Page images

In 6 L. R. A. (NS) 751 we find the following comment, "But the reason, if not the weight of authority, would seem to be with State Ex. Rel. Irvine v. Brooks upon the proposition that, as to duties of this character, the general principle of allowing relief against ministerial officers should apply, and the mere fact that it is the governor, against whom the relief is sought should not deter the courts from the exercise of their jurisdiction, since the authority of the courts is supreme in the determination of all legal questions, judicially submitted to them within their jurisdiction, and no one is exempted from the operation of the law, and the duty of faithfully executing the laws is solemnly enjoined upon the governor by his oath of office, and if the relief sought were refused, those persons whose rights had been invaded by executive neglect and refusal to act would very often be altogether without redress."

In Harpending v. Haight," the court used the following language, "If it be conceded that the governor, because he is the chief executive of the department, may for that reason alone be exempted from judicial process, even when his duty is only ministerial, and in a case where a body of citizens have a vested right to have such duty performed, then the same exemption should be able to be set up by other officers of the executive department." In other words this California Court can see no distinction in the characteristics of a certain duty when it happens to be conferred upon the governor or when the same duty is conferred upon some inferior official. Justice Valentine speaking in Martin v. Ingram,12 referring to this language of the California Court, said, "If the reasoning of the Court there be sound, and we think that it is sound, then it would follow that there is no distinction between an inferior executive officer and the governor in the performance of a certain ministerial duty."

There can be but two classes of decisions, consistently, that class where all of the executive officers are amenable to judicial process, and that class where none of the execu

1139 Cal., 189. 1238 Kan, 641.

tive officers are amenable to judicial process. Michigan is the only state where all of the executive officers of the state enjoy this immunity with the governor. Justice Fields in Middleton v. Low,13 supplements the above argument by saying, "No officer however high is above the law, and when duties are imposed upon him in regard to which he has no discretion, and in the execution of which individuals have a direct pecuniary interest, and there is no other plain, speedy, and adequate remedy, he should be required to perform these duties by the compulsory process of mandamus. Though it is not to be supposed that the highest executive officer of the state, acting under his oath to support the constitution and laws, would refuse to perform a duty which the highest tribunal had imposed upon him by virtue of the constitution or those laws."

Chief Justice Marshall in the famous case of Marbury v. Madison,1 said, "It is not the office of the person to whom the writ is directed but the nature of the thing to be done, that the propriety or the impropriety of issuing mandamus is to be determined." The court in Martin v. Ingram, cited these words of the learned Chief Justice with approval and drew the following conclusion from them. Quoting from the opinion of Justice Valentine,

We do not contend that any court ever attempts by either injunction or mandamus or by any other action or proceedings to control legislative, executive or judicial discretion; but the place where the courts will act are those cases where the acts to be done are ministerial, and the ministerial act is one which a public officer or agent is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his judgment or opinion concerning the propriety or the impropriety of the thing to be performed. Hence many of the cases cited to show that the governor cannot be controlled in a particular instance under con

1830 Cal., 596.

141 Cranch 137, 2 Law Ed. 60.

sideration, are not in conflict with those decisions
which hold otherwise, for many of such cases were
decided upon the theory that the courts were asked
to control executive or political discretion. If we
should deduct all of those cases decided upon the
theory that the court was asked discretionary ac-
tion, and if we were to disregard all the dicta of
those cases, and thereby leave only those cases
which necessarily included a decision, and held
that the governor could not in any case be con-
trolled, then the weight of judicial authority would
probably be that the courts could control any min-
isterial duty imposed upon the governor by law.

If this reasoning is sound, when duties are conferred upon the chief executive, why would it not also be true when they are conferred upon any other member of the executive department? Is not any power substantially the same wherever it is placed? Judicial power in the hands of a justice of the peace is substantially the same as it is when placed in the hands of the Supreme Court. Suppose that the duty in question is in its very nature and character, nothing more than the purest ministerial duty, and contains no element of judgment or discretion, and is in no way connected with the executive, and is such a duty as might have been conferred upon any citizen of the state, why then should it be transformed into an executive, political, or discretionary duty by the mere fact that it happened to be conferred upon the governor? Why is it not still a minsiterial duty? The courts of Michigan and Missouri say not because if it were, it would have been enjoined upon some inferior officer, and that really it does not matter because the court cannot encroach upon the zone of the executive. But can we accede to this argument? It is true that the courts with certain exceptions cannot interfere with the duties of the other departments of government, nor the other departments interfere with the courts, but it would be far wrong to say that they are entirely independent and separate from each other, or that in certain instances one cannot exercise a certain control over the others. Most of the jurisdiction of the courts, and all of their procedure,

is prescribed by the legislature. Most of the duties of the governor are prescribed by the legislature, and the legislature may impeach the governor. The governor in turn may convene the legislature at his will, and may veto any bill which they pass. The courts may pass upon and construe all of the acts of the legislature, whether or not they have been signed by the governor, and may hold them to be good or bad according to their construction of the constitution. The courts may determine that a supposed member of the legislature is not a member, by deciding that he has no district. The courts may pass upon the validity of the acts of the governor, and it is said in Martin V. Ingram that the courts have the power to compel the governor to attend court as a witness, and if they do have this power, then they have the power to imprison him if he disobeys. This would be an interference by the courts which would render the executive unable to perform his official duties.

Considering all of these facts it will be seen that no department of government is entirely independent, each must co-operate with the others, but still each is in a measure dependent on the others. The courts are the only tribunals created by the constitution to construe the law, and yet the courts are dependent for their physical existence upon the other branches. No branch of the government should cease to perform its duty for fear that another branch might render its acts nugatory, or for fear that its acts might affect the status of some other department. In State v. Eberhart,15 it is said, much controversy has arisen over the difficulty of distinguishing between the so-called political duties or executive duties and those which must be performed in a certain manner. It has been argued that the court might not be able to enforce its decree, but the jurisdiction of the court does not rest on its physical ability to enforce the decree, but depends upon the right of the court to hear the controversy. The governor under his oath of office, swore to perform these duties, and it is not to be presumed that the governor would refuse to perform duties

15116 Minn., 313.

which the court of last resort declares to be imposed upon him.

The legislature when passing laws is supreme in its sphere and the other departments must obey. The courts are supreme when construing the laws and their construction must be taken. When enforcing the law the executive is supreme and the others must obey. Each branch is supreme in its own sphere, but outside of its sphere it is weak and must obey. But it should be here noted in connection that the executive can enforce the laws only as the legislature has enacted them, and as the courts have construed them, and the question might be asked, "What right has the executive to refuse to enforce the constitution and laws as the people, and the legislature have made them, and as the courts have construed them?" In construing a constitution, we must have regard to the institutions prevailing at the time of the adoption of the constitution, and which the constitution was designed to correct; and we must see that our construction of the constitution does correct these evils. The citizen of the United States is upon an individualistic basis, put on that basis by our constitution and supported there by the system of checks and balances, which is embraced in our fundamental theory of governments. The rule is well stated in State v. Nash,16 thus: "The legislative, executive and judicial departments of the State government are not so absolutely distinct that an ar-bitrary exercise of power, or what is the same, an arbitrary refusal to exercise power, could not be checked or opposed by either of the other departments. Such a theory is opposed to the principle of checks and balances upon which the Federal and State constitutions have been framed. From this we conclude that a certain control over the governor is necessary to the preservation of private rights.” And if we look again to Marbury v. Madison, we find that Chief Justice Marshall uses the following language, "When the Legislature proceeds to impose on the executive officer, duties which he is peremptorily ordered to perform, when the

1666 Ohio St.

« PreviousContinue »