Mauran, Adjutant Gen. C. v. Smith, Governor, C.

8 R.I. 192

• Court: Supreme Court of Rhode Island
• Decided: October 6, 1865
• Status: Published

Opinion

Dub.eee J.

The first question in this case is, whether the writ of mandamus lies to compel the Governor of a State to perform an official duty. The question is’ not a new one in the courts. In Arkansas, (Hawkins v. The Governor, 1 Pike, 570 ;) in Georgia, (Law v. Towns, 8 Geo. R., 360 ;) in Illinois, (People v. Bissell, 19 Ill., 229 ;) and in New Jersey, (State v. the Governor, 1 Dutch. 331,) it has been decided that the writ does not lie in such a case. In Texas, (Houston &c., R. Co. v. Randolph, 24 Texas, 317, — if the U. S. Digest, Vol. 21, p. 372, may be trusted,) it has been held that the writ does not lie to any member of the Executive department, except the land commisioner. In Maine, (Dennitt, Petitioner, 32 Maine R., 508,) the court refused to issue the writ to compel the Governor and Council to perform a statutory duty, but for reasons which would have led to its refusal if sued for against the Governor alone. In Minnesota, (Chamberlain v. Sibley, 4 Minn. R., 309,) the court refused to issue the writ to compel the Governor to perform a duty prescribed by the constitution, but delivered a dictum to the effect that the writ would lie to compel the Governor to perform a duty prescribed by statute, and which might be performed as well by one officer as another. In Missouri, in the case of the Pacific R. R. Co. v. The Governor, (23 Mis. R., 353,) the question was much discussed, but the court expressly refrained from giving an opinion upon it. On the other hand, in Ohio, (State of Ohio v. Chase, 5 Ohio, N. S. R. 538,) it was held that a writ of mandamus may issue to compel a governor to perform a mere ministerial duty enjoined on him by statute, and which might have been, devolved on another officer of the State; though in that case the writ was not issued, for reasons aside from the question of jurisdiction. In North Carolina, (Cotton v. Ellis, 7 Jones, N. C., 545,) the court decided in favor of the jurisdiction, and, for anything that appears, issued the writ; being the only instance which we find reported, in which the writ may have issued against a governor, except where he 'consented to the jurisdiction, for the sake of getting the opinion of the court upon the merits of the relation. These are all the cases which we find bearing directly on this point, and, from the course of decision in them, it is apparent that the weight of authority is against the jurisdiction.

One reason which has been suggested for refusing'the writ, is, that if granted, it would tend to provoke a conflict between the judicial and executive branches of the Government, — a conflict in which the judiciary would prove the weaker party, j Of course, in a case where the jurisdiction is clear, such a consideration could have no weight; but where the jurisdiction is problematical, the consideration affords a presumption which it would be unwise to disregard. “Eor,” as Blackstone has remarked, “ all jurisdiction implies superiority of power; authority to try would be vain and idle, without an authority to redress; and the sentence of a court would be contemptible, unless that court had power to command the execution of it.” (1 Shars. Bl. Com., 242.) And in this connection it is worthy of note, that in England, from which we derive the process, not only is the King exempt from it, but, among judicial tribunals, the higher courts of judicature enjoy a similar immunity.

But the reason which has been most effectual in determining the courts to refuse the writ, is that which is drawn from the division of the powers of Government under our State Constitutions, into three co-ordinate departments, Legislative, Executive and Judicial, each independent of the others, except in so far as it is subordinated to them by the Constitution. This division is coeval with the States themselves, and has always been deemed an indispensable safe-guard of republican liberty. Mr. Madison, in the forty-seventh paper of the Eed eralist, traces the idea on which the division is based to Montesquieu, who borrowed it from the British Constitution, and who taught that civil freedom can not co-exist with a union of the three powei’S in the same hands. The analysis of government into three powers is, however, as old as Aristotle, who, (if we may trust Taylor’s translation,) recognizes the “ three parts of all polities,” and says, “where these subsist properly, the polity must necessarily be in a flourishing condition.” (Pol. B. IV. Ch. 14. et seq., Taylor’s Trans.) It was the merit of Montesquieu, to develope the necessity, for the security of civil liberty, of a separate department for each of the powers ; as it was his good fortune to find a multitude of disciples ready to receive his doctrines. His book appeared in 1748, and at once became the hand-book of political philosophy, for the more enlightened-statesmen of both the Old and the New World. The doctrine was, to some extent, though less systematically, produced in Blackstone’s Commentaries, which appeared a few years later than “The Spirit of the Laws; ” and it so became familiar, in its practical aspects and import, not only to the more learned publicists, but to every lawyer in the land. (1 Shars. Bl. Com. 147, 269.) Accordingly, when the American colonies threw off the yoke of the mother country, and formed new governments to suit themselves, they generally, if not universally, made this division of power, except as expressly qualified, a fundamental principle of their constitutions, and in many, if not in nearly all of them, guarded each department from encroachments by explicit inhibitions. Daniel Webster, speaking of this subject in another relation, has said, “a separation of departments, so far as practicable, and the preservation of clear lines of division between them, is the fundamental idea in the creation of all our Constitutions, and, doubtless, the continuance of regulated liberty depends on maintaining these boundaries.” Webster’s Works, Yol. IY, p. 122.)

The question then, is, whether in view of this principle it is competent for the court, by a writ of mandamus, to compel the Executive to do an official duty, which he delays or declines to do of his own accord ? It is admitted that wherever, within the sphere of his duties, the Executive has a discretion, he is amenable for refusing to perform them, not to the court, but only to the senate .on an impeachment, or to the people at the polls. But where the duty to be performed is merely ministerial, it is claimed that a different rule obtains, and that the court may compel him to perform it. If this be true, then, to the extent of his ministerial duties, the Executive is not the co-ordinate of the judiciary, but subordinate to it, and the line of separation between the two departments is, to that extent, obliterated. Of course such a deviation from constitutional principle is admissible only in favor of some other principle of higher obligation. But the only principle adduced in support of the deviation, is the principle of the common law, that for every right there is a remedy. Evidently that is not enough; for a principle of the common law cannot over-ride a principle of the constitution. Consequently we find it admitted, even in cases which hold that a writ of mandamus is issuable to the Governor, that it will not issue to enforce a duty which is enjoined on him by the Constitution, or which he alone can perform, but only to enforce a statutory duty, which might as well have been devolved upon any other individual, the theory being that, as to such a duty, the Governor is on the same footing as any other individual who might have been designated to perform it.

The distinction, however, between these two classes of duties, which is thus recognized by some of the cases, is, by others of them, either ignored or expressly repudiated. In this case it has been urged as applicable in favor of the relator, and its validity has consequently been much discussed. But whether the distinction be valid or not, we deem it unnecessary to determine ; for the duty which we are ' here asked to enforce, though prescribed by statute, could not have been properly devolved on any one but the defendant. It is a duty to 'see that charges are preferred against a military officer, and that a court-martial is convened for his trial, to consist of the highest military officer in the State except the defendant, and of several other officers of superior grade. To confide such a duty to any one except the Commander-in-Chief would be an extraordinary transgression of military usage; and, in a time of actual service, might occasion the most embarassing, if not fatal disorders.

In this aspect of the case, however, the counsel for the relator argues, that the decisions which have been cited are not applicable at all as authorities, for the reason that they were decisions in cases where the writ was sued for to compel the Governor to perform a civil or political duty; whereas, in this case, the writ is sued for, not against the Governor as such, but against the Commander-in-Chief, to compel him to perform a military duty. The idea is, that the office of Governor is separable from that of Commander-in-Chief, and that while as a civil magistrate the Governor may be exempt from the writ, as Commander-in-Chief he is subject to it. We do not think the Constitution warrants any such discrimination. The Constitution declares that “the chief executive power of this State shall be vested in a Governor,” and, in a subsequent section, declares that the Governor “ shall be Captain-General and Commander-in-Chief of the military and naval forces of this State.” In this respect it is similar to the Constitutions of the other States, and to the Constitution of the United States, which again is similar to the British Constitution, under which the King is the Generalissimo, or the first in military command in the kingdom.” (1 Shars. Bl. Com. 262.) The supreme military command is thus universally recognized, in all governments professing a separation of the three powers, as a portion of the chief executive power. (See 1 Kent’s Com. 5th Ed., 282.) Indeed, in time of civil convulsion, it is the most important portion of that power. Supreme military command is in fact implied necessarily in the grant of the chief executive power. The mere fact, then, that the Governor, in his different capacities, is designated by different titles, does not sever the unity of his office. When inaugurated, he takes but a single oath, which binds him in all his functions. If impeached and deposed, the sentence of deposition would deprive him of all his functions, whether impeached for a misdemeanor committed as Commander-in-Chief, or as a civil magistrate. But if, under the American system of government, tbe supreme military and civil authority is thus inseparably united in the Governor; then he is no more subject to the control of the judiciary in the one capacity, than in the other. ~We think, therefore; that the discrimination suggested by the counsel for the relator is inadmissible.

But in reply to all this line of reasoning, it is reiteratively urged that, if in this case the writ of mandamus does not lie, then the relator is without redress, and the great maxim of the law, that for every right there is a remedy, is egregiously falsified. This is an argument to which no court of justice can be insensible. It cannot escape remark, however, that the maxim which is quoted comes to us from England, where it is subject to the same exception in favor of the King, which is here claimed in favor of the Governor. Indeed, it is one of those maxims which must, from the nature of things, be understood with some qualification. If, for instance, it were decided that the Governor is amenable to the writ, the court might, nevertheless, unjustly refuse it, and there would then be no remedy for the wrong, except that which is as applicable to the Governor as to the court, to wit: the remedy by impeachment. The answer which naturally occurs to this is, that it is not to be presumed that the court will be guilty of such an injustice. But, since this presumption must be made somewhere, why should it not be made in favor of that branch of the government on which the duty to be performed is primarily imposed, as readily as in favor of its coordinate ? Such a presumption, however inapplicable to an inferior officer, does not seem inappropriate to a magistrate who is clothed by the Constitution with the supreme trust of taking “ care that the laws be faithfully executed,” and who is privileged, in the execution of his office, to consult the judges of this court as his legal advisers.

We think, therefore, that the court has no jurisdiction to issue its writ of mandamus, to compel the defendant to perform the duty which in this case he is alleged to have disregarded.

Of course, in coming to this conclusion, we unequivocally admit that the Governor of a State is amenable to the court like any other person for his private acts, or for any act not properly within, [the scope of Ms office, though done under the color of Ms office.

But though we think the application ought to be dismissed for [want of jurisdiction, we deem it not improper to say that, even if we had jurisdiction, we should not deem this a case for granting the writ, at least in a peremptory form. A writer on the law of mandamus says : “ It is an imperative rule of the law of mandamus, that previously to the making of the application to the court for a writ to command the performance of any particular act, an express and distinct demand or request to perform it must have been made by the prosecutor to the defendant, who must have refused to comply with such demand, either in direct terms, or by conduct from which a refusal will be conclusively implied.” (Tapping on Mandamus, p. 282, cited in People v. Romero, 18 Cal. R. 89 ; and see Rex v. Brecknock, 3 Ad. & El. R. 217, and the cases cited for the defendant.) Now, in this case, there has been no express refusal, and no conduct which is conclusively equivalent to a refusal. The defendant sets forth in his answer, that when requested to perform the duty which we are asked to enforce, he replied, that he had the matter under consideration. But the relator claims, that to hold the matter under consideration, as the defendant did, for twenty-one days prior to this application, was a virtual refusal. He contends that the defendant, by the statute, was bound to proceed “ according to the usage and practice of war,” which, he says, means according to the “Bules and Articles of War,” as established by act of Congress; and he shows that, according thereto, an officer who has been put under arrest must be served with a copy of the charges on which he has been arrested “ within eight days thereafter,” and “be brought to trial within ten days thereafter, unless the necessities of the service prevent such trial,” &c. He accordingly argues that the defendant, having exceeded the limit of the discretion allowed by this article, has virtually refused to comply with the relator’s request. And if it were true that the statute, when it speaks of “ the usage and practice of war,” means the “Bules and Articles of War,” there would be great cogency in the argument. But it is demonstrably certain tbat such is not tbe meaning of tbe statute. As we bave seen, tbe Bules and Articles prescribe, subject to tbe exception of necessity, tbat an officer who bas been arrested shall be served witb a copy of tbe charges within eight days, and brought to trial within ten days, after bis arrest. But our statute (Rev. Stat., chap. 242, sec. 11) provides tbat tbe officer under arrest shall be served witb a copy of tbe order for tbe court martial, and a copy of tbe charges against him, “ twenty days before tbe sitting of said court,” thus making it utterly impossible to meet tbe requirement of tbe “Bules and Articles of War,” tbat be shall be “brought to trial within ten days ” after bis arrest. This puts it beyond question tbat, in this respect at least, tbe phrase, “ usage and practice of war,” employed in tbe statute, does not mean tbe “ Bules and Articles of War.” But if this be not meant, then tbe question recurs, whether tbe defendant, in bolding tbe relator’s request and tbe matters involved in it under consideration for twenty-one days, bas exceeded tbe large discretion vested in a Commander-in-Cbief “ according to tbe usage and practice of war,” and consequently may be adjudged to bave refused to comply witb tbat request. We are not ready to adopt tbat conclusion, and could not therefore, in tbe present aspect of tbe case, even if we thought we bad jurisdiction, consent to grant tbe writ, — -certainly not in a peremptory form. But witb tbe view which we bold of tbe question of jurisdiction, of course we cannot assent to tbe issuing of tbe writ in any form, either peremptory or alternative.

Tbe application must, therefore, be dismissed.