Counsel for Parties.

UNITED STATES ex rel. ANGARICA v. BAYARD.

ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

No. 1241. Argued January 5, 1888. — Decided April 30, 1888.

On a petition for a writ of mandamus to the Secretary of State to compel him to pay to the petitioner the interest or income derived from the investment of a sum of money received by a predecessor of his, in office, as part of an award made by the Spanish-American Claims Commission, which sum of money had been eventually paid to the petitioner: Held, that the Secretary was not liable to pay such interest or income, because (1) The award was to be paid by the Spanish government to the government of the United States.

(2) It was paid by the Spanish government to the Secretary of State of the United States, representing the government of the United States.

(3) The money withheld was withheld by the United States, and the petitioner's claim, based on the withholding, was a claim against the United States.

(4) The case fell within the well-settled principle that interest is not allowed on claims against the United States, unless the government has stipulated to pay interest, or it is given by express statutory provision.

(5) No claim for the allowance of interest could be predicated on the language of any notification, or circular or letter which issued from the Department of State, during the administration of a predecessor of the Secretary; no binding contract for the payment of interest was thereby created; and the present Secretary was at liberty to act on his own judgment, irrespective of anything contained in any such notification, circular or letter.

THIS was a petition for a mandamus. The writ was refused, and the relator sued out this writ of error. The case is stated in the opinion.

Mr. Edward K. Jones for plaintiff in error. Mr. F. R. Coudert was with him on the brief.

Mr. Assistant Attorney General Maury for defendant in

error.

Opinion of the Court.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

In this case, Lutzarda Angarica de la Rua, executrix of the estate of Joaquin Garcia de Angarica, deceased, presented a petition to the Supreme Court of the District of Columbia, praying for a writ of mandamus to be issued to Thomas F. Bayard, Secretary of State of the United States, to pay the petitioner the amount of the interest or income derived from a certain investment of money. The case was heard in the first instance by the general term of that court, which rendered a judgment, on the 7th of December, 1885, dismissing the petition, with costs, on the ground that mandamus was not the remedy applicable to the case stated in the petition. 4 Mackey, 310. The petitioner has brought a writ of error in the name of the United States, on her relation, to reverse that judgment.

The following are the material facts of the case: On the 12th of February, 1871, an agreement was concluded between the United States and Spain, for the settlement of certain claims of citizens of the United States, 17 Stat. 839, of which a copy is set forth in the margin.1

"Memorandum of an arbitration for the settlement of the claims of citizens of the United States, or of their heirs, against the government of Spain for wrongs and injuries committed against their persons and property, or against the persons and property of citizens of whom the said heirs are the legal representatives, by the authorities of Spain, in the Island of Cuba, or within the maritime jurisdiction thereof, since the commencement of the present insurrection.

"1. It is agreed that all such claims shall be submitted to arbitrators, one to be appointed by the Secretary of State of the United States, another by the Envoy Extraordinary and Minister Plenipotentiary of Spain at Washington, and these two to name an umpire who shall decide all questions upon which they shall be unable to agree; and in case the place of either arbitrator or of the umpire shall from any cause become vacant, such vacancy shall be filled forthwith in the manner herein provided for the original appointment.

"2. The arbitrators and umpire so named shall meet at Washington within one month from the date of their appointment, and shall, before proceeding to business, make and subscribe a solemn declaration that they will impartially hear and determine, to the best of their judgment, and according to public law and the treaties in force between the two countries

Opinion of the Court.

Pursuant to the agreement, the arbitrators and the umpire were appointed, and a commission thus composed, generally

and these present stipulations, all such claims as shall, in conformity with this agreement, be laid before them on the part of the government of the United States; and such declaration shall be entered upon the record of their proceedings.

3. Each government may name an advocate to appear before the arbitrators or the umpire, to represent the interests of the parties respectively.

4. The arbitrators shall have full power, subject to these stipulations, and it shall be their duty, before proceeding with the hearing and decision of any case, to make and publish convenient rules prescribing the time and manner of the presentation of claims and of the proof thereof; and any disagreement with reference to the said rules of proceeding shall be decided by the umpire. It is understood that a reasonable period shall be allowed for the presentation of the proofs; that all claims, and the testimony in favor of them, shall be presented only through the government of the United States; that the award made in each case shall be in writing, and, if indemnity be given, the sum to be paid shall be expressed in the gold coin of the United States.

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“5. The arbitrators shall have jurisdiction of all claims presented to them by the government of the United States for injuries done to citizens of the United States by the authorities of Spain, in Cuba, since the first day of October, 1868. Adjudications of the tribunals in Cuba concerning citizens of the United States, made in the absence of the parties interested, or in violation of international law or of the guarantees and forms provided for in the treaty of October 27, 1795, between the United States and Spain, may be reviewed by the arbitrators, who shall make such award in any such case as they shall deem just. No judgment of a Spanish tribunal, disallowing the affirmation of a party that he is a citizen of the United States, shall prevent the arbitrators from hearing a reclamation presented in behalf of said party by the United States Government; nevertheless, in any case heard by the arbitrators, the Spanish Government may traverse the allegation of American citizenship, and thereupon competent and sufficient proof thereof will be required. The commission having recognized the quality of American citizens in the claimants, they will acquire the rights accorded to them by the present stipulations as such citizens. And it is further agreed that the arbitrators shall not have jurisdiction of any reclamation made in behaif of a native-born Spanish subject, naturalized in the United States, if it shall appear that the same subject-matter having been adjudicated by a competent tribunal in Cuba, and the claimant, having appeared therein, either in person or by his duly appointed attorney, and being required by the laws of Spain to make a declaration of his nationality, failed to declare that he was a citizen of the United States; in such case. and for the purposes of this arbitration, it shall be deemed and taken that the claimant, by his own default, had renounced his allegiance to the United

Opinion of the Court.

known as the "Spanish-American Claims Commission," was established. Angarica filed a claim before the commission, and it decided that he had a right to recover damages to the amount of $748,180, with interest at 6 per cent per annum thereon from November 1, 1875, to the day of payment. The full amount of the award was paid to the Secretary of State of the United States in two instalments, namely, March 27, 1877, $406,894.96, and, October S. 1877, $415,699.75, making a total of $822,594.71. The whole amount was paid over by the Secretary, except $41,129.74, being 5 per cent of the amount received, which sum the Secretary retained until the government of Spain should make provision for paying the expenses of the commission. Of the $41,129.74 so retained, so much as could be utilized for the purpose was invested in securities of the United States, and thereafter the surplus, with the interest which accrued on the first investment, was similarly invested, and so were subsequent accumulations of interest. In a circular letter addressed by the then Secretary of State to Angarica, when the 5 per cent was withheld, it was said: Five per centum of the amount due in each case will be reserved for the present, to meet the expenses of the commission, until a payment to cover such expenses shall have been made by Spain in conformity with the provision in that regard of said agreement of February 12th, 1871, between the United States and Spain."

In a report made by Mr. Evarts, Secretary of State, to the President, dated February 16, 1880, and transmitted by him

States. And it is further agreed that the arbitrators shall not have jurisdiction of any demands growing out of contracts.

"6. The expenses of the arbitration will be defrayed by a percentage to be added to the amount awarded. The compensation of the arbitrators and umpire shall not exceed three thousand dollars each; the same allowance shall be made to each of the two advocates representing respectively the two governments; and the arbitrators may employ a secretary at a compensation not exceeding the sum of five dollars a day for every day actually and necessarily given to the business of the arbitration.

"7. The two governments will accept the awards made in the several cases submitted to the said arbitration as final and conclusive, and will give full effect to the same in good faith and as soon as possible.”

Opinion of the Court.

to the Senate, the Secretary stated that "this retention of 5 per centum may be regarded as provisional only, the commission not having yet taken the final step of adding a percentage to the amount of its awards in order to meet the expenses of the commission." The then Secretary of State also notified Angarica that "it is hoped that no great delay will occur in receiving the payment from Spain, which will liberate this reserve for expenses, and the Department will expect to keep this reserve invested in interest-bearing securities of the United States, to cover the delay in its distribution to the claimants." On the 12th of February, 1885, Mr. Frelinghuysen, then Secretary of State, paid to the petitioner the $41,129.74, but did not pay any interest or income which had been earned by its investment. Correspondence thereupon ensued between the attorneys for the petitioner and Mr. Frelinghuysen, in regard to the payment of such interest, in which such attorneys referred to a letter written to them on the 13th of September, 1880, by Mr. Evarts, then Secretary of State, in which they alleged that he had officially promised to pay the interest earned on the money; but no copy of such letter is found in the record. Mr. Frelinghuysen declined to pay any interest. The attorneys renewed the correspondence with Mr. Bayard, in October, 1885, but he refused to pay the interest, on the ground that the matter had been decided by his predecessor, and that his decision was in accordance with the almost unbroken rulings of the executive and judicial departments of the government, citing the opinion of Attorney General Cushing, 7 Opinions Attorneys General, 523, and the case of Gordon v. United States, 7 Wall. 188. Further correspondence ensued, and, in one letter, Mr. Bayard stated that the investment of the retained moneys was in pursuance of the general system founded on § 2 of the act of September 11, 1841, c. 25, 5 Stat. 465, now § 3659 of the Revised Statutes, by which it is prescribed that "all funds held in trust by the United States, and the annual interest accruing thereon, when not otherwise required by treaty, shall be invested in stocks of the United States, bearing a rate of interest not less than five per centum per annum;" that, the enactment being