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University of Oklahoma

The question, "Can the governor of a state be subjected to the compulsory process of mandamus, and thereby be compelled to perform the duties enjoined upon him by the laws and constitution of the state?" involves some very nice questions in government and constitutional law. There is an irreconcilable conflict of authority among the courts of the several states. Decisions have been repeatedly overruled with the change of personnel of the courts, and the courts in several states have been very reluctant to accept the views of their predecessors, showing that it is more a question of the theory of government held by the individual court than of law. Much of the conflict has been caused by the difference in construction of the various Constitutions of the several states, the governor in some states being an entirely different officer than the governor of other states. It has never been held in this country that the chief executive could be coerced by the judiciary in the performance of his discretionary, executive or political duties; but as regards the performance of ministerial and mandatory duties the authority is conflicting, perhaps with the weight in favor of the executive. The following states allow the courts to compel the governor to perform his sworn ministerial duties: Alabama, California, Colorado, Kansas, Kentucky, Maryland, Montana, Nebraska, Nevada, North Carolina, Ohio and Wyoming.1

*Paper read at the Third Annual Meeting of the Southwestern Political Science Association, Norman, Oklahoma, March 25, 1922. 1For authorities see the following: Tenn R. R. Co. v. Moore, 36 Ala. 371; Middleton v. Low, 30 Cal. 596; Harpending v. Haight, 39 Cal. 189; Wright v. Nelson, 6 Ind. 496; Baker v. Kirk, 33 Ind. 517; Gray v. State, 72 Ind. 567; Magrauder v. Swann, 25 Md. 173; Groome v. Gwinn, 43 Md. 572; Chamberlain v. Sibley, 4 Minn. 309; Chumeraso v. Potts, 2 Mont. 242; Wall v. Blasdel, 4 Nev. 241; Cotton v. Ellis, 7

The following states have held that in no case can the chief executive be controlled in his duties, whatever their nature: Arkansas, Florida, Illinois, Maine, Michigan, Mississippi, Missouri, New York, South Dakota, Rhode Island, Tennessee, Massachusetts and Texas.2

In Minnesota, Louisiana, Georgia, Indiana and West Virginia there is abundant authority on either side and it is impossible to say what the law of these jurisdictions is.

Almost all of the cases are based upon grounds tending to sustain and strengthen our theory of government, very few being concerned with the personal rights or convenience of the governor himself. In reviewing these authorties it shall be my contention that the government, and incidentally the people, will be best subserved by permitting the courts to control the chief executive, at least in the performance of ministerial acts. This raises the question as to what is a ministerial duty, but that will not discussed in this paper, it being a question for the courts, and which the courts have ably disposed of in those jurisdictions where the governor is amendable to their jurisdiction."

It would be well to consider the various grounds upon

Jones (NC) 545; State v. Chaise, 5 Oh. St. 528; Greenwood, etc. v. Routt, 17 Colo. 156; State v. Nichols, 7 So (La) 738; Bonner v. Pitts, 7 Ga. 473; Resley v. Farrell, 3 Pin (Wis) 393; Martin v. Ingram, 38 Kan. 641; Traynor v. Beckham, 116 Ky. 13; Cochran v. Beckham, 28 Ky. Law Rep. 370; W. C. Irvine v. B. B. Brooks, 14 Wyo. 393; State v. Thayer, 31 Nebr. 82; State v. Turner, 74 So. (Ala) 344; State v. Eberhart, 116 Minn 313; Barnard v. Taggart, 66 N. H. 362; Ellingham v. Dye, 99 N. E. (Ind) 1.

2For authorities see the following: Hawkins v. Governor, 1 Ark. 570; State v. Drew, 17 Fla. 67; Low v. Towns, 8 Ga. 360; People v. Bissell, 19 Ill. 229; People v. Yates, 40 Ill. 126; People v. Cullom, 100 Ill. 472; State v. Warmoth, 22 La Ann 1; Dennet v. Governor, 32 Me. 508; Rice v. Austin, 19 Minn. 74; Vicksburgh R. R. Co. v. Lowry, 61 Miss. 102; State v. Governor, 39 Mo. 388; State v. Price, 1 Dutcher (NJ) 331; Hartranft's Appeal, 85 Pa. St. 433; Mauran v. Smith, 8 R. I. 192; Turnpike Co. v. Brown, 8 Baxter (Tenn) 490; Sunderland v. Governor, 29 Mich. 320; State v. Stone, 120 Mo. 428.

See 165 Pac. 419; 36 Ala. 371; 30 Cal. 596; 16 Cal. 11; 39 Cal. 189; 86 Pac. 1087; 17 Colo. 156; 116 Ky. 13; 28 Ky. Law Rep. 370; 25 Md. 173; 2 Mont. 242; 31 Nebr. 82; 14 Wyo. 393.


which the cases are based. The four leading cases upon the subject are Martin v. Ingram, Harpending v. Haight,3 Sunderland v. Governor, State ex rel Robb v. Stone," the first two being to permit the courts to control the governor and the last two not permitting the courts to interfere with that officer. These cases fairly represent the two lines of authority.

Sunderland v. Governor was an application for an order requiring the governor to show cause why he did not issue his certificate showing that certain canals had been constructed in conformity with the acts of Congress making a land grant for the same, and the acts of the legislature conferring the grant upon a corporation which the relator claims to represent. The court in its opinion used the following language:

Where a duty is devolved upon the chief executive of the state rather than upon some inferior officer, it will be presumed to have been done because his superior judgment, discretion, and sense of responsibilty were confided in for a more accurate, faithful, and discreet performance than could be relied upon if the duty were put upon an officer chosen for inferior duties, and such duty can seldom be considered as merely ministerial. As regards the question of immunity from coercion by the courts, the governor of a state occupies a position analogous to the president of the Union, rather than to the heads of the executive departments of the federal government. As to all authority specifically confided to the governor, whether by the constitution or by statute, it will be presumed that reasons of a conclusive nature required it to be so confided as an authority properly and peculiarly, if not exclusively, pertaining to the executive department and therefore not subject to coercion by judicial process. And furthermore the jurisdiction to issue mandamus to the governor is in no

438 Kan., 641. 539 Cal., 189. 629 Mich., 320.

7120 Mo., 428.

wise affected by the fact that he voluntarily ap-
pears, and professes a willingness to abide the de-
cision of the court. Our government is one whose
powers have been carefully measured and appor-
tioned between three distinct departments, which
emanate alike the people, have powers alike lim-
ited by the Constitution and defined by the Consti-
tution, are of equal dignity, and within their re-
spective spheres of action are equally independent.
One makes the laws and another applies the laws
in contested cases, while a third must see that the
laws are faithfully executed. This division is ac-
cepted as a necessity in all free government, and
the very apportionment of powers to the three dis-
tinct departments should be understood to be a
prohibition of its exercise by either of the others.
The executive is forbidden to exercise judicial
power by the same implication which forbids the
courts to take upon themselves his duties.

The court then discusses the system of checks and balances and says in conclusion,

If any department abuses its powers the remedy is by impeachment and not by another department of the government attempting to correct the wrong by asserting a superior authority over that which by the Constitution is its equal.


Michigan courts hold that neither the governor nor any of the state executive officers over whom the governor has any control, can be interferred with by the courts. In State ex rel Robb v. Stone, the Missouri court in its opinion said, "Mandamus will not lie to compel the governor to perform an act or duty pertaining to his office, ministerial or political, or whether commanded by the Constitution or by some law passed on the subject, nor would the foregoing statement be changed by the fact that the governor voluntarily submitted himself to the jurisdiction of the court," and then followed substantially the reasoning of Sunderland v. Governor.

8120 Mo., 428.

The courts of Arkansas and New Jersey base their decisions upon the ground that the governor is the head of a department of government and therefore he should be immune, although the other members of the same department are subject to be controlled by the judiciary. Having de

cided that as the governor is the head of a department, that they will not interfere with his activities, they explain their decision by saying that all of the duties imposed and enjoined upon the governor by the Constitution are necessarily strictly and exclusively executive, political or discretionary, else they would have been conferred upon some inferior officer of the executive department."

The courts of Florida then extend the principle still further by holding that all duties conferred upon the governor by the Constitution or by the legislature must necessarily be executive or political, and not ministerial, upon the mere supposition that the act of conferring them upon the governor, renders them discretionary or executive, whatever the inherent nature or essence of the duty, and upon the further supposition that the governor embodies some superior fitness and ability to perform these duties, even though the duty is inherently ministerial in its characteristics.10

Other courts give various other reasons for refusing to, accept jurisdiction over the governor, some refusing because they fear that they could not enforce their decree, and that they would be doing a vain and useless thing. Still others think that the plaintiff has another adequate remedy, i.e., impeachment; but of all these grounds the one the more often advanced is that of the Michigan Court, that the three departments of government are equal in dignity, each supreme in its own sphere, and that the court has no right to assert any authority over a department which the constitution has created as its equal. We must now examine these grounds and see if they are sound.

'Hawkins v. Governor, 1 Ark, 570; State v. Price, 1 Dutcher (NJ)


10 State v. Drew, 17 Fla., 67.

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