Mary Reeside, Executrix of James Reeside, Plaintiff in error, v. Robert J. Walker, Secretary of the Treasury of the United States, 11 How. 272

Mr. Justice WOODBURY delivered the opinion of the court. This was a writ of -error, brought to reverse a judgment4, in the Circuit Court for the District of Columbia, dismissing a petition for a writ of mandamus. 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 contracts, and on the 22d of October, 1841, he pleaded a large set-off, and the jury, on the 6tln of 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 the 12th day of 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 iri 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' after-wards be drawn up.

They do not contain a j udgment in ex-tensó, 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 the.m 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. ak Large, 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. at Large, 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 set-off 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 áetion would be, when no scire facias 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 set-off 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 orí which the judgment is rendered; for the judgment is not quod recuperet, hut 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 4th, 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 Peters, 525; Life & Fire Ins. Co. v. Wilson’s Heirs, 8 Peters, 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 b.e 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, 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 Peters, 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 Peters, 524; Rex v. Water-works 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 Peters, 497; Brashear v. Mason, 6 Howard, 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 Peters, 321; 4 Howard, 288; 9 Howard, 389.

The sovereignty of the government not only protects it against suits directly, but against judgments even for cost, when it fails in prosecutions (4 Howard, 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 wbuld be the propriety of allowing by scire facias, or otherwise, a judgment to be entered against the United States on a set-off, when it could not have been allowed in an action against them on the subject-matter of the set-off. To permit a demand in set-off 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 set-off are sought to be recovered, it could not be as ágainsst the government except by a mere evasion, and must be as useless in the end as it would be . derogatory to judicial fairness. A set-off or reeonvention 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 and Wife, 5 Martin, N.

S. 18, the court say, “ 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 Congresr .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. at Large, 15).

However much money may be in the Treasury at any one time,-mot a dollar of it can be used in the payment of any thing 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' an^l 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, iñ a casé 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 when no other adequate remedy exists. Marbury v. Madison, 1 Cranch, 62 -137; Kendall v. United States, 12 Peters, 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, hólden 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.