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Opinion of the Court.

decide, but one to be determined in the Supreme Court on the affidavits if they see fit to consider them, in order to determine their jurisdiction, it is ordered by the court that said motion be refused."

The record having been filed in this court, and notice of a motion to dismiss given, plaintiff in error, without leave first obtained, submits, with its brief upon the motion, eight additional affidavits in reference to value, and defendants in error ask that if these are considered, time may be given to them to produce counter affidavits.

As stated by Mr. Chief Justice Taney, in Richmond v. Milwaukee, 21 How. 391, in cases in which the value does not, according to the usual forms of proceeding, appear in the pleadings or evidence in the record, affidavits have been received to show that the value is large enough to give jurisdiction to this court; Course v. Stead et ux., 4 Dall. 22; Wil liamson v. Kincaid, 4 Dall. 19; but "in Bush v. Parker, 5 Cranch, 257, Mr. Justice Livingston expressed his opinion strongly against giving time to file affidavits of value, and the court refused to continue the case for that purpose.” And the Chief Justice added that a practice to postpone or reinstate a case in order to give the party time to furnish such affidavits “would be irregular and inconvenient, and might sometimes produce conflicting affidavits, and bring on a controversy about value occupying as much of the time of the court as the merits of the case. The rule was then declared that“ where the value is stated in the pleadings or proceedings of the court below, affidavits here have never been received to vary it or enhance it, in order to give jurisdiction.”

In Talkington v. Dumbleton, 123 U. S. 745, it was accordingly held that when the value of the property in dispute was necessarily involved in the determination of the case in the court below, this court would not, on a motion to dismiss for want of jurisdiction, consider affidavits tending to contradict the finding of that court in that respect; and Mr. Chief Justice Waite remarked: “In Zeigler v. Hopkins, 117 U. S. 683, 689, where affidavits were submitted, the finding of the court below as to value was not a material question in the case upon

Opinion of the Court.

its merits, but was more in the nature of an inquiry for the purpose of determining whether an appeal should be allowed, as in Wilson v. Blair, 119 U. S. 387. Here, however, the value of the property was one of the questions in the case and necessarily involved in its determination.”

In Zeiyler v. Hopkins, this court treated the finding of the court below upon the question of value as entitled to wellnigh conclusive weight; while in Wilson v. Blair, it was declared to be good practice for the Circuit Court to allow affidavits and counter affidavits of value to be filed, as calculated to save trouble to the parties and to the court. There, as in the case at bar, the district judge holding the Circuit Court, without the formality of deciding the question of value, allowed the writ of error, thus sending the case here on the affidavits free from any decision whatever as to their effect.

In Gage v. Pumpelly, 108 U. S. 164, the appeal was allowed after a contest as to the value of the matter in dispute, Judge Blodgett, who héid the Circuit Court, filing an opinion upon the question; and Mr. Chief Justice Waite, speaking for the court, said: “When an appeal has been allowed, after test as to the value of the matter in dispute, and there is evidence in the record which sustains our jurisdiction, the appeal will not be dismissed simply because upon examination of all the affidavits we may be of the opinion that possibly the estimates acted upon below were too high.”

The result of the cases may be fairly stated to 'be: (1) Where the demand is not for money but the nature of the action requires the value of the thing demanded to be stated in the pleadings, affidavits will not be received here to vary the value as appearing upon the face of the record; (2) nor will the filing of such affidavits be ordinarily permitted wbere evidence of value has been adduced below on both sides, and the proofs have been transmitted either with or without the announcement of a definitive conclusion deduced therefrom; (3) but where the writ of error is brought or appeal taken without question as to the value, and the latter is nowhere disclosed by the record, affidavits may be received to establish the jurisdictional amount, and counter affidavits may be



allowed if the existence of such value is denied in good faith.

The practice of permitting affidavits to be filed in this court arose from instances of accidental omission, where the value was not really in dispute, and it should not be encouraged to the extent of requiring us to reach a result upon that careful weighing of conflicting evidence, so frequently involved in determining issues of fact. If there be a real controversy on the point, let it be settled below in the first instance and on due notice; not here, upon ex parte opinions, which may embody nothing more than speculative conclusions.

In the case in hand, the value of the whole property was alleged in the petition, but was not an issuable fact, and the Circuit Court allowed the writ of error upon the prima facie showing made by the defendant, and on plaintiff's subsequently presenting evidence to the contrary, the controversy was referred to this court. This being the attitude of the case, we do not think it proper to allow affidavits to be filed here as if the question were now raised for the first time. Upon an examination of the record as returned, we are clear that the jurisdictional value is not made out by a preponderance of evidence. The motion to dismiss will, therefore, be sustained.

Writ of error dismissed.



No. 1301. Argued December 18, 1890.- Decided January 12, 1891.

Cases cited in which it has been decided that a person holding public office

may be compelled by writ of mandamus to perform the duties imposed

upon him by law. When the duty which the court is asked to enforce by mandamus is plainly

ministerial, and the right of the party applying for the writ is clear, and he is without other adequate remedy, the writ may issue ; but, where the effect of the writ is to discharge or control the head of an Executive Department in the discharge of a duty involving the exercise of judg. ment or discretion, it should not issue.

Opinion of the Court.

Cases cited and referred to in which a writ of mandamus will not be issued

to compel the performance of even a purely ministerial act. M. furnished material and performed labor for the United States under a

contract, and when the work was done and the materials furnished he presented his account to the proper officer for adjustment and settlement. The balance was found to be correct so far as the labor and material were concerned, but it was also found that through penalties and forfeitures that balance was liable to be materially reduced. It also appeared that M. was indebted to mechanics, sub-contractors, laborers and material men in a large amount for work done and materials furnished under the contract. The treasury officials agreed with M. that this account should be adjusted without enforcing the penalties and forfeitures, if he would consent that his said indebtedness should be paid out of the sum so allowed, and that the control of the money should not be given up until those claims were satisfied. He assented, and a draft was prepared accordingly. M. did not comply with those conditions, but instead thereof applied to the Supreme Court of the District of Columbia for leave to file an application for a writ of mandamus, to compel the Secretary of the Treasury to deliver the draft to him, without first making the agreed payments. That officer made a return to the petition, setting forth the foregoing facts. Held, (1) That the return showed disputed questions of law and fact, which

ought not to be tried in a proceeding for a mandamus, and that this was sufficient cause for the discharge of the rule and the

refusal to issue the writ ; (2) That the agreement between M. and the accounting officers was law

ful, and, if carried out, would have been proper.

The case is stated in the opinion.

Mr. Franklin H. Mackey for the relator.

Mr. Assistant Attorney General Maury for the Secretary of the Treasury, in opposition.

MR. JUSTICE Lamar delivered the opinion of the court.

This is a writ of error to the Supreme Court of the District of Columbia, to reverse a judgment of that court dismissing the relator's petition for a peremptory writ of mandamus against the respondent, William Windom, Secretary of the Treasury, commanding him to deliver to the relator a Treasury draft for $ 12,536 which had been lawfully assigned to the relator by William Mitchell, the payee.

Opinion of the Court.

The petition and its amendments allege that William Mitchell, in pursuance of a contract made with the United States on the third of September, 1886, furnished certain material and performed certain labor for the Life Saving Service, in the construction and repair of seven houses on the coast of Long Island in the State of New York; that his account therefor was adjusted on the 11th of February, 1888, by the Treasury Department, as shown by a letter from the Commissioner of Customs to Mitchell, stating that the sum of $12,536 was due to Mitchell, and adding, “ draft will be remitted;" that the account having been so adjusted nothing remained to be done by the Treasury officials but the ministerial duty of issuing a warrant and remitting to Mitchell a draft for the amount so found to be due; and that a draft, dated the 15th of February, 1888, was issued to Mitchell, but instead of being delivered to him or paid, it was sent to Captain George W. Moore, of the Life Saving Service, at New York, with instructions not to deliver said draft, nor to pay its amount to Mitchell, until Mitchell should pay certain claims presented against him, at the Treasury Department, to persons alleging his indebtedness to them for materials and labor. The petition further averred that there was no discretion residing in the respondent, the Secretary of the Treasury, or in any other government officer, as to the delivery of said draft; that none of those officers had any right or authority to interfere with Mitchell's private business, or to adjust any claims against him; that such an attempt on their part was a violation of Mitchell's rights and of the rights of the relator as his assignee; that Moore, in pursuance of the Secretary's instructions, did not deliver the draft or pay the amount of it to Mitchell, but returned it to the Secretary of the Treasury, who still retains the same in his possession, and still refuses to deliver it or to pay any part thereof to either Mitchell or the relator; that the said claims against Mitchell are unjust, and amount to $12,503, or within $33 of the amount of said draft; that even if they were not unjust the relator has no authority, under the terms of the assignment, to pay them, and has no means to pay them until the said draft is either delivered or

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