v. Child (21 Wall., 441).
Combs V. Hodge et al. (21 How., 307), was decided by the Supreme
Court in 1858. Combs, claiming to be the owner of certain Texas
bonds payable at the Treasury of the United States, filed a bill in
equity in the circuit court against the administrator of Hodge, de-
ceased, in whose name the bonds had been deposited in the Treasury,
and obtained an iiyunction to stay the payment of the money due on
the bonds until the rights of the parties could be determined. The
circuit court dismissed the bill, aud Combs appealed. The Supreme
Court reversed the decree of dismissal, and remanded the cause to the
circuit court to amend the pleadings and to take testimony. There
was no attempt to make any executive ofiKcer a party, or to interfere
with the performance of any executive duty. Texas v. White (7 Wall.,
717), was decided by the Supreme Court in 1868. Texas v. Hardenburg
(10 Id.^ 68), was decided by the same court in 1860. In these cases the
State of Texas by bill in equity asked and obtained an injunction against
certain defendants from receiving payment of certain Texas bonds. So
attempt was made to enjoin any public oflScer or to interfere with any
executive duty.
Phelps V. McDonald (00 U. S., 208), was decided by the Supreme
Court in 1878. Phelps, as assignee in bankruptcy of McDonald, asserted
a right to a claim, which the latter had against the United States, and
prayed for an injunction to restrain the defendant from receiving the
money. The circuit court dismissed the bill, and complainant appealed,
when the decree below was reversed and the cause remanded. The
principal point decided is thus stated in the syllabus :
"Although a court of equity has not within its territorial jurisdiction
the real or the personal property which is the subject-matter in contro-
versy, it may, having the necessary parties before it, compel, by appro-
priate process, the performance of every act, which, if done voluntarily
by them according to the Ux loci rei sitccj would give full effect to its
decree in personam J^
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Authority ovtr, and Disposition o/, Tredsury Drafts — Keyser*s Case, 313
McManus v, Standish (1 Mackey, Bepts., Sapreme Oonrt District of
Columbia, 147), was decided in 1881.
The Secretary of State held a fund for claimants ander an award made
in pursuance of the treaty of 1868 with Mexico. A claim was made by
counsel, who prosecuted a claim resulting in an award, to a share of the
sum awarded. The Secretary of State — ^the holder of the fund — was
made defendant, but did not appear; and no decree was made against
him. The court held only that it had jurisdiction of the private parties
interested in the fund. In no case has a court assumed jurisdiction,
without the aid of a statute, to make a decree restraining the Secretary
of the Treasury from paying moneys of the United States in the Treas-
ury to any claimant in pursuance of the decision of the proper account-
ing officers, and of the command of a Treasury warrant.
The impracticability of enforcing any such decree is conclusive
against the authority to make it A court cannot enforce it by process
against any officer of the Treasury Department, because no such officer
can be a party in the proceeding. Even in those cases in which a pri*
vate claimant might foe subject to process, an injunction restraining
him from receiving payment of a claim from the Treasurer could not be
enforced, because such injunction could not operate against the Treas-
urer, who could not be a party, and who could make payment at a point
beyond the jurisdiction of the court making the decree, which court
would be without power to attach for contempt. The Supreme Court,
in Walker v. Smith (21 How,, 579), a case involving the power of a court
to eiijoin the Secretary of the Interior from issuing land-scrip, said,
^< if an injunction was issued to hinder the defendant from receiving
the scrip which the Land Office has concluded to give him, this would
confer no title on the complainant" This remark is applicable here.
The recent case of Cunningham v. Macon and Brunswick Bailroad
Company et aZ., decided by the Supreme Court at October term, 1883,
classifies the results of the decision on this subject in a clear, compact,
and forcible form, and settles the law on a basis which cannot be mis-
taken. In this case, Mr. Justice Miller, delivering the opinion of the
court, says :
"In the suits which have been instituted in the circuit courts the
effort has been, while acknowledging the incapacity of those courts to
assume jurisdiction of a state as a party, to proceed in such a manner
against the officers or agents of the state government, or against property
of the state in their hands, that relief can be had without making the
state a party,
" The same principle of exemption from liability to suit as applied to
the government of the United States has led to like efforts to enforce
rights against the government in a similar manner. • • •
"Neither a state nor the United States can be sued as defendant in
any court in this country without their consent, except in the limited
class of cases in which a state may be made a party in the Supreme
Court of the United States by virtue of the original jurisdiction conferred
on that court by the Constitution. • • • Whenever it can be clearly
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314 First OamptroUer'a Office^ Treasury DepartmefiU.
seen tkaX ike state is an indispensable party to enable the conrl, Aooord-
ing to the rales which govern its procedure, to grant the relief sought,
it will refuse to take jurisdiction, • • •
'^1. It has been held in a class of cases whave property of thestatCj or
property in which the state has an interest, comes before the court and
ander its control, in the regular course of judicial administration, with-
out being forcibly taken from the possession of the govcrn^nent^ the court
will proceed to discharge its duty in regard to that property. And the
state, if it choose to come in as plaintiff, as in prize cases, or to inter-
vene in other cases when she may have a lien or other claim on the
property, will be permitted to do so, but subject to the rule that her
rights will receive the same consideration as any other party interested
in the matter, and be subjected in like manner to the judgment of the
court. Of this class are the cases of The Siren, 7 Wall., 157; The Davis,
10 Wall., 20 ; and Cook v. Barnard and others, at the last term
^^2. Another class of cases is where an individual is sued in tort for
some act injurious to another in regard to person or property, to which
bis defence is, that he has acted under the orders of the government.
'^In these cases he is not sued as, or because he is, the officer of the
Oovernment, but as an individual, and the court is not ousted of juris-
diction because he asserts authority as such officer. To make oat his
defence he must show that his authority was sufficient in law to protect
him. See Mitchell v. Harmony, 13 How., 115 ; Bates f . Olark, 95 U. S.,
209 ; Meigs r. McOlung, 9 Granch, 11 : Wilcox t;. Jackson, 13 Peters,
498 ; Brown v. Huger, 21 How., 305 ; Grisar t?. McDowell, 6 Wall., 303;
United States v. Lee, 106 U. S. E., 196. • • •
^'In actions of law, of which mandamus is one, where an individual is
sued, as for injuries to person or to property, real or personal, or in re-
gard to a duty which he is personally bound to perform, the govern-
ment does not stand behind him to defend him. If he haa the authority
of law to sustain him in what he has done, like any other defendant, he
must show it to the court and abide the result. In either case the State
is not bound by the judgment of the court, and generally its rights re-
main unaffected. It is no answer for the defendant to say I am an
officer of the government and acted under its authority, unless he shows
the sufficiency of that authority. • • •
*'3. A thinl class, which has given rise to more controversy, is where
the law has imposed upon an officer of tlu government a xcell defined duty
in regard to a specific matter^ not affecting the general powers or func-
tions of the government, but in the performance of which one or more
individuals have a distinct interest capable of enforcement by judicial
process.
^^Of this class are writs of mandamus to public officers, as in Marbury
V.Madison, ICranch, 137; Kendall u. Stokes, 3 How., 87; United States
v. Schurtz, 102 U. S. K., 118; United States v. Bout well, 17 Wall, 604
''But in all such cases, from the nature of the remedy by mandamus,
the duty to be performed must be merely ministerial, and must involve
no element of discretion to he exercised by the officer.
''It has, however, been much insisted on that in this class of cases,
where it shall be fonnd necessary to enforce the rights of the individual,
a court of chancery may, by a mandatory decree or by an injunction, oompd
the performance of the appropriate duty, or enjoin the officer from doing
that which is inconsistent with that duty and with plaintiff's rights in
the premises. [See United States v. McLemore, 4 How., 286. J
"Perhaps the strongest assertion of this doctrine is found in the case
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Authority over^ and IH^poHHan ofj Treasury Drafts — Keyset^s Case. 315
df Davis v. Gray, 16 Wall., 203. • • • The case goes to the verge
of soand doctrine if not beyond it. • • •
" In the cases of Louisiana v. Jumel • • • (107 XJ. 8. R., 711), the
owners of the new bonds issued by the board of liq nidation mentioned
in McGomb's case, above cited, brought their bill in equity, in the circuit
court of the United States, to compel the auditor of state and the treasurer
of the state to pay^ out of the treasury of the state^ the overdue interest-cou-
pons on their bonds^ and to enjoin them fi'om paying any part of the
taxes collected for that purpose for the ordinary expenses of the Gov-