Commonwealth v. Boutwell

THIS was a petition by the State of Kentucky, through its constituted authority, asking this court, in the exercise of its original jurisdiction, for a writ of mandamus to compel the Honorable G. S. Boutwell, Secretary of the Treasury of the United States, to deliver to the said State a warrant to which it alleged itself entitled for expenses incurred in defence of the Union. The application was founded on the provisions of an act of Congress of July 27th, 1861, directing the Secretary of the Treasury to refund to the governor of any State the expenses properly incurred in raising troops to aid in the suppression of the late rebellion; an act which, having been in force and acted on for several years, was repealed from the 1st July, 1871, by act of the 12th July, 1870.

The petition, after setting forth the nature of the claim of Kentucky under this law, its approval by the Secretary of War and the accounting officers of the Treasury Department, alleged that the acting Secretary of the Treasury, on the 30th of June, 1871, caused to be issued and signed a warrant upon the Treasurer of the United States for the sum due the State, which, after being countersigned by the First Comptroller, was withheld from the relator by direction of the defendant.

The purpose of the petition was to obtain possession of this warrant, or, if this could not be done, to procure the delivery to the agent of the State of another warrant of like amount.

The court having ordered an alternative writ of mandamus, the defendant, in his return to it, among other things, denied that the acting Secretary of the Treasury, on the 30th day of June, 1871, or on any other day, caused to be issued the warrant as alleged in the petition, but asserted that as he was informed and believed, the facts in regard to the said pretended warrant were these, to wit:

That on said 30th June, one Fayette Hewitt, the agent of the State of Kentucky, about the close of business hours, applied to the chief of the warrant division in the office of respondent to prepare a warrant for the said sum claimed, and that the said chief declined to prepare such warrant at that time, unless specially directed to do so by the acting secretary; that the agent applied to the acting secretary, who determined not to issue such warrant, on the ground that, by the act of July 27th, 1861, the matter was lodged specially in the discretion and judgment of the secretary himself, who was absent, and that the propriety of issuing the said warrant would be determined by him on his return; but that in view of the urgent request of the agent, and representations by him that, after said 30th of June, an appropriation made in the matter would be no longer available for the payment of the said claim, the acting secretary determined to confer with the officers of the department, and, if it was by them deemed advisable and proper, to prepare and sign a warrant on the said day in order to save the appropriation, which warrant should not be issued, nor registered, nor recorded, but should be retained in the office of the acting secretary subject to approval or rejection by the secretary on his return; that the acting secretary did accordingly call together the said officers at his office at about eight o'clock on the evening of said day, and that it was then and there agreed that a warrant should be prepared and signed, and should not be registered nor delivered, but should be retained and submitted to the secretary on his return, to be by him either approved and issued or cancelled, as he should determine; and that the said warrant was accordingly prepared and signed, and countersigned at the office of the acting secretary, and was so retained; that, on the secretary's return to Washington, about the middle of July, 1871, the warrant prepared was presented to him for approval by the acting secretary, in accordance with the understanding between him and the said agent, Hewitt, and that upon mature consideration the claim was rejected and the warrant cancelled by him.

And as a conclusion from these facts the defendant in the case denied that it was the legal right of the said Commonwealth of Kentucky to have the said warrant, and to receive the sum of money as alleged, and asserted that he, the said defendant, could not now deliver the warrant, conditionally signed as aforesaid, as prayed for by the State of Kentucky, because the same was officially cancelled by him on rejection of the claim, and that he could not now prepare and deliver another warrant upon the Treasurer of the United States, because there was not now any appropriation out of which it could be paid.

To this answer the State of Kentucky demurred.

The case was argued at different times by Messrs. J. Casey, A. A. Burton, and G. R. McKee, for the State of Kentucky, and by Mr. Akerman and Mr. G. H. Williams, Attorneys-General, Mr. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-General, for the Secretary of the Treasury.

Mr. Justice DAVIS delivered the opinion of the court.