Evening star., 1898-10-22
The Decision Madelin:the War Loan
Case
REVIEW OF THE POINTS At ISSUE
Claimants Declared to Be Without
Legal Title.
SECRETARY GAGE SUSTAINED


claim to mandamus it was necessary for
the petitioner in the law case, William Fl.
Wharton, to show first that he had a right
OF property in the bonds claimed by him,
and next that it was the plain ministerial
duty of the Secretary to deliver them to
him. The same showing should have been
made in the equity case to entite Weight
man to an injunction. The remedies of man
damus and injunction are correlative reme-
dies. IL one has right to a mandamus
commanding defendant to do a duty, he
has at the same time a right to an injunc-
ton forbidding him to disable himself from
performing that duty and depriving the
plaintiff of his rights.
The object of the act authorizing the is
sue of the 500, 100000 bonds Judge Cox
went on to say, manifestly is to distribute
these bonds among the people at large. CIV
ing preference to individual citizens over
banks, trust companies and other corpora
tions and preferring citizens of moderate
means to capitalists and SPECTATORS A
large discretion seems to be vested in the
secretary, for he is to prescribe all the
regulations through which this object is to
be accomplished. 1t is obvious, said Judge
Cox, that in the administration of this law
by the Secretary questions will arise calling
Tor the exercise of nls Judgment and discre-
ton
fled that each subscription is genuine and
is not forged or fictitious. In a case like
the one al issue, ii a party could present
subscriptions ranging from $50 to $500 for
over SIX hundred people, aggregating
$3.50, ,Oo0 ana it should turn out that these
subscriptions were not in the interest of
the nominal subscribers, but that they had
simply allowed their names 10 be used for
the benefit of the party presenting them,
claiming as their assignee it would be
more properly called his sole subscription
Tor the aggregate amount; and If that could
be allowed he would Obtain preference
Tor this enormous aggregate over all sub
scriDers for over $500 and under the S}3O-
600, which would be manifestly contrary to
the spirit and letter of the law.
1t would seem reasonable, therefore, ac-
cording to Judge Cox. that if the Secre-
tary suspected such an arrangement he
would be justified in Investigating the facts
and in refusing to recognize such a trans
action.
Secretary's SuspfcfOns.
But whether 1t appear reasonable or not,
the fact is that the Secretary did suspect
this movement to be of that character, did
cause an investigation, and did conclude as
a matter of fact that Weightman was
really the subscriber for this whole amount
and did conclude, a matter of law, that
he had right to, and 1t was his duty to,
refuse to recognize those subscriptions.
that exercise of his judgment and author
ity?" Judge Cox asked. Can a court in
terfere to control il?
This question, Judge Cox continued, was
answered long ago by the Supreme Court
of the United States. He then read from
the opinions in the case of Decatur AGAINST
Paulding and other cases TO show in effect
that only when the executive has exf aust
ed its discretion so that nothing but a mere
ministerial act remains to be done can
INT nd hot ha
ecutive has exhausted its discretion Is in
every case question to be determinn ID by
a consideration of the stage reached E t the
point of time at which a call for retrial
at the hands of the court is made.
In any transaction between one OF the
executive departments and an indiN itiual
there is a point of time when the author
ity of the head of the department Is ex-
hausted, Judge Cox next said, and when
the transaction IS closed and the pow er of
the Secretary can go no further The con-
cluslon, so the court stated, Is thai the
power of the Secretary ends when tho last
act is done by him which is necessary to
pass title to the Individual dealing with
the government, and the applica ation of
the rule to the present case is that II the
last act was done which would vest title
in these bonds in the complainant Weight
man and the petitioner Wharton, then the
power of the Secretary of the Treasury
exhausted and the title of these par
ties is complete"
Evidence on Question of Fact.
Judge Cox then proceeded to discuss the
showing of the evidence on the question Of
fact and concludes that the bonds had
really no existence as bonds at the time the
demand was made They had not been pre-
pared, declared Judge Cox, had not been
sealed or signed by the register, or ary or
der given for their issue. They were not
the subject of property, or if they existed
they had not been specifically appropriated
to the subscriptions of the complainant or
earmarked as his property, and remained
the property of the United States
Suppose that instead of the United States
said Judge Cox this had been a private
corporation making similar contract and
issuing similar bonds, could the complain
ant have brought an action of replevin for
any bonds which had not been segregat ted
from the mass of bonds and identified as
his property? In the opinion of Judge Cox.
very clearly not. The court added that
the common law definition of a deed of
which a bond is one form, Is an instru-
ment sealed and delivered. Such an in
strument has no operation until delivered,
explained Judge Cox, either actually or
constructively unless some earmark or
other indication of proprietorship in the
Obligee can be shown.
1t must be borne in mind also, the court
stated, that no statute law requires the
Secretary to deliver these bonds in con-
formity with his notice of allotment There
is, therefore, no obstacle of that sort in
the way of his reconsdering his action
upon the ground that he had been misled
or deceived.
Claimants without Title.
at is therefore plain that no legal title
to these bonds has become vested in either
the complainant in the equity case or the
petitioner in the maHdaGnus case" said
Judge Cox in concluding his opinion. THE
only obligation of the Secretary was self
imposed obligation in the shape of a con-
tract or promise to deliver the bonds in
future upon payment of a stipulated sum-
TINS amounts simply to an executory con-
tract, not identifying any property, but un-
dertaking to create properly in the future
in the complainant and the petitioner like
q mercantile contract to deliver goods in
the future. 1t is impossible that d court
can be called upon to enforce the specific
performance of contract by the head of
| an executive depar Iment by a mandamus or
by an injunction against Withholding and
refusing the performance.
"On these grounds II seems TO me that
both the injunction and mandamus must be
refused"
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