Green v. Purnell

Eccleston, J., delivered the opinion of this court The appellant filed a petition in the circuit court for Anné Arundel county, praying for a rule upon the Comptroller of the Treasury to show cause why a mandamus should not be issued, commanding him to grant the petitioner a warrant upon the Treasurer of the State, requiring and authorizing him to pay unto the petitioner the sum of one hundred dollars, “which is in and by the act of the Centeral Assembly of Maryland, passed at January session 18§6, chapter 328, appropriated for the rent of house for fire-engine i” The rule to show cause was granted, and the Comptroller answered the same. Without further proceedings, the matter being submitted by the parties, the court passed an order dismissing the petition; from which order this appeal is taken. The appellant’s counsel has referred to the case of Thomas ³³⁴ vs. Owens, 4 Md. Rep., 189 , as an authority which fully sustains the present application. But we do not so consider it.

That is a very different case from this. There the petition asked for a mandamus requiring the Treasurer of the State to pay the Comptroller, upon his warrant, the amount of his salary, which is regulated by the constitution, and, of course, duly appropriated by law. At page 228, the court refer to the 2nd and 3rd sections of the 6th article of the constitution, for the purpose of defining the principal duties of those two officers. It is there said: “From these two sections it appears, 1st, that it is the duty of the Treasurer to disburse the public moneys on the warrant of the Comptroller, and not otherwise; and 2nd, that the duty of adjusting and settling all public accounts is imposed upon the Comptroller. “Looking to these provisions of the constitution, it appears to us that the power of adjusting and settling public accounts is exclusively conferred on the Comptroller, and, in this particular, it is the duty of the Treasurer to respect such adjustment and settlement, and, on warrant of the Comptroller, to pay the amount.” The court further say: “The Comptroller is chosen immediately by the people; the Treasurer by their representatives; and the former have deemed it advisable to entrust the officer of their own choice with duties formerly performed by the Executive and Treasurer.” It is likewise said: “Where there is an appropriation, and a proper warrant drawn by the Comptroller and presented to the Treasurer, his duty is purely ministerial; all he has to do in such a case, is to count out the money; an act ministerial, and nothing else.

If he refuse to perform it, the law will compel him.” This very explicitly announces the character in which the Treasurer is called upon to act, where there is an appropriation, and the Comptroller has issued his warrant for the same. But the court have drawn a manifest distinction between the authority and duties of those two officers. And surely the language used in reference to the adjustment and settlement of public accounts by the Comptroller, cannot be ³³⁵ understood as meaning, that, in the discharge of such duties he merely acts ministerially; for they require the exercise of judgment and discretion. In the case of Amos Kendall, Postmaster General of the United States, vs. Stokes, 12 Pet., 524, the Supreme Court held, that by mandamus the Postmaster General might be compelled to allow Stokes a credit, the amount of which had been regularly ascertained by an award of the Solicitor of the Treasury, under authority of an act of Congress.

The court did not consider the mandamus as designed to control the Postmaster General in the discharge of his official duties, partaking in any respect of an executive character; but to enforce the performance of a mere ministerial act, which neither he nor the President had any authority to deny or control. That case was referred to in Decatur vs. Paulding, 14 Pet., 516, 517 , where it is explicitly stated there was a difference of opinion in the Supreme Court in the previous case, in relation to the power of the circuit court to issue (he mandamus. But respecting the act to be done, there was no difference of opinion. The court were unanimously of opinion that in its character the act was merely ministerial.

The case of Kendall vs. Stokes, was relied upon as authority to sustain the application for a mandamus in The United States vs. Seaman, 17 How., 225 , but without success. The Supreme Court speak of the award in favor of Stokes, made by the Solicitor of the Treasury in that case, as an official act authorized by act of Congress. And the award having determined the amount of credit to which Stokes was entitled, and the same being reported to the Postmaster General, the 'court say: “He was merely to record it. His duty under that act of Congress, was like that of a clerk of a court, who is required to record its proceedings; or of an officer appointed by law to record deeds which a party has a right by law to place on record; or of the Register of the Treasury of the United States to record accounts transmitted to him by the proper accounting officers to be recorded.

The duty, in such cases, is merely ministerial; as much so as that of a sheriff or marshal to execute the process of a court.” ³³⁶ The court then add: “This was the point decided in Ken dall vs. Stokes, and the subsequent cases have all been upon the same principles. They are in no degree in conflict with it; on the contrary, they have followed it.” On page 230, of 17 How., the Chief Justice, speaking for the court, refers to various cases decided by the Supreme Court, in regard to the power of the circuit court of the district to issue writs of mandamus to an officer of the