tion of the clause in the Mississippi act upon which the company rests its claim of exemption from the duty to construct and maintain such a drawbridge as is described in the final judgment.

It was claimed in argument that the provisions of an act passed August 19, 1868, by the legislature of Louisiana, in reference to this railroad company, sustains the construction of the Mississippi act for which the railroad company contends. So much of the Louisiana act as bears upon this point is also given in the statement preceding this opinion. If the provisions of the Louisiana act may be consulted in determining the construction of the statute of Mississippi, we do not perceive anything in them which should lead to a conclusion different from that already indicated. The slight difference in the phraseology of the two acts does not justify the belief that the Louisiana legislature contemplated that the railroad company might cross the Pearl river, on the boundary line between that state and Louisiana, by a bridge which contained no draw. When the Louisiana act provided that, upon the location of the road across the Great Rigolet, at a point south of the principal entrance of the Pearl river into the Great Rigolet, "the company shall only be required to construct one draw-bridge, which shall be in the channel of the Great Rigolet," it was not meant to dispense with the draw-bridge required to be maintained in the channel of the Pearl river at the point where the road crossed that stream on the dividing line between Louisiana and Mississippi. As already stated, the location of the road below the principal mouth by which the Pearl emptied into the Great Rigolet, secured navigation through that mouth, against obstruction; consequently, a draw-bridge would be unnecessary across other and smaller mouths by which the Pearl formed a junction with the Great Rigolet. To avoid the possibility of any one claiming that draw-bridges should be constructed over all the mouths of the Pearl, large and small, crossed by the road in the vicinity of its junction with the Great Rigolet, it was provided that in the event the road passed below the principal entrance of Pearl river into the Great Rigolet, only one draw-bridge need be maintained in that locality, and that one over the Great Rigolet.

One other point pressed upon our attention remains to be considered. By an act of congress approved March 2, 1868, (15 St. 38,) this railroad company was empowered and authorized to construct and maintain bridges over navigable waters of the United States on its route between New Orleans and Mobile. That act declared that the railroad and its bridges,*when constructed, completed, and in use in accordance with that act "and the laws of the several states through whose territory the same shall pass, shall be deemed, recognized, and known as lawful structures and a post-road, and are hereby declared as such." The same act declares, by way of proviso, that the company, in the construction of its bridges over and across the waters known as East Pascagoula, the Bay of Biloxi, the Bay of St. Louis, and the Great Rigolet, shall construct and maintain draw-bridges in the channels thereof, which, when open, shall give a clear space for the passage of vessels of not less than 80 feet in the channels of East Pascagoula river, of the Bay of Biloxi, and of the Bay of St. Louis, and of not less than 100 feet in the channel of the Great Rigolet. There is nothing in this legislation by congress which, expressly or by implication, diminishes, in any degree, the legal obligation of the railroad company to maintain such draw-bridge in the channel of the Pearl river, on the line between Mississippi and Louisiana, as is required by the laws of those states. Nor does the act of congress affect the authority of any court of competent jurisdiction, as to the parties, to compel the discharge of that obligation. While congress provided that the draw-bridges over the East Pascagoula river, the Bay of St. Louis, and the Bay of Biloxi should give a clear space of 80 rather than 60 feet in width for the passage of vessels, it did not dispense with the requirement in the statutes of Mississippi and Louisiana of a draw-bridge in the channel of Pearl river. Presumably, congress was of

opinion that a draw-bridge in that river, giving a clear space of 60 feet, was ample for all purposes of navigation. Hence, the act of March 2, 1868, made no specific reference to Pearl river. The duty imposed by the states upon the railroad company, in respect of a draw-bridge in Pearl river, was the same after, as it was before, the passage of the act of congress; for that act, in express words, declares the railroad and its bridges to be lawful structures and à post-road, "when constructed, completed, and in use" in accordance with the act of congress "and the laws of the several states through whose territory the same shall pass." Mississippi gave its consent to the exercise and enjoyment by this company of its corporate powers within her limits upon the condition, among others, that it should construct and maintain a drawbridge of a particular kind in the channel of Pearl river where that stream is crossed by the company's road. That condition not having been performed, the state has a right to ask the aid of the court in compelling its performance. And, in granting the relief asked, no right belonging to the company under the constitution or laws of the United States has been violated or withheld. Judgment affirmed.

(112 U. S. 50)

BUTTERWORTH, Commissioner, etc., v. UNITED STATES ex rel. HOE and others.

(November 3, 1884.)

1. MANDAMUS-PUBLIC OFFICER ACTINg under OrdERS OF SUPERIOR.

Mandamus will not lie to compel a public officer to do a particular thing which his superior in authority has lawfully ordered him not to do.

2. COMMISSIONER OF PATENTS-HIS JUDGMENT AND DISCRETION TO REGULATE ISSUE OF PATENTS.

The judgment and discretion vested by the original patent law of 1790 in a majority of the three executive officers, the secretary of state, the secretary of war, and the attorney general, who were authorized to cause letters patent to issue, they shall deem the invention or discovery sufficiently useful and important," was transferred by the act of 1836, 7, to the commissioner of patents, it being made his duty to issue a patent for the invention, "if he shall deem it sufficiently useful and important.'

3. SAME-HIS ACTS IN ISSUING PATENT NOT SUBJECT TO REVIEW BY SECRETARY OF THE INTERIOR.

To whatever else supervision and direction on the part of the head of the interior department may extend, in respect to matters purely administrative and executive, they do not extend to a review of the action of the commissioner of patents in those cases in which he is by law appointed to exercise his discretion judicially. In Error to the Supreme Court of the District of Columbia.

Sol. Gen. Phillips, for plaintiff in error. A. J. Willard, for defendant in

error.

MATTHEWS, J. This is a writ of error prosecuted for the purpose of reviewing and reversing the judgment of the supreme court of the District of Columbia, awarding a peremptory mandamus commanding the plaintiff in error, the commissioner of patents, to receive the final fee of $20 tendered by the relators, and cause letters patent of the United States to R. Hoe & Co., as assignees of Gill, to be prepared and sealed, according to law, for a certain invention therein particularly described, and to be presented to the secretary of the interior for his signature. The facts upon which the controversy arises are shown by the record to be as follows: On March 12, 1881, Gill, one of the relators, made application in due form to the commissioner of patents for letters patent for certain new and useful improvements in printing machines, of which he claimed to be the original and first inventor. An interference was declared with an unexpired patent, No. 238,720, granted to Walter Scott, March 8, 1881. A hearing was had before the examiner of interferences, who decided in favor of Scott, and, on appeal to the examiners in chief, that decision was affirmed. An appeal from that decision was taken by Gill to the

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commissioner of patents, who decided that Gill was the original and first*`nventor of the improvements claimed, and was entitled to a patent therefor; and on June 4, 1883, adjudged that such patent should issue to the relators, composing the partnership of R. Hoe & Co., as assignees of Gill, the inventor. On June 14, 1883, an appeal was taken by Scott from that decision of the commissioner of patents to the secretary of the interior, under rules prescribed by that officer, dated May 17, 1883, who, on March 7, 1884, reversed the decision of the commissioner of patents in favor of Gill, adjudged Scott to be the original and first inventor of the improvements claimed, and that Gill was not entitled to a patent therefor. In his return to the alternative writ the commissioner of patents, admitting that he had refused, in compliance with the demand of the relators, to accept their tender of the final fee, and to prepare the patent for signature, and to take any further steps therein, declares: "That he so refused, not because he desired to make further inquiry, or to be further advised in that behalf, no motion or other proceeding for rehearing or review had been taken or was pending before him in that behalf, but that he based his refusal, and does so still, solely upon the ground that the honorable the secretary of the interior had entertained the appeal taken to him from said decision under the rules aforesaid, and had, in pursuance of said appeal, entered a decision reversing that of the commissioner of patents, and awarded priority of invention to Walter Scott."

The return proceeds as follows: "Your respondent further says that for many years, and until 1881, it was held, in pursuance of decisions and opinions of the honorable attorney general made in that behalf, that the honorable the secretary of the interior had, and therefore has, no legal authority to review on appeal a decision of the commissioner of patents wherein the commissioner has finally adjudged an applicant to be entitled to a patent as prayed for in his application; in other words, that the judgment of the commissioner of patents upon the right of an applicant to have and receive a patent is final and conclusive, subject only to review by the supreme court of the District of Columbia, and such other courts as have jurisdiction in that behalf, and by the commissioner; and the practice of the patent-office and of the honorable the secretary of the interior conformed thereto. This question, however, was again raised in the cases of Nicholson v. Edison and Le Roy v. Hopkins, and the honorable the attorney general of the United States, to whom the question was again referred, in an opinion signed on the twentieth day of August, 1881, held that the honorable the secretary of the interior had and could, on appeal to him, exercise the jurisdiction to review the decision of the commissioner of patents, and control his action in that behalf; and later on, to-wit, the twenty-sixth day of February, 1884, the honorable secretary, in an official letter, (a copy of which is hereto attached, marked E,) advised your respondent that he, the honorable secretary, had, in pursuance of the opinion of the honorable attorney general, exercised jurisdiction on appeal from the judicial action of the commissioner in determining questions devolved upon him by the statute. In deference to that opinion, and the action of the honorable the secretary of the interior in the case under consideration, your respondent refused, and does refuse, to accede to the demand of the relator. That, in view of the decisions and the uniform practice of the commissioners of patents and the heads of the department of the interior prior to 1881, doubt and uncertainty have arisen touching the legal obligations devolving upon your respondent in the case under consideration and those of like character. Your respondent further says that if the judgment of the commissioner of patents, which is that the relator is entitled to receive his patent as prayed for, is final, and if, upon such judgment, it is the lawful duty of the respondent to accept said final fee, and take the necessary and proper steps to prepare said patent for issued as prayed, then your respondent has improperly refused, and does improperly refuse, to prepare said patent for issue; but, if his decision is sub

ject to review and reversal on appeal to the honorable the secretary of the interior, then such refusal on the part of your respondent to accept said fee and prepare said patent for issue is right and proper."

The return of the commissioner also sets out as exhibits the decision of his predecessor in office awarding priority of invention to Gill, and adjudging him to be entitled to a patent; the appeal of Scott to the secretary of the interior; the rules governing such appeals as adopted and promulgated by that officer; the decision on that appeal by the secretary, communicated by letter to the commissioner, reversing the decision of the commissioner and awarding priority of invention to Scott, and a subsequent letter of the secretary to the commissioner, dated February 26, 1884, in which he states that at the request of his predecessor, Mr. Kirkwood, in connection with the case of Nicholson v. Edison and Le Roy v. Hopkins, the attorney general considered the question as to the extent of the supervisory authority of the secretary over the acts of the commissioner, and, in an opinion dated August 20, 1881, reached the conclusion that the final discretion in all matters relating to the granting of patents is lodged in the secretary of the interior; that Secretary Kirkwood concurred in that opinion, and from that time to the present, appeals from the judicial action of the commissioner of patents have been considered by the secretary of the interior; that the attention of congress was particularly directed to this new practice in the annual report of the secretary of the interior for 1881, and that there has not since been any legislative expression of dissent from the interpretation the existing law had received; and that he does not feel justified in discontinuing a practice which he finds thus established. It is clear enough that if the action of the commissioner of patents, in the matter of controversy, is subject to the order of the secretary of the interior, the judgment of the supreme court of the District of Columbia must be reversed; for mandamus evidently will not lie to compel a public officer to do a particular thing which his superior in authority has lawfully ordered him not to do. The direct and immediate question, therefore, for our determination is whether the secretary of the interior had power by law to revise and reverse the action of the commissioner of patents in awarding to Gill priority of invention, and adjudging him entitled to a patent.

The authority and power claimed by the secretary of the interior are asserted and maintained upon these general grounds: That he is the head of the department of which the patent-office is a bureau; that the secretary is charged by section 441, Rev. St., with the supervision of public business relating to patents for inventions, in the same terms and in the same sense as in the cases of the various other subjects which in that section are classed together, to-wit, the census, the public lands, the Indians, pensions, and bounty lands, the custody and distribution of publications, etc.; that by section 4883 it is required that all patents shall be signed by the secretary, as the responsible representative of the government, in whose name the grant is made, and countersigned by the commissioner of patents only to attest the act of his superior; that by section 481, while the commissioner is required to superintend or perform all duties respecting the granting and issuing of patents directed by law, it is thereby also provided that it must be under the direction of the secretary of the interior,-a clause to be read, it is argued, as if it were expressly inserted as a qualification of every statutory duty imposed upon the commissioner; that by section 483 the regulations which from time to time the commissioner may establish for the conduct of proceedings in the patent-office, are subject to the approval of the secretary; that by section 487 the reasons for the refusal of the commissioner to recognize any person as a patent agent, either generally or in any particular case, are subject to the approval of the secretary; that this general relation of official subordination, with the accompanying powers of supervision and direction, extends to all the official acts of the commissioner, without regard to any distinction between those

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which are merely ministerial and those which are judicial in their nature; and that such supervision and direction may be exerted at any stage of a proceeding, in the discretion of the secretary, whether in advance or during its progress, or after its termination, and embraces, therefore, the mode of appeal, though no appeal in express terms is actually given. And it is claimed that this conclusion is strengthened by the analogy of the other bureaus, forming parts of the various executive departments of the government, like that, for example, of the general land-office, the commissioner of which is by law subject to the supervision of the secretary of the interior, in respect to which it was decided in Maguire v. Tyler, 1 Black, 195, approved and affirmed in Snyder v. Sickles, 98 U. S. 203, that the power of supervision and appeal vested in the secretary extends to all matters relating to the general landoffice, and is co-extensive with the authority of the commissioner to adjudge. In reference to this argument from the analogy of the general relation of the heads of executive departments to their bureau officers, it may as well be observed, in this connection, that, although not without force, it will be very apt to mislead, unless particular regard is had to the nature of the duties intrusted to the several bureaus, and critical attention is given to the language of the statutes defining the jurisdiction of the chief and his subordinates, and the special relation of subordination between them respectively; for it will be found, on a careful examination, too extensive and minute to be entered upon here, that the general relation between them, of superior and inferior, is varied by the most diverse provisions, so that in respect to some bureaus the connection with the department seems almost clerical, and one of mere obedience to direction, while in that of others the action of the officer, although a subordinate, is entirely independent, and, so far as executive control is concerned, conclusive and irreversible. And in respect to the particular illustration drawn from the relation of the general land-office to the department of the interior, the language of the section of the Revised Statutes (section 453) describes the duties of the commissioner, to be performed under the direction of the secretary, as executive duties, while those which relate to the decision of questions of private right under the pre-emption laws, being quasi judicial, are made by section 2273 expressly subject to an appeal, first from the register and receiver to the commissioner, and from him to the secretary. Lytle v. Arkansas, 9 How. 314; Barnard's Heirs v. Ashley's Heirs, 18 How. 43. Each case must be governed by its own text, upon a full view of all the statutory provisions intended to express the meaning of the legislature. To determine that intention of the legislature, in reference to the principal question in the present case, it becomes important, in the first place, to obtain a clear idea of the nature and extent of the jurisdiction involved in the claim, that all the official acts of the commissioner of patents are subject to the direction and superintendence of the secretary of the interior. If the secretary is charged by law with the performance of such a duty, he is bound to fulfill it. It is imperative, not discretionary. He cannot discharge it, according to the intention of the statute, in a manner either arbitrary or perfunctory. While it may be admitted that, so far as the public alone have an interest in the proper performance by the commissioner of his duties in the administration of his bureau, the secretary might satisfy his duty of direction and superintendence by prescribing general rules of conducting the public business and securing, by general oversight, conformity to them; yet, on the other hand, it must also be admitted that whenever a private person acquires by law a personal interest in the performance by the commissioner of any act, he thereby also acquires an individual interest in the direction and supervision of the secretary, to correct any error, or supply any omission or defect in its performance, tending to his injury. It is a maxim of the law, admitting few if any exceptions, that every duty laid upon a public officer, for the benefit of a private person, is enforceable by judicial process. So that