1 Ark. 570 | Ark. | 1839
delivered the opinion of the Courfcr
• This á motion • for a rule against the Governor of .the State, to'show' cause-, -if.any hé has, why a peremptory mandamus should nót..issué» .commanding hinríómake out .and deliver' to'Richard- C.-.Hawkins, his commission to the office of Commissioner of Public Buildings.
' The application was made during the present-session of the Supreme Court, and is founded upon a petition regularly sworn to, and other ..exhibits filed in.the cause. ' ■ ' . ." . •
• The applicant claims' to b.e duly elected by a majority Of-all the votes of both houses of the' General Assembly. The petition, states that upon the 17th day of November, 1838., the applicant transmitted-to the Governor of the State the. certificate of' the Speaker of the House-of Representatives', and of the President of-the Senate, offi-daily notifying him of his election to fill.the office of. commissioner' of' of public buildings, and' at the same' time he addressed a letter to his ■ Excellency, requesting him to grant the commission, which he was entitled to by law. - • • ' ' ' • - ' ’ .' •
The'Governor replied to-th'c communication, -refusing'to issue the, commission upon the ground,- that at the time the election was held there was nd law in force authorizing-the legislature to hold an elec--lion for the commissioner .of .public-buildings. Copies of the, correspondence are attached to the petition, and from the letters of the applicant and the executive, it appears that the requisitions of the Statute, prescribing the manner of certifying the election to the Governor, were fully complied with on the part of the petitioner, and that the Governor withheld the commission under the belief that the election was illegal and invalid.
It is contended in behalf of the motion, that the law creating the office of commissioner, was in force from and after the time of its passage; and as the applicant has shown by virtue of his certificate of election that he has a vested right to .the commission, the executive has no power or authority to withhold it. ■
The applicant’s right is founded or originates under an act of the legislature, approved March 3, 1838,-which declares, “ that there shall be elected by the General Assembly á commissioner of public buildings.”
That the commissioner so appointed shall be commissioned by the Governor, and.shall hold his office for two years, and receive one thousand dollars per annum, in full..compensation for all his services.— See Pamphlet Act of the Legislature, 1837, p. 84.
The first question, then,submitted foroiir consideration and decision, is, has the Supreme Court ji^isdiction of the case? or is the Governor of- the .State such an officer, whom the writ may be properly-directed, upon legal or. constitutional principles?' • • ■
Should the question be answered in the affirmative, then it will become necessary for the court to determine the validity of. the election of the commissioner. But should it be answered in the negative, it will be wholly useless to prosecute the enquiry farther; for- if the court does not possess jurisdiction to try the-cause, and award the writ, they can pronounce no valid judgment concerning the election.
The peculiar, 'constitutional delicacy and importance of .this question, require of this court a full and complete exposition of the princi-pies upon which this opinion is founded,
These principles enter .into the composition of civil- government itself, and vitally concern the balance of power established by the constitution.
It is contended that the case of Taylor vs. The Governor, decided by this court, and reported ante p. 21, fully settles the question of • jurisdiction of the- Supreme- Court to award a mandamus against the chief executive of the State, compelling him to. issue a commission whenever it appears that be has improperly withheld it. It certainly never was the intention or the design of this court to decide in that case, or in any other, that they had power to issue a mandamus against the Governor of the State, to compel him to perform his legal or con-sj.j^uj.jonaj <juycs. neither will the facts or circumstances of that case, or the reasoning upon which the court proceeded, justify any such conclusion. It is freely admitted that it would have been more appropriate and judicial for this court to have met, and to have decided the question of jurisdiction in the first instance. But they felt then as they do now the difficulty and delicacy of such an enquiry; and therefore they agreed to waive the question of jurisdiction, leaving it to be determined upon some future occasion, should a case ever arise indispensably calling for its decision. In the case of Taylor vs. The Governor, the applicant clearly proved by his own showing, that he was expressly disqualified and ineligible by the constitution from holding the office of sheriff; and therefore he had no shadow or pretext of right to the commission which he demanded. This being the case, the court could see no indispensable duty or necessity devolving upon them to look into, and decide the question of jurisdiction; for whether they possessed jurisdiction Or not, it was perfectly manifest that the-applicant was entitled to no redress, because, from his own showing, it was positively certain he had suffered no injury. The power of the Supreme Court to issue a mandamus, as stated in the case referred to, is made to depend and turn exclusively upon the express language*of the constitution; and certainly that instrument no where countenances the doctrine, that the writ can be legally or constitutionally directed to the Executive. The case of Taylor vs. The Governor is, then, no authority upon the subject; for it only settles the principle that under our form of government a mandamus was a constitutional writ, secured to the citizen, which the Supreme Court was bound to issue upon a case properly made out, when the party applying for it, had shown that he had a specific, legal right, and no other adequate, specific, legal remedy.' The court fully recognize the truth and importance of these principles; but they certainly do not show that file writ can issue against the executive in any possible or conceivable case.
It has been urged with much earnestness that the case of Marbury vs. Madison, 1 Cranch, 166, clearly establishes the jurisdiction contended for. A brief recapitulation of the facts and principles of that case, will test the truth of this position. William Marbury, with others, was appointed a justice of the peace for the District of Columbia by President Adams, near the close of his administration, by and with the advice and consent of the Senate of the United States.
The commission was regularly signed by the President, and delivered to the Secretary of State, to be recorded. The Secretary refused to deliver the commission, and Marbury applied to the Supreme Court of the United States for a mandamus to compel him to deliver it, or to give him a copy from the record of his office.
The case produced no ordinary degree of interest- or excitement, for it was regarded as involving questions of a high political character, and which no tribunal could decide without exposing itself to unmerited criticism and censure. No cause was probably ever more deliberately considered and examined, and none, in the opinion of this court, rests upon higher or more unshaken principles of constitutional law, or of legal duty. Many points were raised and discussed at the bar, and were decided by the court, which were not necessarily put in issue by the proceedings.
The opinion, then, in that justly celebrated case, may be deemed in some respects as extra judicial. But this court does not on that account regard it as less authoritative or binding. The case finally went off for want of jurisdiction in the Supreme Court to issue the writ. The act of Congress giving jurisdiction to that tribunal to award a mandamus, was declared unconstitutional; because it was inconsistent with that provision of the instrument, which defines and limits the original jurisdiction of the Supreme Court to a particular class of cases.
It will be seen from the facts above stated, that the application in the case of Marbury vs. Madison was for a mandamus to issue to the Secretary of State, and not to the President of the United States. So far as this case can be considered as authority at pi!, it goes to disprove the position that the writ can legally be directed to the executive of the State. An attentive consideration of the principles laid down by the Chief Justice in delivering the opinion, raises a strong inference, which almost amounts to positive proof, that the chief executive of the State, under the form of our government, is such an officer as can in no manner be held responsible to the judiciary for the exercise of his legal or constitutional discretion. It will be borne in mind that the office of President of the United States, and the office of Governor of our State, are in many respects .like each Sther,. with Ijiis essential difference, that the former is entrusted with the executive powers Chat relate exclusively to the General Government, and the latter is entrusted with the exclusive powers that belong to the State Government. The powers'conferred, and the duties enjoined upon 0f (hese officers by' the respective constitutions of the two governments, are in most particulars identically the same, so far at least as regards their legal or constitutional discretion.
It is stated in the case of Marbury vs. Madison, “ that the President is invested with certain important, political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.” “ To aid him in the performance of these duties, he'is authorized to appoint certain officers who act by his authority, and in conformity with, his orders.” “ In such cases their acts are. his acts, and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist no power that can control that discretion. The subjects are political ; they respect the nation, not individual rights; and being entrusted to the executive, the decision of the executive is conclusive.”
If this is true in regard to the President,' does not the same reasoning apply with equal force to the executive of the State?. If there exists no power to control-the will of the President in the exercise of his-discretion,-is not the executive of the State equally exempt from' all control, except in the manner pointed out in the constitution. .If alkthe powers and duties of the President are political, and concern the ■ nation, and not individual rights, and if his decision is final and conclusive in regard to all constitutional or legal questions submitted to his judgment, so far as regards the performance of. his own duty, are not the powers and duties.ofthe executive of the State equally political? and do they not concern the State in her political capacity, and not individual rights? And is not his decision upon all legal, constitutional questions equally final and conclusive, so far as regards the performance of his own duties? If one of these positions be true, it necessarily follows. that the other cannot be erroneous. Then the Governor of the State is not amenable to the judiciary for the manner in which he performs, or for his failure to perform, his legal or constitutional duties. His acts being political must of course be politically examined in the manner pointed out by the constitution. That instrument assigns to his office uo ministerial acts to be performed, nor can the law enjoin upon him any such duty. ' It is .true, as contended, that when a specific duty .is assigned by. lavv,'ancT individual rights depend upon the performance 'of that duty, “that the individual w.ho considers himself injured has aright'o resort to the laws for redress.” '
. The doctrine here stated applies to such officers as have no legal or constitutiorial discretion left them; and consequently so far they are considered as the mere organs of theia'w, and arc amenable to it for their conduct. - This being the case, they are never permitted, “ to sport away- the vested rights of individuals.” All the officers of the 'government, except the President of the-TJnited States, and the ExccJ utives of the States, are liable to have their acts exiimihed iñ a court of justice. ■ _
The President and-.the-Executives, b.y the theory and practice of pur peculiar systems of government, are exempted upon the ground of political necessity, and of. public .policy. In the exercise of their ■ legal or .constitutional discretion, they are alone- accountable to their-country in their; political character, and- to their own conscience, ac- ■ cording tothe modes and manner of their respective constitulions.
• Whenever tlie head or officers of a department are the- political or' confidential agents of the executive,-appointed; merely to execute his .will,- it is clear that in such, cases- their acts are his acts;, and whatever ] opinion may be entertained of ihe manner in'which-their discretion may be used, still there is no- power in the courts to control that discretion; for if there was, then-would the executive will be put -under. the control and government of th'e'.judicial department, which is clearly and expressly-forbidden by the constitution.
The act of Congrcss'in relation to issuing patents for land, makes it the duty of the -President to grant a patent to the purchaser whenever he produces the necessary certificate required by law. Should the ■ -President fail to executc-this duty,.and shouldrindividual-rights be pre-': judiced .by his non-performancé'of this legal duty, could the Supreme' Courtóf the United States award á mandamus commanding him to issue the patent? Certainly not.' Should Congress.pass any act impo-• sing a certain, specific duly upon, that officer, and should he refuse of fail to execute it, could he be compelled -to perform it-by any mandate of the court? Most assuredly he could not.' • By way of testing this principle,, suppose he was required to commission an officer chosen or appointed, by an act of Congress,'would a mhndarnus lie; compelling - him to .grant the commission ? Certainly no.t.
To give to the judiciary, power to award a mandamus against the President, compelling him to perform his legal or constitutional duties, would in effect destroy the political balance of the constitution, and thereby break down and destroy one of the three great departments of government.
A doctrine so extravagant and unconstitutional, it is clearly necessary for this court to disclaim. Still if the party was legally appointed to fill the office, ho would- surely have a constitutional right to the' commission; for that is but the evidence of the office, and there is cer-tainiy a constitutional duly imposed upon the President to gr^nt him the commision; for the instrument declares, “he shall commission all the officers of the United States.” See Constitution U. S. Sec. 3, Art. 5. A declaration more peremptory and express than the clause in our constitution, which enacts, “that all the commissions shall be in the name and by the authority of the Stale of Arkansas, be sealed with (h e seal of the State, signed by the Governor, and tested by the Secretary of State.” See Constitution, Sec. 13, Art. 5.
Had the Supreme Court of the United States possessed the jurisdiction in the case of Marbury vs. Madison, it is perfectly clear from the principles laid down in that decision, that they would have compelled the Secretary of Slate, by a mandamus, or some other legal process, to have delivered the commission, orto have furnished a copy of it. The acts of the Secretary were enjoined by law, and regarded by the court as strictly ministerial; and hence the withholding of the commission in such a case, was deemed a violation of the vested rights of the applicants. And in the- case now under consideration, according the doctrine established by the Supreme Court of the United States, (which this court fully recognizes and believes,) had the Governor signed the commission of the present applicant, and affixed to it the seal of the State, and have placed it in the office of the Secretary of State to be attested and recorded by that officer; and should the Secretary of State, under such circumstances, have failed to do his duty, this court would have awarded a mandamus against him, and compelled him to attest and record the commission and deliver it, or to furnish a copy from the record of his office. Whenever the Governor has signed a commission, and affixed to it the seal of State, his legal or constitutional discretion may then be considered as having terminated, and he has then lost all power or control over the commission, and he never can lawfully reclaim or repossess it. The reason that the court would compel the Secretary to attest and deliver, the com-r ■ J ■ . ' mission, is, that, the law gives him no. discretion- upon the subject, and therefore his acts,are.-strictly ministerial, and must be performed if they violate the vested rights of any individual. This principle does not reach or affect the executive, for all his official rights,or duties .are. political; and consequently he is entrusted, by the. constitution-with discretionary, power.
The possession of the original commission is,not.indispensably-neees-. -sary to authorize a person, appointed to. any. office, to exercise the duticsof thatoffice; for if that wasthecase, the loss of. the commission-would lose the office, and “ not only negligence, but accident, fraud; fire, or theft, might deprive an individual of his .office.” In such cases-a. copy of the record from the office where the commission was directed to-, be recorded or kept, would be to all intents and; purposes equal to the original. The case, then of Marbury vs. Madison has not- directly.or, indirectly decided any principle in favor-of the present-applicant’s.;, motion for a mandamus. The question now under consideration has - never, that we are aware of, been decided by any tribunal., So -fair--as we areinformed, the case now comes up for the first time for.investiga-, tion and decision. The very fact that it never has before been made. in any of the courts of the United States, causes.a. very,high, if not a conclusive presumption, that there- has been no . abuse of executive; discretion in withholding commissions, or that it never was .imagined,, by any one that the writ could be directed to the-Chief Magistrate of ; the State.
The solution, of this question depends mainly upon the construction to be given to the constitutional powers to be .distributed among; the-three separate and distinct departments .of the. government. The* constitution is the supreme, paramount law of the land, and its will is . imperative, and must be obeyed. The constitution is nothing;moreor less, than the original and supreme will of the .people, acting in. convention and organizing the government, and assigning to the different; departments their respective powers and duties. Their powers an.d-. duties are defined and limited; and, “that their limits may not bé mistaken, or forgotten, the constitution.is written;” and all public officers are required to take an oath of .office to support it.
The invention of a free, limited, and written constitution, may be justly said to have been a prodigy in the science of government, revealed and established by the American Revolution. Ours is-a comPoun(^ gystem republics. ■ “ The power surrendered by the people. is first divided between the General and State-Governments, and then the portion allotted to each,, is subdivided among distinct find separate departments.” This constitutes a double security for the rights of the pepp]ej an¿¡ fop-the maintenance and protection of the respective governments. The General and State Governments mutually act upon and control each other, and at the same'time each is invested .with sufficient power to control the governed, and to control itself..
This wise and beautiful, system may safely be pronounced the highest ^invention'of the human judgment; for it eplists interest on the side of patriotism., and appoints each of the ’ governments, with their respective and separate’ departments,_ as so.many sentinels to guard the rights of the constitution, and to watch over the.liberty of-people. The basis of these, invaluable systems rests upon the.division, separation, and partition of the public, will among these departments of the government: and upon these justly constituted and well balanced powers depend, all our hopes for the continuance of regulated liberty.
The concentration of all power, legislative, executive, and judicial, in the same hands, constitutes the very definition of tyranny, that is given by all the early friends and founders of our free institutions.
. There can be no liberty,, says Montesquieu, where the legislative and executive powers are united in the same.person or body of magistracy; or.if the power .of judging be not separated from the legislative .and executive powers. This is a political'axiom established by the deliberate judgment'of centuries,'and confirmed by the-universal-experience of mankind-. The American constitutions have therefore made ■those'departments as independent,' and as separate from each other, as the-nature of the case would admit of, or as their necessary connexion of bond of union, would allow. Each departmenfis made sovereign' and supreme within.'its own sphere, and .is left in the full and free- ' exercise-of all-the powers and rights respectively belonging to it. — ? Each is a co-ordinate and equal branch of- the government, and they allreprésent the sovereign will of the people, as embodied in the con-stituti’on.
The constitution-makes and ordains them all, and appoints each-department to guard the sacred and invaluable rights established by that instrument. -The constitution’ is then above all the departments of the government; for it creates and presetwes them-. The will of the people must be greater than that of their agents, of there can be' no constitutional liberty or independence. All the departments of the government unquestionably have the'right of judging of the com stitution, and, interpreting it for themselves. But they judge under the responsibilities imposed in that .instrument, and are answerable in the manner pointed out by it. The duties of each department are such as belong peculiarly to it,.and the boundaries between their respective powers or jurisdictions are explicitly marked out and defined. For any one department to assume powers or exercise a jurisdiction prop-' erly belonging to any other department, is a gross and palpable, violation of its own constitutional duty.
- The legislature, then, can exercise no power which properly belongs to the judiciary, or the -judiciary, any . power that rightly belongs to the executive. The duty of the legislature is, to prescribe the rule of action for the State; that of’the judiciary, to interpret that rule, or to expound the law; and that of the executive, to see that the laws are faithfully executed. ' ...
But each has the right to judge of the constitution for itself; for without the exercise of such a right, there would not be three equal and co-ordinate departments of the government; neither would the constitution be placed under or entrusted to their respective guardianship and care. It is however the peculiar province and duty of this court to interpret and decide upon the laws and the constitution in the last resort, if two laws are opposed to each other, the court must determine which shall govern; so if the constitution and a statute stand in irreconcilable variance. Those whose duty it is to interpret the rule of action, must be-of necessity left free to declare what that rule is, or we deprive the judiciary of the power of judgment and will, which are all the sovereign attributes they possess.
The constitution regards the judiciary as the.final arbiter and interpreter of its will, and its language is in many instances directly addressed to the courts; It would be wholly impossible, without the agency or action of the courts, to preserve inviolate the rights of personal liberty, or of private property. How could the equality of taxation, the freedom of the press, liberty of conscience, the right of trial bv jury, the writ of habeas corpus, or the sacred inviolability of the obli- ■ gation of contracts, have been vindicated.or maintained, unless the courts, whenever they were assailed by .the legislature or executive encroachments, had interposed their authority and arrested the usurpation? It is their exposition and illustration of these principles and rights, that have taught the citizen in times of danger and commotion to look to that tribunal for safety and protection.
It is the duty of the judiciary, however, to judge, and in their judgments courts should be careful to not overstep the boundaries of their powers. To allow the judiciary to exercise powers not conferred upon it by the constitution, would have a tendency to draw to it all the powers of the government, and thereby to overthrow the balance of the constitution. Such a jurisdiction has, however, never been attempted, and probably never will be under our forms of government.
Liberty has nothing to fear from the judiciary, but every thing to hope. Neither the purse nor the sword is entrusted to it; nor does it possess any power or patronage to render it popular or dangerous.— Its only attributes are will and judgment, and these it cannot carry into execution without executive aid, or, in other words, without trusting to the moral and intellectual sense of the community to enforce its orders, judgments, and decrees. See The Federalist, 270, 275, 421, 422, 423, 424, Washington’s Correspondence.
The legislative, executive, and judicial departments, are all responsible for an abuse or usurpation of power in the mode pointed out by the constitution. The constitution presupposes that they will all perform the duties enjoined upon them, and that they will not transcend the authority with which they are clothed. They are all jointly made to represent the sovereign will, and they are made responsible to that will, whenever they fail to perform that duty. Should the legislature pass an unconstitutional act, in moments of forgetfulness and ambition, it is not only the right, but the duty of the executive to arrest it, and return the bill to the House from which it emanated. Time for reflection is thus given to the popular branch of the Government to pause and to reconsider the measure. But should they, notwithstanding the objections of the executive, still be determined to pass the act, it cannot however generally be put into operation, except by means of the judiciary;, and hence, if (he act violates any constitutional guarantee or vested right, the court is bound to declare it null and void, and of course the law cannot be executed. The evil or abuse of any power is capable of being remedied by means of the elective franchise. Responsibility and representation are so intimately connected and blended with each other, that they cannot be separated and disconnected without political injury and detriment. Should the judiciary corruptly assume powers not belonging to that department, or should they, from interested motives, and for wicked and nefarious purposes, refuse to exercise powers expressly enjoined by the constitution, then the judges are liable to an impeachment for malpractice or misdemeanor in office, and for reasonable cause, which does not furnish sufficient ground for impeachment, the Governor may, upon the joint address of two thirds of both Houses of the legislature, remove them from office. The judges are then held responsible to the people through the legislature in two ways: First, by impeachment formal-practice or misdemeanor in office; and, secondly, by address for any gross, flagrant, and palpable impropriety of official conduct, not amounting to corruption. In case the executive should prove unfaithful in the discharge of his legal or constitutional duties, he likewise may be held responsible to the people for malpractice or misdemeanor in office. Besides, he is amenable to the same tribunal, through the agency of the elective franchise. Thus it will be seen that the constitution places him in a double responsibility: First, the responsibility of the right of suffrage; and lastly,' that of impeachment. He is only answerable in one or both of these ways, for his official conduct, while he continues in the exercise of his office. These are the only restrictions placed upon his discretion, and to them the people confided their rights and interests. To make him accountable in any other way, would be to create a responsibility unknown to the constitution, and in violation of its authority. It would be doing more, for it would destroy his legal and constitutional discretion, by an accumulation of undue power in the same hands, and thus it would annihilate a coordinate and independent part of the government.
It is no answer to this argument to say, that he may exercise his legal •and constitutional duties in such a manner that individual injustice may be done without remedy or redress. So may the other departments. The convention, in forming and organizing the government, did not think so, or they would have placed some additional security around individual rights. They proceeded upon the principle that all the departments would do their duty. If in this they should be mistaken, they have provided an efficient remedy for every abuse of a political nature, and that remedy is in the hands of the people, and, we are bound to presume, will be properly used: otherwise, we are compelled to abandon all rational hope of the stability and continuance of our free institutions.
The legislature have made the General Assembly (he judges of the qualifications, returns; and elections of their own members. They are required to keep a record of their acts, and to publish a journal ..of their proceedings, except such parts as may, in th.eir opinion, require secrecy. No person shall be a member of the House of Rep-resen[-a¡;iyes who shall not have attained the age of twenty-five years, and no person shall be a Senator who shall not have attained the age of thirty years. No person who., is a public defaulter shall be eligible to' a seat in either House of the General Assembly, nor shall hold any other office of profit or trust; nor shall any person convicted of any infamous crime be eligible to a seat in either House of the General Assembly.
Suppose the people should return a member to the Senate or the House of Representatives, who had not attained the requisite age, or who was a public defaulter, or who had been- convicted of some infamous crime, to whom would the right belong.to judge of his disqualification? To the judiciary, or to the legislature? Most assuredly to thelatler; for to them the constitution has confided the right of judging,which implies the free-exercise of discretion in such cases.
1 -Suppose the legislature should refuse to record their proceedings,or to publish a journal of them, could the- court issue, a mandamus compelling them to perform their legal, constitutional duties? Most assur-redly they could not; for in such cases, the whole matter is left to the -discretion of the legislature'; and that discretion is not subject to the government or control of the judiciary. A moment’s examination of the'structure and character of the executive department, will be sufficient to satisfy any one. that all his legál or constitutional duties are political, and that -he is only accountable for them to his country, and to his own conscience, in a political manner. The following enumeration includes most of his constitutional duties-; He is required to issue writs of election to fill all vacancies that occur in either House of the. General Assembly; he is made the commander in chief of the army'and militia of the State, except when they are called into.the service of the United States; -he may, by proclamation on extraordinary-occasions, convene the General Assembly, and in case of disagreement between the Houses, he', may adjourn them until such time as he thinks proper, provided it be not beyond'the day of the next meeting of the General Assembly; he is required to keep the seal of the State in his office, and to use it officially, and to sign all commissions., and-.have them attested by the Secretary of State; it is his duty to give to the General Assembly information,of the state of public affairs, and recommend to their considéraíion such measures as he deems expedient; and see that the laws are faithfully executed.
It will certainly be conceded that-all the duties here enjoined upon the executive are strictly and exclusively political, except the granting of commissions; and if that is not a political duty, why-is it inserted, among other political obligations? or what reason is there for excepting it out of the general principle.
If is possible that individual injustice may be, and generally is produced by- the non-performance of any. one, or all of these duties; but it may be fairly presumed that it will not more frequently occur, in refusing to grant commissions, than in the other enumerated, cases. Besides, if the court can issue's, mandamus to compel him'to grant a commis- . sion which he improperly, or from a mistaken sense of duty, withholds, • why may they not award a process against'him to issue writs of election,, or to convene the legislature or adjourn it? If .the-writ can be legally ■ directed to him in the first case, it .certainly may in the latter; for they both rest upon the sanie principle, and may be attended'with, the same injury.; It certainly - cannot be . pretended that .the judiciary can compel him- to- assume the command of- the' army or militia, when they are called, into the. service of the-state, or that it can'command him to. give information to the. General Assembly, or that it can coift-mandhim fosee that thelaws are faithfully executed. In all of these cases, he .certainly possesses a political -discretion, for the .use of which he is alonfe answerable to .his country. • Why' then' is his. discretion taken away or destroyed when his duty concerns the issuing of a .commission?- It certainly, is. not.. His duty is as clearly political in. that case, as in any of the other enumerations; and if the court have jurisdiction in that instance to prescribe' the rule of his conduct, by a parity of reasoning they certainly possess it in regard to all the other cases.' This would make the judges the interpreters, not only o.f the will, of the executive, but of his conscience and reason; and his oath of office, upon such a supposition, wpuld then be both a mockery and ’■ a delusion. See.'Article V, Executive Department.
Again the executive is bound to see that'thé laws are faithfully, exe- ■ . cuted; and he has taken an oath of. office to support the constitution. How can he. perform, this duty, if he has no discretion left him in’ regard to granting commissions? For should the legislature appoint a person constitutionally ineligible to hold any office of profit' or trust, would the executive be bound to commission him ? and that too when his ineligibility was clearly and positively proven? In such case, the ^exercise of his discretion must be admitted, or you make him, not the guardian, but the violator of the constitution. What, then, becomes o£ j^g 0£ 0g5ce 2
If he has a legal, constitutional discretion in such a case, why is he divested of his judgment and reason, in regard to the legality of the election depending upon other principles, but which are as clear to his mind, and as binding upon his conscience ? The analysis of his duties then, clearly proves that he is in no way amenable to the judiciary for tlie manner in which he shall exercise or discharge these duties. His responsibility rests with the people, and with the legislature. If he. does an unconstitutional act, the judicary can annul it, and thereby-assert and maintain the vested rights of the citizen. The writ asked for, however, does not proceed upon the ground that the Governor has done any illegal or unconstitutional act, but that ho has refused to perform a legal or constitutional duty. In the first case, the court certainly has jurisdiction; and in the last, they unquestionably have not. The court can no more interfere with executive discretion, than the legislature or executive can with judicial discretion. The constitution marks the boundaries between the respective powers of the several departments, and to obliterate its limits would produce such a conflict of jurisdiction as would inevitably destroy our whole political fabric, and with it the principles of civil liberty itself. It would be an express violation of the constitution, which declares upon its face, “that there shall be three separate and independent departments of government, and that no person or persons, being of one of these departments, shall exercise any power belonging to either of the others.” Sec Constitution, Article II,Section 2. This being the case, it is clearly demonstrable that the court has no jurisdiction of the cause now under consideration, and they have no power to award a mandamus to the Governor to compel him to grant the commission, The motion must, therefore, be dismissed for want of jurisdiction.
As the court is shown to have no jurisdiction in the case, it would be irregular and improper to proceed to deliver any judgment in regard to the legality of the election to the office of commissioner of public buildings.