The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1875-04-23

HANHNAtI HNAehAAA6 W eAN bNINAH
three departments are therefore indie
pendent and coordinate; neither can as
sumo to control or regulate the action Of
the others. But il the action Of the Exec
utive Department ia to besubOrdinated to
the control Of the Judiciary, ifthe Courts
are to determine whether or not the Gov
ernor Is TO exercise powers conferred
upon him by the Constitution or the laws
OF the State, then this independence Of the
several departments would be destroyed,
or conflict OF authority be brought about
between the Executive Department and
the Judiciary. But the theory Of our
Government is that there can be no con-
ilict Of authority; that oil the depart
ments must work in harmony, The
moment either department steps out Of
its own limits and assumes to supervise
the action Of the others, this theory, this
fundamental principle OF government, Is
violated, and hopeless confusion results,
The Courts have no power to restrain the
Legislature from passing n law which
they may have reason to believe is uncOn-
stitutional, but afterwards, "in proper
case" they may pass upon the oOnstitu-
tionality OF It, In the same way the
Courts have no authority to restrain the
Governor from executing law, or pre-
scribe the mode in which hO shall execute
Il, but afterwards they may sin proper
CASE decide upon the Constitutionality
Of the law ftseli, or whether It
has been duly executed, Many illus
trations could be given, tending to show
that this is the true rule, but ] will not
stop to refer to them, II you adopt any
other principles, you not only make the
executive subordinate to the judiciary,
but you substitute tho conscience Of the
Judge for that Of the Governor, II the
Governor is thus subordinate to the con-
troll OF the court, then the Judge Of one
circnit, believing q law unconstitutional,
can restrain him from executing, while
thcJudge Of another circuit, believing that
It Is Constitutional, may issue process
to compel its execution by the Governor;
and thus hewOuld necessarily be in con-
tempt Of one court or, the other, no matter
what his actisn might be-, take It that
the court can neither compel nor restrain
the Governor in his executive duties, can
neither punish him, nor remove him
from Office for neglect OF duty. He Is
liable to bC impeached by the Legislature
for failing to execute u law, and he could
not set up In bar Of the prosecution the
judgment Of court prohibiting him from
doing so. Each department, Legislative,
Executive and Judicial, must Judge OF
the Constitutionality Of its own ac-
tion, and neither Gun decide for
either OF the others; each depart
ment must assume the responsibility
Of its own action; Il cannot divide the
responsibility with the others. II the
Governor executes u law that Is unCOnsti-
tional, he takes the risk OF an impeaCh-
ment; II he fails to execute one that IL
constitutional, he takes a similar risk
and II Is therefore absolutely necessary
that he should be left free to decide the
matter for himself. | do not, Of course,
assume that his opinion Is more likely to
DO correct than that OF The courts, but
merely that under our form OF govern.
nent his opinion must control his own
official action, whether that opinion Is eli.
titled to much or little respect. Most Of
his duties require prompt, decisive &c
tiOn; they will not permit the delay Of
judicial investigation, But afterwards, in
n proper case, the courts can pass judg-
ment upon the constltutiOnality Of his nc.
tiOn. It would be anomalous and without
precedent for n court, before any net Ia
done under n law, to assume 10 pass upon
the naked question Of It's constitutionality.
am not aware that the attempt was ever
made except in one Case-Mississippi rs.
johnson, Presidents Wallace, p. 40. In
this case the Supreme Court OF the United
States refused permission to file the bill,
II may be safd that the duties imposed
upon the Governor by the act In question
are merely ministerial, and therefore
subject to the supervision Of the courts.
But II Is n misnOmer to say that the chief
executive officer Of State performs any
ministerial duties; no matter how plain
and simple they may be, they are cxeCu.
tive. As the term implies, ministerial
duties are such rs are performed by a
subordinate officer, who Is subject 10 the
Jurisdiction Of n superior. That the
Governor Is not subordinate officer !
have already attempted to show. II Ia q
proposition which can not be seriously
questioned. On this point allow me to
refer you 10 the case Just named In 4tll
Wallace; also to the very able opinion IN
the case Of the State ". the Governor, |
butcher New Jersey IL, p. 33l; 10 Haw.
kins "a. the Governor Arkansas l2), p.
$40; and to Kentucky n. Dennison, Gov
crnor, "a Howard, p. GO.
Should ! consent to comply with your
request, II would avail nothing, II am
correct, that no court could take jurisdic.
ton in either phase Of the subject pre-.
sented by you, for II is an undisputed
principle that consent can not give juris.
diction. And in the case referred TO, in
butcher, tho Governor consented that
the court should take COgniGance Of the
matter, and yet the court refused to inter.
iere.
II the Act Is unconstitutional and void
IL may be that the disastrous effect" Of a
removal Of the Capital to Wheeling,
"wonld be that every net performed there
which is required 10 be done nt the seat
OF government, would he illegal and
void" But on the other hand, II Il should
turn out not 10 be unconstitutional, what
then? Would not the same disastrous
effect flow from the attempt to discharge
official duties In Charleston7
Ia not obedience TO the law the only
course for an executive officer to pursue
in this case9 With my views tipon this
question, l could not even Justify my re-
flsal TO execute the law by the claims
that the Act Is unconstitutional. And az
members Of a profession who are trained
to the highest respect for the COnstitu-
tuition aud laws Of The land, | know you
will not expect me to fall short Of my
constitutional obligations, however much
we may differ in opinion.
JoHS j. JACoB.