An important case in this series of applications for mandamus against the heads of departments of the Federal administration is Carrick v. Lamar, 116 U. S. 423 (1886). This was an application for mandamus to the Secretary of Interior to cause a survey to be made of an island known as Arsenal Island in the Mississippi opposite St. Louis. The relator was one Carrick, who had made a settlement upon said island and wished the land surveyed and brought into the market. The Commissioner of the General Land Office rejected the application, but transmitted the papers to the Secretary of the Interior for his examination and instructions. The immediate predecessor of the present Secretary concurred with the Commissioner. The present Secretary declined to review the decision.

Mr. Justice FIELD delivered the opinion of the court: It is settled by many decisions of this court that in matters which require judgment and consideration to be exercised by an executive officer of the government, or which are dependent upon his discretion, no rule for a mandamus to control his actions will issue. It is only for ministerial acts in the performance of which no exercise of judgment or discretion is required that the rule will be granted. In the absence of any positive enactment the Secretary may therefore properly withhold any action tending to encourage a settlement there. This consideration alone is a sufficient answer to any rule for a mandamus.

Upon the distinction of a discretionary duty from a ministerial duty everything turns. Another case that confirms this is Burton v. Furman, 115 N. C. 166 (1894). The plaintiff was a claimant against a certain fund held

by the state. His present action was to ascertain and declare the amount due and to procure a mandamus to the Auditor of the State compelling him to issue the warrant, and to the Treasurer of the State to compel him to pay the same. It was proved that under the existing state of the law it was the duty of the State Auditor to examine and to liquidate the claims of all persons against the state, and the duty of the Treasurer to pass and pay all claims against the state.

Upon the basis of the independence of these officers in the execution of their powers, the opinion of Mr. Justice MACRAE was founded: The purpose of this writ of mandamus is to require some officer to do some particular thing which pertains to his office or duty. This writ will not be granted to compel the performance of an act involving the exercise of judgment and discretion on the part of the officer to whom its performance is committed. Mandamus will lie only when the act required to be done is imposed by law, is merely ministerial. But it does not lie where judgment and discretion are to be exercised; nor to control the officer in the manner of conducting the general duties of his office. In the present case, therefore, no mandamus will be granted to compel the performance of action involving the exercise of judgment and discretion.26

26 DISCRETIONARY DUTIES.-Gidley v. Palmerston, 3 Brod. & B. 275; Reg. v. Secretary [1891] 2 Q. B. 326; Marbury v. Madison, 1 Cranch, 169; United States v. Guthrie, 17 How. 284; United States v. Seaman, 17 How. 225; Commissioner v. Whiteley, 4 Wall. 522; Gaines v. Thompson, 7 Wall. 347; Decatur v. Paulding, 14 Pet. 497; Brashear v. Mason, 6 How. 92; Reeside v. Walker, 11 How. 272; Noble v. Logging R. R., 147 U. S. 165; United States v. Lamont, 155 U. S. 308; Ex parte Echols, 39 Ala. 698; Hawkins v. Governor, 1 Ark. 570; People v. Bell, 4 Cal. 177; State v. Staub, 61 Conn. 553; United (138)

§ 36. General.

The rule in all of these cases is the same; that rule is, that in all matters that involve the exercise of discretion by a public officer, no processes of the court will go to control the exercise of that discretion. This must always be the case when the duty in question is one in the performance of which the officer must make an investigation and form a judgment. In such a case the power is a power in the executive department; the judicial department will not, therefore, be competent to review the evidence before the officer and revise his judgment. That would involve the subordination of a co-ordinate department, as has been set forth in a previous chapter; what may be done and what may not be done along those lines was there explained to some extent. This rule. which invests the administration with independence in its action within the scope of discretion given to it is then a fundamental rule based upon elemental principles.

As much independence as this must be granted the

States v. Douglass, 19 D. C. 99; State v. Drew, 17 Fla. 67; State v. Thrasher, 77 Ga. 671; State v. Snodgrass, 98 Ind. 546; People v. Cullom, 100 Ill. 472; Hildreth v. Crawford, 65 Ia. 339; Dickens v. Cemetery Co., 93 Ky. 385; State v. Robinson, 1 Kan. 188; State v. Warmoth, 22 La. Ann. 1; Davis v. County Com'rs, 63 Me. 396; Miles v. Bradford, 22 Md. 170; Deehan v. Johnson, 141 Mass. 23; People v. Governor, 29 Mich. 320; State v. Somerset, 44 Minn. 549; Swan v. Gray, 44 Miss. 393; State v. McGrath, 91 Mo. 386; State v. Babcock, 18 Neb. 221; Sunapee School District v. Perkins, 49 N. H. 538; State v. Perrine, 5 Vroom. 254; People v. Chapin, 104 N. Y. 96; Raleigh, etc., R. R. v. Jenkins, 68 N. C. 499; State v. Moore, 42 Oh. St. 103; Carr v. Northern Liberties, 35 Pa. St. 324; Mauran v. Smith, 8 R. I. 192; Turnpike Co. v. Brown, 8 Baxt. 490; Chalk v. Darden, 47 Tex. 438; Richards v. Wheeler, 2 Aik. 369; McCullough v. Hunter, 90 Va. 699; State v. Harvey, 11 Wis. 33.

administration: that whenever a matter is left to the determination of a public officer his decision shall be final. The opinion in United States v. Windom, 137 U. S. 636 (1891), is a discriminating one. The petition was for a writ of mandamus against Windom, Secretary of the Treasury, by Redfield, the assignee of one Mitchell. Mitchell had furnished material and performed labor for the United States under a contract; when the work was done he presented his account to the proper officer for adjustment and settlement; the balance was found correct; but it was also found that through penalties and forfeitures that balance was liable to be reduced. The Treasury officers agreed with Mitchell that this account should be adjusted waiving the penalties and forfeitures, if he would consent that such indebtedness to sub-contractors should be paid out of the sum so allowed; he at first assented and a draft was prepared; then he refused to comply with these conditions.

Mr. Justice LAMAR said: The main assignment of error is that the court erred in not deciding that the duty of the Secretary to deliver the draft was purely a ministerial duty. The principles upon which persons holding public office may be compelled by writ of mandamus to perform duties imposed by the law have been distinctly defined and strictly adhered to in a great number and variety of cases before this court. That principle is that the writ of mandamus may issue where the duty which the court is asked to enforce is plainly ministerial, and when the right of the party applying for it is clear, and he is without any other adequate remedy; and it cannot issue in a case where its effect

is to direct or control the head of an executive department in the discharge of an executive duty involving the exercise of judgment and discretion. In the extreme caution with which this remedy is applied by the courts, there are cases when the writ will not be issued to compel even the performance of a purely ministerial act. We repeat that upon the prima facie showing of the relator the case is clearly one of ministerial duty, but the facts, circumstances and conditions set forth in the report of the Secretary of the Treasury places the matter in another and quite a different light. It comes to this, that an officer who had discretion at the beginning, had discretion to the end.

This same principle, that whenever there is discretion vested in an officer the courts are incompetent to review his judgment, is laid down again and again in an unusual variety of cases, involving every grade of officer and every sort of administration. One illustration from the mass of these authorities may be added: People v. Adam, 3 Mich. 427 (1854). The facts in that case were these: The relator was the holder of a certificate of sale of lands sold at tax sale for delinquent taxes of the year 1844. On July 4th, 1848, he presented said certificate at the office of the Auditor-General, and demanded a deed of the premises described in the certificate, which was refused; and thereupon he made application to compel the conveyance of the premises to him by the Auditor-General, upon surrender of his certificate.

The opinion in that case was this: By the Court (MARTIN, J.) The act of 1843, under which the premises in question were sold, and the right of the relator accrued,