25 N.J.L. 331 | N.J. | 1856
delivered the opinion of the court.
An application is made to the court for a rule upon the governor of the state, requiring him to show cause why a mandamus should not be awarded, commanding him to issue a commission to the applicant, as surrogate of the county of Passaic. As important public interests wen liable to be affected by any delay on the part of the court in announcing the decision, it was intimated at the last term, upon the close of the argument, that the application would he denied. The importance of the questions involved, and the learning and research manifested on the argument, render it proper that the grounds of the decision should be distinctly stated.
The motion is denied, first, because there is no evidence be fore the court, that a commission has been demanded
But if this difficulty, under the peculiar circumstances of this case, should be regarded as formal, rather than meritorious, and as presenting no insuperable objection to the action of the court, the mandmvus must be denied, upon the ground, that the applicant, upon the facts disclosed, is not entitled to the relief sought for. The case made on the part of the applicant, assuming it to be fully established by the evidence, is, that the applicant, according to the returns made by the boards of election of the
It is made a question whether, by law, the board of county canvassers are empowered to determine who is elected surrogate or clerk, and whether it is, by the act, made the duty of the governor to issue a commission to those officers, in accordance with such determination of the board. By the 76th and 77th sections of the election law, the hoard of county canvassers are required, in case
But, by the 58th section of the act of 1846, it is enacted that the provisions of the act relative to the statement of the result of the election by the board of county canvassers, and also relative to tho statement of the determination of said board, shall apply to the votes for clerk and surrogate. There seems, however, to be no provision in the act, expressly requiring the governor to issue his commission in accordance with such determination, in the case of the election of clerk or surrogate. Yet we think that the sound construction of the statute requires that such interpretation should be adopted, and that the governor is required to issue a commission in the case of the election of county clerk and surrogate, upon the same evidence as is designated in the case of other county officers. The act has established two tribunals, whose province it is to determine upon the election of all state and county officers chosen by the people. The result of the election of all county officers is submitted to tho determination of tho board of county canvassers. The result of the election of the governor, members of congress, and electors of president and vice president, is submitted to the determination of the board of state canvassers. The powers of these hoards, within their respective jurisdictions, are substantially the same. They officially determine what persons are elected to office, and the governor is required to issue commissions in accordance with rucli
If this be the true construction of the act, it is clear that the application for a mandamus must fail. The governor is required by law to issue the commission in accordance with the determination of- the board of county canvassers. That determination is in favor, not of the applicant, but of another individual. We are asked to direct a commission to be issued in direct conflict with the plain requirements of the act.
The statements accompanying the official certificate of the board of county canvassers are not authorized by law, and constitute no part of the return. They must be rejected as mere surplusage. They form no ground upon which the governor could act in issuing the commission.
The board of county canvassers clearly erred in the grounds of their determination. They had no authority
That this action of the board does not conclude or prejudice the right of the party aggrieved to the office, if elected by a majority of votes, is conceded. But the question now is, not who is entitled to the office, but who, by the terms of the act, is entitled, in the first instance, to the commission. If the act makes it incumbent upon the executive to issue a commission upon certain specified proof, this court, under color of trying the final right to the office, cannot instruct him to disregard the plain requirement of the statute.
In the third place, we are of opinion that the mandamus must bo denied, upon the broad ground that this court has no power to award a mandamus, either to compel the execution of any duty enjoined on the executive by the constitution, or to direct the, manner of its performance. The exercise of such power would be an unwarrantable interference with the action of the executive within his appropriate sphere of duty. The constitution has divided the powers of government into distinct departments, and
If by ministerial duties, are meant duties performed by one acting under superior authority, or not with unlimited control, none of the duties of the executive are ministerial. All the ^powers conferred by the constitution upon the governor are political powers, all the duties enjoined are political duties. Touching all the powers conferred on the executive by the constitution, he is entirely independent of the control of the judiciary, being responsible to the reople alone, and liable to impeachment for misdemeanor m office.
While it is the acknowledged duty of courts of justice to exert all their appropriate powers for the redress of private wrongs, it is no less a duty sedulously to guard against any «ncroachment upon the right, or usurpation of the powers, of the co-ordinate departments of government. In the delicate and complicated machinery of our republican system, it is of the utmost importance that each "department of the government should confine itself strictly within the limits prescribed by the constitution.
It is obvious that the exercise of the power now invoked, will have a direct and immediate tendency to bring the executive and judicial departments of the government into conflict. It cannot alter the principle, that in the present case the governor' assents to the- application. We have Mr. Jefferson’s authority for saying, that if the Supreme Court had granted a mandamus in the case of Marberry v. Madison, he should have regarded it as trenching on his appropriate sphere of duty; that he had instructed Mr. Madison not to deliver the commission, and that he was prepared, as president of the United States, to maintain his own construction of the constitution with all the
Whether these views be correct or erroneous, they sufficiently evince that the judgment of the court would have been rendered utterly nugatory by the power of the executive, and exhibit in a striking point of view the danger of even a seeming encroachment on the rights of a co-ordinate department of government. In view of the importance of maintaining the harmonious operation of the different departments of government, the court, in the exercise of its powers, should tread upon no doubtful ground. . ¡..
This view of the constitutional power of the court is confirmed by the fact, that in the whole history of our government (state or federal) there has been, so far as we are aware, no instance of the exercise of the power now invoked. In the only court in which the exercise of the power has been asked, its existence was denied. Hawkins v. The Governor, 1 Ark. R. 570.
The ease of Marberry v. Madison (1 Cranch 137) is the only authority relied upon in support of the application. Giving to that case all the effect'of a judicial decision upon the point under consideration, (which cannot legitimately be claimed for it), and all the weight to which the eminent character of the tribunal itself, and the cogent reasoning by which its conclusions are sustained, entitle it, it does not decide the' point now in question. Some of the positions of the court would seem to warrant the conclusion that a mandamus might issue against the president. But no such proposition is announced or attempted to■ be-maintained, and the language of the court, as applied to the case then under consideration, warrants no such inference as is attempted to be drawn from it.' The application in-that
The order must be denied.
Cited in State v. Common Council of Rahway, 4 Vr. 113; State v. Board of Chosen Freeholders of Camden Co., 6 Vr. 221.