State v. Lord

31 L.R.A. 473, 43 P. 471, 28 Or. 498, 1896 Ore. LEXIS 98

Opinions

Opinion by

Mr. Justice Wolverton.

1. When this case was here before (State v. Pennoyer, 26 Or. 205; 25 L. R. A. 862; 37 Pac. 906), we held that a private individual could not have public officers enjoined from using public funds unless it could be shown that some civil or property rights were being-invaded, or, in other words, that the individual was going to get hurt by the transaction. Upon that principle it was decided that he should be required to show that the location and building of the branch asylum in eastern Oregon would be attended with greater cost and expense than if constructed at the capital, thereby increasing the burden of taxation which would be imposed upon him, with others whose duty it is to contribute to the support of the government.

2. It was also held that the state, suing in its corporate capacity for the protection of its property rights, stood in no different or better position in this regard than an individual. This doctrine is supported by high authority. Allen, J., in People v. Canal Board, 55 N. Y. 395, says: “Y/'hen the state as plaintiff invokes the aid of a court of equity, it is not exempt from the rules applicable to ordinary suitors; that is, it must establish a case of equitable cognizance, and a right to the peculiar relief demanded.” And, as is said by the same eminent jurist in People v. Ingersoll, 58 N. Y. 14 (17 Am. Rep. 178), “A distinction is to be observed between actions by the people or the state in right of the prerogative incident to sovereignty, and those founded upon some pecuniary interest or proprietary right. The latter are governed by the ordinary rules of law by which rights are determined between individuals.” To the same effect is the doctrine announced in People v. Fields, 58 N. Y. 614. See also 2 High on Injunctions, § 1327. So that we then concluded the plaintiff herein occupied no better or superior position, from a legal standpoint, for enforcing the remedy sought to be invoked than the plaintiff in Sherman v. Bellows, 24 Or. 553 (34 Pac. 549). From this position we see no sufficient reason for receding, as we believe it to be in sound law, and supported upon reason and authority. It is insisted that the decision in White v. Commissioners, 13 Or. 317 (58 Am. Rep. 20, 13 Pac. 484), stands in the way of this position, but we do not think so. White had a private interest to sub-serve in bringing the suit. The increase of the burden of taxation consequent upon maintaining the machinery necessary to secure a registration of voters under the law was sufficient to give him a standing in court to restrain the invasion of a private right: See Fletcher v. Tuttle and Blair v. Hinrichsen, 151 Ill. 41 (25 L. R. A. 143; 37 N. E. 683). But the question touching the power of the court to interfere by injunction in restraint of the action of the county commissioners was not mooted at the hearing, and was not a point in controversy, although jurisdiction was necessarily assumed before the ultimate question in the case could have been decided. So the case is not in point, nor is it controlling here.

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 superintendent, and other physicians and assistants? The matter is of such vital and public concern, and attended with such diverse and dependent circumstances, and so wholly and peculiarly within the province of the legislature to devise the ways and means, that it would be but a conjecture at best to attempt to determine in advance the result of its deliberations in this respect. If the conditions assumed were established, then the question might possibly be capable of demonstration; but where the establishment of these conditions is first left to a body with discretionary powers, the- ultimate question for the court to pass upon becomes speculative, and too remote for practical solution and determination. So we are constrained to pass the point without further comment touching the evidence submitted.

3. But it is now contended for the first time that this is a suit by the state in the right of prerogative incident to sovereignty; that it was instituted by the law officer of the state in the interest of the whole people, and being so instituted, the high prerogative powers of government are set in motion, and that the courts of appropriate jurisdiction will take cognizance to control the officers of state from acting in violation of duties imposed upon them by law, and more especially where they sustain trust relations to the whole people, — not in the sense that a public office is a public trust, but as it pertains to the public funds of the people, raised by taxation, and intrusted to their management and control under the laws of the state. Under the common law suit was instituted in behalf of the Crown, or of those who partook of its prerogative, by the attorney-general, who made his complaint to the court pirrely by way of information. A private person having cause to complain in a court of equity-proceeded by written statement of his cause, which was called a “bill in chancery.” In all cases of suits which immediately concerned the rights of the Crown, its officers proceeded upon their own authority, without the intervention of any other person; but where the suit did not immediately concern the rights of the Grown, they generally depended upon the relation of some person whose name was inserted in the information, and who was called the “relator.” It sometimes happened that the relator had an individual interest in the matter in dispute, as where he was entitled to compensation for an injury. In such a case his personal complaint was joined to and incorporated with the information given to the court by the Crown officer; these together comprised what is known and termed as “an information and bill.”- It was the general practice, where suits immediately concerned the right of the Crown, for the Crown officers to proceed without a relator; yet by reason of a prerogative of the Crown not to pay costs to a subject except in certain cases, sometimes, through the tenderness of the officers toward the defendant, the interposition of a relator was required, against whom the costs were taxed in case it appeared that the suit was improperly instituted or prosecuted. The introduction of a relator was a mere act of favor on the part of the Crown and its officers: Story’s Equity Pleadings, (9th ed.) §§ 7, 8; 1 Daniel’s Chancery Practice, 2, 3, 7, 11, 12; State ex rel. v. Dayton Railroad Company, 36 Ohio St. 434; Attorney-General v. Delaware Railroad Company, 27 N. J. Eq. 631. In Attorney-General v. Mayor of Dublin, 1 Bligh, 312, Lord Redesdale says: “The relator is introduced properly by the attorney-general, that there may be some person responsible for the costs of the proceed ings, if finally there should be an opinion in the court that the information has been improperly instituted, or if in the proceedings it should be in any manner improperly conducted. It is for the benefit of the subject that the attorney-general in all those proceedings provides persons to be responsible as relators in the information, that the court may award against them what the court cannot do against him.” So that the relator, where the proceeding immediately concerned the rights of the Crown, except so far as to stand sponsor for costs in case the Crown officers were unsuccessful in the suit, had no personal right or authority to become a party to the proceeding, either by relation or otherwise. It was only in cases where he had some private or individual interest to subserve, either in conjunction with the rights of the Crown, or wherein it was the province of the Crown to protect the rights of its subjects, acquired from it by grant or otherwise, that he could, as a matter of right, interpose as a relator through the attorney-general to set in motion the machinery of the court. The case stands different in mandamus proceedings. There a private person may, in behalf of the public, and without showing any individual or special interest to be subserved, become a relator, and, through the proper state officer, institute the proceeding. Although the authorities are much divided, it is settled in this state that “where the question is one of public right, and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party, and the relator, at whose instigation the proceedings are instituted, need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen, and as such is interested in the execution of the law”: State v. Ware, 13 Or. 383 (10 Pac. 885); High on Extraordinary Legal Remedies, §431. But in equitable proceedings, where the immediate rights of the Grown were alone concerned, we have seen that the attorney-general only could invoke the action of the courts through tne instrumentality of an information, and if a relator was made a party, it was at his discretion, that there be some one to stand responsible for the costs, the relator as of right, having no interest in the proceeding, and no power nor authority to direct or control the suit in any particular whatever.

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 were interested in having these public funds faithfully applied to the general and public purposes for which they were provided and intended. Allen, J., in People v. Ingersoll, 58 N. Y. 14, says: “It is well settled in England that, in right of the prerogative of the Crown, the attorney-general, in his name of office, may proceed, either by information or bill in equity, to establish and enforce the execution of trusts of property by public corporations, to prevent the misappropriation or misapplication of funds or property raised or held for public use; and the abuse of power by the governors of corporations or public officers, or the exercise of powers not conferred by law, and, generally, to call upon the courts to see that right is done the subjects of the Crown who are incompetent to act for themselves. Ordinarily, the remedies sought have been preventive, but in some cases, as incident to the preventive and prospective relief, a claim has been made for retrospective relief, especially when the misappropriated funds could be traced and reclaimed in specie. The jurisdiction has been sustained upon the general principles of the right and duty of the court to grant preventive relief, and the relief actually granted, if any, in addition and as incident to that, has depended upon circumstances.” But in all cases the court’s action was invoked against faithless trustees to compel a proper execution of the trust, and the right use of trust funds, at the hands of those charged with its administration. A breach or violation of public, duty enjoined upon those with whom the trust and the execution thereof is confided or committed, either actual or threatened or impending, is at the foundation of every action by the attorney-general or of the Crown, or the people as sovereign, and essential to the right of either to maintain, as

well as the right of a court of equity to entertain jurisdiction of, a suit by either touching property or funds held by public or municipal corporations for public use. These principles thus established in England have’ been affirmed to some extent by the courts of «this country and applied in like cases. In People v. Ingersoll, 58 N. Y. 14, it is further said: “Doubtless, the prerogatives of the Crown, except as affected by-constitutional limitations, exist in the people as sovereign, but to what extent the exercise of this prerogative is committed to the public officials, either by the legislature or the common law, is a question worthy of grave consideration, and not to be lightly decided, and should only be determined when necessary to a judgment and decision. * ® * If there were no other remedy for a great wrong, and public justice and individual rights were likely to suffer for want of a prosecutor capable of pursuing the wrongdoer and redressing the wrong, the courts would struggle hard to find authority for the attorney-general to intervene in the name of the people.” The doctrine is broadly asserted in Missouri, where it is held that it is competent for the state, through its authorized officers, to proceed in equity in restraint of public corporations doing acts in violation of the constitution and laws of the state: State v. Saline County Court, 51 Mo. 350. But the case made was for a misappropriation of public funds in subscriptions to a railroad company, which funds were to be raised by assessment and taxation of the people of Saline County. So that the case is authoritative only upon the power of a court of equity through its injunctive process to restrain public officers in the misapplication and misappropriation of public funds, instituted at the instance of the executive or law officers of the state. The decision is, however, based to a large extent upon a statute providing that “The remedy by writ of injunction or prohibition shall exist in all cases where an injury to real or personal property is threatened, and to prevent the doing of any legal wrong whatever, whenever, in the opinion of the court, an adequate remedy cannot be afforded by an action for damages:” 2 Wagner’s Statutes, p. 1032. Bliss, J., in that case admits that he found some difficulty in regard to the question whether injunction would lie at all, but concludes that both upon reason and authority “where the wrong is a public one, suit may be brought in the name of the state, by its proper representative, and that under our statute that representative is the circuit attorney.” See also State ex rel v. Dayton Railroad Company, 36 Ohio St. 434; State v. Curators of State University, 57 Mo. 178; State v. McLaughlin, 15 Kan. 228.

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 department; prerogatives of sovereignty, represented in England by the king, and in this country by the ■people in their corporate character, or in other words, the state ”: Attorney-General v. Blossom, 1 Wis. 278. It has been said that injunction and mandamus are correlative in their operation; that where one commands the other forbids; that where there is nonfeasance, mandamus compels the duty, and, where there is malfeasance, injunction will restrain. But this is so in manner only. Injunction is frequently mandatory, and mandamus sometimes operates as a restraint. Aside from this, the injunctive writ, not being jurisdictional but remedial in its operation, a case of well established equitable cognizance must be presented before its use and adaptation would become appropriate, and it is net every restraint which may seem beneficial as a remedy that the writ will enforce. For instance, some civil or private right must be about to be invaded, or some matter of public trust or concern of which equity takes cognizance must be deleteriousiy involved or affected, before injunction can be brought into requisition. So that it is apparent that it is not every case wherein mandamus will command that injunction will, in contrast, restrain. By reason of a provision in the Wisconsin Constitution conferring original jurisdiction upon the supreme court “to issue writs of habeas corpus, mandamus,/injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same,” it has been there held that injunction is a quasi prerogative writ, and founds jurisdiction as if it were an original writ, whenever a question arises appropriate to its use, which “should be a question quod ad statum repullieae pertinei, one ‘affecting the sovereignty of the state, its franchises, or prerogatives, or the liberties of its people’”; Attorney-General v. Chicago and Northwestern Railway Company, 35 Wis. 513; Attorney-General v. City of Eau Claire, 37 Wis. 425; State v. Cunningham, 81 Wis. 440 (15 L. R. A. 561, 51 N. W. 724). Notwithstanding this constitutional provision, the earlier cases sought for equitable grouds in support of the injunctive writ. For instance, in Attorney-General v. Chicago and Northwestern Railway Company, 35 Wis. 513, it was argued that courts of equity-have no jurisdiction, at the suit of the attorney-general, to enjoin usurpation, excess, or abuse of corporate franchise. The court, after a careful review of the authorities both English and American, concluded that the jurisdiction exists in this country as well as in England, and says: “The equitable jurisdiction by injunction goes upon the ground of nuisance. As, indeed, any intrusion upon public right is in the realm of purpresture. The ancient jurisdiction to restrain nuisance is, perhaps, the most direct ground of the modern jurisdiction under consideration. And the former is fully asserted as an American jurisdiction, as to remedies both by private persons and by the attorney-general for the public,” citing 2 Redfield on Railways, 307, and 2 Story’s Equity, §§ 720, 723. And so in Attorney-General v. City of Eau Claire, 37 Wis. 425, which involved the damming of a public river by the City of Eau Claire, the court, considering such an encroachment as a purpresture, and within equitable jurisdiction to enjoin, and as it concerned the sovereign prerogative of the state and the prerogative jurisdiction of the supreme court, declared it to be a fit case for the exercise of its original jurisdiction by the injunctive writ. But in State v. Cunningham, 81 Wis. 440, 15 L. R. A. 561, 51 N. W. 724,) which was a later case involving the constitutionality of the act of apportionment of the state into senatorial and assembly dis tricts, the court placed its jurisdiction, as it had intimated might be done in Attorney-General v. Chicago and Northwestern Railway Company, upon the single ground that the constitution had adapted the writ of injunction to prerogative uses.

Pinney, J.,

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 law, and the case of State v. Cunningham, in Wisconsin, is distinguished. Doctrine of similar import is laid down by Chief Justice Fuller in Green v. Mills, 16 Cir. Ct. App. 516 (69 Fed. 852, 30 L. R. A. 90) a very recent and well considered case. But whatever the true doctrine might be as to the right use of the injunctive writ in cases involving merely political rights, the question is not involved here. These cases operate, however, as powerful factors in determining equitable jurisdiction, and fixing the right use of the injunctive writ. Under the Wisconsin Constitution, injunction being held to be a quasi prerogative writ, its operation becomes correlative with the common' law writ of mandamus, and will lie to restrain excess in the same class of cases that mandamus supplies defect, the use of the one writ or the other in each cE,se turning solely on the accident of over-action or shortcoming of the defendant. But not so where the distinction between the equitable and common law jurisdiction is still observed, as it is in this state. Hence, if jurisdiction to issue the injunctive writ is to bo entertained, it must be based upon some well defined equitable grounds to support it. We have seen, however, that in England, the equitable jurisdiction to •enforce trusts, prevent public nuisances, and the abuse of trust powers, was invoked for prerogative purposes. Whenever necessary and appropriate injunction was issued in aid of the jurisdiction, and became effective in its exercise. While the writ of injunction is not in itself a prerogative writ, it is put to prerogative purposes when used in aid of equitable jurisdiction invoked for such purposes. We have also seen that in this country the jurisdiction and the writ may be called into requisition for like purposes. Now, when so called into requsition, in cases appro priate for its adoption and use, is there any reason why the remedy thus invoked is not as effective for the accomplishment of like high purposes as the quasi prerogative writ peculiar to the state of Wisconsin under her constitution? We think that none exists. So, therefore, the lawfully constituted authorities are not without an appropriate remedy in a case where public officials are proceeding in derogation of law, in the application and use of public funds, wherever special injury cannot be predicated. The sovereign state, the whole people, have a right to see that the laws are duly executed. In most cases the common law prerogative writs are appropriate for the accomplishment of such ends. Whether appropriately denominated “prerogative” in the states of the Union, it differs but little, they emanate from a like high source, pertain to sovereignty, and are adapted to like uses and purposes. But wherever it is necessary to prevent the abuse of trust powers, and the misapplication of trust or public funds, the equitable remedy is likewise appropriate, and likewise emanates from the like high source, and is attended with equivalent attributes of power. See People v. Ingersoll, 58 N. Y. 14 and State v. Saline County Court, 51 Mo. 350. But the rule and the doctrine upon which it is based has its limitations. It- is not every class of public officers that may be controlled in any event at the hands of the judiciary. This will become apparent in the further development of the opinion.

4. We have here to deal with matters not political, but with matters piibliei juris, and with the acts of public officers touching the administration of public funds, and affecting the whole people, or the state at large. And the question contes to this, whether-the governor, the executive officer of the state, can be enjoined while in the discharge of official duties? We speak of tho governor, as it is in effect the acts of the governor which this proceeding is intended to interdict. True, the act providing for the construction of a branch asylum at Union, and appropriating funds therefor, has empowered the board of commissioners of public buildings of .the State of Oregon, consisting of the governor, secretary of state, and treasurer, to superintend the construction thereof; but, in the absence of such a commission, it would be the duty of the governor to see that the law was carried into effect; so that, whether the duty is performed by the governor, or by a commission named by the legislature, of which he is a constituent part, and empowered to perform the service, the rules of law touching the interference of the courts with the performance of such duty must be the same, whether required to bo performed by the one or the other. The purpose of the legislature was to construct and equip more commodious buildings and apartments for the accommodation of the insane and idiotic of the state. To provide for and take care of this unfortunate class of individuals, both for their own good and protection, as well as for the protection and security of all citizens, is a matter purely of public concern, as it relates to the welfare of the whole people. The subject is one of governmental concern only, and relates entirely to the legislative and governmental departments of state. In pursuance of this purpose, the acts involved here were passed and became law by the approval of the governor. That the legislature had the undoubted right to determine upon the necessity for such additional buildings, and the amount of funds necessary for their construction, and equipment, as we have said in our former opinion, no one can dispute. Furthermore, it was entirely within its coordinate powers to pass an act locating the branch asylum in the eastern part of the state, and no power vesting in the government could prevent it from so doing, and yet its validity would be determined by the fundamental law, when properly invoked. The governor could prevent its becoming a law by the exercise of the yeto power confided to him; but, as above stated, the measure became a law by the approval of the executive. It is the duty of the governor to see that all the laws are faithfully executed, and it is now proposed to execute this law. The judicial department is called upon to prevent its execution. Is it competent for it to interpose in this proceeding, and restrain the executive department of the state? It may well be admitted that if the duty pertained to acts which are merely ministerial in their character, which call for no exercise of judgment or discretion, and do not relate to political or governmental matters, the governor of the state may, at the suit of interested parties, in a proceeding appropriate for the purpose, be compelled at the hands of the judiciary to perform them: Greenwood Cemetery Land Company v. Routt, 17 Colo. 156 (15 L. R. A. 369, 28 Pac. 1125); Gaines v. Thompson, 74 U. S. (7 Wall.), 347; Moses on Mandamus, 80; Enterprise Savings Association v. Zumstein, 15 Cir. Ct. App. 153 (67 Fed. 1000); Board of Liquidation v. McComb, 92 U. S. 541. But if it pertains to duties which require the exercise of judgment or discretion to perform, or to matters political or governmental in their nature, all the authorities agree that the executive is clearly independent of the other coordinate departments of government, and is not subject in any manner to their direct supervis ion or control. Chief Justice Taney, in Mississippi v. Johnson, 71 U. S. (4 Wall.), 498, says: “A ministerial duty, the performance of which may, in proper cases, bo required of the 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 law.”

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, or the board acting in his aid, should refuse to execute the requirements thereof, would this court by a mandamus proceeding compel him to act? Undoubtedly not, and why? Because the acts required of him. do not fall within the domain of those acts which are denominated “ministerial.” On the contrary, they are governmental in their nature, pertain to matters piiblioi juris, and afreet the welfare of the people at large. Now, for the sake of the argument, concede that.the law is unconstitutional, and that injunction is an appropriate remedy, and is competent to restrain where mandamus will compel; could this court with any more propriety or right interfere with the governmental and executive acts of the governor? No one will so contend. Chief Justice Marshall, in Marbury v. Madison, 5 U. S. (1 Crunch), 170, says: “It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined.” In Sutherland v. The Governor, 29 Mich. 238, (18 Am. Rep. 89,) Judge Cooley says: “In many cases it is unquestionable that the head of an executive department may be required by judicial process to perform a legal duty, while in other cases, 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.” So-that, looking to the nature of the thing to be done and the duty to be performed by the governor under the requirements of these acts, there can be but one conclusion in respect to them. Whatever else may be said, they are not ministerial, and hence no judicial process of the courts can issue to compel or restrain, or in any manner affect or interfere with, the executive volition of the governor with respect thereto. The mere fact that a law is alleged to be unconstitutional does not confer jurisdiction upon courts to interfere with the acts of the executive officers while proceeding in pursuance of its requirements: State of Mississippi v. Johnson, 71 U. S. (4 Wall.), 498. True, the board is empowered to make payment upon contracts as the work progresses, and it is contemplated that such payments and disbursements shall be made out of the public funds so appropriated by the legislature, but neither the governor nor the board can obtain a dollar of such funds without a warrant from the secretary of state, by the very terms of the acts themselves. There is no intimation anywhere that the secretary is about to or is intending to draw, or contemplating the drawing of, any warrant against such fund, or any public fund of the state. Indeed, the secretary of state, acting in his capacity as such officer, is not a party to the suit. The judiciary takes cognizance of those proceedings only, if at all, which operate incidentally as a check upon a coordinate branch of government. It may, in a proper case, proceed against an officer engaged in the discharge of purely ministerial functions, which may indirectly or incidentally affect the acts of a coordinate branch, and even nullify and render them inoperative; but directly, as against officers acting in a political, governmental, or discretionary capacity, it never has and never will, so long as the relative duties and powers of the coordinate departments are justly observed: Gaines v. Thompson, 74 U. S. (7 Wall.), 347.

5. Moreover, it is not fit that these great powers pertaining to sovereignty, which affect the whole peo pie alike, and none less nor more than the rest, should be invoked by individual citizens, or by a class or classes, or body corporate, or an aggregation thereof less than the whole state. State officers should not be subjected to the annoyance of a suit at the instance of every individual, when civil or property rights are not invaded, who might conceive that the laws were being improperly administered, or that public funds were not being applied to legitimate public purposes. State government being divided into three coordinate branches, — executive, legislative, and judicial, — it is most essential to the preservation of the autonomy of government that there be no encroachment of one branch upon another. And to this end the just limitations of the constitutional powers accorded to either branch should be nicely defined and jealously guarded. But sometimes one branch of government, in the discharge of its coordinate functions, oversteps the limit of its constitutional powers. In such a case one or both of the other branches of government may operate as a check upon its action. The legislature may pass an act in disregard of the inhibitions of the constitution. The executive may veto the measure, or, failing to do so, the judiciary may refuse to recognize it as controlling. The governor acts upon his own motion, and by right of high constitutional powers and privileges reposed in him. The judiciary acts, not upon its own motion, but only when some suitor duly authorized by law presents in due form a cause appropriate for its cognizance. Its machinery may be set in motion by private suitors, in some form or another, in all eases where civil or property rights are being invaded or intrenched upon to their injury or damage, be the suitor ever so humble or the injury to be encountered ever so small; but in all cases of purely public concern, affecting the welfare of the whole people, or the state at large, the court’s action can only be invoked by such executive officers of state as are by law intrusted with the discharge of such duties. The attorney-general was such an officer at common law. Under the constitution (article VII, section 17) the prosecuting attorneys are made the law officers of the state and of the counties within their respective districts. These officers, says Waldo, J., in State v. Douglas County Road Company, 10 Or. 201, are possessed “with the powers, in the absence of statutory regulation, of the attorney-general at common law. ” Yfhen the office of attorney-general was created, it was made the duty of the incumbent to “prosecute or defend for the state all causes in the supreme court in which the state is interested”: Laws, 1891, p. 188. Whether his duties and powers in any manner supersede those of the prosecuting attorneys it is not now necessary to inquire; but a vital question here is whether this proceeding has been properly instituted by the law officer of the state, whether he be a prosecuting attorney or the attorney-general. The pleading, by virtue of which it is contended the court should take and entertain jurisdiction, may properly be termed a bill in equity by a private individual, to wit: A. C. Taylor, the relator. It is verified by him, and purports to be his bill, and not the information of the district attorney for the third judicial district, although signed by that officer. We have seen that at common law, if a private invidual had an interest in the proceeding apart from the interest of the government, he might as relator have his bill incorporated with the information of the attorney-general, which was denominated an “information and bill.’» In practice, if it should afterwards appear that the relator had no interest to be subserved, the bill was dismissed, and the information retained: Attorney-General v. Vivian, 1 Russel, 236, 237; State v. Cunningham, 81 Wis. 440 (15 L. R. A. 561, 51 N. W. 724). But do we find here what may be termed an information or bill by the law officer of the state? As such an officer is the only person competent to institute a proceeding of ths nature under consideration, the information should show upon its face in no uncertain manner that he is the officer instituting and prosecuting the suit, and the sole person responsible for its inception and maintenance. The. most common form of instituting like proceedings, it seems, has been in the name of the attorney-general: Coosaw Mining Company v. South Carolina, 144 U. S. 565 (12 Sup. Ct. 689). Less frequently they are brought in the name of the Crown or the state upon the relation of the attorney-general: State ex rel. v. Hibernian Savings Association, 8 Or. 396. And, if permissible at all to bring the suit in the name of the state alone, the complaint or information should show upon its face that the appropriate law officer brings the same for or in behalf of the state. The proceeding in either form would fix the responsibility for the maintenance thereof upon that officer, and it is not believed that the mere affixing of his signature in his official capacity to a complaint or bill shown to be the bill of a private relator is sufficient to impress it with the functions and capacity of an information competent to put in motion the machinery of the courts, whereby they will take cognizance of questions pertaining to the high prerogative powers of the state, os? affecting the whole people in their sovereign capacity; See State v. Saline County Court, 51 Mo. 350; Bigelow v. Hartford Bridge Company, 14 Conn. 578 (36 Am. Dec. 502); State v. Anderson, 5 Kan. 115; Buck Mountain Coal Company v. Lehigh Coal Company, 50 Pa. St. 100; Iroquois County Supervisors v. Keady, 34 Ill. 296; People v. Pacheco, 29 Cal. 213; Attorney-General v. East India Company, 11 Sim. 380; Bdbbett v. State, 10 Kan. 15; United States v. Throckmorton, 98 U. S. 70. Having reached these conclusions, the decree of the court below will be reversed, and the complaint dismissed.

6. This leaves the constitutional question still undisposed of, and the fact that we would probably not declare the acts to be unconstitutional cannot affect or change our duty in the premises. Courts will not assume to pass upon a question of that character unless properly before them; and the case at bar, as presented, not being within our jurisdiction to hear and determine, it is clearly not within our province to assume now to decide that question, although of gravo public importance- “As a general rule a court will not pass upon a constitutional question and decide a statute to be invalid unless a decision upon that very point becomes necessary to a determination of the cause.” Lord, J., in Elliott v. Oliver, 22 Or. 47 (29 Pac. 1). We said when this case was here before that “this rule arises out of the due respect which one coordinate branch of the state government entertains towards another. The legislature, in adopting laws for the government of the people, does so under its construction of the constitution, and the just presumption always prevails that the business of the legislature is transacted with due regard to the fundamental law by which its acts are limited and governed. It must be a clear case, therefore, and one in which the constitutional question is the very Us mota, before courts will assume the responsibility of declaring an act of the legislative assembly void upon constitu tional grounds, and reverse the judgment of a coordinate branch of the state government. The case before us affords a striking illustration of the soundness of this doctrine. The law complained of was passed at two succeeding sessions of the legislative assembly, and received the approval of two executives of the state. By the last act an expenditure of twenty-five thousand dollars under the former in the purchase of a site for the branch asylum is approved, as well as all other acts of the board in pursuance of its provisions. At the time of the passage and approval of the latter act, this case was pending in the courts, which fact was strongly calculated to attract the attention of both the legislative and executive branches of the state government to the direct point at issue, and it is but just to assume that the question of its constitutionality was duly and carefully considered. Hence, the peculiar gravity of our assuming at this time to pass upon the constitutional question so ably and elaborately presented at the hearing. Being inhibited by the rule under discussion, we cannot go into the question.

7. These conclusions are concurred in by the full bench, but the majority of the court are of the opinion that such conclusions are susceptible of support on other grounds, and in this connection I will proceed to state them. The power of a court of equity, in a proceeding by the attorney-general or district attorney to enjoin the issuance of warrants in payment for the Eastern Oregon Asylum, — as is heretofore intimated might be done if it be conceded that the act locating it is in violation of the Oontitution, — it is believed, is involved in grave and serious doubt, and further, the facts in the case do not seem to bring it •within any recognized equity jurisdiction. It is not claimed, nor can it be, that the objects and purposes of the acts in question are unconstitutional, or that the defendants threaten to apply the public funds to an unconstitutional use, or to waste or dissipate them. The claim is that the legislature has directed that the branch asylum shall be located at a place other than the seat of government, in violation, as plaintiff claims, of the duty imposed upon it by the Constitution; and this, it is asserted, is sufficient ground upon which a court of equity should assume jurisdiction. This is not enough. The construction and location of public buildings of the character in question is purely a public governmental question, belonging to the legislative and governmental departments, and affects no private or property right. Nor do the facts of this case justify the conclusion, as a matter of law, that it would be of any pecuniary injury to the state. If the legislative and executive departments have misconstrued the constitution in this regard, their responsibility is to the people. A court of equity cannot, for that reason alone, assume the right to sit in judgment on their acts. There is no authority to be found in the Constitution or statutes of this state for the exercise of such an extraordinary power, nor is it believed it can be found in the analogies of the common law. In this state the distinction between common law and equity as a matter of substance prevails, although both jurisdictions are invested in the same court: Ming Yue v. Coos Bay Railroad Company, 24 Or. 392 (33 Pac. 641). And, it being well settled that a court of chancery is conversant only with the maintenance of property rights, it has no jurisdiction to interfere with the duties of the other departments of government, except when necessary to the protection of such rights, and cannot even then interfere with the discretion invested in either of such departments. “The office and jurisdiction of a court of equity,” says Mr. Justice Gray, in Re Sawyer, 124 U. S. 210, (8 Sup. Ct. 482,) “unless enlarged by express statute, are limited to the protection of rights of property.” And in Sheridan v. Colvin, 78 Ill. 247, it is said: “It is elementary law that the subject matter of the jurisdiction of the court of chancery is civil property. The court is conversant only with questions of property, and the maintenance of civil rights. Injury to pro£>erty, whether actual or prospective, is the foundation on which the jurisdiction rests. The court has no jurisdiction in matters merely criminal or merely immoral, which do not affect any right to property. Nor do matters of a political character come within the jurisdiction of the court of chancery. Nor has the court of chancery jurisdiction to interfere with the public duties of any department of government, except under special circumstances, and when necessary for the protection of rights of property.” See alse Green v. Mills, 69 Fed. 852, (30 L. R. A. 90, 16 Cir. Ct. App. 516,) and authorities cited by Mr. Justice Gray in Re Sawyer, 124 U. S. 210 (8 Sup. Ct. 482).

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 ture is alleged to be unconstitutional gives it no jurisdiction to determine that question. Its duty is to determine actual controversies, when properly brought before it, and not to give opinions upon mooted questions or abstract propositions. Before it can assume to determine the constitutionality of a legislative act, the case before it must come within some recognized ground of equity jurisdiction, and present some actual or threatened infringement of the rights of property on account of such unconstitutional legislation. When the question, as here, is publioi■ juris alone, affects no property rights, and no threatened waste of the public funds is shown, it may be well doubted whether the court has any more power to interfere with the duties of the other departments on the ground that their acts may be unconstitutional, than it has with their discretionary powers or duties. The independence of the different departments in this respect is so complete that, however ill advised the action of the legislature or executive may be, and no matter how gross an error may be committed, a court of equity is nevertheless powerless to interfere when rights of property are not involved, unless express authority is conferred upon it to do so. The decision of a large class of public questions must, in the very nature of the case, be left to the legislative and executive departments, and when the decision is made it must be accepted as correct. Among these is the construction and location of public buildings, and the presumption is just as conclusive that in the discharge of this duty they observe the provisions of the constitution as it is that the courts properly interpret that instrument when called upon to do so in discharge of the duty intrusted to them. It is true that by this rule, practically, public or private interests may sometimes suffer in either instance, although theoretically there are no such cases. But, however gross the wrong in fact committed by the other departments, a court of equity is powerless to remedy it, unless property rights are involved, or appeal to the judiciary is given by law. No greater evil could exist, under our form of government, than the usurpation by the judiciary of powers not intrusted to it. It should therefore refuse, under all circumstances, to assume jurisdiction in any case which affects the powers, duties, or' prerogatives of the other departments of government, unless its right to do so is so clear as to admit of no reasonable doubt. In the opinion of the majority of tho court, this record does not present such a case. No great public wrong is threatened, nor will public justice or individual rights suffer by the execution of the law in question. And more, it must be admitted that the construction sought to be placed upon the constitution by the plaintiff is at least open to serious question. It has, for almost a quarter of a century, received a practical exposition to the contrary by the legislative and executive departments, each of which is as much bound to obey the constitution as the courts, and to this exposition the courts would be bound to yield, in a proceeding properly within their jurisdiction, unless satisfied that it is repugnant to the plain provisions of the constitution. Indeed, the very act locating the branch asylum at Union, the execution of which is now sought to be enjoined, was passed by the legislature with only three dissenting votes, while this suit was pending and its constitutional right to enact such a law thereby challenged. Moreover, it was approved by the present executive, whose eminent legal attainments and familiarity with the question, (it having been argued before him in Sherman v. Bellows, 24 Or. 553, 34 Pac. 549,) justly entitles his opinion in the matter to great respect. The court is bound, therefore, to assume that in the opinion of the legislature and executive there is no constitutional inhibition against the passage of such a law, and while none of these facts would excuse the court from assuming jurisdiction, if its right to do so was clear, nor would the exposition given the constitution by the other departments be absolutely controlling upon it when called upon in the discharge of its duty to construe that instrument, yet they afford a very persuasive argument why the court should not struggle to find some grounds, doubtful at best, upon which it can rest its jurisdiction. Before it could assume the power to question the legality of the action of the other departments of government in such a case its right to do so ought to be beyond all possible question, and it ought to be able to place its jurisdiction upon some well settled ground for equitable interference, which it is believed cannot be done in this case. Let an order be entered dismissing the complaint and dissolving the injunction.

Reversed.

March 2, 1896.