1821.

McClung

V.

Silliman.

cannot be called upon to decide. But when the exercise of that power is extended to officers commissioned by the United States, it is immaterial under what law that authority be asserted, the controlling power of this Court may be asserted on the subject, under the description of an exemption claimed by the officer over whom it is exercised.

It is not easy to conceive on what legal ground a State tribunal can, in any instance, exercise the power of issuing a mandamus to the register of a land office. The United States have not thought proper to delegate that power to their own Courts. But when in the cases of Marbury v. Madison, and that of M-Intire v. Wood, this Court decided against the exercise of that power, the idea never presented itself to any one, that it was not within the scope of the judicial powers of the United States, although not vested by law, in the Courts of the general Government. And no one will seriously contend, it is presumed, that it is among the reserved powers of the States, because not communicated by law to the Courts of the United States?

There is but one shadow of a ground on which such a power can be contended for, which is, the general rights of legislation which the States possess over the soil within their respective territories? It is not now necessary to consider that power, as to the soil reserved to the United States, in the States respectively. The question in this case is, as to the power of the State Courts, over the officers of the general Government, employed in disposing of that land, under the laws passed for that purpose. And here it is obvious, that

he is to be regarded either as an officer of that Government, or as its private agent. In the one capacity or the other, his conduct can only be controlled by the power that created him; since, whatever doubts have from time to time been suggested, as to the supremacy of the United States, in its legislative, judicial, or executive powers, no one has ever contested its supreme right to dispose of its own property in its own way. And when we find it withholding from its own Courts, the exercise of this controlling power over its ministerial officers, employed in the appropriation of its lands, the inference clearly is, that all violations of private right, resulting from the acts of such officers, should be the subject of actions for damages, or to recover the specific property, (according to circumstances) in Courts of competent jurisdiction. That is, that parties should be referred to the ordinary mode of obtaining justice, instead of resorting to the extraordinary and unprecedented mode of trying such questions on a motion for a mandamus.

JUDGMENT. This cause came on to be heard, on the transcript of the record of the Supreme Court of the State of Ohio, for Muskingum county, and was argued by counsel. On consideration whereof, it is ADJUDGED and ORDERED, that the judgment of the said Supreme Court of the State of Ohio, be, and the same is hereby affirmed, with costs; it being the opinion of this Court, that the said Supreme Court of the State of Ohio, had no authority to issue a mandamus in this case.

1821.

M-Clung

V.

Silliman.

1821.

The Mutual
Assurance
Society

V.

Faxon.

March 16th.

(Local Law.)

THE MUTUAL ASSURANCE SOCIETY V. FAXON et al.

Under the laws in relation to the Mutual Assurance Society of Virginia, property offered for insurance, on which the premium has not been paid, and which is sold without notice, is not liable for the premium in the hands of the vendee.

Mr. Justice JOHNSON delivered the opinion of the Court.

This case first came up on a difference of opinion certified from the Circuit Court of Alexandria, but the writ of error was dismissed, because that Court could not, in law, or the nature of things, certify such a difference to this Court.

It has since passed to a final decree, and although the sum on the record is small, a special permission to appeal has been granted on cause shown; it being a case affecting many others similarly situated.

The question is, whether property offered for insurance, in which the premium has not been paid, and which has been sold without notice, remains liable for the premium in the hands of the vendee?

The case of the Mutual Assurance Society v. Executors of Watts, decided in February, 1816, in this Court, is relied on as authority for maintaining the affirmative.

It is to be regretted, that the case referred to had

a 1 Wheat. Rep. 279.

not been more fully reported. As it is not preceded by any statement of facts, abstracts of the history and laws of this society, or the arguments of counsel, the insulated unexplained opinion of the Court, as it is printed, must be ever unintelligible to all descriptions of readers, except those whose professional duties lead them to the study of the novel and extensive institution whose interests are involved in it.

But there is enough exhibited, to show, that it affords no precedent for the claim set up in this case. It is true, that the Court occasionally uses the term premium, when speaking of the quota; but in every instance it will be found to be used when reasoning upon the quota as the purchase money, in part of the right of the insured to compensation, which, by analogy to other cases of insurance, is in that sense denominated a premium.

But there exists no analogy under the laws of the company between the liability of property insured for a premium and a quota.

The first is the sum paid down before the contract is entered into; the second, the occasional contribution exacted of individuals to make up the losses from time to time sustained. The 6th section of the act of December 22d, 1794, gives an express lien for the quota, and takes no notice of the premium, but as the rule for graduating the respective quotas. In the case alluded to, it was decided, that the lien thus created, had its origin in contract, although enforced by statute, and continued a mortgage on the premises, until vacated according to the provisions of the several laws which regulated the company.

1821.

The Mutual
Assurance
Society

V.

Faxon.

1821.

But the very reasons upon which that decision was placed, are fatal to the pretensions set up in The Mutual Assurance this.

Society

V.

Faxon.

There is no express lien created in any of the laws of the company, and there are no provisions in any of those laws from which it could be inferred, (if it were possible ever to infer a lien,) but those which authorize a sale of land to satisfy the premium. But a right to sell the land is completely satisfied by subjecting it to such sale while in the hands of the first holder, and there are two of the by-laws of the company, which expressly negative every pretence for carrying it any further. The first is the 8th section, 4th article, of the act of January 29th, 1805, which requires immediate payment of the premium upon the acceptance of the declaration, and the second is, the 6th section of the 5th article, which declares, that insurance shall not commence until the premium be paid.

Decree affirmed.

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