The Vinton record. [volume] (M'arthur, Vinton County, Ohio) 1866-1891, 1867-04-25

performance of which may, in prop
er cases, be required by the head
of a department, or by judicial
process, is one in respect to which
nothing is left to discretion. 1t is
a simple, definite duty, arising un-
der conditions admitted or presum-
ed to exist, or imposed by law.
In the case of Marbury VS.. Madi-
son, Secretary of State, First
Cranch, 1877, furnishes an illustra-
tion, in which a citizen had been
nominated, confirmed and appoint
ed Justice of the Peace for Kis-
ton, Columbia, and his commission
had been made out and sealed;
nothing remained to be done, ex-
cept delivery, and the duty of de-
livery was imposed by law on the
Secretary of State. 1t was held
that the performance OF this duty
might be enforced by Mandamus
issuing from a court having juris-
diction.
In the case OF Kendall, Postmas-
ter-general, VS.. Stockton & Stokes
-12, Peters 527-an act of Con-
gress had directed the Postmaster
general to credit Stockton d Stokes
with such sums as the solicitor of
the Treasury should find due them,
and that officer refused to credit
them with sums so found due. 1t
was held that the crediting of mon.
ey was a mere ministerial duty
performance, which might be en-
forced in each of these cases.
Nothing was left to discretion !;
there was no room for the exercise
of judgment. The law required
the performance of a single specif.
ic act, and that performance, it was
held, might be required by manda-
mus.
Very different is the duty of the
President in the exercise of the
power to see that the laws are faith
fully executed, and among those
laws are the acts named in the bill.
BY the first three acts he is requir-
ed to assign Generals to command
in the several military districts, and
to detail sufficient military force to
enable such officers to discharge
the duties under the laws. By the
supplementary act other duties are
imposed on the several command
ing generals, and their duties must
necessarily be performed under the
supervision of the President, as
commander-in chief.
The duty thus imposed on the
President is in no just sense min
isterial; it is purely executive and
political. An attempt on the part
of the Judicial Department of the
Government to enjoin the perform
ance of such duties by the Presi.
dent, might be justly characterized
in the language of Chief-justice
Marshall, as an absurd and exces-
sive extravaganza. 1t is true that
in the instance before us the inter
position of the Court is not sought
to enforce action by the Executive
under Constitutional legislation
but to restrain such action under
legislation alleged to be unconsti
tutional. But We are unable tC
perceive that this circumstance
takes the case out of general prin
clple which forbids judicial inter
ference with the exercise of Exc
cutive discretion.
1t was admitted in the argument
that the application now made tc
us is without precedent, and this i:
of much weight against it. Had i
been support at the bar that thi
} Court would in any case interpos,
to arrest the execution of an uncon
, stitutional act of Congress, it cal
hardly be doubted that the applica
ton with that object would hav,
been heretofore addressed to il
Such occasions have been frequent
The constitutionallty of the act fol
the annexation of Texas was We
hemently denied. 1t made impor
tant any permanent cl anges in thu
relative importance of States an(
sections,and Was by many supposed
} it to be pregnant with disastrou
results to large interests in parti
cular States, but no one seems t.
nave thought ofan application fo
, an injunction against the execution
of the act by the President, anC
yet it is difficult to perceive upor
what principle the application now
! before the United States can be al
lowed to similar applications il
that and other cases could have
been decreed. The fact that NJ
( such application was ever before