The National tribune., 1894-01-18


VS.. u. s., 12 Pet, 524: u. S. VS.. Boutwell,, Il
WALL, 604 note to q. s. VS.. Schurz, 1o2 U. =,
4G7)
In the last paragraph of his answer the re-
| spondent asserts that maudsmus does not lie to
compel the revocation of the order of suspen-
sion, the reason given being that the respond
ent is subject to no specific statutory duty TO
revoke the order, and a public official OF the
United States is not amenable to the process
save in cases of neglect or refusal to perform
specific statutory duty.
MANDAMUs Is RIGHT.
It is we'll to first dispose of this objection,
inasmuch SIS. if the position taken Is correct.
there is no occasion to consider other aues-
tons.
By section 1862, Rev. Stats. q. s., it is pro-
vided that every person specified in the several
classes enumerated, disabled under the
conditions stated shall. upon making
proof of the fact according to snch forms and
regulations as are or may be provided in pur-
suance of law, be placed on the list of invalid
pensioners, and be entitled TO receive
such pension as is provided;
and such pension shall commence as
provided. and continue during the existence Of
the disability"
Section AL Rev. Stats, q. s., imposes upon
the Commissioner OF Pensions. under the di-
rection of the Secretary of the Interior. such du
ties in the execution of the various pension and
bounty land laws may be prescribed by the
President" By the section 1862 the right to be
placed upon the pension list certain conditions
existing, is established, as we'll the right to
have the pension continued during the exist
ence of the disability. 1t would appear to be
the statutory duty of the Commissioner of
Pensions. not only to place upon the pension
list such persons as come within the classes
enumerated in the law who have complied with
the regulations provided, but to keep and MAIN
tain such persons in their lawful status. and to
see that their pensions are continued to them
under the law.
If the Commissioner of Pensions should un-
lawfully stop the pension of one who has been
regularly placed upon the list of invalid PEN
siOners. such act would he breach of stat
utory duty. and it would then become his
duty under the law TO undo the wrong by
revoking the stOppage. He is placed at
the head of the Bureau to execute and
carry into effect the pension laws. and a part
of his duty is to continue the pension to
the pensioner during the existence of the dis
ability. His failure to perform that duty might
well in proper case justify the issuance OF
writ of msndamus. 1t is not essential. how
ever. that the duty. the performance of which
may he required by this proceeding should be
specifically named in the statute. Blackstone
defines naadamus to he "A command issning
in the Kings name from the Court of Kings
Bench, and directed TO any person. corporation,
or inferior court of judicature within the Kings
dominions. requiring them TO do some particu-
lar thing therein specified, which appertains to
their office and duty, and which the Court of
Kings Bench has previously determined. or at
least snpposes, to be consonant to right and
justice"
CASES IN POINT.
In the case of Marbury VS.. Madison Il Cr.,
1877 the duty sought to be enforced was the
delivery of a commission. and although such
delivery was not euoined by statute. Chief
Justice Marshall held that aaaddmus was the
proper remedy. and npOp this Doint he said:
"TEe act of Congress does not indeed order
the Secretary of State to send it 1.-THE commits
sion) to him. hut it is placed in his hands for
the person entitled to it and cannot he more
lawfully withheld by him than by any other
person." Under the circumstances. the alleged
wrongful act of suspension having been per-
formed by the Observation-Disclosures would
not he an appropriate remedy. and the point
made in the answer, that such is the proper
remedy for the relator. If any, is not well taken.
Upon this subject of the appropriateness of
the remedy bv mandamus to restore deprived
right Lord Mansfield says. in Rex Us. Barker,
q Burr 1866: Where there is a right to exc
cute an office. perform service. or exercise a
franchise (more especially If it be in matter
of public concern or attended with profit.
and person is kept ont of possession or dis
possessed of such right and has other spe-
cifc legal remedy. this Court ought TO assist
by a mandamas. upon reasons of justice as the
writ expresses and upon reasons of public poll
icy. TO preserve peace. order and good govern.
ment." In the case of Rex Us. BIooer ~ Burr.
1885,. this great jurist said "a mandamus
to restore is the true specific remedy where
a person is wrongfBlly iispossessed of an
Office or function which draws after it tenn
poral rights in ali cases where. the esfah-
lished course of law has not provided specific
remedy by another form Of proceedings" See.
also. ex- parte Martha Bradsirect II Pet. 634.)
Having determined that this proceeding is a
proper one TO compel the revocation of the
order Of suspension, provided the right exists
and the circumstances OF the case justify the
issuance OF q writ. it becomes necessary TO in
quire as to the right Of the reator TO the status
that existed at the time of the making of the
suspensory order.
AS TO THE POWER AND THE RIGHT
Of the respondent to make that order; and
whether the duty. If it be one on the part of
the respondent to revoke the order is a mere
ministerial duty. Taking the last inquiry as
first in order. and accepting the law as settled
that the court cannot interfere by mandamus
to compel the performance by executive Off
GERS of the United States OF any duties except
such as are purely ministerial, 1t would seem
to be beyond question, and to be too plain for
argument that il the act of the respondent i'm
stopping tue payment Oh the pension oil the
relat0r were unlawful and without right, the
duty TO revoke that order does not involve
discretion, but is simply ministerial in its
nature.
WAS THIS ORDER OF SUSPENSION LAWFULLY
MADE
by the respondents In justification of his
action in the case OF the relator. the respondent
claims that the REALTORS disability did not
warrant the award TO him Of the pension contro-
verted aud that the action OF the former Com
missioner OF Pensions. in issuing the certificate
of Aug. 16 1889, was erroneous and Illegal. He
claims that the REALTORS disabilities under
which the pension of So per month was al
| lowed were not such as the act of Congress
| providing such pensions specified, and that
therefore his predecessor. in granting such GER
| iifcaIe, acted without jurisdiction. COncedTng
| that if the disabilities specified by law were
such rs by reasonable method of construction
| the reator could be brought within them las
| by way of illustration. if the specified dsabili-
ties were the loss of both hands or both feet
and the REALTORS disability was the loss Of the
| sight OF an cyel. that the Commissioner would
| be without jurisdiction 10 grant the certificate,
and that falthough il by no means follows) his
| successor in Office could rescnd and revoke his
act. would the case Of the relat0r come within
that principlef
The respondent claims in his answer that IL
| is apparent that the REALTORS condition was not
one Of such total aud permanent helplessness
as is contemplated by the act of Congress
under which the pension was allowed, mas
much since Jan. !, 1883. he had been a
i Justiee of the Surname Couri. nf tha cfata NJ