The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-04-23
The Decision Of she Supreme
Court ON the Petition of Messrs.
sIanrISey and Walker.

| GOr@A w. --~
SIaarISey and Walker.
n.aIr.;.od s,o+o.
\ In the supreme OonTo OF tne uIl.ou 3V" ~
yesterday tne Chiei 1us.ico uoi.,9 ~ ~. ~
opinion OF inc court ~ .ne oase - ono pras
OF mississippi Us. ehaiow o9n " ~ + I nrS
ident OF tne uniteu opuVcs' anu anu ~ ~ D ~
on the motloh ior ieaNo W iio u p"' 20 so
lows;
motion was made sone aAys since " "
behalf OF the SAteo OF M.ssiss'ppl ior icav9 y.
ME Dill In the name Oh Tue ouite Play.ut
this court perpetuaiiy 70 enJoin anu rest .aas
Andrew johnson, ITesiuenC Vi tno on's ',
States ana y, y, y. UIu, generM c9nI' ni'
ing IN the Distriet OF Mississlppi anu h.Man
sas, from executing or n any manneI cnriS
ing OUT cer.ah ac's u Sonsr''s '"0''''
named. = N,, 9
The acts referred TO are those OF Mach
and March ~, 1917, commonly called tne TO
construction acts. s
The Attorney General oplecteu 10 .nt
leave asked for upon the ground that no p'i
which makes the President 2 Defendant ana
seeks an injunction against MIN 10 restIal,
the performance OF his duties Us fresiueh'
should be allowed to be filed IN this court
This point has been fully argued, anu we
will now dispose OF it, .E..
We shall limit our inquiry TO the question
presented by the objection without express
ing any opinion on the border ISSUES uls
cussed in argument, whether IN any case the
President of the United States may be re-
quired by the process of this court to per.
form O purely ministerial act required by
law or may be held amenable in any case
otherwise than impeachment for crime.
The single point which requires considera,
tion Is this can the President be restrained
from carrying into effect an act Of Congress
alleged to be unconstitutional
tits assumed by the counsel for the State
of Mississippi that the President, in the exc.
cution of the reconstruction acts, is required
to perform mere ministerial duty. In this
assumption there is, we think o confoupding
Of the terms " ministerial and executive
which are by no means equivalent in inl-
port. .at l,s..
A ministerial duty, the performance OF
which may in proper cases be requiredOf
the head OF a department by judicial process,
is one in respect to which nothing is left to
discretion, 1t is o simple definite duty
arising under conditions admitted or proved
to exist, or imposed by law.
The case of Marbury VS.. Madison, Secrcta-
nv of State, furnishes an illustration A
citizen had been nominated, confirmed, and
appointed justice of the peace for the
District Of Columbia, and his commission
had been made out signed, and sealed.
Nothing remained to be done except delive-
rys and the duty Of delivery was imposed by
law on the Secretary of State 1t Was held
that the performance of this duty might be
enforced by mandamus issued from court
having jurisdiction. bsFH &Bss
So in the case of Kendall, Postmaster Cen
eral. vs. Stockton and Stokes, az Peters,
527,) an act OF Congress had directed tho
Postmaster General to credit Stockton and
Stokes with such sums of money as the So
licitor of the Treasury should find due TO
them, and that officer refused to credit them
with certain sums so found due. 1t was
held that the crediting of this money was q
mere ministerial duty, the performance of
which might be judicially enforced.
In each of these cases nothing was left to
discretion. There was no room for the ex-
ercise of Judgment. The law required the
performance of o single specific act :; and that
performance it was held, might be required
by mandamus AsA et.4
Very different is the duty of the President
in the exercise OF the power to see that the
laws are faithfully executed, and among
those laws the acts named in the bill. BY
the first OF these acts he is required to as
sign generals to command in the several
military districts, and to detail sufficient
military force to enable such officers to dis
charge their duties under the law. BY the
supplementary act other duties are imposed
on the several commanding generals, and
their duties must necessarily be performed
under the supervision Of the President as
c0mmanderin-chief The duty thus imposed
on the PRESIDENT Is III no just sense ministe-
rial. 1t is purely executive and political.
An attempt on the part of the judicial de-
partment of the Government to enjoin the
performance OF such duties by the President
might be justly characterized in the Lam
guage of Chief Justice Marshall as Fan alb
surd and excessive extravaganza"
1t Is true that in the instance before us the
Interpretation of the court is not sought to
enforce action by the Executive under con-
stitutional legislation, but to restrain such
action under legislation alleged to be uncon-
stitutional. But we are unable to perceive
that this circumstance takes the case out of
the general principle which fOrbids judicial
with the exercise of executive
discretion. mass
1t was admitted in the argument that the
application now made to us is without q
and this Is of much weight against
it. Had it been supposed at tile bar that
this court would, in any case, interpose to
arrest the execution of an unconstitutional
act of Congress, it can hardly be doubted
that applications with that object would
have been heretofore addressed to it.
Occasions have not been frequent.
The const nationality of the act for the
ofTexas was vehementy denied
It made important and permanent changes
in the relative Importance of States aud sec
lions, and was by many supposed to DO preg-
nant with disastrous results to large inter
ssts in particular States. But no one seems
10 have thought of an application for an in
junction against the execution of the act by
,he President.
And yet it is difficult to perceive upon
what principle the application now before
ID can be allowed, and similar applications
n that and other cases could have been de-
ned.
The fact that no such application was ever
before made in any case Indicates the gene
al Judgment of the profession that no such
application should be entertained
1t will hardly be commended that Congress
IAN interpOse, in any case to restrain the
Enactment of an unconstitutional law and
ret how can the right to judicial interposi-
ion to prevent such an enactment, when
he purpose is evident and the execution of
hat purpose certain, be distinguished, in
principle, from the right to such interposi-
ion against the execution of such law by |
he President a rta sl
( The Congress is the legislative department
# the Government the President is the ex-
cutive department Neither can be re-