The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1883-02-08

courts. ii man lives In TINS state ne cdnnoL I
make the state treasurer ipay him his dues, II 4
he should be pleased TO withhold them, nor i
can he compel the commissioner 10 issue I
patent to his land If he arbitrarily declined to /
do So But If he moved to another state the |
federal courts would be open 70 him, and he |
would have a speedy remedy.
Such are the fruits OF section No. l. Our |
own courts may respect IL and decline to put |
our own citizens in possession of their rights. |
but the federal coyrts will not. and under the |
constitution OF the Uuited States should not,
and will place nOn-reSideSt in possession OF
all of his rights.
Thus those who bear the burdens of govern
ment are deprived OF its benefits. and an in
vidi0us distinction is made against our own
citizen.
The law has existed too long 1t should be
repealed, because It is a breach OF the original
contract between the government and the peo-
pie. and It is but robbery TO extort from the
citizen taxes when he is furnished no legal
remedy for his injuries The lay should be
repealed, because II violates both the letter
and the spirit of the constitution, which says
that the courts shall stand open, and everyone
for an injury done him N MS lands, goods:
due course OF law. The law should be repealed,
because II attempts 10 elevate our officers, who
are but the paid servants OF the people, above
the law and the courts of justice.
The law should be repealed because IL would
lead to all manner of corruption, Partially,
favOritism and abuse In the departments.
Wherever dictatorial powers have been lodged
they have been abused We viii never see the
time when men cannot be found who viii
lllUk Is uOt SApcu4cul just now 10 Icptdhl Tic
law
Mr.. Gooeh said: The senate has under
consideration the bill 10 repeal the stat
ute which prohibits the courts from
issuing a mandamus requiring any mem
Der OF the executive departments to per-
form or abstain from pei forming any duty
discretionary or ministerial. am opposed
to the bill. Those who advocate 1t, IL
seems To me, have not 4 correct coneep-
ton of the provisions of our constitution
or the principles OF the theory upon
which our state government Is based.
Article OF our state constitution incor-
porates the idea, II not the exact lam
guage. OF former constitutions dietatory
OF the true theory. 1t reads as follows:
Art. 2, sec. !. The pc Sers of the gov
| g nmeut of the state of Texas shall be
| divided into three distinct departments,
each OF which shall be confined TO sep
crate body of magistraey, to-wit: Those
| which are Leg islative 10 one. those which
are executive 10 another, and those which
are judicial to another; and no person or
collection Of persons being of one of the
| departments shall exercise any power
properly attached to either of tue others,
except In the instances herein expires ly
| permitted"
Tue distinguished senator from Cook
! DIR. W. o. Davisl asserted before this
| senate to my establishment Tor Il Is justly
distinguished for his learning and erudI-
tiOnJ with an esTnestness that indicated
| ca id0r, that the laws Of this aud
| ali other states and governments
| have ever maintained that the
judiciary department OF the government
! should decide the duties TO be performed
by ;he other coordinate departments,
and compel their performance. For the
information OF those who may not have
given this question thought az there be
| such other than the gentleman from
| COoS}. produce the following legal au-
thorilies; Mr.. COolty, in the fourth
edition of his great work on constitutional
limitations. on page 90, section 30, uses
the following language; whenever
anyone is called upon 10 perform any
duty, or 10 do any act In spect 10 which
II can be supposed that the constitution
has SpOk en-, it Is obvious, that question
OF construction may az once arise upon
whis h some one must decide before the
duty is performed or the act done. From
the very nature of the case, this decision
must commOniy be made 10y the person,
body or department upon whom the
duties deYolve, or from whom the sct Is
required"
Our state court OF last resort has cou-
siGered this questions;
Justice o, NJ. Roberts, now dlstin-
guished alike as q juIist and statesman,
and AS equal. IL not su peTlor, to any OF his
generation, in constituting the section OF
The constitution above quoted, in the case
of Houston Tap aud BrazOri railroad
company Vs. Randolph, "a Tex. Rep. pp.
3-Sl uses this language: "lf TIL legi-la-
tive department exceeds its authority.
| Snd assumes to ad udIcate the disputed
rights OF parties, It vests no right aud is
repudiated by the judiciary when right
is sought TO be based on such act I'm a
trial of law or in equity Still this is DO
more an assumption of undelegated power
than judicial legislation. The officers of
each department are chosen by the peo-
pie with reference to their capac-
ity aud general fitness TO dis
charge the peculiar duties Of that
| department. They have right
to expect that the respective duties al
! lOsted to each dep4 tment shall be per-
formed By those they have chosen to per-
form them. They would be not little
surprised 10 find that all the chief exeeu.
. tive officers, the governor and heads III
departments elected by the whole people
OF the state, we're summoned before the
, district court of Travis county and re-
CURED there TO CONTEXT the propriety OF
any Of their official acts, done within the
scope of their authority ; and perchaDet
after u tedious struggle, the fac in issue
being tried and determined by = Jury oil
twelve men, citizens OF Tral is county
) compelled, under the penalty of attach
, ment and imprisonment for contempt, tC
; do an act which they haC
, refused 10 do acting under theil
, oath of office, and under
sense of responsibility to their cOnstitu
. ents Ii the court assumes to act, il
: must carry out its judgment What i,
. The consequence: The governor is re
r quired to sign a patent 10 land. 1t Is
mere ministerial act by writing his name
, The right OF the plaintiff has been made
clear in the district court, aud the reasons
l. 81 TOR hi aul .srs
i not deemed sufficient by the distric
! Judge. Tie governor, under a sense o
l duty and to resist aggression upon hi
! official rights, is obstinate and will no
= | obey the mandate of the couIt-wil no
i write his name officially as governor o
5 the state of Texas" 'pon compulsion
+. the sheriff of Travis county must enie
: the governors mansion with his post
and take D session or the gov
/ ernor and put him in Jail and Reel
: him there. until he write his name upoI
y the land patent.
r II some of the numerous creditors o
l the state land numerous they may be, i
I they are not now) are refused payment o
! their demands at the treasury they mal
send the comptroller and treasurer o
S the state to keep company with the gov
5 ernor in jail. But suppose that, actuateC
by our tTadi VeneratiOn for the law
and those who administer 1t. these tigl
a ment yield their judgment, obey th'
mandate, sign the patent, settle the &C
a | count, pay the claim out of the treasury
9 who administers the government, they o.
8 the district judge? Who takes ear,
: that the laws are faithfully executed
y the governor or the district iudgef Surel,
\ | not the governor. IL he must Obel
' the mandate of the court, In the per
; ! Torrance of al official duty.
{ This remedy is not permissible in an
; | case, unless the duty of the officer TO III
! the act required Is PLAIN, IN the opinion
. OF the court. Now, 1t the duty be plaza
2 | why should We not suppose that thss
e high execu I've officers arc as capable u
/ Discerning it, aud as anxious TO do thei
duty as the district judge or any othe
: Judge or court? They have equal, if no
4 greater, means of asrsrtaining the true
e facts OF the case they have a legal ad
e wiser they se selected for their jndg
q ment snd discretion in such matters
y their sense OF duty IL equal; they egalI
ACT under an oath Of Ofhce-~by not. then
= consider their judgment final up
/ on the matter, rather thai
t gave al appeal to coordinate depart
/ menti A recognition OF such an appes
e would render the judiciar, not co-ordin
=, ate but superior to the executive depart
y meDt, contrary to the plain design of TIA
S constitution of the state"
In the same case, on page 839. it is said
: 'But suppose The case of state Unde
4 great embsrrassments in its fiscal affairs
V witch an empty treasury and only Occa
4 sionally replenished by annual taxation
The best financial talent is called int
requisition 10 disenthrali its finances
Irwrn- - : 4.