Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1868-04-15

TTTT-- --TT y u ---- y
the great seal 70 be affixed 70 H. but it wss not de-
uvere3 while Mr.. Adams remained in ohce, and
wbeL Mr. Jefferson succeeded 20 the Presidency, he
ordered bis Secretary Of State, Mt. Madison 70
withhold t. Marbury then applied TO the supreme
Court for q mandamus against the Secretary 70
compel him 20 deliver the commission. Inc case
was most elaborately considered by the learned
Chief Justice Marshall, who, after long train OF
reasoning, held that the relator bad vested nght
In the Office when the com mssioners made out ana
signed but denied the writ on the ground that tne
court had not jurisdiction over the case MI JeI,
fsrson says that if the Supreme Court had granted
a uspdamus Ia the case, he should have regarue1
Il as frenching on bis appropriate sphere OF duty
that be had Instructed Mr.. Madison not 70 aenVef
the commission, and that be was prepared As RE
sidant Of the United States, 70 MAINTAIN DIS own
construction Of the Constitution with 81 the powers
Of the Government against any eontroi mat nIgns
be attempted by the Judiciary, IN affecting what ne
regarded as the rightful powers OF the Executive
and Senate within their particular Department.
rJefersons works, vol. iv., PIP. IS, 5lT, 572
In Georgia, Law vs. Towns, IS Geo. 560) the
same doctrine is held, and it is adjudged that Tor
political reasons the Chief Magistrate Of The state
cannot be compelled by mandamus, TO perform any
act SO In Illinois, in the People We Blssell, ~
Ills 29) il was decided that the Supreme Court hac
no control over the Governor Of The state TO com
pei him to perform any public duty In the 6ous-
ton etc railroad company VS.. hand0lpn, rs Ie4as
81 ~ the court UeultQ kuD VIII AaihIt bho AtahtH
Treasurer acting in his official capacity, and seem
20 hold that IL would not lie against any member Of
/ the executive department except the land commits
soner. In Maine in the matter Of Bennett petit
/ TONER l32 Maine sos the court refused TO issue
/ the writ 10 compel the Governor and council 10
/ proceed 10 open and cast up votes which was
statutory duty and declared that II was an oineial
act though the legislature might have devolved II
upon any other class Of persons instead OF the Gov
ernor and council
! In Chamberlain We Sbley, "A Min. BIZ, the Su-
preme Court Of Minnesota say "This court viii not
undertake 20 compel tho Governor Of the State to
! the performance Of any duty devolving upon him
as the chief executive, and properly pertaining to
such Office In all such matters the executive IS OF
necessity independent of the judiciary
The case Of the State ex rel. &c VS. the 5over-
nor in New jersey Il Dutch 58l) arose under the
act 10 regulate elections in that State, which re-
quirod that the Governor should issue commits
sion 10 the county clerk and surrogate upon the
same evidence as designated in the case OF othcr
officers yet the court refused TO issue mandamus
/ 10 compel the Governor TO act And IN hhooe
| Island Maurare W. Smyth, Cow &c, 10 Am Law
/ Reg. N S. 630), It is decided that mandamus does
not lie from State court TO the Governor 10 COM
pei the performance Of official duty, even OF a
ministerial nature where such duty is enjoined on
/ him by the Constitution OF where though imposed
by the statute il is Of such nature that he alone can
perform il. 90,
State It is made the duty Of the Governor TO COM
mission all officers not otherwise provided by law
There T. no statutory enactment affecting this
. constitutional provision. The issuing OF commits
sion g. clearly the exercise of political power But
IL ie insisted that the granting Of commission s "a
mere ministerial act but does it follow that 1t Is
therefore less an executive RCt2 In one sense Of the
term as contradisingushed from official duties, all
executive duties may be said 20 be minis eriaL We
do not consider that the duty OF the executive De-
comes ministerial because no discretion ls LETT as 10
/ the manner Of its performance, and that IN su3h
case the court may interfere to effect performance.
From such doctrine il would follow that where
he executive duty was clear the court would be au-
thorized 10 interfere but in Of doubt or DIM
Guilty OF uncertainty, the judiciary could afford no
remedy, but the responsibility would rest alone on
the discretion of the executive. In many cases DO
discretion is vested with the Governor. dis acts
and functions must he performed in strict accord
ance with specific law but this court is not on that
account invested with power TO compel the acts,
duties and functions TO be performed. The Chief
Magistrate Of the State is required 10 execute the
duties devolving on him by law, by higher au-
thority than the orders Of this court-by the man
date Of the Constitution. Whatever powers are
conferred by the Constitution the executive are
political powers, whatever duties are eDjoined upon
him are political duties.
If the court can Issue writ OF mandamus TO COM
pei the executive 10 grant commission which he
improperly OF from 3 mistaken view Of the law
withhods why may they not award process to COM
pei him 10 issue writs Of election, and to see that
the laws are enforced and obeyed If the power
exists and the jurisdiction is assumed, where is the
limit to be placed If no is clothed with poti-
cal discretion as regards the execution and enforce
ment Of the laws, and many other duties which are
enioned on him. so he is concerning the Issuing OF
commissions If the court has power TO prescribe
the rule Of his conduct in case they have IN the
other. This would make the Judges the interpret
fho MIL If no aud Tho ipdCnpud-
ence Of the executive department ne coordinate
branch Of the government would be destroyed.
The Governor is bound to see that the laws are
faithfully executed, and he has taken an oath e
support the constitution. In the correct and le
Ultimate performance OF his duty be must incvita
bly, have a discretion in regard 10 granting com
missions. For should person be elected or ap.
pointed who was constitutionaly ineligible TO hold
any Office of profit trust, would the executive be
bound TO commission him, when his neligibility
was clearly and constitutionally proven? Ii he i
denied the exercise Of any discretion IN such case
be is made the vioator of the constitution, not it.
guardian OF what avail then, is his oath OF office
Or If be has positive and satisfactory evidence that
no election has been held in county, shall he b
required 10 violate the law, and issue commission
/ 70 person not elected. because clerk has certi
fed 20 the election Ia granting a commission
the Governor NAV go behind the certificate 30 de
tormine whether an applicant is entitled 90 receive
r / a commission or not when the objection TO tht
right Of the applicant 90 receive IL rests upon tn
ground that constitutional prohibition is inter
posed. lGulick vs. New, rs Ind. ca Tho Issuing
o. commission is an act by the executive in hi
political capacity, and sone OF the means employed
10 enable him 10 execute the laws, and carry OF tn
appropriate functions Of tho State And for th
manner in which be executes this duty be Is In n,
wise amenable 70 the judiciary. The court can NJ
more interfere with executive discretion than tb
legislature or executive with judicial discretion
The granting Of a commission by the executiv
is not q more ministerial duty, but an official &C
imposed by the constitution, and is an lnvesture o
authority in the person receiving It. We are Of tb
opinion, Therefore, that the mandamus will not ~
against the Governor in \ case like this
The principle Of law herein discussed is as spph
cable 70 Tennessee as TO Missouri, and the pr0yis
ions Of the Constitution Of Tennessee bearing on tb
case are just the same. II violate the laws or Ib'
Constitution Ct Tennessee ] am amenable 70 th
Legislature, which, in such event, may impeaoh.-
shall, therefore not feel myself bound by the lis
Of every rebel or copperhead judge who may thinl
proper to grant nunotions or require me to DO this
that or the other thing, by mandamus or otherwise
do not feel called upon % say more, but refer Al
concornsi 10 the decision above quoted.
". G. BRowELow,
Governor Of Tennessee.
April lSth 1905
Threats OF Violence,
We the Senior Editor, have received, at sund!