Ex parte Massachusetts

By an act of Congress of the United States approved July 27, 1861 (12 Stat. at L. 276, chap. 21), it was provided:

'That the Secretary of the Treasury be, and he is hereby, directed, out of any money in the Treasury not otherwise appropriated, to pay to the governor of any state, or to his duly authorized agents, the costs, charges, and expenses properly incurred by such state for enrolling, subsisting, clothing, supplying, arming, equipping, paying, and transporting its troops employed in aiding to suppress the present insurrection against the United States, to be settled upon proper vouchers, to be filed and passed upon by the proper accounting officers of the Treasury.'

On March 20, 1888, the legislature of Massachusetts passed the following resolution:

'Resolved, That the governor and council are hereby authorized to employ the agent of the commonwealth for the prosecution of war claims against the United States, to prosecute also the claim of the commonwealth for a refund of the direct tax paid under act of Congress approved August 5th, in the year 1861, and of the interest paid upon war loans during the period from 1861 to 1865, also to fix his compensation, which shall be paid out of any amount received therefrom.'

On July 12, 1899, the executive council of the commonwealth passed a resolution authorizing the attorney general to employ John B. Cotton to prosecute said claim. Mr. Cotton was a citizen of the District of Columbia.

Thereupon a form of contract was prepared and executed by the then governor of Massachusetts, in behalf and under the seal of the commonwealth, and by Cotton; and a duplicate original thereof was deposited with the Secretary of the Treasury of the United States.

The prosecution of the claim was at once entered upon, and after five years was finally adjudicated, audited, and passed.

On or about May 2, 1904, the Treasury Department issued and delivered to Cotton, as the duly authorized agent of the commonwealth of Massachusetts, war settlement warrant No. 11,343, payable 'to the governor of the state of Massachusetts, or order,' for the sum of $1,611,740.85, and addressed, 'P. O. address, c. o. John B. Cotton, Agent and Att'y, Washington, D. C.'

Mr. Cotton notifed the state attorney general of the delivery of the warrant to him, and that he was entitled to a lien upon the warrant for the amount of his fees under his contract; and the governor was informed to the same effect. Mr. Cotton also notified the Secretary of the Treasury that he claimed a lien upon the warrant for compensation in accordance with his contract. Subsequently the governor, Hon. John L. Bates, addressed a communication to the Secretary of the Treasury, in which he demanded that the warrant be canceled, and that a duplicate thereof be forwarded to him as governor of the commonwealth. The Secretary declined to comply with the demand. Later Mr. Cotton filed a bill in the supreme court of the District of Columbia against 'Leslie M. Shaw, Secretary of the Treasury, and John L. Bates, governor of the commonwealth of Massachusetts,' in which he asserted his right to an attorney's lien upon the papers of his client, the commonwealth of Massachusetts, including the warrant in question, and prayed, among other things, that said Leslie M. Shaw might be restrained and enjoined from canceling the warrant which had been delivered to him, and from drawing or issuing a duplicate thereof to said Bates, and 'that the defendant John L. Bates may be restrained and enjoined from asking, demanding, or receiving from the defendant Leslie M. Shaw, or any of his assistants, subordinates, or clerks, a second or duplicate warrant as aforesaid.'

The state of Massachusetts was not named as a party to this suit, and no relief was prayed against the state.

Upon the filing of this bill one of the justices of the supreme court of the District of Columbia entered a rule on the Secretary of the Treasury, requiring him to show cause why the relief prayed against him should not be granted, which was duly served, but has not yet come on for hearing. No process was served upon defendant Bates, who has since ceased to be governor, and he has never appeared in the suit, nor has the commonwealth of Massachusetts intervened therein in any way.

The commonwealth of Massachusetts then filed a petition in this court, on leave, for writs of prohibition, mandamus, and certiorari, to restrain the justices of the supreme court of the District of Columbia from taking further proceedings or entertaining jurisdiction in the equity suit.

In response to a rule entered on that petition, the chief justice and associate justices of the supreme court of the District of Columbia showed cause, and submitted, for reasons set forth, that, as the case stood, the court ought not to be prevented from exercising jurisdiction.

Messrs. Frederick H. Nash and Herbert Parker for petitioner.

[Argument of Counsel from pages 484-487 intentionally omitted]

Messrs. J. Spalding Flannery, Frederic D. McKenney, William Hitz, and William Frye White for respondents.

Mr. Chief Justice Fuller delivered the opinion of the court: