40 Tex. 537 | Tex. | 1874
Lead Opinion
This case is brought here by an appeal from the judgment of the District Court of Travis county awarding a peremptory mandamus against the appellant, A. Bledsoe, Comptroller of the State of Texas, and commanding him to countersign and register five hundred State bonds, calling for one thousand dollars each.
The action is based upon an act of the Legislature of this State, passed August 5, 1870, entitled, “An act to incorporate the International Railroad Company, and to provide for the aid of the State of Texas in constructing the same,” and more particularly upon the 9th Section thereof, which is as follows:
“Sec. 9. In order to secure and promote the rapid construction of said railway, and thereby afford cheap and necessary facilities for emigration into the State, as well as speedy communication between the northeastern and southwestern boundaries, and with the Eastern and ¡Northern States, and to meet, as soon as practicable, the Avants of the people of this State in promoting the settlement of the vacant lands and development of its resources, the State of Texas consents, binds and obligates itself to donate, and hereby grants to said company, the bonds of the State of Texas to the extent and amount of ten thousand dollars per mile for each mile of said railroad constructed under this charter; said bonds to be of the denomination of one thousand dollars each, payable to the
In the petition of the appellee it is represented that' the International Railroad Company is a body politic and corporate, created and established under said act that there was granted to said company the right to construct and own a railroad, and to maintain the same, across the State of Texas, and upon a line designated in said act; that after being duly organized the said company raised the necessary means and completed fifty-two-miles of railroad and fully equipped the same within the time required by said act; that the same was duly reported to the Governor, who thereupon appointed two persons as agents of the State to examine and report-upon the work; that it appeared from the sworn statement of the chief engineer of said company and the report of said agents that said fifty-two miles of railroad, work was of a superior quality, and was in full compliance with the requirements of said act; that thereupon-the said Governor, under said 9th Section of said act-,, caused five hundred bonds of the State of Texas, each, for the sum of $1000’, to be prepared, the same having-coupons attached and to run for thirty years ; that the-said Governor signed said bonds, and transmitted them to the Treasurer, who also signed them; that when the-same were transmitted by the Treasurer to the Comptroller, he failed and' absolutely refused to countersign and register the same; that it was the duty of said officer under said 9th Section to countersign and register said bonds (a copy of one of the bonds and a coupon attached being brought into court); that said company has no other remedy bub that which can be afforded by the writ
There were general and special demurrers to the petition, and an answer to the merits by the defendant. After the several demurrers were overruled, a trial was had on the facts; and upon a jury verdict judgment final was rendered against the defendant. There was also an intervention by the State of Texas, but as the same has been .abandoned no further notice need be taken of it.
The questions which first properly come up for consideration by the court, and which have been frilly and ably ■discussed by the counsel, arise upon the demurrers, and are these:
1. Does the record present a proper case for a mandamus, considered on general principles ?
2. Has the District Court the power and authority to compel the Comptroller of the State of Texas to countersign and register the State bonds ?
It is unnecessary to give an account of the origin and use of the writ of mandamus in England. It has been more or less employed in all the courts of America for many years, and the principles applicable to its use have been much discussed. It is sufficient to say that the proceeding by mandamus has for'its object the enforcement of a duty, and that it has ever been regarded as an extraordinary remedy, subject to important restrictions. A mandamus will issue to an officer of the government only when the duty to be performed is ministerial in its character ; and when a duty is imposed upon the officer requiring the exercise of judgment or discretion a mandamus will not lie. (5 Texas, 478; 12 Pet. R., 524, 609; 7 Cr. R., 504; 6 Wheat., 598; 6 How., 92.)
It was said by Justice Wheeler: “ The distinction between ministerial and judicial and other official acts
This, perhaps, defines the rule as clearly as it can be-done, yet it must be admitted that "the use of terms-handed down from a country where a different government and different laws obtain is calculated to make it difficult of application to particular cases. The word “ministerial” has reference generally to an act done under authority of a superior; and in this sense it could never apply to the chief executive with respect to anything required by the legislative authority. The word “discretion” strictly applies to but few acts. The Grovernor has a discretion in the exercise of the pardoning power, and sometimes a court in determining the amount of a fine; but the instances are few indeed where an officer, executive or judicial, in exercising the functions of his office is left to act solely at his discretion. “ The discretion of a judge is said to be the law of tyrants.” (Bouvier.) So also the word “judgment” most generally has reference to some determination by a judicial tribunal. It is evident, then, that these words are not to be used in a restricted sense. Where the line of demarkation lies between a ministerial act and an act involving the exercise of judgment is not always easy to determine. In the case of Decatur v. Paulding, 14 Peters, 518, Justice Catron said: “Any sensible distinction applicable to-all cases it is impossible to lay down; such are the refinements and mere verbal distinctions'as to leave an almost unlimited discretion to the court. How easily the doctrine may be pushed and widened, to any extent, the case furnishes an excellent illustration. The process of'
. In this case it is contended, that under the 9th Section •of the act incorporating the International Railroad Company, the part to be performed by the Comptroller of the State, to-wit, countersigning and registering the bonds, is ¡a mere clerical or ministerial duty, in regard to which nothing is left to his discretion or judgment. There is discretion or judgment to be exercised somewhere, and by some person or persons; for it is expressly provided •“that no bonds shall be issued to said company until it ishall have completed at least twenty miles of said railroad,” etc.; and in the 13th Section of the same act it is provided that “the railroad of said company shall be thoroughly and substantially built; its iron rails shall be of weight not less than fifty pounds,” etc. It is evi•dent that the sworn statement of the engineer and the report of the agents were intended to furnish evidence only upon which the proper tribunal might act. It is said that this tribunal is the Governor; but it is difficult to see wherein the authority to decide is granted more to him than to the Treasurer or Comptroller. The injunction is, that “no bonds shall be issued” until a given amount of railroad work is completed, whereupon “ the bonds shall ;be issued and delivered,” etc. How, there .is a separate provision requiring, that the bonds be delivered by the Governor to the president of the company after they are
It is more reasonable to conclude that the prohibition of the issuance of the bonds included also their execution ; and that, as it is necessary for the Governor, Treasurer and Comptroller to participate in their execution, it is the dirty of each one to see to it that the proper and necessary work is first performed; when, if in their judgment the law should be complied with by the company, the proper bonds could be issued, and by the Governor delivered to the company. The three highest executive officers of the State are brought to this work, involving a large financial operation, and it is evident that they are jointly and severally charged with the duty of protecting the interests of the State, involving more than can be properly said to be a mere clerical or ministerial duty.
Again, the act of countersigning and registering the State bonds by the Comptroller, as provided for by the law in this case, is an official act pertaining to one of the principal executive departments of this State, and ilecessarily calls for the exercise of judgment. It is believed that this position is well sustained by the best author ties.
In the case of Decatur v. Paulding, 14 Peters, 515, which was a proceeding for mandamus against the Secretary of the Navy of the United-States to enforce the payment of a half pension fixed by a special law of Congress, Chief Justice Taney, delivering the opinion of the court, said: “The duty required by the resolution was to be performed by the head of one of the executive departments of the government in the ordinary discharge of his official duties. In general such duties, whether imposed by act of Congress or by resolution, are not mere ministerial duties. The head of an executive department of
The same doctrine was distinctly announced in the case of Kendall v. The United States, 12 Peters, 610, a leading case on this subject. The court then said: “The mandamus does not seek to direct or control the Postmaster General in the discharge of any official duty,” etc. And it was held in that case that “all room for the exercise of any discretion, official or otherwise, was shut out. by the direct or positive command of the law,” etc.
The-same principle is still more strongly stated in the later case of the United States v. Guthrie, 17 Howard, 303, when Justice Daniel, in delivering the opinion of the court, said: “It would occur a priori to every mind that a treasury not fenced round or shielded by fixed and established modes and rules of administration, but which could be subjected to any number or description of demands, asserted and sustained through the undefined! and undefinable discretion of the courts, would constitute-a feeble and inadequate provision for the great and inevitable necessities of the nation. The government, under such an absence of all rule, would, if practicable at all, be administered, not by the great departments ordained by the constitution and laws, and guided by the
The Constitution of the State of Texas expressly names the Comptroller of Public Accounts as an executive officer of the government. (Art. 4, Sec. 1.) It assumes to define the powers and duties pertaining to his office. (Art. 4, Sec. 20.) “He shall superintend the fiscal affairs of the State; keep all the accounts of the State; audit all the claims against the State; draw warrants upon the Treasurer in favor of the public creditors, and perform such other duties as may be prescribed by law.” It provides that the Treasurer of the State “shall receive and take charge of all public money paid into the treasury; countersign all warrants drawn by the Comptroller; pay off the public creditors upon the warrant of the Comptroller,” etc. (Sec. 21.) It also provides that the Attorney-General shall give legal advice in writing to all officers of the government. (Sec. 23.)
The control and management of the fiscal affairs of a government is of the very highest importance. This power is given to the Comptroller. “He shall superintend,” which includes the power of directing under the
The Comptroller being thus placed at the head of the fiscal department, clothed with the power of directing the same, and entitled to bring to his aid able counsel, surely it was intended that in all matters pertaining to the duties of his office, under the Constitution, he should exercise judgment and discretion.
To countersign and register State bonds would manifestly be an official act, and one pertaining to his general duties under the Constitution; for that done, and the bonds would stand as audited and perfected claims against the government, and would perhaps operate as warrants on the Treasurer.
Furthermore, the Comptroller should determine, before countersigning and registering the bonds, whether they in all respects conform to the law; and should consider also the different provisions of the law as they relate to his obligations under the Constitution.
1. The bonds presented to him in this case, as appears from the record, are made payable in the city of New York, so also the coupons; when the act of incorporation' provides only that the coupons should be made payable in that city.
2. The act provides that he shall assess a tax on all the taxable property in the State, to meet the accruing interest on said bonds and to raise a sinking fund ; when no tax for that purpose appears to have been levied by the legislative authority.
3. The act provides that the fund raised by taxation, and deposited in the treasury, shall be subject to the order of the Gtovernor to meet the payment of the debt; when by the Constitution the - superintendence and direction of all ¡the fiscal affairs are given to the Comptroller.
Again, “to entitle a party to this remedy by mandamus he must show a clear legal right in himself, and a corresponding obligation on the part of the officer; for if the right or the obligation be doubtful, the court will not interfere by this process.” (Arbery v. Beavers, 6 Texas, 473.) The fact alone that the bonds were made payable in New York, when the law does not authorize it, would show no obligation on the part of the Comptroller to countersign them.
Second. It is considered that the District Court has not the power and authority under the Constitution to compel an officer of the executive department of the government to perform an. official duty. This conclusion must follow from the structure of our government, and the distribution of power under the Constitution between the three independent departments of government.
This question was first raised and elaborately discussed in the United States Court, in the case of Kendall v. The United States, before referred to. And in the opinion of the court it was announced that, “The theory of the Constitution undoubtedly is, that the great powers of the government are divided into separate departments; and so far as these powers are derived from the Constitution, the
The question may be said to have been authoritatively settled in this State under the Constitution of 1845, in the case of the Houston Tap and Brazoria Railroad Company v. Randolph, 24 Texas, 335. The opinion appears to have been-rendered'after a contest showing research and ability, and by a full court. The following quotation from the opinion is here made, to-wit:
“The 2nd Article of the Constitution provides that ‘the powers of the government of the State, of Texas shall be divided into three distinct departments, and each*565 of them be confined to a separate body of magistracy, to-wit, those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.’ Here is a direct prohibition of the blending of the departments. It contemplates that the persons employed in each department will be wise enough and honest enough to discharge the duties entrusted to them without the aid or interference of the others. And it is a full warrant for each department to disregard and repel such interference; for, as before said, each one of these departments acts under a delegated limited authority, and if one exceed its authority by usurping powers not belonging to it, its act is a nullity, not binding the other departments, and may be totally disregarded by them. If the Governor were to dictate to the judges the judgment to be pronounced, and enforce obedience by his power over the militia, the usurpation would be startling indeed, and too plain for discussion. Hot any more so in principle, however, than for the District Court of Travis county, or the Supreme Court of the State, to require by its mandate that the Governor of the State shall sign a patent to land, or the Comptroller shall audit an account, or the Treasurer of the State shall pay a draft upon the treasury.”
Since that ruling was published two constitutions of the State of Texas have been made (that of 1866 and that of 1869), and the same inhibition as to the exercise of power by persons of the different departments of government is retained, and doubtless with a full knowledge of the ruling of the court on this important question. And, as if it were intended by the framers of the Constitution now in force to leave no room for judicial construction, that instrument is made to expressly define the different ex
These considerations furnish additional and very strong reasons why the court should adhere to the ruling made in the above case of the Houston Tap and Brazoria Railroad Company v. Randolph.
In the .different States of the Union the executive power is vested in the Governor, while in this State, as before stated, it is vested in the magistracy composing the executive department. The authorities are numerous sustaining the independence of the executive department. (Dennett, Pet., 32 Maine, 508; Mauran v. Smith, 8 R. I., 192; State v. The Governor, 1 Dutcher, N. J., 331; Law v. Towns, 8 Ga., 360; Hawkins v. The Governor, 2 Ark., 570.)
If there is no other remedy than by mandamus against the Comptroller for the non-performance of official duties, the same could be said of the Governor, and of a judge of the court. It is as reasonable to suppose that one officer would act up to the performance of duty as faithfully as another. Evidently this independence of power in the different departments was intended to act as a cheek and restraint against usurped authority.
In the first case, the suit above referred to was between two claimants, and the writ was incidental. In the second, there was no statement of facts, and the rule was adopted that ‘' in their absence the legal intendment is in favor of the correctness of the judgment.” In neither of the two first cases referred to was the question of the right to the writ argued by counsel, or discussed by the court. The early cases afterwards" determined by this court, in which the principles were énunciated as applicable to the remedy by writ of mandamus, were cases in all of which it was held that the writ could not be sustained. And the principles announced were assumed to be drawn mainly from the decisions in these two cases, and from the decisions of the Supreme Court of the United States upon that subject. (Glasscock v. Commissioner General Land Office, 3 Texas, 53; Bracken v. Wells et al., 3 Texas, 90; Commissioner General Land Office v. Smith, 5 Texas, 477; Arberry v. Beavers, 6 Texas, 464, and others.)
The rule announced by Justice Wheeler in delivering the opinion of the court in the case of Commissioner
It must be recollected that this remedy was introduced in Texas mainly as an incident to suits between private litigants in the different counties of the State, which caused a statute to be passed requiring such suits against the heads of departments or bureaus to be brought in Travis county. (Act of 1846, Hartley’s Digest, Art. 643, p. 237.) However such act may have recognized the legality of such suits, it could not be held, either in its terms or by implication, to have enlarged and extended the remedy by mandamus beyond the enforcement of a merely minis
It must be considered, also, that the office of Commissioner of the General Land Office, previous to the Constitution of 1869 (which made it a constituent portion of the executive department), was a mere commission to aid in perfecting and preserving land titles, and that the Commissioner was regarded and treated by the courts as merely a ministerial officer, whose office was created and shaped, and whose duties in said office were prescribed, entirely by the acts of the Legislature, and all of whose official acts and determinations, whether involving the exercise of judgment or not, were subject to be enquired into in a suit by mandamus. (Norton’s S. v. The Commissioner, etc., 2 Texas, 362; Com. G. L. O. v. Smith, 5 Texas, 479-80; Glasscock v. Com. G. L. O., 37 Texas, 53.) The limitations of the remedy to purely ministerial acts, as announced in the decisions of the Supreme Court of the United States (in 1 Cranch, 12 and 14 Peters, 6 Wheat., 6 Howard, 5 Wallace), though quoted as a basis, were never practically applied to the Commissioner in any of the decisions as it was applied to the acts of the heads of departments in the government of the United States. It must be observed, also, that none of those decisions in reference to the Commissioner consider or discuss the question of the division of the powers of government — treating the Commissioner as part of, or subject to, the executive department of the government.
The last case, wherein the writ was issued to the Commissioner, though decided since the Commissioner has been made a constituent portion of the executive department of the State by the Constitution of 1869, is rested upon previous decisions and general principles. (Railroad Co. v. Commissioner, 36 Texas, 382.)
Under the view here presented, it is not perceived that the decisions relating to the Commissioner of the General
At the late session of the State Legislature a compromise act, or act of adjustment, with the International Railroad Company was passed, and other questions have been presented for our consideration as if an adjudication thereon was contemplated by said act. There is a provision in the act that the same shall not be considered as in any way interfering with the litigation in this case. Moreover, there is no expression recognizing the State of Texas as a party to the suit. It having been already decided that the court has no jurisdiction over this case, any further opinion on the questions presented would be extra-judicial and without authority.
For the reasons given, it is considered by the court that the judgment of the court below be reversed and that the cause be dismissed.
Reversed akd dismissed.
Dissenting Opinion
I dissent from the opinion of the majority of the court, and propose to present my views on the questions discussed in the opinion.
The act of the Legislature making the decision of this court the basis for a settlement obviously contemplated as a contingency a decision on all the questions touching the merits of the controversy as made by the pleadings. I think the case as it is presented by the pleadings is properly before the court for that purpose — if not with the consent of the State, certainly without its objection. The majority of the court think otherwise. From that view of the matter I dissent. Had it not been decided in Davis v. Gray, 16 Wallace, 203, that making a State officer a party does not make the State a party, it might still be contended that the same result would follow when the State, after having intervened, afterwards voluntarily
The jurisdiction to enquire into the power of the Legislature to pass an act, and to decide whether the enactment is constitutional or not, has never been denied to the courts, and its exercise has never been regarded as encroaching on the powers properly belonging to the other branches of the government. «The validity of the act does not depend upon the motives which may have induced its enactment. Such a test as that has never been applied, and when the effort has been made the courts have refused to interfere, having no jurisdiction over the subject. If the act was passed by the- Legislature, and received the approval of the Governor, the only question, that can arise is whether the Legislature had the power-under the Constitution to pass it. If it had, the enactment is binding alike on all the departments of the government. This is not a new question, and requires no extended argument for its support, if former adjudications are to be followed; and nothing more is necessary than to cite the authorities which are thought to be conclusive on the point and referred to in the briefs of counsel for appellee. (Wright v. Defrees, 8 Ind., 298; Ex Parte Newman, 9 Cal., 502; Johnson v. Higgins, 3 Met., Ky., 566; People v. Draper, 15 N. Y., 545; Sunbury and Erie Railroad Company v. Cooper, 33 Penn. St., 278.)
If the jurisdiction of the courts to pass upon the constitutionality of a law be admitted, it is not readily perceived upon what principle an officer of the government (no matter to which department he may be attached)could disregard the sentence and be heard to assert that he was not bound by the obligation it imposes, unless he is prepared to advance a step further and declare his independence of the law itself, though the duty was only
The Comptroller does not rest his defense upon that ground, but says it is a case for the decision of the court, as will be seen by his letter to the Governor declining to countersign and register the bonds without the slightest intimation that he regarded his action as final.
The right to issue the writ of mandamus in a proper case finds ample support in the practice of this court •as shown by the following cases, and others might be cited: Ward, Commissioner of the Land Office, v. Townsend, 2 Texas, 581; Glasscock v. Commissioner of the General Land Office, 3 Texas, 51; Commissioner of the Land Office v. Smith, 5 Texas, 471; Meyer v. Carolan, 9 Texas, 250; Arberry v. Beavers, 6 Texas, 457; Horton v. Pace, 9 Texas, 81.
This question was not regarded as an open one as early .■as the decision in the case of the Commissioner of the General Land Office v. Smith, above cited. Justice Wheeler, in delivering the opinion of the court in that -case, said : “The practice of resorting to this proceeding (mandamus) against this officer, and to enforce the performance of this particular duty, is believed to have had its origin almost as early as the creation of the office itself, and to have been continued, without a question as •to its legality, down to the present time” (1849). In Meyer v. Carolan, Chief Justice Hemphill,,in vacation, had issued an alternative mandamus against Carolan, as clerk of the District Court, to approve an appeal bond and compel him to send up to the Supreme Court a transcript of the record in the case. Justice Lipscomb, in delivering the opinion of the court, said : ‘' The clerk is re-quired to take and approve an appeal or writ of error bond, and send up to this court a complete transcript of the record of the case as .it is of record in the District •Court. If, after taking the bond, ..the .clerk should fail or
The distinction between a ministerial act and one of judgment is clearly shown in this case. The sufficiency of the security was a question of fact to be passed upon by the clerk, in which the exercise of his judgment was. required, and the performance of that duty could not be compelled by mandamus. The sending up the transcript was an act defined and enjoined by law, without consulting either his discretion or his judgment; and, therefore, a proper case for the writ. Other cases might be cited in which the right to issue the writ is not questioned, but-was refused because the applicant failed to show that ho was entitled to it' on the facts of his case, but the references here made will suffice on the practice of the court..
The right to issue the writ does not rest alone on the practice of the courts of this State. It is recognized by the Legislature and all departments of the government, and the practice is in harmony with the decisions of the-courts of other States and of the United States.
By the act to organize the District Courts, and to define their powers and jurisdiction, the judges have authority to grant writs of habeas corpus, mandamus, injunction, sequestration, error and supersedeas, and all other remedial writs known to the law; providing, that all writs, of mandamus sued out against the heads of any of the departments or bureaus of government shall be returnable before the District Court of the county in which the seat of government may be. (Article 1407, Paschal’s Digest.) The statute of 1841 contained a similar provision. The only limitation on the power to grant the writ is, that it must be returnable at the seat of government. It is not re
The duty imposed upon the Comptroller in this case is defined and enjoined by law, is ministerial in its nature, and does not involve the exercise of judgment or discretion. The ninth section of the charter provides “.that said bonds shall be signed by the Governor and the Treasurer of the State of Texas, and countersigned and registered by the Comptroller, with the seal of the State of Texas affixed thereto, and shall be delivered by the Governor to the president or such other officer of said company as shall be specially appointed to receive and receipt for the same, on the sworn statement of the chief engineer of said company, and the written report of such officers or agents of the State as the Governor may have appointed for that purpose, that ten miles of said railroad have been completed in a thorough and substantial manner, which affidavit and report, together with the receipt for said bonds, shall be filed in the office of the Secretary of State ; jprovided, that no bonds under this act shall be issued to
The duty here enjoined on the Comptroller is clearly defined, and is a clerical or ministerial act, referring nothing to his judgment or discretion, only requiring him to countersign and register the bonds. The bonds are to be delivered by the Governor; the officers or agents of the State to examine the road are appointed by the Governor ; the affidavit of the engineer and report of the agent so appointed, with the receipt for the bonds, must be filed in the office of the Secretary of State; and the seal of the State, of which the Governor is the keeper, must be affixed to the bonds — all to be done without the agency, and certainly without any discretion, of the Comptroller.
The authority of the Comptroller to superintend the fiscal affairs of the State is enjoined as a duty, and is not a power to be exercised at his discretion without warrant of law. The Legislature may direct the manner of its exercise, and require him to perform such other duties as may be prescribed by law appertaining to the duties of his office, and not inconsistent with the Constitution. If the duty is ministerial, and he refuses to comply, it is a case for a mandamus ; but not, if he is authorized to exercise his judgment or discretion. The appropriation of money for purposes of internal improvement, and the payment of the interest and principal in the future, and providing adequate means for that purpose, come within the scope of legislative power, over which the Comptroller has no discretion; and it is not within the scope of his general duties relating to the fiscal affairs of the State. Where the appropriation is specific, the Comptroller cannot divert it and apply it to a different object, and he would have no control over the fund, and could exercise
The question whether the Comptroller could properly assess the tax without a levy was not the ground of the application for the writ, and that question may never arise. The compromise act, as it is called, provides for the levy, if the decision should be for the company on the merits. This I think invites discussion on other questions left undecided in the opinion, and which should be met and disposed of. But as that is not done, I shall not discuss them, resting my opinion on the questions I have indicated.
Dissenting Opinion
This case came before this court on appeal by A. Bledsoe, as Comptroller of the State of Texas, from a judgment or decree of the District Court of Travis county, on a petition for mandamus commanding him to countersign and register certain bonds, claimed by the International Railroad Company, and fully described or set forth in their petition.
The dismissal of the cause for want of jurisdiction by the majority of this court led to a dissent on the part of two members. Justice Reeves has expressed his views in an opinion in which I concur, and I have considered it proper to express at length my opinion, and refer to some of the authorities that have led, in connection with those cited by Judge Beeves, to the formation of that opinion.
The importance of the question at this time, when viewed in the light in which it is placed by the opinion delivered, is greater than perhaps it at first view appears either to the public or the legal profession. Important not alone by reason of. the tax necessarily required to pay
There is another view of this case, and the question is of far more importance than the rights of any one individual or corporation embraced in this suit, or the release of the people from any amount of taxation likely to be cast on them. The question presented by the judgment and in substance declared in the opinion of the court is, that the members of the executive department of the government (not alone the Governor and Lieutenant Governor, but the Comptroller of Public Accounts,'the Treasurer, the Commissioner of the General Land Office, the Attorney-General, the Secretary of State, and the Superintendent of Public Instruction) are, each and all, in matters relating to their official duties, not subordinate to and bound by the laws which the Legislature may enact for their guidance and control; but if, in the opinion of any such official, the law does not harmonize with his view of the Constitution, or of expediency, or from any other cause, whether mere whim, caprice, official insolence, or reasons of a private or personal character, he may with impunity follow the bent of his inclinations; that he cannot be coerced into an obedience of the law by the court, being authorized by express statute to act by reason of the fact that each and all of the officers above
This portion of the opinion justifies the statement that the judgment and opinion draw after them consequences infinitely more important than those embraced in the pleadings of the parties to this suit.
To the judgment rendered and the opinion delivered I cannot yield my assent. I am unable to comprehend how, under our form of government and the line of decisions of our own court,, the Supreme Court of the United States, and those of our sister States, there is in any branch of the executive department of this State a power to refuse or fail to act in a case where there is' a plain, positive, peremptory constitutional enactment requiring action by an officer or officers. To hold that there is such power in an officer of this character, in view of the law and precedents, is in effect admitting .that a citizen having a clear legal right, with a channel through which his rights could flow to him, as indicated by law, should, nevertheless, from the mere will of an officer directed to set his right in motion, or give him evidence of it, have his right obstructed, delayed, or forever lost to him. It will be admitted that if the Comptroller can (as in this case it is declared he can) set aside a plain and positive requirement of the law on the plea that his legal adviser, the Attorney-Gfeneral, advises him he ought not to act, then he may, and so may every other officer of the executive department, disregard with impunity any other act of the Legislature that in his opinion or that of his legal adviser interferes with his official duties, or, as was said in this case, is “unconstitutional, oppressive, or unjust in its workings.” To admit this would be an acknowledgment that the final adjudication of a constitutional question rests with the officer or with the AttorneyGreneral and not with this court.
This I cannot assent to, as it would create an irrespon
I believe the decision in this case has mistaken the law, has overlooked precedents, and is not in harmony with our system of government or laws.
In the opinion of the majority-of the court it is said, “A mandamus will issue only when the duty to. be performed is ministerial in its character; and when a duty is imposed upon an officer requiring the exercise of judgment or' discretion, a mandamus will not lie.”
In the case before the court a ministerial act was required of the Comptroller, and-nothing more. His duty under the law was to countersign and register the bonds— no judgment exercised or discretion permitted.
The opinion declares that “The word ‘ministerial’ has reference generally to an act done under authority of a superior, and in this sense it could never apply to the chief executive-with respect to anything required by the legislative authorities.”
In reply to this, the superior in the order to countersign and register the bonds was the legislative voice, speaking or ordering by the law of the land. As regards the executive, or its application to him in this case, it is sufficient to state that discretion was left by the act in the Governor; none whatever in this matter was given to the Comptroller.
Again, this is a proceeding against the Comptroller; the Governor is not a party, and in no way interested in this suit more than any other tax-paying citizen of the State.
The opinion declares that “ Where the line of demarka
This is undoubtedly correct. In this case, however, I think the line of demarkation is so plain that " he. who runs may read,’ ’ and being so plain, in my opinion, I have believed it proper to tread boldly on in the path so found, to its legitimate conclusion, when the rights of the State or the citizen required it.
Judge Ferris, in the opinion, states : “In this case it is contended that under the 9th Section of the act incorporating the International Railroad Company, the part to be performed by the Comptroller of the State, to-wit, countersigning and registering the bonds, is a mere clerical or ministerial duty, in which nothing is left to his discretion or judgment. There is discretion or judgment to be exercised somewhere, and by some person or persons, for it is expressly provided that no bonds shall be issued to said company until it shall have completed twenty miles of said railroad, etc. * * * ■ It is evident that the sworn statement of the engineer and the report of the agents were intended to furnish evidence only upon which, the proper tribunal might act. It is that this tribunal is the Governor, but it is difficult to see wherein the authority to decide is granted more to him than to the Treasurer or Comptroller.”
The authority given exclusively to the Governor to decide upon the character of the road, etc., and the number of miles completed, is found in Section 9 of the act incorporating the company, as likewise his exclusive authority to appoint or select the officers or agents of the State to examine and report upon the condition of the road previous to the issuing or delivery of the bonds. This section further shows that the purely ministerial act of the Treasurer in signing the bonds after the Governor, and the merely ministerial act of the Comptroller to countersign and register the bonds, has nothing to do with the
The opinion declares, “it is more reasonable to conclude that the prohibition of the issuance of the bonds includes also their execution, and that as it is necessary for the Governor, Treasurer and Comptroller to participate in their execution, it is the duty of each one to see to it that the proper and necessary work is first performed,' when, if in their judgment the law should be complied with by the company, the proper bonds could be issued, and by the Governor delivered to the company.”
The charter, when read, however, leaves us in no doubt as to the intention of its framers as to who should decide the question as to the propriety of issuing or delivering the bonds.
The execution of the bonds is one act; their issuing or delivery is an entirely distinct and separate act. The bonds may be executed, but may never be delivered. The issuance and delivery of a bond are almost synonymous terms. (See Webster’s definitions of the words issued or delivered.) In fact, these terms are used in Section 9 of the act as the equivalents of each other, when it states the bonds “ shall be delivered by the Governor to the president or such other officer of said company,” etc.; and further, ‘ ‘provided, that no bonds under this act shall be issued to said company until it shall have at least completed twenty miles of said railroad, whereupon said bonds shall be issued and delivered for that amount of said railroad,” etc. Hence it follows that the Treasurer and Comptroller being only required to sign, and the Comptroller to register, the bonds, they nor either of them have no more connection with the issuing or delivery of them than has the Commissioner of the General
It has been ably argued by the Attorney-General, on behalf of the Comptroller, that he is, by Article 4, Section 1, of the Constitution, named as an officer of the executive department in connection with the other officers there named; and the opinion of. the court refers to this fact as extending to him some undefined immunity from the action of the courts in the enforcement of the law against him as an officer which was not enjoyed by his predecessors under the former constitutions of the State.
This constitutional declaration is nothing more than the statement of the merest truism. The Comptroller never, in our history as a Republic or State of the Union, belonged to, nor was he ever considered as belonging to, either the judicial or legislative departments of the government ; he, as also all the other officers mentioned in Article 4, Section 1, were always considered, and in fact belonged to, the executive department of the government.
It has been contended that inasmuch as the Constitution declares in genenal terms the powers and duties of the Comptroller (although it lies with the Legislature to prescribe those duties), the Comptroller is practically independent of legislative direction, and that the words of the Constitution (after prescribing in general terms his duties), “and perform such other duties as may be prescribed by law,” should not interfere with his judgment of what is best for the people of the State; that he is to decide, and if he thinks proper it is for him to declare, whether a positive law commanding the performance of a ministerial act shall be obeyed or.not.
Under this State of affairs the private citizen is remediless ; the public interests can be trifled with or entirely disregarded; rights. the most important or sacred can be delayed or trampled down with impunity, because the courts cannot interfere with the failure or refusal of the official to act; the voice of the law cannot be heard and the arm of the law cannot strike; the one is dumb and the other paralyzed, in the presence of that sentence, “an officer of the executive department of the government.” The opinion, it is true, does not in terms so declare, but the ideas thus expressed will be found in it.
The objections expressed in the opinion that the bonds are made payable in the city of New York, and the question as to the propriety of the Governor controlling the money so raised, can be briefly-answered, so far as the question before the court is concerned; it will suffice to say that these questions were not presented in the pleadings of the appellant, neither are they nor either of them complained of or alluded to in the letter from the late Attorney-General to the Comptroller, and referred to in the answer of appellant; they are questions not raised in the case either in briefs or argument of counsel.
The opinion further declares, “It is considered that the District Court has not the power and authority under the Constitution to compel an officer of the Executive Department of the Government to perform an official duty. This conclusion must follow from the structure of our government, and the distribution of powers under
By official duty is meant (doubtless) some duty necessarily connected with the office, or authorized or commanded by law. The proposition embraced and the principle enunciated in the preceding” paragraph quoted is laid down without qualification, reservation, or limitation, and unhesitatingly asserts that neither Comptroller, Treasurer, Secretary of State, Commissioner of the General Land Office, Attorney-General, or Superintendent'of Public Instruction, can, even in the simplest ministerial duty, no matter how important or great the interests involved, be compelled by mandamus to obey a precise, positive law. This is investing these officers with an infallibility of judgment that renders law inoperative when its madates and their discretion meet in opposition.
It is stated in the opinion: “If there is no other remedy than by mandamus against the Comptroller for the non-performance of official duties, the same could be said of the Governor and a judge of the court.”
The question has been so held with reference to judges that a mandamus will lie to compel a judge to proceed to judgment. In the case of a Governor being liable to mandamus, see Middleton v. Lowe, 30 California, 601, where the court held that the signing of a patent by the Governor was a purely ministerial act, and where the prerequisites to obtaining a patent existed a mandamus would lie; adding, that “The constitutional injunction ‘ that he shall see that the laws are faithfully executed’ cannot change the character of a duty which the Legislature has seen fit to impose upon him; for if the given duty is ministerial when it is required to be performed by any officer, it remains of the same nature though required of the chief, executive officer of the State.”
The Supreme Court of the United States has recently affirmed the same principle in the case of Davis v. Gray,
They have been sustained against the Commissioner of the General Land Office. The power of the court to grant the writ has never been denied by the court whenever the facts of the particular. case brought the complaint within the letter and reason of the law, save in one solitary instance — Houston Tap and Brazoria Railroad Company v. Randolph, 24 Texas, 317 — which, so far as the inability of the court to issue mandamus to the head of a department or bureau, has been subsequently overruled. See Railroad Company v. Commissioner, 36 Texas, 384, in which the court said: “We can see no reason why the propriety of issuing the writ of mandamus in any proper case to the Commissioner of the Land Office, or to any other officer of the State government, should ever have been brought into question;" ’ the court adding, “there are cases in which the writ of mandamus is the only proper remedy for a right withheld.”
In allusion to the act of the last Legislature respecting a compromise between the State and the company, it was said that “there is a provision in the act that the same shall not be considered as in any way interfering with the litigation in this case,” and “ that moreover there is no expression recognizing the State of Texas as a party.”
To this it may be answered, that the act looked in its very nature and in its terms to a decision on the merits as. the only decision to be considered of force and effect
Passing from the opinion, I will refer to some of the-principal cases where this court under the State, and the-former Supreme Court under the government of the Republic of Texas, uniformly held the doctrine that a mandamus would lie to the head of a department or bureau to compel the performance of a clear ministerial duty and enforced that doctrine by a judgment of' the court whenever the applicant showed such a state of facts as
The court had as precedents for its action the decisions of the Supreme Court of the United States and those of our sister States, and had in addition to these precedents the law of January 25, 1841, and the present law passed June 26, 1846. See Hartley’s Digest, Article 643, wherein the authority is given to issue the writ by the District Court of the county where the seat of government is located, “ against the heads of any of the departments or bureaus of government.”
• The cases referred to in the opinion, as showing a refusal to grant the writ, will be briefly referred to. The first in order is Glasscock v. The Commissioner of the General Land Office, 3 Texas, 53. In this case the applicant for the writ failed to show that his certificate, by virtue of which he claimed a patent, had been recommended for patent by the investigating board of commissioners, which was an indispensable prerequisite to the Commissioner issuing a patent, the court declaring in substance that the writ would issue to compel the performance of a duty clearly enjoined by law and ministerial in its character. The next case cited is that of Bracken v. Wells et al., 3 Texas, 90.
This was a petition for mandamus to compel the surveyor of Gonzales county to survey on an invalid certificate. Chief Justice Hemphill states the case as follows: “A court cannot issue a mandamus to compel a public officer to perform an act which is not clearly prescribed by law, or to compel a surveyor to make a survey upon an evidence of claim which is prohibited by the law from .being received as proof for that purpose.”
This caseis.not.opposed to the doctrine of jurisdiction.
The succeeding case referred to is the case of Arberry v. Beavers, 6 Texas, 464. In this Case Arberry, as chief justice of Cass county, refused to receive or count the-votes returned from several precincts in a contest between, the towns of Jefferson'and Linden, he alleging the returns were not made in accordance with law. On a petition for mandamus the District Court rendered judgment against him. On appeal to this court the judgment of the District Court was reversed, on the grounds that petitioners had omitted to state in their pleadings that they were qualified citizens of Cass county, and that the duty-was not ministerial, but of a judicial character, that officer having to make calculations and determine whether or-not the returns were properly certified, and whether the election, as shown by the returns, was conducted according to law, and the returns made to him in accordance with the statute; and the law providing no mode for reviewing his judgment, it was to be held as final.
The court in this case declaring that “When the performance of a ministerial duty is enjoined by law upon & public officer, or inferior judicial tribunal, the court upon an application for a mandamus will judicially determine-the legal rights of the applicant, and will of necessity decide whether the duty exists.”
This opinion certainly states the existence of the citizen’s-
I believe the four cases cited in the opinion, and here •referred to, do not weaken in the slightest degree the position I have assumed, that a mandamus will lie to compel a public officer to perform a duty required of or cast upon him by law, when that duty is purely ministerial in its character (as is the duty of the Comptroller in this •case), when that duty does not involve the exercise of judgment or official discretion.
I further believe that these four cases establish the principle just stated, so far as the declaration of a court’s -opinion can go in a case, where it is necessary to declare the opinion of the court.
I will refer to decisions of our court which establish the principle stated, either by necessary implication or direct decision or declaration.
This principle was declared in Board of Land Commissioners v. Bell, Dallam, 366. In the case of Bradley v. McCrabb, Dallam, 504, the peremptory mandamus was granted by the District Court and affirmed by this court. In the case of Roman v. Moody, Dallam, 512, the District Court granted a mandamus, and this court affirmed the judgment. In Cullum’s Administrator v. Latimer, 4 Texas, 334, the court said, “ The writ issues to compel the performance of a duty,” and reversed the judgment of the District Court, which had refused the mandamtos. In the case of Horton v. Brown, 2 Texas, 98, a mandamus issued to compel the Commissioner of the Land Office to issue a patent. In Horton v. Pace, 9 Texas, 81, the principle was upheld that a mandamus would issue when the party showed a right under the law applying to his case. In McLelland v. Shaw, 15 Texas, 319, which was a proceeding to recover a bounty or allowance from the government to those who had been carried prisoners from San Antonio to Mexico, the court held that a mandamus
The case of League v. De Young, 2 Texas, 200, cited in brief of appellant, on examination will be found not in conflict with the authorities here cited.
League sought by mandamus to compel the district surveyor to survey on a fraudulent land certificate, for the purpose of testing the constitutionality of the land law. The court decided that it was in effect a suit against the State, and of an evasive character; the complainant not having sued the State in the mode pointed out by law, he could not be heard in the mode selected by him.
The case of the Houston Tap and Brazoria Railroad Company, heretofore alluded to, and which has been relied on in argument, and which is declared by Judge Ferris to have authoritatively settled the question of mandamus to a public officer in this State, I will endeavor to show does not in principle antagonize what I have assumed, namely, the power of the court, under the authority of numerous decisions of our own and other courts, to issue a mandamus to a public officer commanding him in a merely ministerial act to obey the law. While the court in that case'declared in general terms that a mandamus would not lie to compel the Treasurer to pay a warrant, and while the opinion in that case contains an interesting and able disquisition on the functions, duties, and possible abuse of powers by the co-ordinate departments of the government, yet, properly considered, that portion not bearing on the pleadings or facts of the case cannot be held as a part of the judgment in that case: first, because it was necessary for the decision of the question; second, because the question turned and was
Again, in this case the court laid a stress on the fact that although the law required the action of the Governor, the Attorney-General and Comptroller, it appears that the first two had only signed the warrant or certificate, and the court said: “It is not contended that the warrant would be valid unless the Comptroller had participated with the other members of the board when the claim was acted on by them.” This was no doubt the correct view, and has been so held in other States. (See Hamilton v. The State, 3 Indiana, 452, and cases there cited.)
While the pleadings and facts in the case of the Houston Tap and Brazoria Railroad Company completely sustain the judgment of the court in refusing the mandamus, I believe an examination of the case shows that the conclusions drawn from it in the briefs and argument of appellant’s counsel, and in the opinion in the present case, are far beyond its legitimate effect; that the objections here presented to its being extended beyond the question presented by and decided in that case are fully sustained, and that it cannot be legitimately invoked as overthrowing a long line of decisions, from the earliest days of the Republic down to that time. Whatever application might have been made of that case to others when it was decided, does not and cannot now exist. The broad principle laid down, outside of the case, with reference to issuing the writ of mandamus, has been, as already alluded to in this opinion, overruled in the case of the Houston and Great Northern Railroad Company v. Commissioner of the General Land Office, 36 Texas, 399.
The leading and among the earliest cases in the United States, since their organization under the Constitution, is the case of Marbury v. Madison, 1 Cranch, 167, which originated in a petition for a mandamus to Mr. Madison, Secretary of State, to compel him to deliver to Marbury and three others commissions as. justices of the peace for the District of Columbia, which had been signed by Mr. Adams, but not delivered previous to the expiration of his term of office.
The Supreme Court, as is well known, decided that the court had no original jurisdiction beyond that declared in the Constitution, and which limited its jurisdiction to the enumerated cases “ affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party;” that Congress could not in violation of the Constitution confer jurisdiction upon the court; and the proceeding being an original proceeding and not within the constitutional grant of power, it could not be heard.
This opinion is considered the ablest ever delivered on this subject, and worthy of the enlightened and-profound, jurist who declared it. It stands out as a great landmark to.the profession, and has been respected and followed in principle for nearly three-fourths of a century.
In this opinion Judge Marshall, quoting from 3 Blackstone, page 23, declares: “ It is 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 invadedand at page 164, that “it is a settled and invariable principle, in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.” And- speaking of this country, Judge Marshall declares that which we have all been taught, but which it is - well frequently to repeat: “ The government of the United States has been emphatically termed a government of laws and not of men. It will, certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.”
After alluding to the powers of.the President -of the United States, of his right to appoint certain officers — and
In this case Judge Marshall, after a full discussion of the question, showed that the views of the court were not novel, that it was but adhering to established legal usage and judicial precedent, and quoted from Lord Mansfield, in the case of The King v. Baker, 3 Burrows, 126, as follows: “Whenever there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern or attended with profit), and a person is kept out of possession or dispossessed of such right, and has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, good order and good government.”
The question of mandamus came again before the Supreme Court of the United States in the case of Kendall v. The United States, 12 Peters, 532. In that case Congress passed an act authorizing the Solicitor of the Treasury to examine the accounts and report the amount due Stokes and other mail contractors, and directing the Postmaster Greneral to pass to the credit of the parties, on the books of his office, the amount ascertained by the solicitor to be due them.
That officer made his report and found a large amount due the parties for carrying the mails.
The Postmaster Greneral passed to the credit of Stokes
A mandamus was sued out from the United States Circuit Court for .the District of Columbia, and judgment rendered against the Postmaster General, who brought the case by writ of error to the Supreme Court.
The case was thoroughly argued by some of the ablest counsel in the country, and a judgment rendered affirming the decree of the Circuit Court.
The dissenting opinion turned, not on the power of the court to hear and determine a suit of that character, but upon the question whether or not the Circuit Court had, under the law, jurisdiction to issue the writ of mandamus, not alone in that case but in any case.
The decisions of the courts in the various States sustain and have enforced the principle that a mandamus will lie to compel a public officer, where the law declares it a ministerial act, not necessarily requiring the exercise of judgment or display of discretion.
In the case of Griffith v. The Secretary of the Land Office, 5 Binney, the Supreme Court of Pennsylvania asserted the law to be that a mandamus would lie where the act to be performed was of a ministerial character, not involving judgment or discretion, and when there was no other specific remedy.
In the case of Page, 2d Auditor, v. Howard, 8 Ky., 648, it was held that the 2d Auditor — an officer in that State performing duties similar to the Comptroller in this — had no discretion “to issue or not to issue the salary due an officer.” The court then declared that “the executive department and all its officers are as much bound by the constitution and laws as the legislative, and have no more power to violate these laws;” * * *
In the case of Napa Valley Railroad Company v. Napa County, 30 California, 437, the court held that “according to a well settled rule of construction, when a public body or officer has been empowered to do an act which concerns the public interest, "the execution of the power may be insisted on as a duty,” * * * and that “ railroads concern the public interest, as a matter of legal judgment.” (Citing 3 Hill, N. Y., 615; 2 California, 412; 3 Paige, N. Y., Clarke v. The City of Rochester; 5 Id., 124.)
In the case of Chatterton v. The Secretary of State, 58. Illinois, 9, in a petition to compel the State 'Auditor to draw his warrant on the State Treasurer for the contract price of 1000 reams of printing paper, and to compel the Treasurer to pay the same, the prayer of the relator was granted, and a peremptory mandamus directed to issue, “ requiring the Auditor to draw his warrant for the 1000 reams received by the State, and requiring the Treasurer to countersign the same, and to pay it when there shall be funds in the Treasury subject to its payment.”
In the case of the State of Ohio v. Todd and others, 4 Hammond’s Ohio Reports, 351, a rule was issued against the Court of Common Pleas to show cause why a mandamus should not issue to compel them to sign “a bill of exceptions.” The court held the power existed, and said : “The authority to issue a mandamus in a case like the present cannot be doubted. The power is incident to supervising courts, and there are instances of its exercise both in England and this country.”
In Chamberlain v. Henry H. Sibley, Governor, etc., 4 Minnesota Reports, 309, the court declared that when ‘ ‘ some official act not necessarily pertaining to the duties of the executive of the State, and which might as well be performed by an officer, is directed by law to be done, then any person who clearly shows himself entitled to its performance, and has no other adequate remedy, may have a writ of mandojmus against such officer, even although the law may have designated the chief executive of the State as a convenient officer to perform the duty.”
In the case of Duffield et al. v. Whittemon, 4 Gibbs’ Michigan Reports, 28, an application was made to compel by mandamus the State Treasurer to give notice that the notes of the Government Stock Bank at Ann Arbor would be redeemed at the State Treasurer’s office — the bank having failed to redeem when demanded, taking for the purpose of evasion a single note, putting it through a pretended scrutiny in regard to its genuineness, then paying on that note, taking the next and passing it through a pretended examination, and so on during bank hours. The Treasurer, on affidavits stating the facts, delayed and evaded the requirements of the law. The court-directed the writ of mandamus to issue against him.
In the case of Robert H. Morris v. Edmonds, etc., 15 Barbour, 529, a motion was made for a mandamus to compel Edmonds, as chamberlain of the city, and treasurer of the city and county of New York,- to pay the amount of an account approved by the Board of Super
“In the matter of James Turner,” 5 Hammond’s Ohio Reports, 542, in which a proceeding was had by mandamus to compel the Court of Common Pleas of Fair-field county to proceed with the trial of Turner on an indictment for murder, a peremptory mandamus was granted, [the court saying the court below might have exercised discretion if deemed proper, but they could not abstain from action, as a failure of justice might follow.
The citation of cases might be extended, if deemed necessary to show that the power to issue the writ is of the broadest character as regards the position of the person against whom it is sought, and that in its enforcement in proper cases there is no official dignity above its reach.
It was stated in the argument of appellant, and is intimated in the opinion of the majority of the court in this case, that there was danger of an encroachment by this branch of the government on one of the co-ordinate branches of the government, and remarks in the way of a caution to the court were made. The past history of this court, through all the twenty-eight years of its existence, and composed as it has been of twenty-two members, negatives any presumption of encroachment or undue assumption of jurisdiction on its part. The present, like its former members, are aware that its real strength lies in its adherence to well established principles, and that
In all its history but one instance of the kind can be found, and that long-to-be-remembered case presents a striking example of the want of power and utter failure on the part of any department of the government of this State when it attempts an encroachment upon the rights or powers of the others. The plain duty and the sole mission of this court is an adherence to established principles and in all cases to follow the law.
Justice Moore, having been of counsel, did not sit in this case.
