Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1867-04-18
MISSISSIPPI INJUNCTION BILL.

delivered an opinion OF the Court in the
case Of the State of Mississippi VS.,
Andrew johnson and 4. q. Q. Ord, on
motion for leave to file the bill as fol-
lows: A motion was made some days
since in behalf of the State OF Missis.
sippi for leave to file bill in behalf OF
this State, praying this court 70 perpet.
ually enjoin and restrain Andrew John
son and L. D, O. Ord. commanding the
District of Mississippi and Arkansas,
| from executing, or in any manner car
rying out, certain acts of Congress. The
acts referred to are those of March I'd
and 22d, 1867, commonly known as
reconstruction acts. The Attorney
General objected to the leave asked upon
the grounds that no bill which makes
the President defendant and seeks an
| Injunction against him to restrain the
performance of his duties, should be
allowed to be filed in this court r-sla
This point has been fully argued, aud
we will now dispose of it, We shall limit
our inquiry to the question presented to
this objection without expressing an
opinion on the broader issues discussed
in the argument, whether in any case the
President may be required by process
Of this court to perform purely minis.
trial act required by law or may be held
Amenable in any case otherwise than by
impeachment for crime. The single
point which requires consideration is
this: Can the President be. restrained
from carrying out an act of Congress al
legged to be unconstitutional irg fas
1t is assumed by the counsel for the
State of Mississippi, that the President,
in the execution OF the reconstruction
acts, is required to perform q new minis
terial duty, In this assumption there is,
we think, a confounding of the terms
ministerial and executive, which are by
no means equivalent in import A min
isterial duty, the performance of which
may, in proper cases, be required by the
head of department, by judicial process
in one respect, to which nothing is left
to discretion, is simple definite duty,
arising under the conditions admitted or
presumed to exist or imposed by law.
Case of Marbury VS. Madison, Secretary
of State. First Cranch, page l37, fur
nishes an illustration. A citizen had
been nominated, confirmed and appoint
ed Justice of the Peace for Kiston,
Columbia, and his commission had been
made out and sealed Nothing remained
10 be done except its delivery, 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 amandamus issuing from the
court having jurisdiction. So in the case
of Kendall, Postmaster General, VS..
Stockton and Stokes, IL, Peters, 527, an
act of Congress directed the Postmaster
General to credit Stockton and Stokes
with such sums as the Solicitor of the
Treasury should find due them, and that
the officer refused to credit them with
the sum SO found due. 1t was held that
the crediting of money was mere min
isterial duty, the performance of which |
might be enforced. In each of these
cases nothing was left to discretion /;
there was no room for the exercise of
Judgment. The law required the per-
Torrance; it was held it might be re-
quired by mandamus.
Very different is the duty of the Presi- |
dent in the exercise of power to see that |
the laws are faithfully executed, and |
among those laws is the act named in
this bill. By the first of these acts, he
is required to assign Generals to COM
mand the several military districts and |
detail a sufficient military force to ena
BILE such officers to discharge their
duties under the laws by supplementary |
act. Other duties imposed on the sew
eral commanding Generals, and their
duties must of necessity be performed J
under the supervision of the President
as Commander.in.C Chief. The duty thus
imposed on the President is in no just |
sense ministerial; it is purely execu-
tive and political, and an attempt on the
part of the judicial department of the
Government to enjoin the performance |
of such duties of the President might be
Justly characterized in the language of |
Chief Justice Marshall as absurd and ex-
cessively extrayagant 1t is true that |
in the instance before US the inter- |
position of the court is not sought to en-
force action by the Executive under
constitutional legislation, but to restrain |
action under legislation alleged to be I'M
CONSTITUTIONAL but we are unable TO per-
ceive that this circumstance takes the |
case out of the general principle which |
forbids judicial interference with the ex-
ercise OF Executive discretion.
1t was admitted 10 the argument that
the application now made to the United |
States is without precedent, and this is
of much weight against it. Had it been
supposed at the bar that this court would |
arrest the execution of an unconstitu-
tional act of Congress, it can hardly be
doubted that an application with that
object would have been heretofore ad-
dressed to it. Such occasions have |
been frequent The constitutionality of
the act for the annexation of Texas was
vehemently denied.
1t made important and permanent |
changes in the relative Importance of the
States and sections, and was by many |
supposed to be pregnant with disas-
trous results to large interests in partic-
ular States, but none seem to have |
thought of an application for an injune- !
ton against the execution of the act by |
the President, and yet it is difficult to
perceive on what principle the applica-
ton now before Us can be allowed, as
similar applications in that and other
cases could have been denied
The fact that no such application has
ever before been made 10 any case indi-
Gates the general judgment of the pro-
fession that ne such application should |
be entertained 1t will hardly be con-
tended that Congress can interpose in
any case to restrain the enactment of
an unconstitutional law, aud yet how
can the right to use judicial interposition
10 prevent such an enactment when the
purpose is evident and the execution of
that purpose certain, be distinguished
-. -. .;cht - uucb iutarnratation