
    H. H. SCOVILLE ET AL. v. W. B. HADLEY, Acting Auditor of Porto Rico.
    1. Under § 36 of the act of Congress approved April 12, 1900 (31 Stat. at L. 77, chap 191), providing a civil government for Porto Rico, commonly known as the Foraker law, the salaries and expenses of the district court of the United States for Porto Rico are payable on the warrant of the auditor, countersigned by the governor of the island, and the duty of at least the auditor in that regard is purely ministerial.
    2. It is not within the power of the legislative assembly of the island of Porto Rico to pass any law contrary to such organic act, that will hamper that court or its officers in the exercise of the judicial functions conferred upon it by national authority.
    3. The district court of the United States for Porto Rico is, by said act of Congress, vested with power to appoint all its own necessary officials other than those otherwise provided for in said act, and it is not within the power of the local assembly to appoint the insular paymaster as an official of said court.
    4. All courts, when legally created, have power inherent in themselves to issue all writs necessary to preserve their existence, independent of the question as to whether direct power is given to them to issue writs of mandamus; and hence they can issue such writs where the same becomes necessary for such purpose, in order to oblige officials over whom they have jurisdiction to perform a ministerial duty affecting the existence of the court.
    5. Where a duly and legally created court is in the regular performance of its functions, and issues a peremptory writ of mandamus to enforce the performance of a ministerial act by an official, and where the refusal to perform such ministerial act threatens the existence of the court, the respondent is not entitled to supersedeas on taking an appeal, and the appeal should not be granted until after the performance of the duty commanded by the writ.
    
      Case decided on points as above, and peremptory writ issued January 7, 1908.
    
      Mr. N. B. K. Peitingill, for petitioners.
    
      Mr. J. Henri Brown, Assistant Attorney General of Porto Pico, for respondent.
   Statement.

This was an application for a writ of mandamus by the petitioners, who were respectively the clerk and marshal of this court, against the acting auditor of the island of Porto Rico, to compel him to draw his warrants so that the same might be countersigned by the governor in payment of the salaries and expenses of this court. Pull argument was had, and all the points involved therein were decided as in the foregoing syllabus set out.

A peremptory writ was issued, and an appeal without super-sedeas being allowed was thereafter taken from it to the Supreme Court of the United States, where the case is still pending. The questions decided in the matter are so unique, and the conditions that brought them about are so unusual, as that, even though matters were amicably settled shortly after the appeal, and all proceedings are to be dismissed, still the record is well worth preserving; and, while it is rather prolix, no better statement of the matter can be made than those embodied in

the findings of fact and law on the appeal, which Rodey, Judge, made and settled as follows:

H. H. Scoville, Clerk of said Court; H. S. Hubbard, Marshal thereof; and Salvador Erias, a Juror, Pills. v. W. B. Hadley, Acting Auditor of Porto Rico, Dft.

In the Matter of Mandamus for the Payment of Expenses of Said Court.

Findings of Fact and Law on Appeal to the Supreme Court of the Hnited States.

The defendant has prayed and been granted an appeal to the Supreme Court of the Hnited States in the above-entitled matter, and it becomes necessary, under the rules, for us to make the following statement of our findings of fact and law in the premises; but the conditions are such that it is practically impossible for us to make separate succinct findings of law and fact, and therefore both are embodied in the following statement :

This court was created by § 34 of the act of Congress of April 12, 1900, 31 Stat. at L. 84, chap. 191, q. v. It was shortly thereafter organized, and proceeded in the exercise of its functions. For the first year after its existence the salaries of its judge and other officers, as well as all its expenses, were paid out of the national Treasury the same as in the case of any other court of tbe United States. Then a change was made by order of tbe Department of Justice, and the salaries and expenses of tbe court were thereafter paid under § 36 of tbe organic act aforesaid, q. v., on tbe warrant of the auditor of tbe island of Porto Pico, countersigned by tbe governor thereof, in tbe following manner. Tbe form of procedure in tbe payment of these salaries and expenses from 1902 to tbe middle of tbe year 1907 was, that tbe United States marshal submitted to tbe court monthly, in advance, or at the proper time in each month, an estimate of tbe amount of money be would require for such monthly expenses. The court, after examining tbe same, would indorse its approval thereon, and make an order to tbe same effect. Tbe requisition was then submitted to tbe auditor of tbe island, who issued bis warrant for tbe amount called for, and tbe same was immediately thereafter presented to tbe governor, who countersigned it, and tbe treasurer of tbe island paid tbe money to tbe marshal. Tbe marshal thereafter, at tbe proper time, issued bis personal checks to tbe judge and other officers of tbe court for their several salaries, and caused them to sign proper pay rolls therefor in duplicate. Tbe marshal then paid all bills and expenses of tbe court, which bad previously been submitted to tbe court for its approval, from tbe money thus in bis bands, and then submitted tbe pay rolls and all these expense accounts, tbe latter accompanied by proper vouchers therefor, to tbe auditor of tbe island, who in turn duly and finally audited and allowed or disallowed tbe same as be thought proper, and tbe whole matter of accounting was carried on and settled in that way.

On March 14, 1907, the insular legislative assembly, presumably on tbe request of tbe auditing department of tbe island, passed a law (Session Laws P. K. 1907, p. 191) wbicb reads as follows:

“Section. 1. Disbursements of public moneys or funds of tbe people of Porto Pico shall not be made except on warrants drawn by tbe auditor of Porto Pico, and countersigned by tbe governor, in payment of claims or accounts approved by tbe bead of tbe department in wbicb said claims or accounts bave arisen, or as authorized by law, and wbicb bave also been examined, settled, and certified for payment by tbe auditor: Provided, that this section shall not be interpreted to prevent, at any time, tbe appointment of special disbursing officers for certain appropriations, where, in tbe opinion of tbe auditor and upon tbe approval of tbe governor, it is deemed necessary.
“Section 2. Tbe bureau of disbursements of tbe treasury department is hereby abolished, and a bureau of tbe paymaster in tbe treasury department created, to consist of a paymaster, assistant paymaster, who shall act as a paymaster in tbe latter’s absence, and such clerks and other help, with such remuneration as tbe legislative assembly may, from time to time, determine. Any appropriation that may be made for tbe support of tbe bureau of disbursements of tbe treasury department for tbe fiscal year ending June 30, 1908, shall be available for tbe payment of tbe salaries of tbe paymaster, assistant paymaster, clerks, and other assistants of tbe paymaster’s bureau of tbe treasury department, hereby created, and also to pay tbe compensation of the additional clerks in tbe office of tbe auditor as the legislative assembly may, from time to time, determine. Tbe paymaster and assistant paymaster shall furnish adequate bonds, in tbe form and manner prescribed by law.
“Section. 3. Tbe duties of tbe bureau of tbe paymaster shall be to make payments by means of paymaster’s checks upon such warrants of the auditor, countersigned by the governor, as the treasurer may designate. The treasurer shall draw his draft in favor of the paymaster for such warrants, and the paymaster shall make the several payments mentioned therein. The paymaster shall keep such records and books of accounts as the treasurer and auditor may require.
“Section 4. Such sections or parts of the Political Code and all other laws and parts of laws in conflict with the provisions of this act are hereby repealed.”

On July 1st, 1907, the auditor of the island notified the United States marshal that this local act of the assembly applied to this court, and that he would not thereafter honorr requisitions made in the usual way, but that the salaries and expenses of the court would have to be paid through a local paymaster, as in all other cases, and that no accounts, salaries, or expenses of the court of any kind would be permitted to be paid unless first approved by the head of the department in which the same arose, and only after they had previously been examined, settled, and certified for payment by the auditor of Porto Rico.

We met the auditor about this time, and protested against his effort to have the aforesaid local act apply to this court, and contended that, even by its terms, it did not so apply, and that, anyway, to pass it was an ultra vires act as to the local assembly. That it would hamper and cripple the court in its functions. That it would often result in the insular auditor being in fact the arbiter as to whether prosecutions should be begun, and would, when the court was in outside districts, often leave it and its officers helpless.

About this time the marshal as well as the clerk of the court complained that this was an attempt not authorized by law, to oust the United States marshal as disbursing officer of the court, and to reduce him to the condition of a bailiff. We thereafter went personally to see the auditor again, and he continued to claim that the law did apply to this court, but stated that, if a letter from the Attorney General could be procured, requesting his department to waive the provisions of this law as to this court, that he would acquiesce. The court made a trip to Washington, and conferred with the office of the Attorney General of the United States about it, and secured such a letter from him. When the auditor on the island here received the letter, he did not think that it was any expression of opinion, or any command on the part of the Attorney General to him, and so he declined to waive any of the provisions of the law as to this court. At this time the court was on its vacation in the States, and all officers of the court remained thereafter without any salary or compensation for several months; besides, no bills of the court of any kind or character were paid during that period, nor did the court receive any money for its use from any source whatever. On returning to the island in the fall, and resuming business in open court, we found it difficult to proceed without funds. Personally the court made several trips to see the acting governor and the acting auditor about the matter, with a view to getting them to waive their position that this law applied to this court, but without avail.

We also did a very considerable amount of writing about the matter to the office of the Attorney General of the United States, and cabled an account of the matter to the President of the United States, hoping that a word from him to the governor and auditor of Porto Pico, who were present in Washington at this time, might result in a settlement of the dispute there. The President, however, did not receive this cablegram, as he had that day started on his hunting trip to the southwest, and the matter was therefore referred to the office of the Attorney General. The court made another trip to see the acting auditor about the matter, but could not come to any understanding that this law should, in whole or in part, be waived as to this court. The acting governor thereupon wired the whole condition to the governor and auditor, who were both then present in Washington. They applied to the Attorney General for an opinion in the matter, which was refused, on the ground that such request must come direct from the President of the United States or from a cabinet officer. Thereupon the governor and auditor applied to the Honorable the Secretary of the Treasury, and procured him to make such request of the Attorney General. Several weeks thereafter the opinion of the Attorney General came to hand. lie held that the local legislative assembly had power to pass such a law, but that the local auditor had power, under its terms, and no doubt would exercise it, to advance money to the marshal, and he stated his views in the following words: “The marshal can, and undoubtedly will, be advanced money as a special disbursing officer, to pay witnesses and jurors and all expenses which, from their nature, must be paid without delay.”

Immediately thereafter the auditor of the island offered to make the United States marshal disbursing officer of this court for the purpose of settling with jurors and witnesses, but he did not think it necessary to go to the extent suggested by the Attorney General in his opinion, of making the marshal also disbursing officer as to any of the expenses of the court. Therefore no agreement was arrived at, and the court and its officers still remained without any salaries or expenses. Matters continued in this way for a short time; a term of court came on, grand and petit juries were empaneled and were being discharged hourly, and the bills and accounts for the four months previous, when the court had been without money, kept coming in. The court made another trip to the governor and to the acting auditor, with a view to arriving at some compromise, so as to prevent any unseemly dispute arising that might be a bad example to the people of the island, but still without avail.

After this we could see nothing to be done but to issue orders under the strict letter of § 36 of the organic act aforesaid, against the auditor of the island, so that he might, after, in his discretion, duly auditing the same, issue his warrant therefor, and the governor might have an opportunity to countersign the same, and we therefore proceeded to do this, and thereafter issued such orders, allowances, approvals, and certificates. The acting auditor refused absolutely to act on or allow any of them, although they were often certified copies of orders made in open court. As to some of them, he sent back word that they must be made out on certain vouchers, in accordance with some alleged requirement or regulation of his office, and that, as to any that were to be paid quickly, that could only be done through someone to be named by his office as paymaster for the disbursement of certain of the funds of this court under the local accounting law above quoted, even though the appointment of all subordinate officers of this court is left to the- judge thereof under § 34 of the organic act, aforesaid. Jurors and witnesses and others were thus kept seesawing back and forth between the court and the auditing department, and were, made to wait around for several days without being able to obtain any satisfaction as to how their bills and allowances were to be paid. The situation can be imagined even without reference to the dignity of a court. The clerk and marshal appealed to the court on several occasions to put an end to the matter, and asked that an order to show cause be issued against the acting auditor, and papers were prepared once, or twice, but not served, as it was hoped the difficulty could be avoided. Finally, on the 12th day of November, 1907, the clerk of the court and the marshal repeated these representations to the court, and showed that an approved order and allowance in the sum of thirty-nine dollars and five cents ($39.05), issued to one Salvador Frias, a juror, the day previous, had not been paid, nor had several other allowances and certificates of the same character been paid. The order or allowance so issued to said Frias, and certified to said acting auditor, was in words and figures as follows:

No. 321. United States District Court, District of Porto Pico.

Oct. Term, 1907.

It appealing to the court that Salvador Frias, of Humacao, has attended as a petit juror eleven days, at $3 per day, Nov. 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, and 23, . $33.00

and is entitled to 40% miles travel at 15 cents per mile 6.05

It is ordered by the court that he be paid. $39.05

Copied from the Journal.

San Juan, P. P., Nov. 23, 1907.

Attest: TI. H. Seoville, Clerk. By: C. A. Davidson, Deputy.

Tbe clerk and tbe marshal also at this time renewed tbeir application to tbe court for an order to show cause against the acting’ auditor. On consideration of tbe matter, we refused to grant this order to show cause, and stated that we bad more than ample personal knowledge of all the facts, and that conditions bad become intolerable, and that tbe issuance of an order to show cause would be useless. That it was, in our opinion, clearly the ministerial duty of ,the said acting auditor to at once audit all such' allowances, accounts, and certificates, and to issue bis warrant therefore under § 36 of tbe organic act, so that such warrants might be countersigned by tbe governor, and that we were of opinion that this was all tbe more certainly bis duty since tbe legislative assembly of Porto Pico bad, on tbe 14th day of March, previously appropriated 'and set aside for tbe use and benefit of this court, to be used for tbe purpose of paying tbe salaries and expenses thereof for tbe fiscal year beginning July 1st, 1907, previously, tbe sum of $39,580, no part of which sum bad yet been expended, and that we bad personal knowledge of tbe acting auditor’s positive refusal to either audii such orders, appiwed accounts, allowances, or certificates, or issue bis warrant for any of tbe same, and that it would be a useless ceremony to issue an order to show cause against him, and that, as be was doing all this virtually in facie curim, we would at once issue an absolute and peremptory writ of mandamus against him in tbe premises, which was thereupon done.

Tbe next morning the attorney .general of the island came into court with the acting auditor, and desired to take an appeal from tbe action of the court in so issuing its peremptory writ of mandamus in tbs premises. We refused to grant this appeal unless tbe attorney general would state tbat tbe writ itself bad been obeyed, and tbat we would then willingly grant tbe appeal, but without supersedeas, on tbe ground tbat tbe very existence and life of tbe court itself was involved, and tbat all courts, when legally created, bad power inherent in themselves to preserve their existence independent of tbe questions as to whether direct power was given them to issue writs of mandamus. Whereupon tbe attorney general properly excepted to this ruling, and then announced tbat tbe acting auditor bad already obeyed tbe writ, and would continue to obey it until tbe further order of court or tbe reversal of its action by tbe Supreme Court of tbe United States. Tbe appeal was then at once granted, as aforesaid, without supersedeas, for the reasons stated, tbe appellant at once giving a proper bond for costs in tbe premises. This is all tbat has taken place in tbe matter to date.

Signed and settled as tbe court’s specific findings of law and fact, as aforesaid, this 7th day of January, 1908, and ordered to be transmitted with tbe record to tbe Honorable tbe Supreme Court of tbe United States.  