State ex rel. Low v. Towns , 8 Ga. 360 ( 1850 )

By the Court.

Warner, J.

delivering the opinion.

This is an application on the part of John H. Low, the relator, for a mandamus nisi against Governor T owns, to show cause why he should not issue to him a commission as Clerk of the Court of Ordinary of Henry County.

It appears from the record, that Low, the relator, was elected Clerk of the Court of Ordinary of Henry County, in January, 1847, for the then ensuing two years; that in January, 1849, Low, the relator, claims to have been duly re-elected to the office by the old Court, for two years, and that James Pyron also claimed to have been duly elected to the same office, by the newly elected Justices of the Inferior Court, in January, 1049, for the ensuing two years. Both applicants for the office presented certificates of their election, to the Executive Department, and demanded a commission. The Governor issued a commission to Pyron, who was appointed by the new Court, and refused to commission Low, who was appointed by the old Court. Subsequently, a writ of quo warranto was filed in the Superior Court of Henry County against Pyron, and at the April Term of that Court, in the year 1849, judgment of ouster was rendered against Pyron, ousting him from the office of Clerk, on the ground that he was not elected according to law. At the October Term, 1849, of Henry Superior Court, another order was made by that Court, ordering the books and papers appertaining to the office of Clerk of the Court of Ordinary, to be turned over to the Clerk holding a commission issued in 1847; but there is no judgment of any Court, deciding that Low, the relator, was legally elected to the office of Clerk, in January, 1849. The fact appearing on the face of the record, that the books and papers appertaining to the office were directed, by the judgment of the Superior Court, to be turned over to the Clerk holding a commission issued in 1847, clearly shows, that the validity of Low’S election in January, 1849, was not determined by the Superior Court, but remained an open question. Such being the facts of tho case, in December, 1849, application was made by Low, to the Judge of the Superior Court of tho Ocmulgee Circuit, for a mandamus nisi, calling up.on the Governor to show cause why he should not issue a commission to him, as the duly elected Clerk in January, 1849.

To this mandamus nisi tho Governor responded, denying the jurisdiction of the Court to issue a mandamus against him, but does not admit the right or title of Low to the office which he claims.

[1.] In Pitts vs. Bonner, this Court held, that the issuing a commission to the Clerk appointed by the Court of Ordinary, by tito Governor, as required by the Act of 1799, was a ministerial act, and that it was competent for the judiciary to go behind the commission, and to inquire into the validity of the election of the person so commissioned, at the instance of an individual whose rights might be prejudiced thereby. 7 Ga. Rep. 479.

The power of the judiciary to inquire as to the right or title of one, holding and exercising the duties of an office, under a commission from the Governor, has been gravely questioned, as being an unauthorized interference with the duties of the executive department of the government, and those high in authority have been made to feel “ an involuntary shudder, as if at the near approach of grasping power, the judiciary was about to plant its iron heel upon a prostrate Constitution.” With the most profound respect for the executive department of the government, we cannot assent to the proposition, that the mere ministerial act of the Governor, issuing a commission to an individual, shall be conclusive evidence of his right and title to the office which he claims under it, and that the Courts have no power or authority to look behind the commission, and adjudicate the rights of the parties claiming the office, under the Constitution and laws of the State. In this country, supreme power exists in the people alone, and they have created certain offices for their own benefit. The Clerk of the Court of Ordinary derivos his office from the Constitution and the laio, not from the prerogative of the executive department of the government.

[2.] The tenure by which the office is held, docs not depend upon the commission which the Governor may think proper to issue ; that, it is true, may be prima facie evidence of his appointment; but suppose the certificate of appointment furnished the Governor had been forged, and the person commissioned by him had never, in fact, been appointed by the Court of Ordinary as its Clerk ? Shall the ex parte proceeding of issuing a commission by the Governor, who has no power to summon a Jury to try questions of fact, or command the attendance of witnesses, be held conclusive as to the rights of the citizen, claimed under the laws of the land 1 The validity of the title to an office created by law, is a judicial question — one which it is not only the duty of the Courts to decide, but one which, in our judgment, it is the exclusive province of the judiciary department to determine, notwithstanding the Governor may have commissioned one of the claimants. The commissioning Clerks is no part of the duty enjoined by the Constitution on the executive department of the government; nor has the Executive any discretion as to who shall be appointed Clerk of the Court of Ordinary; all that the Governor is required to do, by the Act of 1799, is to commission the Clerk who shall be appointed by the Court of Ordinary. By the sixth section of the third article of the Constitution, the powers of a Court of Ordinary, or Register of Probates, arc vested in the Inferior Courts of each County in this State, which Inferior Courts have the power to vest the care of the records and other proceedings thereon, in the Clerk or such other person as they may appoint. Prince, 911.

By the 1st section of the Act of 1799, the Courts of Ordinary in each county, are authorized to appoint their own Clerks, who shall be commissioned by the Governor. Prince, 231.

It will be perceived that the Clerk of the Court of Ordinary derives his right to the office, when appointed, not from the executive department of the government, but from the Constitution and the law. Deriving his title to the office from the Constitution and the laws of the people of the State, when appointed in accordance with the law, he acquires a vested right to all the benefits arising therefrom, which the laws of his country will protect. To withhold from the Clerk, when legally appointed, his commission which the law entitles him to receive from the Governor, is not only a violation of the law, but of a vested legal right. When a contest arises between two individuals respecting that right, although one of the parties may derive his claim thereto, under a commission from the Governor, issued in accordance with his judgment, from the evidence before him, as to which of the contesting parties was legally elected Clerk, the judicial tribunals of the State have the appropriate jurisdiction of the question, and may proceed, according to the course of the Common Law, and finally adjudicate the respective rights of the parties as to who was legally elected and entitled to the commission, under the law. This is a government of laws and not of men, and the judiciary department of the government is the legitimate and appropriate department to investigate and decide upon the vested rights of individuals, when acquired under the Constitution and laws of the land. If the executive officer of the government has the power and authority to vest the office of the Clerk of the Court of Ordinary in such person as he may choose to commission, then he has the power to repeal that part of the Constitution which declares, that “the Inferior Court shall have power to vest the care of the records and other proceedings therein, in the Clerk or such other person as they may appointThe power of appointing a Clerk, is vested, by the Constitution, in the Inferior Court, sitting as a Court of Ordinary, and all the Governor has to do with the appoiutment, is to commission the individual who shall be appointed according to law. The Statute expressly declares, that the individual appointed Clerk by the Court of Ordinary, shall he commissioned hy the Governor. But it is said, the Clerk legally appointed to the office, may perform the duties of it, without a commission; that the commission is not absolutely necessary for him to enjoy the benefits accruing from the office. As a general rule, this may be true; bht we apprehend, according to the peculiar provisions of our Statute of 1809, a commission is necessary, before the party elected Clerk can enter upon the discharge of his official duties. That Act declares, that Clerks of the Courts of Ordinary, (and other officers specified in the Act,) who are in office, shall perform all the duties of their respective offices, during the time intervening between the election and commissioning of their successors, with all the responsibilities to which they were liable previous to said election. Prince, 111. This Act clearly contemplates, that the newly elected Clerk shall not enter upon the discharge of his official duties until he is commissioned.

The Clerk appointed by the Court of Ordinary, then, is, under the law, entitled to have a commission from the Governor. It is his right to have the commission, under the law, not only as the evidence of his appointment, but, as we have shown, it is necessary for him to have it, to enable him to enter upon the discharge of his official duties. We-have shown that the judicial tribunals of the State have jurisdiction, in a contest between two individuals as to the right to the office of Clerk of the Court of Ordinary, to adjudicate that question, although one of them may derive his title to the office under a commission from the Governor. But suppose the appropriate tribunal had adjudicated the question, that Pyron was not elected to the office according to law, and vacated his commission, and that Low, the relator, was duly and legally elected the Clerk of the Court of Ordinary of Henry County, and that the decision of the Court had been duly certified to the Governor, and he should still refuse to commission him, is Low without any remedy for this acknowledged wrong 1 The properjudicial tribunal of his country, has established his right to the office and his right to have the commission to which the law declares he is entitled. This question was partially considered by this Court, in Bonner vs. Pitts, and it is difficult to perceive, according to the general principles of the law, why it is that the citizen should have a right, and not have a remedy to enforce that right; especially where that right depends on the performance of a mere ministerial act, enjoined by the peremptory enactment of the law. “ The very essence of civil liberty, (says Chief Justice Marshall, in Marbury vs. Madison, 1 Cranch, 145,) certainly consists in the right of every individual to claim One protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to compdy with the judgment of his Court.”

Blackstone states it to be a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded. 3 Bl. Com. 23. If the Court has jurisdiction to decide the question of right, it would seem it ought to have jurisdiction to enforce that right; for, as Blachstone says, authority to try would be vain and idle, without an authority to redress; and the sentence of a Court would be contemptible, unless that Court had power to command the execution of it. 1 Bl. Com. 242.

In Kendall vs. The United States, Mr. Butler, the Attorney General, admitted in his argument, that if the President of the United States was required, by law, to perform an act merely ministerial, and necessary to the completion or enjoyment of the rights of individuals, he should be regarded, quoad hoc, not as an executive, but as a merely ministerial officer, and, therefore, liable to be directed and compelled to the performance of the act by mandamus, if Congress saw fit to give the jurisdiction. 12 Peters, 595.

In this State, the Judges of the Superior Courts have the power, expressly conferred by the Constitution, to issue writs of mandamus, &c. and all other writs which may be necessary for carrying their powers fully into effect. Prince, 911.

In Kendall vs. The United States, Mr. Justice Thompson, in delivering tlie judgment of the Court, remarks, “ That it would be an alarming doctrine, that Congress cannot impose upon any executive officer, any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution ; and in such cases, the duty and responsibility grow out of, and are subject to the control of the law, and not to the direction of the President; and this is emphatically the case where the duty enjoined is of a mere ministerial character.” 12 Peters, 610.

If it is competent for the Legislature to impose on the Govern- or the performance of a mere ministerial duty, to issue commissions te Clerks, appointed by the Court of Ordinary, it is difficult to perceive, upon legal principles, why he should not be held responsible for the due execution of that duty, and be regarded, quoad hoc, not as an executive, but as merely a ministerial officer. The issuing commissions to Clerks, is certainly not one of the duties confided to the executive department of the government, by the Constitution, but is merely a ministerial act required by the law.

In the case of Ferguson vs. Farl of Kinnowl, decided in the House of Lords, the distinction between a judicial and a ministerial act was clearly recognized. In that case, Lord Broughham, after denying that the judicial officers of Courts of general jurisdiction, were answerable for acts done within the limits of their jurisdiction, for errors of judgment, however plain the miscarriage may be, and however injurious the consequences, used the following expressive words : “ But where the law neither confers judicial power, nor any discretion at all, but requires certain things to be done, every body, whatever be its name, and whatever other functions of a judicial or of a discretionary nature it may have, is bound to obey; and with the exception of the Legislature and its branches, every body is liable for the consequences of disobedience.” Lord Campbell said, in delivering his judgment in the same case, “ Where there is a ministerial act to be done by persons who, on other occasions, act judicially, the refusal to do the ministerial act is equally actionable as if no judicial functions were, on any occasion, entrusted to them. There seems no reason why the refusal to do a ministerial act by a person who has certain judicial functions, should not subject him to an action, in the same manner as he is liable to an action for an act beyond his jurisdiction. The refusal to do the ministerial act, is as little within the scope of his functions as Judge, as the act where his jurisdiction is exceeded. In the act beyond his jurisdiction, he has ceased to be a Judge.” The foregoing principles were affirmed by the House of Lords, without a dissenting voice. 9 Clark & Finn’s Rep. 279.

Now, as to all matters confided to the judgment and discretion of the executive department of the government, by the Constitution — as the appointment to office to fill vacancies, to approve or disapprove bills enacted by the Legislature, and the like — the Courts have no jurisdiction to interfere with the exercise of that judgment or discretion; but the commissioning Clerks, is not a matter which has been delegated, by the Constitution, to the judgment or discretion of the executive officer of the government. The Legislature have enjoined upon him, by law, the performance of the ministerial duty to issue commissions to such Clerks as shall be appointed by the Courts of Ordinary, and the rights of the persons, so appointed, to enter upon the discharge of their official duties, is made to depend upon the performance of this ministerial act. If, as has already been remarked, it was competent for the Legislature to impose this ministerial duty of issuing a commission to a Clerk, on the executive officer of the government, wholly independent of, and in addition to the other functions devolved upon that officer by the Constitution, why may he not, when the performance of this ministerial act, so required by law, is essential to the completion and enjoyment of individual rights, be considered, quoad hoc, not as an executive, but as a merely ministerial officer, and, therefore, liable to be directed and compelled to perform the act by mandamus l

[3.] Viewed as strictly a legal question, we cannot offer any satisfactory reason why he should not, according to the general principles of the law; and it was in this point of view alone, this question was considered by this Court, in Bonner vs. Pitts— indeed, no other view of it was presented for our consideration, on the argument of that case. But while we are unable to givo a satisfactory legal reason why the remedy sought should be denied to the citizen, yet we are satisfied, that for political reasons alone, the remedy by mandamus ought not to be enforced against the chief executive officer of the State. The ultima'e effect of this remedy, in case of refusal by the Governor to obey the laws of the land, would be to deprive the people of the State of the head of one of the departments of the government. This ministerial act, required by the law, is to be performed by the same officer who is, by the Constitution, placed at the head of one of the departments of the government, and is required, by the Constitution, to perform certain other duties, of which the people may not be deprived.

Whatever right to the office the relator may have, and whatever remedy he may be entitled to by the law, for the enforcement of that right, as a general proposition; yet, for the, political reasons just stated, it cannot be enforced against the Chief Magistrate of the State, by mandamus, if it shall be withheld from him. The framers of the Constitution, doubtless, never anticipated that the executive officer of the government, whose sworn duty it is to cause justice to be executed according to law, would ever refuse to comply with the law, when authoritatively adjudicated by the proper department of the government. In England, as we have already seen, when aright is claimed by the subject as against the Crown, the King is sued in the respectful-form of a petition, and he never fails to comply with the judgment of his Court. 3 Bl. Com. 255. Marbury vs. Madison, 1 Cond. R, U. S. 275. In the monarchial government of Great Britain, when the subject appeals to the Courts of Justice for his legal rights, as against the Crown, and the judgment is in favor of ihe subject, and against the right claimed by the Crown, the King does not feel, it would seem, “ an involuntary shudder, as if, at the near approach of grasping power, ihe judiciary was about to plant its iron heel upon a prostrate Constitution,” but always manifests his respect for the laws of his kingdom, by invariably complying with the judgments of his Courts. Such being the established course of the executive department of the government in Great Britain, we cannot, and we will not presume, that the Chief Magistrate of a republican State would, for one moment, hesitate to issue a commission to the relator, when his right and title to the office shall be established by th& judgment of a Court of competent jurisdiction. To presume that the executive officer of the government would withhold the commission from one who had been judicially declared, by a Court of competent jurisdiction, legally elected to the office, would be to say, in the language of this Court, in Bonner vs. Pitts, “that such officer was above the laws of the people; that he had the right to exercise despotic power, regardless of the laws of the people; and in the language of Chief Justice Marshall, at his discretion, sport away the vested rights of individuals, secured and protected by the laws of the land. This Court will never indulge such a presumption — respect for the laws of the country, and especially respect for a co-ordinate department of the government, utterly forbids the idea, that the vested rights of the citizen will not be entirely protected, according to law, by the chief executive officer of the State.

[4.] But the relator in this case has never had his right to the office adjudicated by any Court, and until ho has done so, his right to a commission is not made apparent to the Governor; at least, by such evidence as was indicated by this Court in Bonner vs. Pitts. It is true, the question of the relator’s right to the office was waived on the argument; but such waiver could not give to the Court jurisdiction, when it had none, by the allegations contained in the record. The first step to have been taken by the relator was, to have had his right to the office in question established by the judgment of a Court of competent jurisdiction. This not having been done, the Court had no jurisdiction, according to the view taken of the matter by this Court in Bonner vs. Pitts. This Court will not establish the precedent for parties to come before it, even by consent, for the purpose of litigating a mere abstract question, when there are no individual rights involved. Had the relator established his right to the office, by the judgment of the Superior Court, we are bound to presume that the Governor would have issued to him a commission, in accordance with the law, as adjudicated by the proper tribunal — to presume otherwise, would be wanting in respect to that department of the government, whose sworn duty it is to see that the laws of the State are faithfully executed. There has not been any collision between the judicial and executive departments of the government, and there never can be any, so long as each department continues to perform its appropriate duties. The relator not having established his right to the office by the judgment of any Court, the Court below had no jurisdiction, according to the relator’s own showing, to award the mandamus nisi against the Governor.

Let the judgment of the Court below, therefore, be affirmed.