Green v. Purnell

Eccleston, J.,

delivered the opinion of this court

The appellant filed a petition in the circuit court for Anné Arundel county, praying for a rule upon the Comptroller of the Treasury to show cause why a mandamus should not be issued, commanding him to grant the petitioner a warrant upon the Treasurer of the State, requiring and authorizing him to pay unto the petitioner the sum of one hundred dollars, “which is in and by the act of the Centeral Assembly of Maryland, passed at January session 18§6, chapter 328, appropriated for the rent of house for fire-engine i”

The rule to show cause was granted, and the Comptroller answered the same. Without further proceedings, the matter being submitted by the parties, the court passed an order dismissing the petition; from which order this appeal is taken.

The appellant’s counsel has referred to the case of Thomas *334 vs. Owens, 4 Md. Rep., 189 , as an authority which fully sustains the present application. But we do not so consider it. That is a very different case from this. There the petition asked for a mandamus requiring the Treasurer of the State to pay the Comptroller, upon his warrant, the amount of his salary, which is regulated by the constitution, and, of course, duly appropriated by law.

At page 228, the court refer to the 2nd and 3rd sections of the 6th article of the constitution, for the purpose of defining the principal duties of those two officers. It is there said: “From these two sections it appears, 1st, that it is the duty of the Treasurer to disburse the public moneys on the warrant of the Comptroller, and not otherwise; and 2nd, that the duty of adjusting and settling all public accounts is imposed upon the Comptroller.

“Looking to these provisions of the constitution, it appears to us that the power of adjusting and settling public accounts is exclusively conferred on the Comptroller, and, in this particular, it is the duty of the Treasurer to respect such adjustment and settlement, and, on warrant of the Comptroller, to pay the amount.”

The court further say: “The Comptroller is chosen immediately by the people; the Treasurer by their representatives; and the former have deemed it advisable to entrust the officer of their own choice with duties formerly performed by the Executive and Treasurer.”

It is likewise said: “Where there is an appropriation, and a proper warrant drawn by the Comptroller and presented to the Treasurer, his duty is purely ministerial; all he has to do in such a case, is to count out the money; an act ministerial, and nothing else. If he refuse to perform it, the law will compel him.” This very explicitly announces the character in which the Treasurer is called upon to act, where there is an appropriation, and the Comptroller has issued his warrant for the same. But the court have drawn a manifest distinction between the authority and duties of those two officers. And surely the language used in reference to the adjustment and settlement of public accounts by the Comptroller, cannot be *335 understood as meaning, that, in the discharge of such duties he merely acts ministerially; for they require the exercise of judgment and discretion.

In the case of Amos Kendall, Postmaster General of the United States, vs. Stokes, 12 Pet., 524, the Supreme Court held, that by mandamus the Postmaster General might be compelled to allow Stokes a credit, the amount of which had been regularly ascertained by an award of the Solicitor of the Treasury, under authority of an act of Congress. The court did not consider the mandamus as designed to control the Postmaster General in the discharge of his official duties, 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.

That case was referred to in Decatur vs. Paulding, 14 Pet., 516, 517 , where it is explicitly stated there was a difference of opinion in the Supreme Court in the previous case, in relation to the power of the circuit court to issue (he mandamus. But respecting the act to be done, there was no difference of opinion. The court were unanimously of opinion that in its character the act was merely ministerial.

The case of Kendall vs. Stokes, was relied upon as authority to sustain the application for a mandamus in The United States vs. Seaman, 17 How., 225 , but without success. The Supreme Court speak of the award in favor of Stokes, made by the Solicitor of the Treasury in that case, as an official act authorized by act of Congress. And the award having determined the amount of credit to which Stokes was entitled, and the same being reported to the Postmaster General, the 'court say: “He was merely to record it. His duty under that act of Congress, was like that of a clerk of a court, who is required to record its proceedings; or of an officer appointed by law to record deeds which a party has a right by law to place on record; or of the Register of the Treasury of the United States to record accounts transmitted to him by the proper accounting officers to be recorded. The duty, in such cases, is merely ministerial; as much so as that of a sheriff or marshal to execute the process of a court.”

*336 The court then add: “This was the point decided in Ken dall vs. Stokes, and the subsequent cases have all been upon the same principles. They are in no degree in conflict with it; on the contrary, they have followed it.”

On page 230, of 17 How., the Chief Justice, speaking for the court, refers to various cases decided by the Supreme Court, in regard to the power of the circuit court of the district to issue writs of mandamus to an officer of the Government in 'Washington. The rule to be gathered from all these cases, he considers to be too well settled to need further discussion. He then says: “It cannot issue in a case where discretion and judgment are to be exercised by the officer; and it can be granted only where the act required to be done is merely ministerial, and the relator without any other adequate remedy.” Kendall vs. Stokes is the only case referred to in which the application for the writ was successful; and that application the court sustained, because the Postmaster General was required to do an act in which he was not authorized to exercise any discretion or judgment.

In the opinion of the court, as delivered by the Chief Justice, in Decatur vs. Paulding, at page 515, it is said: “The court could not entertain an appeal from the decision of one of the Secretaries, nor revise his judgment in any case where the law authorized him to exercise discretion or judgment. Nor can it, by mandamus, act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official duties.” See what is said of Mrs. Decatur’s case, in Brashear vs. Mason, 6 How., 101 .

The following we understand to be a correct statement of the facts in the present case:

By resolution No. 9, passed on the 29th of January 1850, during the December session of 1849, the Legislature directed the Treasurer “to pay to Mrs. Matilda E. Green the sum of fifty dollars, on the first day of December, one thousand eight hundred and fifty, for the yearly rent of a house for the State engine, and also the same sum on the first day of December jn each and every year thereafter, so long as the said house is *337 rented by this State from the said Matilda E. Green.” Neither this resolution, or any thing else, states the day on which the renting commenced. By different acts of the Legislature, regular appropriations were made for the rent of an engine house, without specifying to whom to be paid. Mrs. Green received her rent up to the 1st of December 1856, inclusive. Her house was occupied by the State up to the 1st of January 1857, when the fire engine was removed by Llewellyn Boyle, who, as superintendent of the same, placed it elsewhere.

By the act of 1856, ch. 314, Lewellyn Boyle, the appointee of the Legislature, as State Librarian, was charged with the general superintendence of the public buildings and grounds within the State House circle, as well as the fire apparatus belonging to the State.

In the act making appropriations for the support of government, passed at the session of 1856, ch. 328, the Legislature appropriated “to the rent of house for fire-engine, one hundred dollars,” not saying to whom it was to be paid.

The appellee says, in his answer, that on the 1st of January 1857, he received notice in writing from Llewellyn Boyle, the superintendent, that he had rented of J. Wesley White, of Annapolis, an engine house, where the State engine would be kept in the future; which notice is filed as part of the answer.

The appellee also says, he has been notified by Llewellyn Boyle, the superintendent, “not to issue a warrant for the rent of a house for the State engine, for the year 1857, to ihe said Matilda E. Green, and has authorized and directed this respondent to issue the same to John W. White, of Annapolis.”

On the 2nd of December 1857, Mrs. Green applied to the Comptroller for his draft or warrant upon the Treasurer for the payment of the sum of $100, alleged by her to be due the day previous, for the rent of her house. But the Comptroller refused to issue a warrant, denying her right to claim one.

The act of 1856, ch. 328, under which the appellant claims $100, is not, in terms, an explicit appropriation of that, or of any other sum in her favor. Her name is not mentioned *338 therein. And the act simply appropriates $100 “to the rent of house for fire engine.”

(Decided July 20th, 1858.)

The appellant contends that the resolution of 1849 created a lease between the State and herself, which could not be terminated by the State without such previous notice of an intention to quit, as the law requires in similar cases of renting; that she had received no sufficient notice to terminate the lease sooner than the 1st of December 1857. And inasmuch as the engine had been kept in her house during the month of December 1856, she insists that although the engine may have been removed on the 1st of January following, and was subsequently kept elsewhere, still the State was bound to pay her a year’s rent, ending on the 1st of December 1857, and therefore she claims the $100.

But conceding that the resolution alluded to did create a lease, which was not legally ended until the date stated above, it is very certain the annual rent provided for in that lease was only fifty dollars, and not one hundred. And we have seen that the Comptroller had been notified by the superintendent of the engine that he had rented a house for the same, for the year 1857, from J. W. White, who was entitled to the rent, and that Mrs. Green was not.

These remarks are not to be understood as any intimation of an opinion on our part that the appellant is not entitled to compensation from the State; but the views expressed are intended to show that she is not entitled to a mandamus. We think her application does not require of the Comptroller a merely ministerial act, but under the circumstances, the question whether he should grant her a warrant for her alleged claim of $100, necessarily involves the exercise of judgment. And believing this to be the case, we must affirm the order of the circuit judge.

Order affirmed.