National Republican., 1885-08-08
MISSISSIPPI MUST WAIT.
NO LEGAL EXCUSE FOR IGNoRING THE UN.
PAID DIRECT TAX.


PAID DIRECT TAX.
Justice Morrics yesterday, at cham
bers, rendered his decision in the matter
of the application of the state of Missis-
sippi for mandamus TO compel Hon.
M. j. Durham, first comptroller of the
treasury, to draw his warrant for So.
308.50, payable to the state for sale OF
public lands within the state, unless the
government was entitled to the same as
set off against $413,0 claimed due
the United States under the act of 1861
levying a war tax. The Justice declined
TO grant the writ on the ground that he
is without jurisdiction in the matter.
He says that the comptroller holds that
the state is not indebted to the United
States in any amount for direct tax, but
states that he is bound to shut his eyes to
the conviction that the act of 1861 could
not constitutionally create debt against
the state by imposition of the tax, be.
cause q certain auditor on May Is, 1868,
adjusted an account and found the same
mentioned in the eighth section of the
act of 1861 and due, and on May 20,
1868, the comptroller found such sum
due the United States, and says where
there is no jurisdiction 1t does not be.
long to the proper functions of the court
TO give an opinion thereon. After dis.
cussing the question rs TO whether or
not the court has jurisdiction the Justice
says that the question is whether if q
claim is presented to the treasury and
rejected for reasons which to the Judi.
nj mi
tent for n court to enforce payment by
mandamus. He quotes section 238 Of
the Revised Statutes, and, referring to
the complete equipment of the
Treasury Department, says indie.
pendent of general considerations
of abstract polity the government
would seem to be justified in maintain.
ing in all its integrity the dogma that it
cannot by any form Of process lose its
rights Of property subjected to the ar.
bitrament of n judicial tribunal with
out its explicit consent in due form Of
law. He then cites number of cases
from the Supreme Court Of the United
States in support of his position, and in
closing says "There is no deliberate
expression in any subsequent opinions
of the Supreme Court which enlarges
these narrow and rigid limitations of the
power of courts to issue mandamus,
the effect of which would be TO compel
the payment Of money from the treas.
ury." He cites the case of Reside, in
which it is said that mandamus is in
effect suit and court must not permit
the United States to be sued by man.
damus, where it could not be sued di
rectly, unless by its own consent under
some special tax allowing it. "Now il
does not require to be manifest that re.
fusal by an officer of the Treasury De-
partment, whose general duty, under the
law, it is to allow and take steps to issue
warrant for the poyment of any claim,
is n refusal of the claim by the United
States, for the time being, and q
mandamus against him TO compel the
allowance and payment thereof; is n
suit against the United Sttaes, and that
tits none the less suit against the
United States because the grounds or
motives of refusal to allow may be OBJ.
vionsly and notorlously without legal
Jurisdiction. In other words, that no
error Of judgment or capriciousness Gf
conduct can destroy, for the time
being, the quality of an agent aud
actor in the name and in behalf of the
government of the proper treasury
official in disallowing the claim of any
state or individual for money due or
alleged to be owing by the United States.
For these reasons and without authority
to pass upon the validity of the objec.
- '..,.aS' -~"---r"-~Sle. the suit is re-
fused"