The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1867-04-17
The Injunction Cascs-PrOcecdlingS I'm
the supreme Court Monday The
Motion i'm Behalf of Mississippi DE.


State Of Mississippi rs. Andrew johnson,
President of the United States, and L. O.
c. Ord, on the motion for leave to file a
bill, as follows:
A motion was made some days since on
behalf Of the State Of Mississippi for leave
To file a bill in the name of the State,
praying this court perpetually TO enioin
and restrain Andrew Johnson, Presidcn;
"t the United States, and +. O. c. Ord,
General commanding in the District OF
Mississippi and Arkansas, from executing
or in any manner carrying out certain acts
Of Congress therein named.
The acts referred TO are those of March
, and March 25, 1867, commonly called the
reconstruction acts.
The Attorney General objected to the
}ravc asked for, upon the ground that no
Hill which makes the President defend
ant, and seeks an injunction against him to
restrain the performance of his duties as
President, should be allowed To be filed in
this court.
This point has been fully argued, and
we will now dispose Of ii.
We shall limit our inquiry to the ques-
ton presented by the objection, without
expressing any opinion on the broader is
sues discussed in argument, whether in
any case the President of the United States
may be required by the process of this court
10 perform a purely ministerial act re-
CURED by law, or may be held anSwerable,
in any case, otherwise than by impeach-
mcnt for crime.
The single point which requires consi-
deraton is this: Can the President be re-
strained from carrying into effect an act Of
Congress alleged to be unconstitutional?
1t is assumed by the counsel for the
State of Mississippi that the President, in
the execution of the reconstruction acts,
is required 10 perform a mere ministerial
duty. In this assumption there Is, we
think, confounding of the terms "minis
tcrlal" and executive" which are by no
means equivalent in import.
4 ministerial duty, the performance OF
which may in proper cases be required Of
the head of a department by judicial pro-
cess, is one in respect to which nothing is
left 10 discretion. 1t is simple, definite
duty arising under conditions admitted or
proved to exist, or imposed by law.
The case of Marbury rs. Madison, Sc
cretary Of State, furnishes an illustration.
4 citizen had been nominated, confirmed,
the District of Columbia, and his commits
sion had been made out, signed and sealed.
Nothing remained TO be done except de-
livery, and the duty of delivery was i'm.
posed by law on the Secretary of State.
II was held that the performance of this
duty might be enforced by mdndam,Ls is
sued from a court having jurisdiction.
So in tie case of Kendall, Postmaster
General, rs. Stockton and Stokes ~
Peters, j27). An act Of Congress had di-
rrcted the Postmaster General to credit
Stockton and Stokes with such sums as the
Solicitor 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 a mere ministerial duty, the perform
auce of which might be judicially 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 single specific act;
and hatperlormance, it was held, might
be required by ma1tddmuS.
Very different is the duty of the PrcSi-
dent in the exercise of the power to see
that the laws are faithfully executed, and
among those laws the acts named III the
bill. BY the first of these acts he is re-
CURED 10 assign generals TO command IN
the several military districts, and to detail
sufficient military force TO enable such
officers to discharge their duties under the
law. By the supplementary act, other du-
ties are imposed on the several command
iu- generals, aud their duties must ncces-
l. al IA
q the President as commander-in- chief.
The duty thus imposed on the President Is
in no just sense ministerial. 1t Is purely
executive and political.
An attempt on the part OF the judicial
department of the Government to enjoln
the performance Of such duties by the
President might be Justly characterized,
in the language of Chief Justice Mar
shall, as can absurd and excessive ex-
trayagance."
1t is true that in the instance before us
the interposition 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
unconstitutional.
But we are unable to perceive that this
circumstance takes the case out OF the
general principle which forbids judicial in
reference with the exercise of executive
discretion.
IL was admitted in the argument that the
application now made 10 us is without
precedent; and this is of much weight
against il. Had it been supposed at the
bar that this court would, In any case,
interpose TO arrest the execution of an I'M
constitutional act Of Congress-, 1t can
hardly be doubted that applications with
that object would have been heretofore
addressed TO it. Occasions have not been
intrequent.
The constitutionalty Of the act for the
annexation of Texas was vehemently de-
MED. II made important and permanent
changes in the relative Importance of
States and sections, and was by many sup
posed TO be pregnant with disastrous re-
suits TO large interests in particular States.
But no one seems to have thought OF an
applicatiOn for an Injunction against the
execution of the act by the President.
And vet it is difficult to perceive upon
what principle the application now be-
fore US can be allowed, and similar appli-
cations in that and other cases could have
been denied.
The fact that no such application was
ever before made in any case indicates
the general judgment of the profession
that no such application should be enter
tanned.
IL will hardly be contended that Con-
gress can intcrpOse, in any case, to restrain
the enactment OF an unconstitutional law,
and yet how can the right to judicial inter
position to prevent such an enactment,
- -. IL % .nrnnSn IL erilnnt and the exc