Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-04-18

~ kAA0 - 49, VII
johnson responded that he would have
to decline, iniismuoh IS he desires to aid
the south, and his opinion is that these
proceedings must end in injury to that
section OF the country rather than good.
There is much talk about the appoint-
plent Of Mr.. Raymond to the Austrian
mission. It may be stated on the best
authority that ii was made without
solicitation OH his part, or the knowledge
Of Mr.. Seward, and his friends doubt If
he will accept the place. There will be
a sharp struggle over the question Of his
| confirmation, If the name is not with
drawn at his request, and the result must
be considered doubtful, for he will have
the support Of some Of the best republi-
can senators.
The war department has decided that
every bounty claimant shall be regarded
as having served to the end OF the war,
who enlisted for three years and vas
mustered out with his organization be-
cause the services of the latter were no
/ longer required, and is, therefore, if not
otherwise, entitled to additional bounty
under the act Of July %, 1866.
There IS a possibility that the senate
may reconsider its action on the question
Of adjournment, and stay here until near
the end Of this week. The president is
understood to desire this course, but his
organs say he will not officially ask the
body to remain after the day it names
for the termination Of the session.
Senator elect Garland, of Arkansas, is
here, and has prepared a petition for an
Injunction against the enforcement of the
Sherman bill in that state, and will make
a'motion to file it in the supreme court
next week.
The published list Of votes on the con-
frmation of Gen. Rousseau is incorrect,
it not having been procured from official
sources.
Count Wydebbruck has warmly
thanked the secretary Of state for the
kindness anG promptness with which he
acted in the request Of the Austrian en-
peror relative to Macmillan.
In the supreme court to-day the
chief justice delivers ar opin-
ion OF the court "a the case
of the state of Mississippi VS.. An
drew johnson and +. o. c. Ord, on mo-
ton for leave to file the bill as follows :
A motion was made some days since in
behalf of the state OF Mississippi for
leave to file a bill in behalf Of this state,
praying this court to perpetually enjOin
and restrain Andrew Johnson and E o.
G. Ord, commanding the district Of Mis-
sissippi and Arkansas from executing, or
in any carrying out certain
acts of congress. The acts referred to
are those Of March 2d and I'D, 1867,
commonly known as reconstruction acts.
The attorney general objected TO the
leave asked upon the grounds that no
bill which makes the president a defend
ant and seeks an injunction against him,
D. roz4raFr tho pa-forp7 rsaa Of HE 1E+faa
should be allowed to be filed in this
court.
This point has been fully argued, and
we will now dispose of it. We shall
limit our inquiry to the question pre-
scented to this objection without express
ing an opinion on the broader issues dis
cussed in the argument, whether in any
case the president may be required by
process Of this court TO perform a purely
ministerial act required by law, or may
be held amendable in any case otherwise
than by impeachment Tor crime. The
single point which requires eODsidera-
ton is this Can the president be re-
strained from carrying out an act of on
gress alleged to be unconstitutional d?
II is assumed by the counsel for the
state of Mississippi that the president, in
the execution of the reconstruction acts,
is required to perform a new ministerial
duty. In this assumption there is, we
think, c~Onf0unding of the terms minis
terial and executive, which are by no
means equivalent in import. A ministe-
rial duty, the performance Of which may,
in proper cases, be required by the head
Of q department, by Judicial process in
one respect, TO which nothing is left to
discretion, is a simple definite duty,
under the conditions admitted
presumed to exist or imposed by
Case Of Marbury vs.. Madison,
secretary of state. First Cranch,
page 137, furnishes an illustration.
A citizen has been nominated. cou-
firmed and appointed q justice Of the
peace for kistOn, Columbia, and his
commission had been made out and
Nothing remained to be done
except its delivery, and the duty OF de-
livery was imposed by law ON the secre-
tary Of state. 1t was held that the per-
formance Of this duty might be enforced
by a mandamus issuing from the court
jurisdiction. So in the case Of
Kendall, postmaster general, VS.. Stock
ton and Stokes, y Peters, 527, an act of
congress directed the postmaster general
10 credit Stockton and Stokes with such
as the solicitor of the treasury
find due them, and that the
refused to credit them with the
sums so found due. 1t was held that the
;rediting Of money was a mere minis
duty, the performance of which
be enforced. In each of these
.ases nothing was left to discretion |
was no room for the exercise of
Judgment. The law required the per-
ormance; il was held it might be re-
Iuired by mandamus.
Very different is the duty of the presi-
lent in the exercise of power to see that
he laws are faithfully executed, and
.mong those laws is the act named in
bill. By the first of these acts, he
5 required to assign generals to com
nand the several military districts and
letail a sufficient military force TO ena-
lie such officers to discharge their duties
the laws by supplementary act.
)ther duties imposed IN the several
handing generals, and their duties
npst Of necessity be performed under
be supervision Of the president as com
nander-in-ehief. The duty thus i'm
.osed on the president is in no Just
ense ministerial it is purely execu&
i've and political, and an attempt Oh
be part of the judicial department of
~ SO - ELItA4 bAAG pei A0A IL ]
nee OF such duties by the president
night be justly characterized in the
Of Chief Justice Marshall as
bsurd and excessively eXtrayagant. Il
true that in the instance before Us the
lteTpOsitiOn Of the court is not sought
, enforce action by the executive under
institutional legislation, but 10 restrain
Ich action under legislation alleged to
g unconstitutional but we are unable 4,
perceive that this circumstance takes !
he case out Of the general principle {
hich fOrbids Judicial interference with &
le exercise of executive discretion.
Ii was admitted in the argument that .
le application now made to the United 4
.ates is without precedent, aud this is
much weight against II. Had il been I
opposed at the bar that this court would c
rest the execution of an uncoDstiiu- 5
1nal act Of congress, It can hardly be q
that an application with that {
iect would have bee8 heretofore adj ;
essed to it.. Such occasions have been 5
The constitutionality Of the v
{ for the annexation Of Texas was We
mently denied. a
Il made important and permanent ,
in the relative importance of the Y
ties and seotiOnsA and was by many b
ppOsed to be pregnant with disastrous a
suits to large interests in particular d.
ties, but o a seem to have thought of Il
application for an injunction against v
2 execution Of the act by the president.
d yet It is difficult to perceive on what CT
.nciplethe application now before US 81
be allowed, as similar applications s.
that and other cases could have been So
lied. ST
he fact that no such application has W
r before been made in any case, indi- a
es the general judgment Of the profess siC
that no such application should be CD
ertained. 1t will hardly be contended eli
t congress can iDterpose 10 any case
estrain the enactment OF an unconsfi
Onal law, and yet how can the right 2
lse judicial interposltion to prevent III,
b an enactment, when the purpose is th,
lent and the execution Of that pur- in,
2 certain, be distinguished from the or
It to such Interpretation against the q Z
Of such law by the president. of
gress is the legislative department OF ito
government, and the Presidents the cas-
,utive department. Neither can be
rained IN its action by the judicial
trtment, though the acts Of both. 1
a performed, are in proper cases ore
ect to its cogBizance. The impro- lrol
~ Of such interference viii be clearly VOL
on the consideration Of its probable by
instances. wei
ppose the bill fled and the ipiunc- Civ
prayed for be allowed. If the pres. tioL
refuse obedience, it it needless 10
that the court is without hi II