Evening star. [volume] (Washington, D.C.) 1854-1972, 1885-08-07

JUDGE MERRICKs CONCLUSIONS IN THE MIS-
SISSIPPI CAsE-THE GOVERNMENT CANNOT
BE SUED BY MANDAMUS.
In the matter of the petition of the state of
Mississippi for a mandamus against j. Durham!
first controller Of the L. S. Treasury, to compel
him TO take the necessary steps towards issuing
warrant for S5,3OS.5O, payable to the peti-
TONER, unless the government is entitled to set
OFF that amount against S4,13O.S4 claimed to
be due under the direct tax act OF SCI Judge
Merrick to-day filed his opinion, refusing 10
grant the writ, on the ground that Le has no
jurisdiction. The opinion recites that the con.
troler holds that the state is not indebted to
the united states in any amount for direct
taxes, nut maintains that he Is bound to shut
his eyes To the conviction that the act
of 1861 could not constitutionally create a debt
against the states by the imposition of the tax
The question Il, the Judge says whether IL n
claim Is presented to the Treasury and rejected
for reasons which To the judicial mind might
seem untenable, 1t is cOmletent for 81 court to
enforce payment by mandamus Several cases
in the Supreme Court Of the United States arc
cited, and the court says there is no deliberate
expression in any subsequent opinion of Tho
Supreme Court which enlar.es the narrow and
rigid limitations of the power OF courts tn issue
mandamus, the effect of which would be to
compel the payment OF money from the Treas
ury. He cites the case of Reeside, in which il ia
said Jnandamus is i'll effect q suit. and a
court must not permit the United States To ne
sued by mandamus when 1t could NOT he
sued directly unless by its own consent
He closes: Vow, 1t does not require argument
To manifest that a refusal by an officer of tho
Treasury department whose general duty under
the law 1T is to allow and take steps To- issue a
warrant for the payment of any claim is n re-
fusal of the claim by the United States for the
time being, and that mandamus against him
to compel the allowance and payment thereof
Is "a suit against the United States and that IL
is none the less a suit against the United states
because the grounds Or motives Of refusal tn
allow may be obviously and nOtoriously with.
out legal jurisdiction. In other words that no
error OF Judgment or capriciOusness of con.
duct can destroy for the time being the quality
OF an agent and actor In the name and in behalf
OF the government of the proper Treasury Off
ciai in disallowin2 the claim of any state or in
diVidual for money due or alleged to be owing
by the United States. For these reasons and
without authority to pass upon the validity of
Inc objection OF the controller the writ is re.
fused
WARMING TO OVER OrFIcIoUs POLICE
NEW. III. Holmes, colored, was arrested nv
Onncer Murrell also cOlored, on complaint of n
cltiZen that he had stolen something from him
Holmes was taken to the Police Court this
morning where he was defended by Campbell
harrington. The officer stated that he arrest ed
Holmes on complaint and searched his house.
put iaiied 10 mud anything, and that now the
complainant failed TO answer to substantive
the charge, and refused to prosecute The fudge
said he thought II was about time the Officer
! was learning his business. "That's what the
manual says" Interrupted the officer. s'Then
| the manual ought to be corrected" said the
! judge. You cannot arrest a citizen simply be
/ cause some one complained that he has lost
something and suspects some one" The case
| was dismissed.
| PoSTPONED.-Owingt to the funeral of General
Grant the regular sale OF Furniture at Dow
| iing's auction rooms Tomorrow has been post