JACKSON V. SMWTH, AUDITOR.

The respondent cites a number of cases to sustain his assertion that mandamus will not lie in this case. He contends that this is an action against the auditor in such official capacity as he may have, and is in effect an action against the United States, and cites United States vs. Guthrie, Secretary of the Treasury, 17 How., 284, 302-34. Of course that case has been many times cited with approval by the Supreme Court of the United States. The principle was correctly applied there to the facts, but the case can not be a precedent here to support the respondent's contention.
There the relator Goodrich, on March 19, 1849, was duly commissioned Chief Justice of the Supreme Court of the Territory of Minnesota at a compensation of $1,800 a year, payable quarterly. The tenure of his office was four years. After having received his lawful compensation for the time he had served the relator was informed on October 22, 1851, by the Acting Secretary of State that the President had removed him from office and had appointed in his place Jerome Fuller. After the 4 years from the date of his commission had expired the relator preferred a claim before the First Auditor of the Treasury for the sum of $2,343 as compensation for the period that had elapsed from the date that he was removed from office to the termination of the 4-year period. The claim was rejected for the reason that there was no appropriation to pay his salary, and that the amount of the salary had been paid to Fuller who had fulfilled the duties of the office, and that the auditor and comptroller were bound to consider the removal of the relator and appointment of Fuller as legal and continuing. The Supreme Court affirmed the ruling of the Circuit Court in dismissing the application for the writ of mandamus upon the grounds that there is no power in the Circuit Court or in the Supreme Court to command the withdrawal of moneys from the United States Treasury to be applied in satisfaction of disputed claims against the United States; that no appropriation had ever been made to pay the salary of the relator, but that the appropriation had been made to pay the salary of the subsequent appointee of the President, who filled the office from which the relator had been removed; and that the acts of the auditor, the comptroller, and the Secretary of the Treasury in passing upon the claim were discretionary and quasi judicial and that they were not merely ministerial, and that, therefore the court had no power to mandamus these officials.
The principle announced as governing that decision has no application to the case at bar for the two cases are so different in essential particulars. A statement of these differences and further comment seem to be unnecessary. It is hardly necessary to add that the proceeding here is not an action against the United States but is an action to compel an official of the United States to do his plain ministerial duty under the laws of the United States.