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rights of individuals are dependent on the act, that officer is so far the officer of the people and of the law that he cannot at his discretion sport away the rights of the people.”
The Federal courts have frequently dealt with governors as members ex-officio of state boards.1? The attitude of the Federal courts is well expressed by the court in Kimberlin v. Commissioners18 as follows, “(Speaking of mandatory duties) * * * an executive has no discretion as to whether he will perform or not perform any of these duties. They are mandatory to him and are in the interest of the public and the public has a right to have them performed. It is not within the scope of mandamus to coerce an executive in the discharge of a duty involving discretion further than to direct him to act."19
It would doubtless be interesting to investigate the state of the law on this question in Oklahoma. The constitutional duties, powers and privileges of the governor of the State of Oklahoma are set out in the first fourteen sections of Article VI of the Constitution. Section 8, Article VI specifically says, “The governor shall cause the laws of the State to be faithfully executed.” Cameron v. Parker20 says that it is the duty of the governor to see that the laws are faithfully executed, and he is responsible to the people for the faithful execution of his high office, and whether wisely or unwisely administered, the source of the responsibility is the same. And yet in spite of the attitude taken in this
17Davis v. Gray, 16 Wall 203; Board of Liquidation v. McComb, 92 U. S. 531; Rolston v. Missouri Fund Commissioners, 120 U. S. 390; Pennoyer v. McConnaughty, 140 U. S. 1.
18104 Federal, 653.
19See Marbury v. Madison, 1 Cranch, 137, 2 Law Ed. 60; Kendall v. U. S., 12 Pet. 524; U. S. v. Schurz, 102 U S. 378; Butterworth v. Hoe, 112 U. S. 50; Decatur v. Paulding, 14 Pet. 497; U. S. v. Black, 128 U. S. 40; U. S. v. Guthrie, 17 How. 284; Commissioners v. Whiteley, 4 Wall 522; Georgia v. Stanton, 6 Wall 50; Gaines v. Thompson, 7 Wall 347; U. S. v. Windom, 137 U. S. 636; U. S. v. Blaine, 139 U. S. 306; U. S. v. Lamont, 155 U. S. 303; 19 American & English Encyclopedia, 372.
202 Okla. 277.
early case, in view of the later Oklahoma cases I doubt seriously whether the minority argument would appeal to the Supreme Court of the State of Oklahoma.
In Norris v. Cross, Sec'y of State, 21 decided in 1909, the court laid down a strong dictum saying, “A writ of mandamus may lawfully issue from a court having jurisdiction to compel an executive officer to perform a mere ministerial act, which does not call for the exercise of his judgment or discretion, but which the law gives him the power, and imposes upon him the duty to do, and a writ of mandamus may lawfully issue to compel an executive officer to act and decide, even though his act and decision involve the exercise of his discretion, but it must not direct in what manner he must decide.” The Oklahoma court then cites Cooley on Constitutional Limitations, 22 as follows: “If directions are given as to the time and mode of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised, and that manner only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument when we infer that such directions are given to any other end, especially when that the people in their constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated and leave as little as possible to implication.”
From the demeanor of the court in this case it would be fair to say that they had the governor in mind as well as the inferior executive officers. But what ever the attitude the court did have in this case was certainly overruled in 1910 by the case of State ex rel Atty General v. Huston23 Judge, in which the court refused to enjoin the governor from removing the seat of government from Guthrie to Oklahoma City, the question of jurisdiction being directly raised. A few months later the case of City of Oklahoma
2125 Okla. 287. 327th Ed., p. 114. 2327 Okla. 606.
City v. Haskell, 24 was decided on the authority of the above mentioned case, the court saying specifically in these two cases that they had no jurisdiction of the governor to compel him to perform even a ministerial duty. In State ex rel Dunlop, Treasurer, v. Cruce et al,25 decided in 1912, in an action of mandamus against the governor, state auditor, secretary of state and two other state officers, who together constituted the Board of Commissioners of the Land Office, the court held that they had jurisdiction to compel this board to act according to law, even though the governor was ex-officio a member thereof, but further held that they had no jurisdiction over the governor by himself. This decision is explained on the ground that the other members of the board, exclusive of the governor, constituted a majority thereof, so they were in fact not coercing the governor.
Molacek v. White, 26 decided in 1912, also declared in a dictum that when a discretion is vested in a public officer, the court can by mandamus, compel him to exercise that discretion but will not direct how he will act or what judgment or conclusions shall be reached. It is doubtful if this dictum contemplated the governor. State ex rel Freeling v. Lyon, Sec'y of State, 27 decided in 1917 that a writ of mandamus may lawfully issue from a court having jurisdiction, to compel an executive officer to perform a ministerial duty which the law had imposed upon him. As this suit was against the secretary of state it is impossible to say whether the dictum contemplated the governor or not. In the case of City of Pond Creek v. Haskell,28 the court heard a suit to enjoin the governor from performing a sworn duty, and the question of jurisdiction was not raised. Upon authority of that case the District Court in Noble State Bank v. Haskell,29 sustained an injunction against the gov
2427 Okla. 495. 2531 Okla. 486. 2631 Okla. 693. 2763 Okla. 285. 2821 Okla. 711. 2922 Okla. 48.
ernor which was reversed in the Supreme Court but without the question of jurisdiction of the court being raised. 30
If the situation in which the governor was asked to be compelled to perform a mere ministerial duty was presented to the Oklahoma court today, they could decide either way and still follow the decisions laid down by their predecessors in the past fifteen years. If the governor as a member of a state board is subject to the jurisdiction of the courts, then why not as an individual public officer? If the court will hear a case to enjoin the governor from performing his sworn duties, then why not to compel him to perform the duties imposed upon him by the constitution and laws of this state? The question being more one of individual political views, than it is of law, perhaps our Supreme Court, with the recent change of personnel, would follow the views of our sister states of Kansas and California.
But however the Oklahoma Court would rule on this question, I feel that Moses in his book on Mandamus (p. 82) has stated the conclusion correctly, “The better doctrine seems to be that the governor is not an exception to the general rule that all public officers may by mandamus be compelled to perform an act clearly defined and enjoined by the law and which is merely ministerial in its nature. and neither involves or leaves any alternative.”
30A similar case is 24 Okla. 70.
DIVISION OF LATIN-AMERICAN AFFAIRS
EDITED BY IRVIN STEWART
University of Texas
THE UNITED STATES AND THE ESTABLISHMENT
OF THE REPUBLIC OF BRAZIL
J. FRED RIPPY
University of Chicago The relations of the United States and Brazil have been more harmonious, perhaps, than those of any other two American states. The United States was the first country to recognize the independence of Brazil, and the latter was the first of the South American states to signify its approval of and adhesion to the Monroe Doctrine. The friendship thus begun has continued with little interruption until the present day. At first thought, this would seem all the more remarkable since during the most of this long period Brazil was ruled by a monarchy. In reality, however, the character of the Brazilian monarchs, particularly that of Dom Pedro II., and the order and stability which the monarchical form of government gave Brazil have tended to promote rather than hinder the development of friendly intercourse between these two important American states. A survey of public opinion in the United States regarding Dom Pedro II. will reveal remarkable uniformity of admiration and praise.
The last of the Brazilian emperors had scarcely attained his thirty-first year when he was made honorary member of the New York Historical Society, while an address given before that society somewhat later contained the assertion that “Dom Pedro, by his character and his taste, application, and acquisitions in literature and science, ascends from his mere fortuitous position as an Emperor, and takes his place in the world as a man."1 The great scientist Agassiz seems
1D. P. Kidder and J. C. Fletcher, Brazil and the Brazilians (Philadelphia, 1857), Chap. XIII.