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Courts and their jurisdiction; a treatise on the jurisdiction of the courts of the present day, how such jurisdiction is conferred, and the means of acquiring and losing it online

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"* Rogers v. Beauchamp, 102 Ind. 33 ; 1 N. E. Rep. 185 ; Keuney v.
Phillipy, 91 Ind. 511.


into operation or the office is filled and exercised under
the act, it is a de facto court or office, and its legality can
not be called in question collaterally, or except in a direct
proceeding by the state for state purposes."* But it is
believed that this doctrine, so far, at least, as it applies to
courts, can not be sustained by reason or authority.*

29. Constitutional limitations of jurisdiction. — Under
the constitutions of the United States and of the several
states, the government of each is divided into different de-
partments, neither of which can encroach upon or exercise
the powers and functions of the other.^ The " legislature
makes, the executive executes, and the judiciary construes
the law."^ And, where one of these departments of gov-
ernment assumes to perform the duties, or exercise the
powers, of another department, or to control its action, its
acts are void.* So, if one department of government at-
temjits to, or does, interfere with or obstruct another in
the performance of its duties, it may be prevented from so
interfering. But this doctrine does not prevent the judi-
cial department of government from enforcing the per-
formance of merely ministerial duties by officers of other
departments.^ But the jurisdiction of the courts to en-
force or control action on the part of officers of other de-
partments does not extend to acts calling for the exercise
of judgment or discretion, or to executive or political acts.*
The principle that authorizes a court to enforce the per-

^ Kelly V. Bemis, 64 Am. Dec. 54, note.

2 People V. Nelson, i:};5 111. 565; 27 N. Y.. Re]). 217, 226; Cooley's Const.
Lim., * pp. 87-93; Anderson's Die. of Law, 342; State v. Hyde, 121 Ind.
20 ; 22 N. E. Rep. 644.

^ Wayman v. Southard, 10 Wheat. 1, 46.

* Baggs' Appeal, 43 Pa. St. 512; 82 Am. Dec. 583; Miles v. P>radford, 22
Md. 170: 85 Am. Dec. 643.

5 United States v. Guthrie, 17 How. 284; State v. Doyle, 40 Wi.-^. 175,
188; 22 Am. Rep. 692 ; Decatur v. Paulding, 14 Pet. 497, 514.

«Ex parte Echols, 39 Ala. 698; 88 Am. Dec. 749; United States r.
Guthrie, 17 How. 284; Brashaer r. Mason, 6 How. 92, 97; Miles /■. Brad-
ford, 22 Md. 170 ; 85 Am. Dec. 643 ; Decatur v. Paulding, 14 IVt. 497, 514;
March v. The State, 44 Tex. 64; Marhury v. Madison, 1 ('ranch. 137;
Jones V. United States, 137 U. S. 202; 11 Sup. Ct. Rep. 80.


formance of a ministerial act gives like authority to pre-
vent a violation of a ministerial duty.^

The extent to which the courts may go in controlling
action on the part of officers of other departments of gov-
ernment seems to he very thoroughly determined. The au-
thority only extends to ministerial acts not calling for the
exercise of judgment or discretion. But the great diffi-
culty has been to distinguish between acts purely minis-
terial and such as are judicial, political, executive, or dis-
cretionary in their nature. It is impossible to lay dowii
any general rule that would distinguish these different
powers with sufficient accuracy to be relied upon. This
has been attempted by the courts in many instances, but
the effort is usually accompanied by an acknowledgment
that general rules or delinitions are not to be relied upon.^

> Board of Liquidatiou r. McComb, 92 U. S. 531, 541.

•^ Decatur r. Paulding, 14 Pet. 497,514, 518; Bledsoe r. Int. E. R. Co.,
40 Tex. 537, 55G.

" 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 Anaerica for many years, and the principles applicable to its
use have been much discussed. It is sufficient to say that tlie proceed-
ing by mandamus has for its object the enforcement of a duty, and that
it has ever been regarded as an extraordinary remedy, subject to im-
portant restrictions. A mandnmua will issue to an officer of the govern-
ment only when the duty to be performed is ministerial in its charac-
ter ; and, when a duty is imposed upon the officer requiring the exer-
cise of judgment or discretion, a mandamus will not lie. (5 Texas, 478;
12 Pet. K. 524, ()09 ; 7 Cr. R. 504 ; 6 Wheat. 598 ; 6 How. 92.)

" It was said by .Tustice Wheeler : 'The distinction between ministe-
rial and judicial and other official acts seems to be that, when the law
prescribes and defines the duty to be performed with such precision and
certainty as to leave nothing to the exercise of discretion or judgment,
the act is ministerial ; but, when the act to be done involves the exer-
cise of discretion or judgment in determining whether the duty exists,
it is not to be deemed merely ministerial.' (5 Texas, 479.)

"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 diflScult of application to particular cases. The word ' ministe-
rial ' has reference generally to an act done under authority of a supe-
rior; and in this sense it could never apply to the chief executive with
respect to any thing required by the legislative authority. The word
' discretion ' strictly applies to but few acts. The governor has a discre-


Yet, while these general rules and definitions can not
detremine in all cases whether an act is ministerial, i>o-
litical, executive, or judicial, they aid us materially in ar-
riving at a proper conclusion in any particular case.

"A ministerial act is one which a person performs in a
given state of facts, in a prescribed manner, in obedience to
the mandate of legal authority, and without regard to, or
the exercise of, his own judgment upon the propriety of
the act to be done." ^

"A ministerial duty, the performance of which may in
proper cases be required of the head of a department of
government, by judicial process, is one in respect to which
nothing is Jeft to discretion. It is a simple, definite duty,
arising under conditions admitted or proved to exist and
imposed by law." ^

A judicial act is defined to be "an act performed by a

tiou in the exercise of the pardoning power, and sometimes a conrt 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 'judg-
ment' 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 minis-
terial 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 reasoning
adopted by those who maintain the power to assume jurisdiction is
that, where a right exists by law to demand money of an officer, and lie
refuses to pay, the court can enforce the right by mandamus, and, to as-
certain the existence of the right, it is the duty of the court to construe
the law ; and if, by such construction, the right is found and the refusal
to pay ascertained to have been a mistake, then the officer will be co.
erced to pay out the money as a ministerial duty.' This reasoning is
then pronounced an assumption which can not be recognized." Bled.soo
V. Int. R. R. Co., 40 Tex. 556.

' Anderson's Die. of Law, G77 ; Flournoy i'. Jefiersonville, 17 Ind. Kl'.i ;
79 Am. Dec. 468.



court touching the rights of parties, or property, brought
before it by voluntary appearance or by the prior action of
ministerial officers." '

Legishitivc power is the power to enact laws or to de-
clare what the law shall be;^ to enact, amend, or repeal
laws.-^ Laws are made by the legislature and applied by the

It is the duty of the executive department of the govern-
ment to enforce the laws. If the acts to be done in carry-
ing the law into effect require the exercise of judgment or

> Flourney v. Jeffersonville, 17 Ind. 169, 172 ; 79 Am. Dec. 468 ; Pen-
nington V. Streight, 54 Ind. 376, 377 ; Smith v. Strother, 68 Cal. 194 ; 8
Pac. Rep. 852.

^ Anderson's Law Die. 611 ; Sinking Fund Cases, 99 U. S. 761.

••' Cooley Const. Lim. -pp. 90-92.

* Merrill v. Sherburne, 1 N. H. 204 ; 8 Am. Dec. 52 ; Smith r. Strother,
68 Cal. 194 ; 8 Pac. Rep. 852.

" This leads to the inquiry, what is legislative power ? And upon that
subject there is an abundance of authority. The word 'legislative' is
defined by W^orcester as follow^s: 'That which makes or enacts laws;
law-making ; legislative power ; of or pertaining to legislation, or to a
legislature — as, legislative proceedings.' ' Legislative ' is defined by Zell
as follows : ' Making, giving, or enacting laws ; relating or pertaining to
the passing of laws.' Webster defines 'legislative' as follows: ' Giv-
ing or en-Bcting laws ; as, a legislative body. Pertaining to the enact-
ment of laws ; suitable to laws ; as, the legislative style. Done by enact-
ing ; as, a legislative act.' Wharton, in his lexicon, defines ' legislation '
as follows ; ' The act of giving or enacting laws ; ' legislature,' the power
to make laws.' Abbott, in his Law Dictionary, under the head ' legis-
late,' has the following : ' To make laws. ' Legislature,' the body of per-
sons in the state clothed with the authority to make laws, ' Legislative
power,' that one of the three great departments into which the powers
of government are distributed, legislative, executive, and judicial, which
is concerned with enacting or establishing, and, incidentally, with re-
pealing, laws.' We find the following in Sinking Fund Cases, 99 U. S.
761, speaking of the judicial and legislative departments: 'The one de-
termines what the law is and what the rights of parties are with refer-
ence to transactions already had ; the other prescribes what the law
shall be in future cases arising under it.' Legislative power is the
power to enact, amend, or repeal laws. Railroad Co. r. Geiger, supra;
Cooley's Const. Lim; 90; Hawkins v. Governor, 1 Ark. 570; Wayman v.
Southard, 10 Wheat. 46; Greenough v. Greenough, 11 Pa. St. 494."
City of Evansville v. State, 118 Ind. 426; 21 N. E. Rep. 267, 272.


discretion they arc executive or political, aud not minis-
terial, and can not be controlled by the courts.'

It makes no difl'erence by whom an act is })erformed,
whether by a ministerial, executive, or judicial officer, m
determining whether it is ministerial or not. The dis-
tinction depends upon the nature of the act done or to be
done, and not upon the character of the officer by whom
it is to be performed.^

^ Mississippi v. Johnson, 4 Wall. 475; The State v. Governor, 5 Ohio
St. 528, 534; Jones r. United States, 137 U. S. 202; 11 Sup. Ct. Rep. 80.

"The single point which requires consideration is this: can the pres-
ident be restrained by injunction from carrying into effect an act of con-
gress alleged to be unconstitutional? It is assumed by the counsel for
the State of Mississippi that the president, in tlie execution of the recon-
struction acts, is required to perform a mere ministerial duty. In this
assumption there is, we tliink, a confounding of the terms ' ministerial '
and 'executive,' wliich are by no means equivalent in import. A min-
isterial duty, the performance of which may, in proper cases, be required
of tlie head of a department, by judicial process, is one in respect to
which nothing is left to discretion. It is a simple, definite duty, arising
under conditions admitted or proved to exist, and imposed by iaw. . .
Very different is the duty of the president, in the exercise of the
power, to see that the laws are faithfully executed, and, among tliesi'
laws, the acts named in the bill. By the first of thcso acts, he is re-
quired to assign generals to command in the several military districts,
and to detail sufficient military force to enable such officers to discharge
their duties under the law. By the supplementary act, other duties are
imposed on the several commanding generals, and these duties must
necessarily be performed under the supervision of the president as
commander-in-chief. The duty thus imposed on the president is in no
just sense ministerial. It is purely executive and political." Missis-
sippi V. Johnson, 4 Wall. 475.

■^ Kendall v. Stokes, 3 How. 87 ; Marbury /•. Madison, 1 Cranch, 137,
164; The State r. Governor, 5 Ohio St. 528 ; Chamberlain v. Sibley, 4
Minn. 309.

" Can the chief executive officer of the state be directed or con-
trolled in his official action by proceedings in mandamus f It is
claimed, on the part of the defense, that, inasmuch as the government
is by the constitution divided into the three separate and co-ordinate de-
partments, the legislative, the executive, and the judicial, and ina.s-
much as each department has the right to judge of the constitution
and laws for itself, and each officer is responsible for an abuse or usur-
pation in the mode pointed out in the constitution, it necessarily follows
that each department must be supreme within the scope of its powers,


The judicial power of the government may so far regu-

and neither subject to the control of the other for the manner in which
it performs, nor its failure to perform, either its legal or constitutional
duties. This argument is founded on theory rather than reality. That
each of these co-ordinate departments has duties to perform in which
it is not subject to the controlling or directing authority of either of the
others, must be conceded. But this independence arises not from the
grade of the officer performing the duties, but the nature of the author-
ity exercised. Under our system of government, no officer is placed
above the restraining authority of the law, which is truly said to be
universal in its behests—' all paying it homage, the least as feeling its
care, and the greatest as not exempt from its power.' And it is only
where the law has authorized it, that the restraining power of one of
these co-ordinate departments can be brought to operate as a check
upon one of the others. The judicial power can not interpose and di-
rect in regard to the performance of an official act which rests in the dis-
cretion of any officer, whether executive, legislative, or judicial. In
Marbury v. INIadison, 1 Cranch, 170, Chief-Justice Marshall said : ' It is
not by the office of the person to wdiom the writ is directed, hut the na-
ture of the thing to he clone, that the propriety or impropriety of issuing a
mandamus is to be determined.'

"The constitutional provision declaring that 'the supreme executive
power of this state sliall be vested in the governor,' clothes the governor
with important political powers, in the exercise of which he uses his
own judgment or discretion, and in regard to which his determinations
are conclusive. But there is nothing in the nature of the chief execu-
tive office of this state which prevents the performance of some duties
merebj ministerial being enjoined on the governor. While the authority
of the governor is supreme in the exercise of his political and executive
functions which depend on the exercise of his own judgment or discre-
tion, the authority of the judiciary of the state is supreme in the deter-
mination of all legal questions involved in any matter judicially brought
before it. Although the state can not be sued, there is nothing in the
nature of the office of governor which prevents the prosecution of a
suit against the person engaged in discharge of its duties. This is fully
sustained by the analogy of the doctrine of the Supreme Court of the
United States, in the case of Marbury v. Madison, 1 Cranch, 170." State
V. Governor, 5 Ohio St. 534.

" This court will not undertake to compel the governor of the state
to the performance of any duty devolving upon him as the chief ex-
ecutive, and properly pertaining to such office. In all such matters the
executive is of necessity independent of the judiciary. But when
some official act, not necessarily pertaining to the duties of the execu-
tive of the state, and which might be performed as well by one officer
as another, is directed by law to be done, then any person who clearly
shows himself entitled to its performance, and has no other adequate
remedv, may have a writ of ^nandamns against such officer, even al-


late and control the legislative department as to set aside

though the law may have designated the chief executive of the state as
a convenient officer to perform the duty. We do not think that in such
cases there is any ground for distinguishing the chief executive iron\
any other officer who maj'- be designated to do a mere ministerial act,
otherwise a party might be entirely without remedy. AVlien, however,
the governor is directly empow^ered or required to do an act, not by
statute simply, but, as in this instance, by the constitution of the state,
we do not feel authorized to hold that it does not pertain to the office
of the chief executive, or that we could compel the performance of this
or any other executive duty, prescribed by the organic law." Cham-
berlain V. Sibley, 4 Minn. 309.

There are cases holding, however, that the chief executive is entirely
independent of the courts, no matter what the nature of the duty to be
performed may be.

"One reason very strongly pressed why the governor is subject to pro-
cess in cases like the present is, that the act required is not to
be done in performance of an executive duty imposed by the constitu-
tion, but is in its nature a ministerial act, provided for by statute, and
which might, with equal propriety, have been required of an inferior
officer, who, beyond question, could have been compelled by mandamus
to take the necessary and proper action in the premises. And the ques-
tion is put with some emphasis, whether, when individual interests de-
pend upon the performance of ministerial action, to whijh the party is
entitled of right, the question whether there shall be a remedy or not
can depend upon the circumstance that in the particular case the minis-
terial action is required of a superior officer when there is no reason in
its nature why it might not have been required of an inferior.

"A view similar to this has been taken in some cases, and the courts
have undertaken to decide what are and what are not properly execu-
tive duties, and to assert a right to control the governor's action in some
cases, while admitting their want of jurisdiction to do so in others.
The State v. The Governor, 5 Ohio St. 528; Bonner v. Pitts. 7 Geo. 473;
Cotton V. The Governor, 7 Jones, N. C. 545 ; Chamberlain v. The Gov-
ernor, 4 Minn. 309 ; Pacific R. R. v. The Governor, 23 Mo. 353 ; Ma-
gruder v. The Governor, 25 Md. 173. These cases for the most part are
rested upon the dictum of Chief Justice Marshall, in ]\Iarbury v. ]Madi-
son, 1 Cranch, 137, that one of the heads of department in the federal
government might be compelled by mandamus to perform a mere min-
isterial dutj"- ; a dictum which can not be understood as expressive of the
opinion of that eminent judge that the president was subject to the
like process, but which is wholly inapplicable to a case like the present,
unless it goes to that extent. For it can not justly be claimed, when
federal and state governments have been formed, so far as distribution
of power is concerned, on the same general plan, that the executive of
the union can claim immunity from, judicial jjrocess any more than the
governor of one of the states. In many cases it is unquestionable that


and declare void laws enacted by it, where such laws are

the head of an executive department may be required by judicial
process to perform a legal duty, while in other eases, in our judgment,
the courts would be entirely without jurisdiction ; and, as regards such
an officer, we should concede that the nature of the case and of the
duty to be performed must determine the right of the court to interfere
in each particular instance. When the head of a department acts as
a mere assistant or agent of the executive in the performance of a polit-
ical or discretionary act, he is no more subject to the control of the
courts than the chief executive himself; but where a ministerial act is
required to be done by him, independently of the executive, though in
a certain sense he is an executive officer, it would be as idle to dispute
his responsibility to legal process, as it would be to make the same claim
to exemption on behalf of an officer entrusted wilh similar duties of a
lower grade. This is emphatically the case under the constitution of
this state, which provides for the election of state and inferior officers
alike by the people, and makes the chief officers of state below the gov-
ernor as independent of his control in the performance of their duties
as are the officers of the counties or of the townships.

" But when duties are imposed upon the governor, whatever be their
grade, importance, or nature, we doubt the right of the courts to say
that this or that duty might properly have been imposed upon a sec-
retary of state, or a sheriff of a county, or other inferior officer, and that
inasmuch as in case it had been so imposed, there wo.uld have been a
judicial remedy for neglect to perform it; therefore, there must be the
like remedy when the governor himgelf is guilty of a similar neglect.
The apportionment of power, authority, and duty to the governor, is
either made by the people in the constitution, or by the legislature in
making laws under it ; and the courts, when the apportionment has
been made, would be presumptuous if they should assume to declare
that a particular duty assigned to the governor is not essentially execu-
tive, but is of such inferior grade and importance as properly to pertain
to some inferior office, and, consequently, for the purposes of their juris-
diction, the courts may treat it precisely as if an inferior officer had been
required to perform' it. To do this would be not only to question the
wisdom of the constitution or the law, but also to assert a right to make
the governor the passive instrument of the judiciary in executing its
mandates within the sphere of his own duties. Were the courts to go
so far, they would break away from those checks and balances of gov-
ernment which were meant to be checks of co-operation, and not of an-
tagonism or mastery, and would concentrate in their own hands some-
thing at least gf the power which the people, either directly or by the
action of their representatives, decided to entrust to the other depart-
ments of the government.

"There is as to all the authority specially confided to the governor,
whether by the constitution or the laws, no safe or logical doctrine but
this : that reasons of a conclusive nature must be presumed to have


in conflict witli the constitution.' But this is upon the
theory, not that the judicial department is superior to the
legislative, but that the constitution is superior to both,
and that it is the province of the former to construe botli
the constitution and the statutes, and determine whether
there is a conflict. If there is, it is the constitution that
controls and limits the legislature, and not the courts."

The legislature can not define the words, or construe
the meaning of the constitution, for the courts.^ But in
matters purely political, a construction given by the po-
litical department will receive great consideration by the
courts, and in case of provisions of doubtful interpreta-
tion will generally be followed implicitly.*

The several departments are created by and under the
same authority, and are, to a certain extent, independent

Online LibraryJohn D. (John Downey) WorksCourts and their jurisdiction; a treatise on the jurisdiction of the courts of the present day, how such jurisdiction is conferred, and the means of acquiring and losing it → online text (page 20 of 93)