120 Mo. 428 | Mo. | 1894
The relator in this case, Edward J. Robb, was employed by David R. Francis, then governor of the state, as counsel on behalf of the state in the case of The State of Missouri v. Louis Ulrich, at
The sum which David R. Francis,' then governor, agreed to pay relator for his services as counsel in that cause was the said sum of $500, in consideration of which sum relator agreed to represent the state as counsel in said cause until the determination thereof. After thus entering into such contract,' relator duly performed all of its conditions on his part and discharged his duty as counsel for the state thereunder, until the final determination of said cause, which resulted in Ulrich dismissing his appeal therein on the fifteenth of May, 1893.
No part of the amount appropriated by the general assembly for the payment of counsel fees and agreed to be paid relator, has ever been paid him. On the twenty-second of August, 1893, relator presented his said contract with, and claim against, the state of Missouri to Governor fm. J. Stone, exhibiting to him at the' same time all necessary papers, etc., etc., and asked that said sum of $500 be paid to relator, but which sum said governor neglected and refused to order to be paid to relator; Upon these facts thus presented in the petition, relator prays that an alternative writ of mandamus issue directed to the governor,
■ As the petition states a good contract with, and cause of action against, the state, and the demurrer admits the allegations of the petition to be true, the only question for determination is, whether the respondent is amenable to the process of this court in a case of this sort; in other words, whether this court has jurisdiction to entertain this application made by relator. The inquiry thus suggested brings into prominence article 3 of our constitution by which it is provided that: “The powers of government shall be divided into three distinct departments — the legislative, executive and judicial — each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.”
In this instance we, constituting a portion of the judicial department of the government, are called upon to exercise, or what amounts to the sanie thing, to control the exercise of powers belonging exclusively to the executive department of that government. To such action on our part the organic law interposes an insuperable barrier. In addition to the provisions of the organic law quoted, that instrument also declares that: “The supreme executive power shall be vested in a chief magistrate, who shall be styled ‘the governor of the state of Missouri’.” Const., art. 5, sec. 4. Section 6 of the same article requires that “the governor shall take care that the laws are * * * faithfully
Under these plain and comprehensive provisions, it must be apparent that any duty “prescribed by law” for the governor to perform, is as much part and parcel of his exeadive duties as though made so by the most solemn language of the constitution itself.
Conceding the validity of any given law, the fact that the duties which it prescribes are merely ministerial can not take them out of the domain of executive duties nor make them any the less those which “properly belong” to the executive department of the government. And should we by our process be able to compel the performance by the governor of such duties, we would in effect and to all intents and purposes be performing those chities ourselves; for there can be no' substantial distinction drawn between our assumption of duties pertaining to another department of the government, and our intervention resulting in the compulsory performance of such duties; qui facitper alium, etc.
Nor does the fact that any duty which the law prescribes for the governor to perform, might have been assigned to some other officer who would have been amenable to the process of this court, alter the conclusion to be reached or vary the result; for the fact would still remain that the act required to be done was nevertheless an official one, assigned by the legislative department of the government to be performed by the executive department, eo nomine by the governor and by him alone and therefore if he is not bound to obey the law in question as governor, he is not bound to act at all,
Abundant authority establishes the position here taken that mandamus will not issue to the governor to compel the performance of any duty pertaining to his office, whether political or merely ministerial; whether commanded by the constitution or by some law passed on the subject. People ex rel. v. Governor, 29 Mich. 320; Hawkins v. Governor, 1 Ark. 570; State ex rel. v. Warmoth, 22 La. Ann. 1; State ex rel. v. Warmoth, 24 La. Ann. 351; State ex rel. v. Board, 42 La. Ann. 647; Mauran v. Governor, 8 R. I. 192; Rice v. Austin, 19 Minn. 103; Bennett, Petitioner, 32 Me. 508; Railroad v. Lowry, 61 Miss. 102; State v. Governor, 25 N. J. L. 331; State ex rel. v. Brew, 17 Fla. 67; Hovey v. State ex rel., 127 Ind. 588 (which distinguishes or virtually overrules Gray v. State ex rel., 72 Ind. 567); People ex rel. v. Bissell, 19 Ill. 229; People ex rel. v. Yates, 40 Ill. 126; People ex rel. v. Gullom, 100 Ill. 472; Turnpike Co. v. Broten, 8 Baxt. (Tenn.) 490; Bates v. Taylor, 87 Tenn. 319; State ex rel. v. Towns, 8 Ga. 360; Railroad v. Randolph, 24 Tex. 317; Appeal of Hartranft, Governor, 85 Pa. St. 433; Mississippi v. Johnson, 4 Wall. 475.
The same views are enunciated by several text writers. Thus High says: “While, as to purely executive or political functions devolving upon the chief executive officer of a state, and as to duties necessarily involving the exercise of official judgment and discretion, the doctrine may be regarded as uncontroverted that mandamus will not lie, yet as to duties of a ministerial nature and involving no element of discretion,
Touching this subject Wood says: “The attempt on the part of some of the courts to interfere with the discharge of executive duties is not only in opposition to our theory of government and in excess of their power, but also attended with great danger. If the courts may interfere with the discharge of any ministerial duties of the executive department of the government they may with all, and we should have the singular spectacle of a government run by the courts; instead of the officers provided by the constitution. Each ■department of the government is essentially and neces
Although the precise point now presented has never been decided in this state, yet in State ex rel. v. Governor, 39 Mo. loc. cit. 398, the clear intimation is made by this court, speaking through Wagner, J., that there was really no valid distinction between a political and a ministerial act of the governor, when considered with reference to the issuance of a mandamus against him.
Thei'e are' many respectable authorities, however, which maintain views diametrically opposed to those here advanced. Most of them will be found collated in the brief filed for relator. Railroad v. Moore, 36 Ala. 371; Middleton v. Low, 30 Cal. 596; Land Co. v. Routt, 17 Col. 156; Gray v. State ex rel., 72 Ind. 567; Magruder v. Swann, 25 Md. 173; Groome v. Givinn, 43 Md. 572; Chumasero v. Potts, 2 Mont. 242; State ex rel. v. Blasdel, 4 Nev. 241; State ex rel. v. Governor, 5 Ohio St. 528; State ex rel. v. Nicholls, 7 S. Rep. (La.) 738. In addition to those cited, see Martin v. Ingham, 38 Kan. 641; State v. Thayer, 47 N. W. Rep. 704.
The fact that the governor has voluntarily submitted himself to the jurisdiction of this court has. been pressed upon our attention as a reason why we
As we do not possess any jurisdiction over the governor, we shall decline any further discussion of this cause, hold the demurrer well taken and deny the issuance of the peremptory writ.