The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1875-04-24

supported. There are many laws requir-
ing duties to be performed, which contain
in themselves no appropriation of money
TO execute them, yet certainly they are
not unconstitutional on this account.
Most Of the items of the general appro-
priation act are intended to cover such
cases. A law may be imperative because
no means are provided for carrying 1t
out, but not unconstitutional and void OF
this account.
do not think it Is good policy for the
: State to become beneficiary of any OF her
citizens, but the Legislature has passed
upon this question, and in the discharge
of my official duties | cannot hesitate, be-
cause the policy OF u law does not accord
with my views.
You urge Inc "to present the questions
involved to the Courts for determine
ton or "to meet the question before the
Courts, where it will be brought by other
parties" can only lay down certain
general principles which ought to govern
in so grave matter, without entering
into a general discussion of the points
raised by your request.
The Constitution declares that "the
Legislative, Executive and Judicial De-
partments shall be separate and distinct,
so that neither shall exercise the powers
properly belonging to the other The
| three departments are therefore indepen
dent and co ordinate, neither can assume
To control or regulate thS action OF the
| others. But if the action of the EXecu-
tive Department is to be subordinate to
the control of the Judiciary, if the Courts
are to determine whether or not the Gov
ernOr is to exercisepowcrs 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-
nict of authority; that all the depart
ments must work in harmony. The
moment either department steps out Of
lis own limits and assumes to supervise
the action of the others, this theory, this
fundamental principle of government is
violated, and hopeless confusion results.
Legislature from passing law which
they may have reason to believe Is un-
constitutional, but afterwards, "in pro-
per case, they may pass upon the uncon-
constitutionality OF ii. In the same way
the Courts have no authority to restrain
the Governor from executing alaw, Orpre-
scribe the mode iE which he shall execute
it, but afterwards they may ain n proper
case" decide upon the constitutionality
of the law itself, or whether it has been
duly executed Many illustrations could
be given, tending to show that this is the
true rule but | will not stop to refer to
them. Ifyou adopt any other principles
Won not only make the executive subordi-
nate to the judiciary, but You substitute
the conscience of the Judge for that of
| the Governor. If the Governor is thus
| subordinate 10 the control of the court,
| then the Judge of one circuit, believing
law unconstitutional. can restrain him
| from executing, while the Judge o!
another circuit, believing that it is Con-
stitutional, may issue q process TO COM
pei its execution by the Governor; and
thus lie would necessarily be in contempt
of one court or the other, no matter what
his action 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 10
be impcachcd by the Legislature for fail
ing to execute law, and he could not set
up in bar of the prosecution the judgment
OF Il court prohibiting him from doing so.
Each department, Legislative, Executive
and Judicial, must judge of the constltu-
tionality of It's own action, and neither
can decide for either OF the others; each
department must assume the responsible
ity of its own action; il cannot divide the
responsibility with the Others. If the
Governor executes law that is unconsti
tutional, he takes the risk of an impeach-
mcnt; if he fails ~ execute one that is
constitutional, be takes a similar risk
and it 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
be correct than that of the courts, but
merely that under our form Of govern
mcnt his opinion must control his own
official action, whether that opinion is en-
| titled to much or little respect. Most of
his duties require prompt, decisive ac-
! ton; they will not permit the delay Of
| judicial investigation. But afterwards, in
proper case the courts can pass judg-
mcnt upon the constitutionaity of his ac-
| ton. 1t would be anomalous and without
precedent for court, before any act Is
! done under II law, to assume to pass upon
| the naked question offs cOnStitutiunaIity.
am not aware that the attempt was ever
made except in one case-Mississippi rs
johnson, President, i Wallace, p. AS. In
this case the Supreme Court Ofthc United
| States refused permission to file the billii
1t may BE- said that the duties imposed
upon the Governor by the act in question
are merely ministerial, and therefore sub
icct to the supervision Of the Courts.
| But it is misnomcr to say that the chief
executive officer of State perform any
ministerial duties; no matter how plain
and simple they may be- they are eHecu-
tive. As the term implies, ministerial
! duties are such as are performed by sub
! ordinate officer who Is subject to the ju-
risdiction Of superior. That the Gov
ernor is not subordinate officer | have
already attempted to show. 1t "A prop
/ osition which cannot be seriously qucs-
toned. On tins point allow me to refer
YOU to the case Just named in 4th Wal
! lace; also to the very able opinion in the
case of the State rs. the Governor, l
butcher. New Jersey T. p. 53l; to
! Hcwkins rs. the Governor Arkansas
70 p. $40; and to Kentucky Is. Dcnni-
son, Governor, u Howard, p GO.
Should | consent to comply with your
request, it would avail nothing, if | am
correct, that no court could take jurisdic-
tion in either phase Of the subject pre-.
scented 10y you, for it is an undisputed
principle that consent can not give jlris-
diction. And in the case referred to, IN
| butcher, the Governor consented that
the court should take cognizance of the
matter, and ycttLe court refused to inter
iere.
If the Act is unconstitutional and