holding that “no other adjournment than the final adjournment of the Legislature itself at the end of the session ... prevents] the return of a bill by the Executive with his objections to its passage”
How later courts described this case
- holding that “no other adjournment than the final adjournment of the Legislature itself at the end of the session ... prevents] the return of a bill by the Executive with his objections to its passage”
Written by the judges who cited it.
The opinion
Temple, J., dissenting:
I agree with Mr. Justice Wallace in' his conclusion, that the bill was not returned to the Senate within the meaning of the Constitution, but do not think this Court has juris-, diction to issue the mandate to the Governor, for the following reasons:
First—■ It is by no means clear that the writ of mandamus is the proper remedy of the petitioner. If it be admitted that the bill became a law without reference to the certificate of the Secretary of State, then it must follow that the petitioner is not entitled to this remedy, for this extraordinary writ will not issue where the parties have any other , plain, speedy and adequate remedy, and this Court ought not to assume jurisdiction unless the act to be done is essential to the rights of the petitioner. The only reason why the petitioner can compel the performance of the act in question is, that it may afford an official record of the acts of the Executive in regard to the bill. If we can go behind that record for the purposes of this proceeding, and ascertain the real facts, it can be done in a direct proceeding under the Act itself—it having been assumed to be, and having been acted upon as a law.
Second—The petitioner has no such interest in the act required to be done as will authorize him to ask for this relief. Nor are we foreclosed from this inquiry by the terms of the stipulation, that the petitioner has such an interest in the event of these proceedings as makes him a proper party thereto. The facts show that no one can have such an interest in it, and this goes to the sufficiency of the agreed statement *217 and to the jurisdiction of the Court. If it is possible to imagine circumstances which would give the petitioner a vested interest, we can suppose he has that under the terms of this stipulation. The purpose of the bill appears, from the agreed statement, to be “to make, open and establish a public street in the City and County of San Francisco.” What vested, private or individual right can any one have acquired under this bill? Certainly no one has a vested right in a public highway which has never yet had an existence. If the petitioner is owner of the land proposed to be taken for the highway, does that constitute a vested right under this bill ? If Government has resolved to take private property for public use, does that give the person whose property is about to be taken a right in the proceedings? Can one have a right to be despoiled? If the petitioner can have no specific right in the proceedings in either respect mentioned, it would seem to be evident: hat he can have no individual interest in the matter. His interest is the same as any member of the community affected by the statute. His rights are simply those of a citizen to have a public law executed, and not less so because it would confer a pecuniary benefit upon him.
Now all the cases upon the subject, whether the writ be asked against the Governor or any other officer, go upon the ground that some person has a vested or individual right, which requires the exercise of this extraordinary jurisdiction to enforce or preserve ; and I venture the assertion that no Court has ever yet attempted to command the Governor of a State to perform a public duty in the execution of a public law, when no one had any individual interest in the matter and there was no private or vested right to protect or enforce. In Marbury v. Madison, the Court speak of the right which will support such a writ as a vested right or an individual right. It is said by Mr. Attorney General Butler, whose opinion is quoted and relied upon in the leading opinion, that it must be a ministerial duty, imposed for the benefit of a private party, and also that it must be to protect *218 a vested right; and this is taken for granted in the leading opinion.
The startling nature of a contrary doctrine will be better appreciated if it is borne in mind that each of the District Courts has the same jurisdiction to issue the writ to the Governor which this Court has; and, therefore, whenever, in the opinion of any citizen, the Governor refuses to perform some public act required of him by law, any of these Courts can interfere and direct him to act. I do not suppose my associates intend any such conclusion : but it is clearly the effect of the case, and the objection to our jurisdiction is of such a nature that it cannot be waived. Suppose the writ were issued and not obeyed ;. even then, upon an application to commit the respondent for contempt, it could be made to appear that the act required to be performed is one in which no person can have a private, vested right.
Third—The question as to whether the writ should issue to the Governor in any case is perhaps more difficult; but if it be admitted that there are some duties imposed upon the Governor by law, and which might have been imposed upon any other person, and that, as to such acts, when no discretion is allowed, the Courts may interfere, it is nevertheless clear, that as to all duties devolved upon the Executive by the Constitution, he is absolutely independent of judicial control. This doctrine is clearly expressed in Marbury v. Madison. The idea there is, that all the executive powers of the Government are lodged in the President, and the writ can in no case be directed to him; and this is expressly admitted by the counsel for Marbury. The heads of the departments, however, have a double character. In one they are recognized as the agents of the President, and in that character their duties are executive, and the Courts will not interfere with their discharge of those duties, whatever may be the degree of discretion allowed. In the other character they perform duties especially enjoined by law, and which might have been entrusted to any other persons; as to such duties these officers are not exercising powers exclusively reposed in the Executive, and the Courts may interfere to control their action, upon the same principles as *219 in other cases. In Kendall v. The United States ( 12 Peters, 524 ), the Supreme Couit of the United States has expressed this idea more clearly. “We shall not, therefore, enter into any particular examination of the line drawn between the powers of the Executive and Judicial Departments of the Government. The theory of the Constitution undoubtedly is, that the great powers of the Government are divided into separate departments; and so far as these powers are derived from the Constitution, the departments may be regarded as independent of each other. But beyond that, all are subject to regulations by law, touching the discharge of the duties required to be performed.
“The executive power is vested in a President; and as far as his powers are derived from the Constitution, he is beyond the reach of any other department, except in the mode prescribed by the Constitution through the impeaching power. But it by no means follows that every officer in every branch of that department is under the exclusive control of the President. Such a principle, we apprehend, is not, and certainly cannot be claimed by the President ” (p. 609.) And this doctrine is recognized in Middleton v. Low, and, indeed, in all cases upon this subject.
An act in which an officer has no discretion, is not necessarily a ministerial act. A ministerial act is the act of a servant—one who acts under the direction of a superior, as the Sheriff and clerk are ministers or servants of the Court, and as those officers who perform duties wholly prescribed by the Legislature, and exercise no powers given by the Constitution, are said to be ministers or servants of the law. The Constitution requires the Senate of this State to keep a journal of its proceedings. In this matter it is allowed no discretion. We can easily understand how some person might have a private interest in a proceeding of the Senate. If the Senate should refuse to allow a resolution which had duly passed, and in which some of its employes, for instance, have an interest, to be entered upon its journal, would we compel the Senate by mandamus so to enter it ? The Senate has no discretion, and a vested private interest is at stake; but still, so far as the Senate is concerned, the act is not a *220 ministerial act. It derives its power from the Constitution, and in its exercise has no superior.
Could the act required by the Governor have been performed by any other officer if the Legislature had so provided? That the duty might have been enjoined upon any other person, is asserted in the leading opinion. I apprehend, however, that the object of the certificate is to make a record of the action of the Executive in the proceeding. Erom the nature of the act, it must be done under the direction of the Governor, and the statute only prescribes the mode of attesting the exercise of one of the highest executive powers reposed in him by the Constitution.
The Legislature might have provided that the Governor should keep his journal, in which he should enter what action he had taken upon the bills presented to him, and there would be just as much propriety in our compelling him to make an entry in such journal as to compel him to make the certificate in question. The Governor says he returned the bill in question to the Senate within the Constitutional period. We require him, nevertheless, to enter in the record he is required to keep of such executive acts, that he did not return it. It would seem almost self-evident that, so far as this certificate is concerned, the Governor must decide for himself, although his decision may not prevent the Courts from holding the. law valid in any controversy in which the rights of parties are directly involved. At any rate, if the certificate is the essential thing, this Court might as well interfere in the first instance, and direct what action shall be had with reference to a bill as to compel him to certify that he has performed a certain act, which he denies; for the certificate is, in effect, that he has not returned the bill to the Senate. We require him to certify an executive act, but do not leave it to him to say what that act was. Sor will the fact that the Legislature has prescribed the mode in which the Executive shall evidence his action, or even the forms or modes in which he shall exercise his powers, authorize the Courts to interfere to control such action with reference to powers expressly and exclusively vested in him by the Constitution. The Legislature has prescribed *221 the mode of making application for pardons, and absolutely directs the Governor, in certain cases, to issue to convicts absolute and unconditional pardons. No discretion whatever is allowed. Would this Court, under the pretense of executing this law, interfere with the exercise of the pardoning power vested in the Governor by the Constitution? The true theory is that, as to such laws, so far as executive action is concerned, the Courts can exercise no coercive power, although they may, perhaps, declare the executive act invalid in a controversy properly before them. Any other view utterly destroys the independence of the Executive in any respect whatever.
It is said that this would place the Governor above the law. It is evident that there must be some final arbiter upon every question that can arise in the Government. As to a large class of questions, affecting private rights, too, it is admitted that the final decision is with the Executive, and I have no doubt it extends to all matters especially entrusted to him by the Constitution, whatever the degree or character of the discretion allowed. Upon this subject, I fully agree with Mr. Chief Justice CatOn, in The People v. Bissell, ( 19 Ill. 229 .) In a most conclusive argument upon this very subject, he says : “As from necessity and the very nature of all government there must be an ultimatum somewhere, whose duty it is to determine whether such sphere has been passed or not; that duty in most cases falls on the Judicial Department, from the fact that in this department is reposed the responsibility of enforcing or giving effect to the acts of the other departments. But it is only when thus called upon in some form known to the law to give effect to such acts of the ther departments, that the Judiciary can determine whether h acts were done in the exercise of a constitutional power. In no other way, nor in any other case, can this department construe the Constitution for, or exercise any control over, any other department. Where final action upon any subject is confided to either of the other departments, there the responsibility must rest of conforming such action to the law and the Constitution.
“It is because such final action is generally devolved upon *222 the Judiciary, that the Judiciary is most frequently called upon to give a final and conclusive construction to the Constitution and laws. It results, therefore, from this philosophical arrangement of our governmental system, that the control which the Judicial Department exercises over'the others, is of a restraining and not of a compulsory power. But this is only practically and not literally so. We may not enjoin the others from doing an unconstitutional act, but by refusing to give effect to such act, or relieving against it when properly and judicially applied to for that purpose, we may restrain them. We cannot restrain the Governor from issuing the bonds of the State contrary to law, but when the question is properly presented before us, we can declare such bonds void; and so of a patent for the public land which he might issue. And so if he should step beyond his constitutional sphere, and unlawfully imprison a party, we would discharge such party on habeas corpus. But we have no power to compel either of the other departments of the Government to perform any duty which the Constitution or the law may impose upon them, no matter how palpable such duty may be, any more than either of those departments may compel us to perform our duties. The Governor is and must be as independent of us as is the Legislature, or as we are of either of them. *******
It is urged upon us that in a government of laws there must be an adequate remedy for every wrong; and that where a clear right exists, there must be some mode of enforcing that right. While human society is governed by so imperfect a being as man, this can be true only in theory. If we are to compel the Governor or the Legislature to right every wrong which may arise from their omissions of duty, the surely they must, in order to make this Utopian system apetecí, have the power to compel us to do right in every case. May it not be as well supposed that we will act perversely, and refuse to perform a duty imposed upon us, to the injury of the citizen, as that the Governor will do so? In the formation of the Government, equal confidence was rightfully reposed in each department, to which appropriate and independent duties were assigned. If we unintentionally *223 err, and do a party ever so great a wrong, there is, and, from the nature of our institutions, can be, no remedy. If we perversely or corruptly do an intentional wrong, the Constitution has provided the only remedy, which is by impeachment-; and so of the Executive. When acting within the limits assigned to each, neither can control or dictate to the other. The presumption is, that one is as likely to be right, or as liable to err, as the other. (See Georgia v. Towns, 8 Geo. R. and Hawkins v. The Governor, 1 Ark. R. 570.)
I do not think it proper to anticipate the course of the Executive if this writ should issue, but in the fact of a possible collision between the departments, I see cogent reasons why we should be reluctant to assume the jurisdiction. It was said by Mr. Jefferson that, had the writ been issued in the case of Marburg v. Madison, Mr. Madison would not have obeyed it, and that he (Jefferson) would have sustained Mr. Madison with all the power at the command of the President. It is said in the case of Low v. Towns (8 Geo. 360), that, if there were no other reason, the duties of the Chief Executive would forbid the issuance of the writ. We ought not to issue the writ, unless we are prepared to enforce it. And if the Governor be imprisoned but for one hour, the public safety is jeopardized; for, during that very time, it may be necessary for him to exercise his high powers to preserve the public peace,