The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1881-02-25

! the head of some state department
in all Of them mandamus was re-
fused: Hawkins cS. Governor, l
Pike, $40; Law CS. Towns. 8 Gro. r.
$50; People CS. BisSell, 10 Ills, 800 ;
State US. Governor, Dutch, 331 ;
Houston sc. r. r. Co. cS. Randolph,
"a Texas, 81; Sennit Petition, 81
Maine, 5U8; Chamberlain CS. Sibley,
4 Min, 300; State &c rel BARLEY CS.
Governor, 39' Mo-, S8S; Maurun,
Adjutant General, US. Smith,
Governor, 8. r. ] 1872. There are
cases which decide that manda-
mus against a governor may be
issued, directing the performance of
ministerial duty, but the weight
of authority is greatly the other
way, for the reason the courts do
not and will not put the judiciary in
conflict with the executive, and that
it was never intended they should.
In the language of the defender of
the Constitution, "a separation of
the departments, so far as practic-
able, and the preservation of clear
lines of division between them, is
the fundamental idea in the creation |
of all our constitutions, and doubt !
less the continuance of regulated |
liberty depends on maintaining
these boundaries" Webster's works,
vol. 6, p. 122.
In the case of the United States
&c rel Goodrich Us. CUTLERY, secre-
tary of the treasury, II How. 2S4,
the court says: The power of the
courts of the United States to COM
mand the performance of any duty |
by either of the principal executive
departments, or such as is incum-
bent upon any executive officer of
the government, has been strongly
contested in this court; and, in so
far as that power may be supposed
to have been conceded, the conces- +
sion has been restricted by qualifi-
cations, which would seem to limit
it TO acts or proceedings by the Off
GERS not implied TN the Se0erGL and
Inherent functions or duties incl
dent to his office, acts of a character
rather eXtraneous, and required of
the individual rather than of sthe
functiOnary. In the same case the
court says: 1t is admitted that by
no act of an executive
officer can be examined which in
wolves the exercise of his judgment
or discretion.
In Decatur Us. Paulding, IA Peters {
p. 497, c. j. Tanney says: Nor can
it (the COURT, by mandamus, act di- j
rectly upon the officer, and guide
and control his judgment of discre- j
ton in the matters committed to his ,
care in the ordinary discharge of his l..
official duties. al
The interference of the courts with {
-he performance of the ordinary +
1uties of the executive department !
If the government would be produc- $
i've of nothing but mischief, and we i
ire quite satisfied that such power \
vas never intended to be given to t
5hem." Commissioner of Patents a
IS. Whiteley. 4 Wall 534. Gaines Us.
Thompson, f. Wallan, p. 351.
1t is my opinion that the action of !
he Governor of this territory in de-
;laring who is, or may be elected
delegate to Congress, and in issuing
certificate of election to the person
Who may be by him declared to be /
elected, is a part of the ordinary e
of his official duties, as c
he executive of this territory; that L
he declaring of any person elected
nd issuing certificate of election
o such person as required of him
" Section 1862 Of the United States 4
revised Statutes, 1878, are acts re- |,
.uiring the exercise of judgment
nd discretion, and this court can
lot by writ of mandate direct what
particular course of action he shall
T shall not take in the performance
f an official duty within the sphere
f the functions of his Office, when
be exercise of any discretion is re- d
uired, and that directing him by a
eremptOry writ of mandate to do
n act within the scope of his Off I"
ial power, which he has on de- y
land in the exercise of his discre- ii
ion refused to perform, would be ii
a grave responsibility I'M p
by authority or law, a
which might result in irreparable d
mischief. b
The demurrer will be overruled as o
o the second and fifth grounds of b
emur, and sustained as to the first,
bird and fourth grounds.
When the reading had been COM
leted Judge Sutherland arose, and
aid he understood that the effect of \
the three points was to 2
old that the mandamus did :
lot lie, to which Judge Twiss gave
n affirmative answer. Mr.. Brown
aid he would appeal from the deci- L
ion, and after some talk between
it was settled that Judge
should draw up the find
ngs and present them this morn G
ng, when Mr.. Brown would form n
lily take an appeal. C