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BRASHEAR V. MASON, 47 U. S. 92 (1848)
U.S. Supreme Court
Brashear v. Mason, 47 U.S. 6 How. 92 92 (1848)
Brashear v. Mason
47 U.S. (6 How.) 92
Under the joint resolutions of Congress providing for the annexation of Texas to the United States, the officers of the Navy of Texas did not pass into the naval service of the United States. The transfer of the Navy of Texas related exclusively to the ships of war and their armaments.
A mandamus against the Secretary of the Navy will not lie at the instance of an officer to enforce the payment of his pay.
This was an application to the circuit court for a mandamus under circumstances which are thus stated by that court in its opinion.
William C. Brashear petitioned the court for a rule on John Y. Mason Secretary of the Navy of the United States, to show cause why a mandamus should not issue commanding him, as Secretary of the Department of the Navy, to cause payment to the petitioner of his just dues as an officer in the navy for the time past since the annexation of Texas to the United States.
The petitioner states that in pursuance of the Constitution and laws of the Republic of Texas, he was, on 23 June, 1845, by the then president of the said republic, commissioned as a commander in the navy of the republic, and forthwith entered into service under orders from the Department of War in Texas, and continued in that service from 23 September, 1844, thenceforth, and was so in service when the joint resolution of the Congress of the United States passed for annexing Texas to the United States was approved and when the said State of Texas was admitted into the Union and Confederacy of the United States of America, and was actually in service and a commander in the Navy of Texas when the ship Austin, brigs Wharton and Archer, and schooner San Bernard, armed vessels of war of and belonging to the Texan Navy, were delivered over to the United States under the terms and articles of compact and agreement between the United States of America and the Republic of Texas, and as such he is advised that he is in good faith, and in accordance with the said articles of agreement, compact, and treaty of annexation, an officer in the navy and entitled to his pay and emoluments from the United States.
The petitioner further states that he never has resigned his commission nor been cashiered nor dismissed, that he has regularly reported himself for duty under the said commission
to the Secretary of the Navy of the United States, and has demanded his pay as an officer, but the Secretary of the Navy of the United States has hitherto refused and yet refuses to pay him or to recognize him as an officer of the navy. He states further that he is informed and advised by counsel learned in the law that for his pay and emoluments as an officer of the Navy of Texas, transferred to the United States by the terms of the annexation aforesaid, he is entitled to have and receive, up to 1 October, 1847, the sum of $2,100, whereof he has received from the Treasury of the United States no more than the sum of $689.20, which was paid him by order of the Secretary of the Navy of 19 March, 1847. And he is also advised that he is entitled to his continuing pay and rank as an officer in the Navy of the United States by virtue of the said agreement, compact, treaty, and transfer before mentioned.
Notwithstanding all which, the Secretary of the Navy of the United States refuses to order payment to him for the time past since the said annexation and transfer or to recognize him as an officer in the Navy of the United States.
That part of the second section of the joint resolution of 1 March, 1845, for annexing Texas to the United States, which is applicable to this case, is in the following words:
"Said state, when admitted into the Union, after ceding to the United States all public edifices, fortifications, barracks, ports and harbors, navy and navy yards, docks, magazines, arms, armaments, and all other property and means pertaining to the public defense belonging to said Republic of Texas, shall retain all the public funds, debts, taxes, and dues of every kind, which may belong to, or may be due and owing, said republic, and shall also retain all the vacant and unappropriated lands lying within its limits, to be applied to the payment of the debts and liabilities of the said Republic of Texas, and the residue of said lands, after discharging the said debts and liabilities, to be disposed of as the said state may direct, but in no event are said debts and liabilities to become a charge upon the government of the United States."
The circuit court overruled the motion for a mandamus and rejected the prayer of the petition, to which judgment Brashear excepted, and upon this exception the case came up to this Court.
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