United States v. Boutwell

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United States Supreme Court

84 U.S. 604

United States  v.  Boutwell

ON MOTION. Mr. R. W. Corwine, in behalf of the owners of an order on the Treasury of the United States, had applied to the Supreme Court of the District of Columbia for a mandamus on the Hon. G. S. Boutwell, then Secretary of the Treasury, to pay it. That court refused the mandamus, and the case was brought, on error, by the relators here. After it had got into this court, Mr. Boutwell resigned his place of Secretary and the Hon. W. A. Richardson was appointed to it. Hereupon Mr. Corwine moved for leave to bring in and substitute Mr. Richardson on the record as defendant in the place of Mr. Boutwell. It did not appear that any application had been made to Mr. Richardson as Secretary to pay the draft. Mr. Richardson, by his counsel, opposed the motion.

Messrs. R. M. and Q. Corwine, in support of the motion:

We assume, for the purpose of our argument, that the claim of the relators is a just one, and that the order on the treasury held by them ought to be paid. That in such a case they ought to certainly have the assistance of the courts cannot be denied. But how, practically, can they certainly have it if they cannot have the substitution asked for? and if, on the contrary, the right to any writ has abated by the resignation of Mr. Boutwell? Rarely does any officer of the Cabinet long remain in office. In that department which specially concerns this court, for example, since 1864-that is to say, in nine years-seven attorneys-general have been in and out of these precincts. If a claimant on the treasury must proceed de novo against each successive secretary he will rarely see the end of his suit, for a secretary rarely remains in office for as long a time as in the 'law's delay' a suit is pending. Such a doctrine, therefore, as is contended for on the other side is a practical denial of justice.

But why should such a doctrine prevail? We seek relief not against Mr. Boutwell, but against the Secretary of the Treasury of the United States. Until he comes into place, Mr. Boutwell is as nothing to us, and he is as nothing to us from the moment that he leaves place. The person is nothing; the place or office everything. The obligation on which we rely arises from the acceptance of an office, which has imposed a duty on its incumbent. Why, then, when one secretary departs shall not the new one be substituted for him? The Sapphire, [1] in this court, seems in point. There a libel had been filed by the then Emperor of the French, Napoleon III, against the Sapphire, an American vessel, for injuries done to the French ship Euryale. Before the cause came to be heard Napoleon III was deposed. And one question was whether the suit had not abated. The counsel for the respondents argued that the Euryale was a vessel of the French government, with which Napoleon had 'nothing whatever now to do, being banished and a fugitive.' But this court said:

'The reigning emperor, or national assembly, or other actual person or party in power, is but the agent and representative of the national sovereignty. A change in such representative works no change in the national sovereignty or its rights. The next successor recognized by our government is competent to carry on a suit already commenced, and receive the fruits of it.

'If a substitution of names is necessary or proper, it is a formal matter, and can be made by the court under its general power to preserve due symmetry in its forms of proceeding.'

Mandamus is in the nature of a suit at common law. After institution, its conduct and management are governed by the pleadings and practice which pertain to like suits, whether in the Circuit or in the Supreme Court, on writ of error. All such amendments as can be made in suits at law may be made in suits of mandamus. The strict rules appertaining to the old writ of right, as this writ was once called, have no longer any application in this country. New parties, plaintiff or defendant, may be made upon a proper case. The death of either party does not necessarily abate the suit. Upon a proper case, orders for the substitution of parties will be made as a matter of course. [2]

If this were a proceeding against Mr. Boutwell individually, and he were dead, there could be no question of our right to bring in his representatives under this rule.

Mr. C. H. Hill, contra.

Mr. Justice STRONG delivered the opinion of the court.


^1  11 Wallace, 168.

^2  Maddox v. Graham, 2 Metcalfe, 56; Hollister & Smith v. The Judges, & c., 8 Ohio State, 201.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).