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

~ a Ni1ilCH iistS Just Cldilu against
one of the heads of the executive de-
partments (and many do have them),
by this law you say to him that no
writ of mandamus, Injunction or
Iother eXecutory or compulsory writ
can issue against him to compel
him to do a plain duty required
OF him by law, or TO prevent him from
doing an injury by a wrongful and
abusive use of his discretionary pow
ers.
Thus you can create in this boosted
land of liberty dictator WHO'S above
the process of your courts, and above
the law of the land. But gentlemen
tell us that If one of the heads of de-
partments abuses this discretion and
refuses TO do his duty, that i'm
parchment is the remedy. I'm
parchment by the legislature
and by legislature, too, who Is even
unwilling TO repeal such an odious
law. An humble citizen who feels
that his rights have been violated.
would be pitiful spectacle appearing
| before the legislature with articles Of
impeachment against one of the heads
OF the departments. Gentlemen say
that if you repeal this law that the
state would be overwhelmed with
suits brought aginst the COM
missioner of the land Office.
Grant it that there would be suits
brought, and that it might inconven-
lence the commissioner, is that any
| reason that parties who have rights
should not be allowed to assert them
in the courts? The people elect these
officers to execute the laws, not to con-
strue them, and even the humblest
citizen in the land, who feels that
he has rights that have been violated
by these autocrats, should have
the poor privilege of appealing
to the courts to determine whether or
not the discretionary power vested in
the heads of departments have been
abused. These heads of departments
are often not lawyers; they frequently
do not know all the law there is in
the book, and often in the use of their
powers unintentionally they violate
the rights of others. and all we ask is
that every citizen of this state
may have the right to go to
your courts, that are elected
by the people on account of their legal
learning, their wisdom and Justice.
and get a decision of their rights.
People seldom complain when such
men as Ju iges Willie. Stayton and
West have rem cred judicial deci-
sion touching their rights. The fed
eral courts grant writs of mandamus
and injunctions against heads
of departments and at this
present time there are two or
three suits of the kind pending.
Then will you still let this law re-
main on the statute books and DENY
to your own citizens the privilege
that Is granted to citizens of other
states through the federal courts?
The senator from Harris cannot sec
but that the citizen can in every case
have his remedy without repeal Of
law. He says that if man has an
equitable right to tract of
land and has made his sur
vey and filed his certificate
in the land Office, that if any indIvid-
ual trespasses on his rights that the
courts are open to him, and that he
can maintain his suit on his equitable
claim without having obtained his
patent to the land. This l grant to be
true, but it often happens that an in
dividual has acquired equitable rights
to land by virtue of his file and sur
vey, which is not contested by any In
dividual, but at the same time will
NV OC dllOhCu w III tnC ldIlu
Office, or if filed no patent will be is
sued, perhaps, because, in the opinion
of the commissioner, some rule of law
has been violated. In that case what
is the indiYidal to do? Must he wait
orever or must he he permitted TO 20,
to the courts to have his rights deter.
mined by the courts whose privilege
it is to construe the laws.
Mr.. President, | think when we
make laws they should be equal and
just laws / believe in giving heads
of departments discretionary powers,
but when these powers are abused, or
misconstrued, believe that the poor
est and humblest citizen in this land
who feels that he has been wronged,
should have the privilege of compel
ling the proudest autocrat to perform
his duty under the laws and constitu-
ton of the state.
Mr.. Kleberg said The minority re-
port offered in lieu of the committee
report attempts to repeal section of
the act of 1881, which prohibits the
granting of any writs of mandamus,
ETC., upon heads of departments.
wish to protest against the adoption
of the minority report and the repeal
of this statute. The constitution Is
explicit in keeping distinct the co-or-
dinate branches Of the government,
and the executive-whieh includes
the heads of departments-is as indie
pendent, and is II Vveestea with tAesame
discretion as any of the other TIVE
coordinate branches of govern :,
ment. 1t seems from the ar
gument of senators of the opposition
that they desire to transfer the indie
pendence and discretion Of the execu-
tive to the judiciary. From their
side it appears that the supreme court,
to the exclusion of all the rest, has.
this discretion. ] take IL that not
only is our constitution, article Z.
abundantly explicit upon this subject.
but that it is a constitutional princi-
pie imbedded in all constitutional law
and as old as the hills That each
branch Of the government is invested
with judicial discretion. II this were
not true each branch of the govern
ment would have to suspend its con-
struction of a plain duty until it could
obtain construction from another,
or from the supreme court, as senators
seem to imply. Such condi-
ton of things would he de-
structive of republican institutions
and of the genius of our government.
Frequently heads of departments are
called upon to act upon the spur Of
the moment, and they cannot wait for
judicial constructions.
Mr.. Davis-What is the remedy of
the citizenp
Kleberg-It is at the ballot box;
and when an officer grossly
and fiagrantly violates plain
duty and tramples under foot the
rights of a citizen, it is impeachment
An officer who occupies as high an
office rs do the different officers OF de-
partments, is presumed to do the will
of the people, and the instances of
violation of duty are exceptions and
exist only in the fancy of senators.
Where does this complaint comefrom?
What officer has violated his dutyf
This clamor for mandamus has no
uncertain sound, and it attempts to
do that which every senator here UNI.
derstands: that of permitting the
federal judges to make inroads
upon the judicature of this state
thing which Democracyin solemn con
vention pledged itself to Oppose
danger which we have promised TO
avert from the people Of Texas. and
one which, when once permitted TO
make an onslaught upon the executive
departments of Texas, will destroy
her state institutions and imperil the
Ekorffaa If har r,QOnla I frIIcf the.