ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.
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.*fn1
Pursuant to the agreement, the arbitrators and the umpire were appointed, and a commission thus composed, generally
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 8, 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
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 ...