Harpending v. Haight , 39 Cal. 189 ( 1870 )

Wallace, J.,

delivered the opinion of the Court:

The petitioner moves for a peremptory writ of mandamus to be directed to the respondent, commanding him, as Governor of the State, to cause to be authenticated as a statute a certain, bill now in his possession, known as Senate Bill No. 258, which passed both houses at the late session of the Legislature:

The case comes before us upon a voluntary submission made by the parties upon the following agreed statement of facts:

Now comes the petitioner and respondent, and, without action, agree upon the following facts, and submit the same to this Court for adjudication:

I. —That petitioner has such an interest in the event of this proceeding as makes him a proper party thereto.

II. —That the respondent now is, and since the first Monday in December, 1867, has been, Governor of the State of California.

III. —That the Eighteenth Session of the Legislature of this State commenced on the first Monday in December, 1869, and ended on the 4th day of April, 1870; that there was no adjournment of the same after the 10th-of March, 1870, and before said 4th day of April.

IV. —That on the 12th day of March, 1870, Senate Bill No. 258, entitled “An Act to make, open and establish a public street in the City and County of San Francisco, to be called Montgomery Street South, and to take private lands therefor,” passed the Senate of the State of California, and, on the 17th day of March, 1870, passed the Assembly of said State, with amendments which were concurred in by said Senate on the same day.

V. —That on the 19th day of March, 1870, at 1 o’clock P. M. of that day, said bill was, by the Enrolling Committee of the Senate, delivered to the respondent for his consideration, as Governor.

VI. —That at the time said bill was delivered to the Governor it was properly enrolled and authenticated, as prescribed by law.

VII. —That on the 31st day of March, 1870, at 4 o’clock P. M., the Senate of said State adjourned, to meet at 11 A. M. next day.

VIII. —That on the 31st clay of March, 1870, at 4:30 P. M., the private Secretary of the Governor entered the Senate Chamber with said bill, and, with a message in writing from the Governor, returned said bill to the Senate, without his approval; that, finding the Senate had adjourned, said Secretary returned said message and bill to the Governor, with whom they have ever since remained.

IX. —That said message had been signed by the Governor before 4 P. M. on said day.

X. —That on the 1st day of April, 1870, the Governor transmitted to said Senate the following message:

SPECIAL MESSAGE EEOM THE GOVEENOB.

The following special message from the Governor was read:

State oe Calieoenia, Executive Department, ) Sacramento, April 1, 1870. j

To the Senate of the State of Calif orma: I deem it my duty to communicate to your honorable body the reason why messages returning two bills, whose titles are hereinafter given, failed of being yesterday delivered to the Senate. The bills referred to are substitutes for Senate Bill No. 293— an Act authorizing the parties therein named, their associates and assigns, to construct and maintain a ship canal from the City of Stockton to deep water, on the San Joaquin River; and Senate Bill No. 258—an Act to make, open, and establish a public street in the City and County of San Francisco, to be called Montgomery Street South, and to take private lands therefor. Messages, stating the reasons for withholding approval of these bills, were prepared and signed before the adjournment of the Senate, and were transmitted through the usual channel to the Senate Chamber before the customary hour of adjournment. The Senate having, by an adjournment until the next day, prevented the delivery of the messages and the return of the bills, they have failed to become laws, and will not, therefore, be deposited in the Secretary of State’s office to be certified, as required in the case of bills which become laws by lapse of time, without return, to the house in which they originated.' I have thought it proper to communicate the facts in the case to your honorable body, and to ask respectfully that the messages be spread upon the journals of the Senate.

H. H. Haight, Governor.

XI. —That petitioner has demanded of respondent that he authenticate said bill in manner and form as provided by law in cases where bills become laws by not being returned to the house in which they originated, within the time prescribed by law, and that the Governor has refused, and still refuses, so to do, but still retains said bill without authentication.

XII. —That the standing rule of the Senate, on said thirty-first day of March, required the Senate to assemble in the evening for business, unless otherwise ordered; that such evening session was usual and customary at the time, it being but four days before the final adjournment; that upon said day the Senate adjourned at said hour of 4 P. M. until the next morning, and that the motive of the mover of said adjournment was to prevent the return of said Senate Bill Ho. 293, and that said motion was made at the instance of petitioner.

The facts agreed and stated in subdivisions 8, 9, 10 and 12, are agreed to, subject to the ruling of this Court as to whether evidence to prove such facts would be admissible on the trial of any action involving the question whether said bill had become a law.

Upon this statement it is agreed that if the Court are of the opinion that said bill did become a law, a peremptory mandate may issue commanding the respondent to cause said bill to be authenticated as provided for. by Section 2 of an Act entitled “An Act for the authentication of statutes without the approval of the Governor,” approved May 1,1852.

H. H. Haight, Respondent.

Haymond, for Petitioner.

Creed Haymond, being sworn, deposes and says, that he is of counsel for petitioner in this proceeding, and that the controversy is real, and that this proceeding is in good faith, to determine the rights of the parties.

Cbeed Haymond.

Subscribed and sworn to before me this sixth day of April, 1870.

Geo. Seckel, Clerk Supreme Court.

It will be seen that the solution of the questions presented requires at our hands, in some degree,.an examination into the respective rights and duties of the Executive and Legislative Departments of the Government, in the exercise by the latter of the law-making power of the State.

. It is of the deepest public concern, and of moment far beyond the mere decision of the particular case at bar, that the rights of each should be absolutely preserved from the possible assault of the other, and that neither, under cover of the performance of its own functions, should be permitted to deprive the other of its just measure of authority, as conferred upon it by the Constitution.

The clauses of that instrument—through which, as we think, a decision of this controversy is to be reached—are contained in Article IY of the Constitution, and are in the. following language:

“Section 1. The legislative power of this State shall be vested in a Senate and Assembly, Avhich shall be designated as the Legislature of the State of California. * * *

“ Sec. 17. Every bill Avhich may have passed the Legislature shall, before it becomes a law, be presented to the Governor. If he approve it he shall sign it; but if not he shall return it, Avith his objections, to the house in Avhich it originated, Avkieh shall enter the same upon the journal and proceed to reconsider it. If, after such reconsideration, it again pass both Houses by yeas and nays, by a majority of íavo thirds of the members of each House present, it shall become a law, notAAdthstanding the Governor’s objections. If any bill shall not be returned Avithin ten days after it shall have been presented to him (Sundays excepted), the same shall be a law, in like manner as if he had signed it, unless the Legislature, by adjournment, prevent suclr return.”

The bill in question was presented to the GoAernor, on Saturday, March 19th; and if he intended to return it with his objections, he was, by the general language of the Constitution, bound to do so Avithin a prescribed time after its • presentation to him.

We shall proceed, therefore, to inquire Avhether or not the Governor did make the required return of the bill to the Senate, in which it had originated. There can be no doubt whatever of the meaning of the word “return,” as used in this connection in the Constitution. As applicable to the bill itself, it is equivalent to the word “presented,” as previously used in the same sentence. The bill must, before it becomes a law, be “presented to the Governor.” It might be merely exhibited to that officer; and even if it should be immediately thereafter taken away or withdrawn, it might be contended that it had, nevertheless, been “presented” within the very letter of the Constitution. But when we come to reflect that the only purpose for which the bill is to be “presented to the Governor” is to afford him an opportunity to deliberately consider its provisions and prepare his objections, if any he have, to its passage, we would instinctively reject such a presentation as being fictitious—merely spurious—and certainly not that one contemplated by the Constitution, because it ■would defeat, rather than promote, the very object intended.

And so, upon the other hand, when we come to consider the corresponding duty of the Executive to “return” the bill to the Senate in this case, we know by attending to the results to be brought about by such “return” that it must be a step taken by which his own time for deliberation is ended, and that for the deliberation of the Senate is begun; that the bill itself must be put beyond the Executive possession ; that it must be placed into the possession, actual or potential, of the Senate itself; and that, as part of this return, the Executive objections to the passage of the bill must be stated. For, unless these things be effected by the return, how can the Senate enter the bill and Executive objections upon its journal, or in what way proceed to the consideration of the objections themselves? Yet, the Constitution enjoins upon the Senate the performance of these several acts upon the return of the bill and objections to it. We think it clear that the presentation of a bill to the Governor made by the Legislature, under such circumstances as that he is prevented from considering its provisions, and a return of a bill made to the house in which it originated by the Executive—but so made that the h.ouse-can neither réconsider the bill nor examine the objections to its passage—■ clo not in either case constitute the presentation or return required by the Constitution. -

, And it'is apparent to us that in the case at bar no return was ever so made, as that either the bill or objections came to the possession or knowledge of the Senate.

■ The facts upon this point are few. The Senate had been in session on the 31st of March, and at 4 o’clock P. M. had adjourned until the following morning, at 11 o’clock. Within a half an hour after the adjournment for the day, the Messenger of the Executive entered the vacant Senate chamber. The object of his appearance there was to impart to the Senate the knowledge of the fact that the Governor had vetoed the bill in question. He had with him the usual and appropriate evidence of the fact, for he bore in his hands the bill itself to be returned, as well as the message of the Governor addressed to the Senate, informing that body, in the usual phrase, that the bill was therewith returned without the Executive approval, and Setting forth the reasons of his action in that respect. But the Messenger did not deliver to the Senate, nor deposit for its use with any officer of the Senate, or with any other person, either the bill or message; but immediately returned them both to the Governor himself, by whom they have ever since been retained. As a matter of fact, then, the Senate, upon the withdrawal of the Messenger from its chamber, was left in the same profound ignorance of the Executive action in the premises as it had been at the moment of his appearance there. There was, therefore, no opportunity afforded for the taking of those steps by the Senate, which the Constitution enjoins upon it, in case of an Executive return of a bill. And this circumstance is, as we have said, conclusive, in our opinion, that such a return cannot be considered to have been- that one which is required by the Constitution to be made. It sets that instrument at substantial defiance in the very act of pretended obedience to its mandates. And if. such practice ■b.e inaugurated, might not the Legislature easily retaliate upon the Executive Department? Would it be a difficult matter for it-to send a Messenger-or member of the Enrolling Committee of one of the houses to the Executive chamber with a bill for the Executive consideration, who might not be able to find the Governor at the moment that he sought him? Would it not be easy to suggest, in connection with the fact of his absence, that ho was purposely avoiding the Messenger ? That such was his motive in absenting himself ? And, then, if the Legislature should claim that they had been thus prevented from actually presenting the bill to the Governor, and that it had, therefore, become a law, would there not be found in the Constitution just as much to warrant such a claim as is to be found there in support of the constructive return made by the Governor to the Senate in this case ?

It is not difficult to foresee the result to Avhich such a doctrine would lead in times of high party strife, or when a decided and irreconcilable difference of opinion between the Executive and the Legislature upon important measures had been deAeloped. Indeed, if these proceedings had on the part of the Governor and his Messenger amount to a Aeto of the bill at all, it Avas, of necessity, under the circumstances, an absolute veto; for it Avas one from the consequences of which the Senate had no means at its command to relieve the bill. Even though every Senator might in fact have been in favor of the passage of the bill over the Executive veto, there was no power, because there was no opportunity to do so. It is scarcely necessary to remark that an absolute Executive veto, based upon the return of a bill, is unknown to any constitutional system of government, State or Federal, under which we live, and that such a veto can, under no circumstances, be upheld, without doing violence to both the letter and spirit of the Constitution.

But the agreed statement informs us that the motive of the mover of the resolution to adjourn the Senate, was thereby to prevent the Executive from returning the bill.

We mention this portion of the agreed case, in order that it may not be supposed to have escaped our attention. It is proper, too, to add, that while this statement is contained in the record as a fact for our consideration in a mere legal point of view, it was admitted, in the oral argument had before us, that it has since been discovered that it is wholly untrue in point of fact, and that no such motive did actuate the mover of the resolution to adjourn. We state this as a matter'bf justice to the Senator who made the motion in the -Senate to adjourn on the afternoon of March 31st, upon whose public character the fact thus stated might, if not corrected in this manner, operate as a most unjust aspersion.

. This fact was stipulated, however, not absolutely, but subject to the opinion of the Court, as to whether evidence to prove such fact would be admissible on the trial of any action involving the question whether this bill had become a law.

Certainly no such evidence could be admitted on such a trial. It will be observed that the question does not extend to the motives of the majority of the Senate, by whose votes the motion to adjourn was adopted. There is no pretense that the motives of that majority were not free from the designs imputed to the Senator who introduced the resolution. And it would be unheard of, that the action of that majority should be called in question because of the mere personal motive of the particular Senator who moved the resolution. But even had the stipulation involved the motives of the entire Senate, in passing the resolution to adjourn on the occasion referred to, no inquiry on that subject could be permitted in the trial of an action of this character. It has been so settled in this State by the cases of Fowler v. Peirce (2 Cal. 168); People v. Bigler (5 Id. 23); Sherman v. Story (30 Id. 266), and by numerous foreign adjudicated case's and the opinions of text writers. We know of no authority which holds a contrary doctrine.

' But, supposing that the law allowed proof to be introduced upon that point, and it should be conclusively established that the motive which actuated the entire Senate in adjourning to the next day, upon the occasion referred to, was to prevent the Executive from returning the bill on the 31st day of March, supposed to be the last of the ten days allowed him for such return, such proceeding, however, in itself disgraceful and unworthy of the Senate; would not even tend to the supposed result.- We think that there can be no cloubt that when the Executive Messenger arrived at the Senate chamber, and found that the Senate had adjourned for the day, he might have delivered the bill and message into the hands of the Lieutenant Governor, President of the Senate, the Secretary, or other officer of the Senate, or to one of the Senators, or to any proper person connected with or engaged in the service of the Senate, to be called to its attention as soon as an opportunity might thereafter offer; and that such a delivery would have been sufficient in law, as though it had been delivered to the presiding officer or Secretary of the Senate, in open session.

It was the duty of the Messenger to communicate to the Senate the message which he bore from the Executive on that occasion. This was to be done in the most direct manner that circumstances would permit. It was impossible for him to immediately announce it to the Senate, for that body was not in session. It had a right to be in recess, if it desired so to be, and it was not in the power of the Executive or his Messenger to recall it to its sittings. But its right to be in recess was no greater or higher than was the right of the Executive to return the bill in question for its reconsideration; nor is there any reason why the free exercise of these admitted rights upon the part of the Senate and Governor, respectively, should bring them into collision. The Senate has the unqualified, constitutional power to adjourn for three consecutive days. (Art. IV, Sec. 15, Constitution.) It must often happen that these three days will include the last day allowed the Executive for the exercise of the veto power against the passage of a particular Senate bill.

Now, if the mere fact of the recess of the Senate, thus constitutionally taken, does operate to defeat, in a measure, the exercise of the veto power conferred on the Executive by the Constitution, then we have the strange spectacle of an irreconcilable conflict between the several clauses of that instrument itself, by which the Senate, by the mere exercise of its own admitted constitutional authority to adjourn, violates the equally clear constitutional right of the Executive to have it kept in session.

• We are of, opinion that the adjournment of the Senate on March 31st did not curtail the veto power of the Executive over the bill in question, nor should it eve have embartd have been aid permit; it .essage beyond the immediate 3 likely to deliver The best return rassed him in its exercise. The return made in such manner as the circumstir should, at all events, have left the bill the Executive control, and, if need bt custody of some proper person who would it to the Senate at the first opportunity, that the circumstances would admit, would, in our judgment, be a proper return. The maxim lex non cogit ad impossibilia would be applicable to such a condition of affairs. We know of no other rule, either, upon which the clear right of the Governor to make the return to the Senate can be reconciled with the equally clear right of the Senate to be in recess at the time.

In the year 1864 a question of a similar character to this came before the Supreme Court of the State of Hew Hampshire. The Constitution of that State is substantially the same as ours in the particulars involved, except that it limits the Executive to five days in which to return a bill, instead of ten days, as in ours. The bill in question in that case, originating in the House of Representatives of the State of Hew Hampshire, had been presented to the Governor on Wednesday, August 17th. The 21st of August falling upon Sunday, it resulted that the Governor had the whole of Monday, August 22d, upon which to return the bill. But the House of Representatives ivas not in session on that d?,y, because on the preceding Saturday, August 20th, both houses adjourned to Tuesday, August 23d. The Court say upon this point that it would, in their opinion, be sufficient for the Governor to return the bill to the Speaker, if within the five days; and they add, that “the house could not prevent the return of a bill by adjourning over any one of the five days, even though it should be the last one of the five, because the bill might, in that case, be returned within the time limited to the Speaker, or to the Clerk, or some other proper officer.” (45 H. H. 610.)

Having reached the conclusion that the facts do not show that the Governor returned the bill to the Senate within the meaning of the Constitution, we proceed to inquire whether “the Legislature, by adjournment,'" prevented such return; for if it did, the bill could not become a law by reason of the failure of the Governor to return it within the ten days. We judicially know, and if we did not, we are distinctly informed by the agreed statement of facts, that the late session commenced on Monday, the 6th day of December, 1869, and terminated on the 4th day of April, 1870. The adjournment of the 4th day of April was, in our opinion, the only adjournment which could have prevented the Executive from making the required return within the prescribed time.

This results necessarily from the views we have expressed on the other proposition, in which we hold that the Executive may return a bill to the Senate, though it be not, at the moment of the return, in actual session. If it has adjourned for the day, or for three days, it still has an organized existence as a legislative body, with its President, Secretary and other officers, to whom, under such circumstances, a substitutional delivery of the bill and message might be made, and whose official duty it would be to place the bill and message before the Senate at as early a time as might be thereafter. Such a return, as we have said, would be the only one permitted by the circumstances, and when the bill should afterwards actually reach the Senate, it could then proceed to reconsider it, as required by the Constitution in that respect.

But when a final adjournment of the Legislature has occurred, there is an end to the organized existence of the Senate. It has no longer officers to represent it for any purpose; nor could the bill, in the nature of things, ever be brought to its attention, for it would not be in session thereafter, nor be reconsidered by it, which is the purpose to be attained, for it would be itself no longer existing.

• In the New Hampshire case (supra) the Court say that “upon this point there can be no doubt. The adjournment referred to in the provision of the Constitution is not, we think, the ordinary recess or adjournment from time to time during the continuance of the session, but the final adjournment at the close of the session. In fact, this is the only adjournment, we think, which can prevent a return of a bill within the time limited: ”

The seventeenth section of the Constitution of California, relating to the adjournment of the Legislature, which will prevent the return of a bill by the Governor, will be found to be substantially the same as the seventh section of the first article of the Federal Constitution, which regulates the exercise of the veto power of the President over bills passing the Senate and House of Representatives of the United States. Its language upon this point is as follows : “If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Congress, by their adjournment, prevent its return; in which case it shall not be a law.”

It seems to have been the opinion of the late Mr. Justice Story (Com. on the Constitution, Section 891), that the only adjournment which could prevent the Federal Executive from returning a bill within the time prescribed, must be an adjournment amounting to “a termination of the session.” In the Hew Hampshire case, as has been seen, the Legislature did adjourn; but the Court held that a mere temporary adjournment, even of both houses, did not prevent a return of the bill then in question. In the case before us, however, it does not appear that the Legislature—-both houses— adjourned even temporarily. We do not think that the temporary adjournment of the Senate alone from 4 o’clock P. M. of one day to the usual hour of meeting on the morning of the next day, drew after it the grave constitutional consequence •—■ attributable, in our opinion," to no other adjournment than the final adjournment of the Legislature itself at the end of the session—of preventing the return of a bill by the Executive with his objections to its passage.

For the reasons given, and many others that readily suggest themselves, we think that the adjournment of the Senate on the thirty-first day of March was not an adjournment by which the return of the bill was prevented.

The Senate bill in. question, therefore, became a law, and within the contemplation of the Act of May 1, 1852, the second section of which is as follows: “ Section 2. Every bill which has passed both houses of the Legislature, and shall not be returned by the Governor within ten days, having thereby become a law, shall be authenticated by the Governor causing the fact to be certified thereon by the Secretary of State in the following form : ‘This bill having remained with the Governor ten days (Sundays excepted), and the Senate and Assembly being in session, it has become a law, this-day of-, A. D.-’; which certificate shall be signed by the Secretary of State and deposited with the laws in his office,” And this bill should receive the prescribed authentication and be deposited with the other laws of the State.

But the Governor refused to permit either the authentication or deposit, and retains the bill in his possession in the condition in which he received it from the Enrolling Committee of the Senate.

And here we reach the only remaining question for our consideration in the case.

Can the performance of this duty be enforced through the instrumentality of the writ of mandamus?

In the voluntary submission which was made of the cause, no such question was presented for determination. By the stipulation, as we have seen, it ivas agreed that if the Court are of the opinion that said bill did become a law, a peremptory mandamus may issue commanding the respondent to cause said bill to be authenticated, as provided by Section 2 of the Act of May 1, 1852, already cited.

Since then, however, the respondent has filed an exception to the jurisdiction of the Court, because “the functions of the Executive, in conjunction with the Legislature as part of the law-making power, are not the subject of mandamus.”

[We shall consider this objection in the form here stated, without, however, being understood as conceding that any Executive function is “part of the law-making power.”]

The Attorney General, too, in an able argument, brought to our attention since the submission of the cause, states the proposition in a more imposing form, and inquires : “Can it be successfully contended that the chief Executive of a State —a correlative branch of the State government, equal in dignity with, the Court—can be commanded to do an act, which, in his Executive opinion, may not be right?”

Undoubtedly, if the mere authentication of the bill, pursuant to the requirement of the statute, be a political poiver —such as the authority to grant reprieves and pardons, to convene the Legislature in extraordinary session, to appoint to office, to accord or withhold the Executive approval to legislative bills, or the like; or if there be any mere discretion in the Governor to withhold such authentication, when the statutory facts have occurred—it does not belong to the Judicial Department to interfere with its exercise in any manner. The Executive responsibility for the proper discharge of such trusts is directly to the immediate political representatives of the people, and ultimately to the people themselves.

But, we think it would be difficult to show that the case at bar is one of that character. The functions of both the Legislature in making the law, and of the Executive in the exercise of the qualified veto power conferred upon him, must have been completely exhausted before the duty of authentication and deposit in the Secretary of State’s office can be asserted to have begun.

It is only because the bill has already become a law that the statute requires its authentication at all. It will be seen that the power and the duty to direct the authentication are inseparable, and that where the one exists there is no discretion to decline the performance of the other. The power to withhold the possession of a bill, which has passed both houses of the Legislature in the proper form of legislative proceeding, and has thereby become a law under the operation of the Constitution, either with or without the Executive signature, i’s one which is unknown to our people, and has no place in the system of government prevailing here.

It is true that, in the earlier days of Parliament, the Sovereign is said to have exercised the power of altering and amending bills at pleasure, before according the royal approval, but at that time the asserted authority of the Crown was almost absolute, and certainly under but little restraint at the hands of the representatives of the Commons, the habitual language of whose addresses to the throne was: “Your poor Commons beg and pray, for God’s sake, and as an act of charity, ” etc. And it is also true that, at a much later period, the English princes of the house of Stuart, especially the Duke of York, when upon the throne, asserted, as part of the royal prerogative, the power to dispense with the operation of the statutes of the realm in such special cases, and in regard to such particular individuals, as they saw fit. But even that claim of authority was utterly abrogated at the accession of the Prince of Orange, and since the beginning of his reign no English sovereign has asserted it, or, indeed, even in any manner withheld the royal assent from the passage of any Act of Parliament whatever.

Under our system of government, based as it is upon a written constitution, defining distinctly the measure of power to be exercised by the Executive Department, the authority to dispense with a statute, either in a particular instance or altogether, by withholding it from the depository of the law in the proper office, has not been conferred.

The Statute of 1852, as we have seen, declares in tot-idem, verbis, that a legislative bill, situated as this one is, “ shall be authenticated by the Governor, ” etc. Whether, then, we regard the mere nature of the act to be done or the mandatory language in which its performance is enjoined, it is impossible to conceive of any case in which there could be less discretion left to the officer, whose duty is thus declared by statute.

The authentication and deposit of this law in the office of the Secretary of State is 'emphatically ‘ ‘ an act which the law specially enjoins as a duty resulting from an office, trust or station, ” within the letter and intent of the statute regulating the writ of mandamus in this State. (Statutes 1851, p. 124, Sec. 467.)

And it is settled by the uniform adjudications of this Court that in such a case the writ will be issued against the Governor of the State to enforce the performance of the act . required. (McCauley v. Brooks, 16 Cal. 11; Middleton v. Low, 30 Cal. 596; Stuart v. Haight, January Term, 1870.) These authorities are supported by numerous cases adjudicated in other Courts. In the case of Marbury v. Madison (1 Cranch. 137) it was declared by the Supreme Court .of the United States that “it is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is determined.” In the case of Amos Kendall, Postmaster General of the United States, plaintiff in error, v. The United States on the Relation of Stokes (12 Pet. 594), a writ of mandamus .was sought against the Postmaster General of the United States, and its issuance was resisted by Mr. Attorney General Butler. On the argument the Attorney General, conceded the constitutional power of Congress to invest the proper Courts of the United States with jurisdiction to issue writs of mandamus to any ministerial officer of the United States to compel the performance of his duty. “And as the ordinary character of an officer’s functions would not always determine the true nature of a particular duty imposed by law, he further agreed that if an executive officer, the head of a department, or even the President himself, were 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, quo ad. hoc, not as an executive, but as a merely ministerial officer, and, therefore, liable to be directed and compelled to the performance of that act by mandamus, if Congress saw fit to give the jurisdiction.”

And the opinion of the Court, as delivered, is in accordance with this view.

In Chamberlain v, Sibley, the Supreme Court of Minnesota say: “This Court will not undertake to compel the Governor of the State to the performance of any duty devolving upon him as the Chief Executive, and properly pertaining to his office. In all such matters the Executive is necessarily independent of the Judiciary; but when- some official act, not necessarily pertaining to the duties of the Executive of the State,-and which might be performed as well, by one officer as another, is directed by law to be done by the Governor, then any person who shows himself entitled to its performance, and has no other adequate remedy, may have a writ of mandamus against such officer, even though the law may have designated the Chief Executive of the State to perform the duty. We do not think that in such cases there is any ground for distinguishing the Chief Executive from any other officer who may be designated to do a mere ministerial act; otherwise á party might be entirely without remedy.” (4 Minn. 312.)

The Supreme Court of Ohio, in the case of The State ex rel. etc. v. S. P. Chase (Governor), say: “However, therefore, the Governor, in the exercise of the supreme Executive power of the State, may, from the inherent nature of the authority in regard to many of his duties, have a discretion which places him beyond the control of the judicial power— yet in regard to a mere ministerial duty enjoined on him by statute, which might have devolved on another officer of the State, and affecting any specific private right—he may be made amenable to the compulsory process of this Court by mandamus.” (5 Ohio State, 535; see, also, the case of Cotton v. Ellis, 7 Miss.; N. C. 550.)

We are aware that there are authorities which hold that the Executive is, in no instance, subject to the process of mandamus, because he is the chief of v. a co-ordinate department of the Government. “But,” in the language of a late commentator upon the law of mandamus, “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 any discretion nor leaves any alternative.” (Moses on Mandamus, 82.)

It is said, however, that by the terms of the statute regulating the writ of mandamus in this State, it can only be issued to an “inferior” person, and that the Executive cannot be considered to be such a person.

The language of the statute in this respect is as follows : “It may be issued by any Court in this State (except a Justice’s, Recorder’s, or Mayor’s Court), to any inferior tribunal, corporation, board, or person, to compel the performance of an act,” etc.

It is obvious that the word “inferior,” as here used, is a qualification confined to the word “tribunal.” The intention was to prevent any Court from issuing the writ to any other Court superior in authority to itself, in any case in which the writ should be directed to another tribunal; it must, therefore, be one “inferior” to the Court issuing the writ. As thus applied, the word “inferior” has a familiar signification—for, “superior” and “inferior” are terms applied to the Courts as indicating the general character of the jurisdiction they respectively exercise.

But, as applied to a “person,” the word “inferior” has no intelligent signification. Who is, in law, an “inferior” person? Who, in this sense, a superior one? It is assumed, too, by the Attorney General in the inquiiy he has submitted, that the mere.issuance of the writ of mandamus to the Executive imports, upon the part of the Court, a claim of official superiority over that officer. Nothing could be more unfounded. In the nature of things no comparison between the authority of the Governor and that of this Court can be instituted. His duties are entirely executive in their nature —ours, exclusively judicial. Upon him rests the great obligation to see that the laws are faithfully executed; but it belongs to the nature of the judicial office to interpret and authoritatively declare the meaning of the laws applicable to the vested rights of the citizen.

And upon principle it would seem that, if the petitioner has a vested right by law to have the bill in question authenticated, the mere circumstance, that the person whose duty it is to direct the act to be performed is an officer, even the chief officer of the Executive Department—and as such, in the discharge of oilier and important duties, should not either impair- the right or embarrass its assertion. The duty to direct the authentication imposed upon the Governor by the statute might have been enjoined upon any other executive. officer—and in such case, would it be pretended that its,performance could not be enforced? It might have been made part of the official duty of the Secretary of State, independently of any direction to him by the Governor, to affix the appropriate certificate to the bill; and in that case, would it be any answer to say that he was an executive officer, and as such invested with executive discretion and authority in reference to certain other matters not involved in this question? And if it be conceded that the Governor, because he is chief of the Executive Department, enjoys for that reason an absolute immunity from all judicial process—■ even when his duty in the given instance is ministerial—and a citizen has a vested right to have it performed, may not the same exemption from judicial process be set up by other officers of the Executive Department?

Would the Attorney General, the Controller, the Treasurer, and the other great officers of State, by reason of their mere official rank, be beyond the reach of the process of the law in all cases, and not be compelled to perform any official act, no matter how distinctly enjoined upon them? And if the State officers of the Executive Department are to be clothed with this immunity, it must be remembered that the Sheriffs, Eecorders, etc., in the several county organizations, are also members of the Executive Department—and upon what principle could one of them be compelled to perform his duty in any case? It seems to us that the assertion of such a doctrine would draw after it the most serious complication and confusion, both in public and private rights, and practically disrupt the whole fabric of government.

We think that the writ should issue as prayed for, and it is so ordered.