43 P. 471 | Or. | 1896
Lead Opinion
Opinion by
It is stoutly contended that it is shown by the evidence taken and submitted that the relator will be damnified by reason of the location and construction of the branch asylum at the town of Union, under the rule above established. We have carefully examined all the testimony found in the record, and are unable to -concur with this view. The whole theory of the relator, by which he seeks to establish injury, is based upon the assumption that the legislative and executive departments of the state will, in the event that the location and construction of the branch asylum is restrained, provide ways and means for the construction of such institution upon what is known as the “Cottage Farm,” a tract of land now belonging to the state, and situate some six miles from the capital, and thereby prevent the necessity of purchasing and acquiring other lands upon which to establish and construct such buildings; that they will utilize in connection therewith certain outbuildings now in use by the state, and save the expense of constructing other like buildings; and that, by reason of the proximity of such location to the present state asylum, they could dispense with the cost of an additional superintendent, and some additional physicans and assistants. But who can say that the legislature would be-content to build the branch asylum at the Cottage Farm, or that it would see fit to utilize the outbuildings now in use in connection therewith, or that it would not in any event provide for the employment of an additional
The attorney-general could, at common law, by information in chancery, enforce trusts, prevent public nuisances, and the abuse of trust powers: People v. Miner, 2 Lans. 396. His supervision, through equitable instrumentalities, of public trusts, and his authority to prevent the abuse of trust powers public in their nature, was apparently the outgrowth of equitable interposition regarding charitable uses. It was formerly held that it was the source from which the funds were derived, and not the' purpose for which they were dedicated, that constituted the use charitable: Attorney-General v. Heelis, 2 Sim. and Stu. 77. But subsequently it was settled that the purpose to which the funds were dedicated was the real criterion by which the charitable use was to be determined. And this enlargement of the principle governing charitable uses extended equitable jurisdiction to public trusts involving all funds raised by taxation or otherwise for public purposes: Attorney-General v. Brown, 1 Swanst. 265; Attorney-General v. Mayor of Dublin, 1 Bligh (N. S.), 312; Attorney-General v. Eastlake, 45 Eng. Ch. 218-221. In the latter case it was declared that the attorney-general was the proper person to represent those who
The Wisconsin cases, though not authority here, serve to illustrate the question touching sovereignty and prerogative appurtenant thereto, and the use of the extraordinary remedy by injunction, when it is invoked in the service of a sovereign state and in the interest of the whole people, as distinguished from its ordinary use, or coupled with ordinary equitable proceedings. It may be said here that injunction, in itself, is not prerogative or jurisdictional. It was issued in cases where the court had jurisdiction otherwise as preliminary or interlocutory to the final decree, or to give effect and permanency to such a decree. It was remedial and in aid of jurisdiction already attached within the vast range of equitable cognizance. Not so with mandamus, habeas corpus, and quo warranto, they were common law prerogative writs, which “appertain to and are peculiarly the instruments of the sovereign power, acting through its appropriate
says: “It may well be conceded that courts of equity would not, by reason of their original jurisdiction, have authority to interfere by injunction in a case such as this; but it is to be borne in mind that the writ of injunction, under our constitution, is put to prerogative uses of a strictly judicial nature, as a remedy of a preventive character in case of threatened public wrong to the soverignty of the state, and affecting its prerogatives and franchises and the liberties of the people; their rights being protected in this court by information in the name of the state, on relation of the attorney-general.” The learned judge spoke advisedly when he said “it may well be conceded that courts of equity would not, by reason of their original jurisdiction, have authority to interfere by injunction” in such a case, as indeed there is high authority in support of the concession. Fletcher v. Tuttle and Blair v. Hinrichsen, 151 Ill. 41, (25 L. R. A. 143, 37 N. E. 683,) are cases involving similar questions arising out of the passage of an act to apportion the State of Illinois into senatorial districts, claimed to be unconstitutional and void; but the suits were instituted by private individuals, and it was there decided that wherever the established distinctions between equitable and common law jurisdiction are observed, courts of equity have no authority or jurisdiction to interpose for the protection of rights which are merely political, and where no civil or property right is involved. In all such cases the remedy, if there is one, must be sought in a court of
This definition of a ministerial duty is concurred in by Mr. Justice Miller in Gaines v. Thompson, 74 U. S. (7 Wall.), 347. Now, what is the nature of the duties cast upon the governor by these acts? are they purely ministerial or do they belong to the domain of governmental affairs? What is he, or the board of which he is a member required to do? This latter question answered, the former is answered also without the necessity of comment. He shall, within sixty days, locate a site for a branch insane asylum at some point in one of the counties named lying in the eastern part of the state; he shall contract for and purchase a tract of land at the place selected; he shall hire a competent architect, who shall, under the direction of the board, draw plans, prepare specifications, etc. When these are completed the board shall approve, and thereupon shall give notice, and in due time let contracts, etc. In all these prescribed duties there is not a single item that partakes of a ministerial character. They all pertain to executive duties, and are wholly and entirely governmental in their nature and purport. The governor can execute them or not at his will, as they fall exclusively within his department of government. To test the question as to whether these enumerated duties are ministerial or governmental, suppose these acts of the legislature were entirely free from doubt touching their constitutional validity, and the governor,
The several departments of government are each independent of the other. To the judicial department is intrusted the determination of rights and the enforcement of remedies, and, as an incident to the .protection of property, a court of equity has the undoubted right to refuse to recognize as valid a clearly unconstitutional act of the legislature, because the constitution is the paramount law of the land, which every suitor can invoke when an infringement of his rights is threatened under some law in violation thereof. But the mere fact that an act of the legisla
Reversed.
March 2, 1896.
Rehearing
On Rehearing.
Since delivering the opinion in this case, an elaborate petition for rehearing has been filed. We have carefully examined it, and, while some of the points made at the hearing are presented in a new light and with much force, there is no new question made not considered by us in the former opinion. We see no reason for changing the conclusions then reached, hence a rehearing is denied.
Rehearing denied.