The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1888-11-27

not SuDJected t0 the jurisdiction or The court as
an actual and real dcfendant?"
There is class of c,ses against officers in
which suits are held to b. allowable, although
the officers were acting under orders or authori
~ Of the government. This is where they ex
coed their authority, and in their action commit
tort. ala these cases Che off1ceD is not sued
as, because he is the officer OF the government
but as an individual" Cunningham VS.. NJ icon
& Brunswick r. r. Co. Supra.
There is another large class of cases in which
suits against officers OF the State have been sus-
tanned. though il was to enforce oblig atoms of the
State or To compel performances OF some act au-
thoriz ii by law OF the State in behalf OF any one
who may have had substantial interest in its
perform nce "a IN act on the part of the State.
Thus where statute makes an appropriation of
money out of the treasury Of the State for Ger
tain defined purpose, and directs its payment by
the proper officer, leaving in him no discretion
to be exercised in regard t" its payment, the par
" entitled may, on refusal ut the off .er to pay
him. have writ o mandamls against him to
compel the payment. and The State need not be
party. High on Elk. Rem, Secs. l01 104 So,
AS to the performances by an executive officer Of
any ministerial act for the State not requiring
the exercise of discretion. Ibid Secs. 107,
10, 1877.
This is sometimes treated in the discussion of
cases as if connected with the non liability of
State to be sued, and as an exception 10 the rule
which fDrbid> suit ag inst her through her Of
tirers; but we think this is not strictly correct,
AMI that in his country at least in regard TO ex-
ecutlve officers, entirely different QUESTION is
involved, tp-wit the authority Of one depart
mcnt OF the government as constituted here 10
interfere with the functions appertainng to
another. And we treat the case before us in
this view, SO far as itdepend> on the point raised
by counsel growing out OF this doctrine.
The point referred to is, that while in the
class OF cases jnst mentioned suit against an Of
hcer refusing to act will be sustained, on the
ground that the law speaks to him as Il ministe
ria! officer without discretion as TO the thing di-
rected to be done, on The other hand if the lave
invests him with discretion in doing it, the
courts will r-tuse ~ interfere with that discretion.
Towle vs. State, , Fla, 202; H,h on Elk REM
Secs AZ 80 This is not contested nv the OppOS-
ing counsel, but he meets il on the ground That
the whole gi,t Of the K lilroad Companys case
Is that HE Commission nave no discretion which
authorizes it To fix rates in The manner fxed in
this CASE; (tnd) admits that if the ACT of the leg
stature giv"s Il such scope lis discretion i absO-
lutte between the neIher limits ola living interest
upon The Investment and the upper limit Of at
ttlnnbir profit, bat il not q below the neither
lllnll, ipr then II trenches UPON constitutional
riyr's. When there is ~ power, thrre can be
10 discretion, and The Commission reaches the
INNS "i lls power when il is downward curse
~ t.,ucHOn il Peaches jhe point where 4 further
descent would deprive the raiitoad company of
4 Ji~i CON l'fiSttlOn LOT us PROPERTY.
The~t. j. no Denial ana could be none, Is VIII
i'e evident from 81 -h consideration o! sec ioas
5 aud OF the at qn'.ir above, thai il gives d.-
ctctinn 10 the Com >;Ouers III the fixing Il
fcr -OH DIE and lust rat, AMI HPDN, tai~ quail
IL. denial Is bur saying ti'ai the Cnmmi sion cy-
ercise! il, discretion t" y wrpnG'u: extent. Ii
III " b., era l'ci that II tir rn:prcrny thc rates
com laircd ~ the cOmptnv Wrud nav is drop
criy taken wi;hou, just compcus tj3On, OF would
be dcprvcd nt it, property without due process
ui itM the first would b., violation IT ihc m
s'itItlon ~ The state, The second II violation of
'he Constitution OF HE United states. ANA that
neither the L"giSla'urc. nor the Commission an
der her law, could do either. I}ut we ara. not
AT this point called npnn 10 whelhe. such
would b" the effect ct thos. rates, or whelherihe
court has authority t" aljr,iica:e u;on ;h" rea-
: ~ s'fn 81 ia" rates. % whether the lad1 men
a. III" { )mmiSsiOD A. 10 rc;l>0natltnrsS j. 10 he
taken "a conclusive" Tnrs- qU stinns cX-
chnlei from our cnnsi :-rl'ion, bv The nc5 lii;lt
til" law rel l>"S authority To enjDin the discre-
1tonary action nt cXecu'lvr officers Il does not
mut"i maj lhe eX + isc II he dis rction WORKS
an injustice or wrong II May OF thc l"ror cd
c ,S'> that ot ToWle vs.. State for one the inlDi-
t."n was ID :" apply, though The officer was
legally wrong ~ fls'r'nc'nSon reached as % he
rights OF The parry VIII '>e WAS brou1ht with
in ms discrcp, And W. do not see thaj it
makes any diiterrGc" whether those lgits are
ionndftf on nle'e }tgal protection or on C''n>tl-
tut Onal prOte.iinn The simple test is whether
the decision OF The officer j. one his discretion all-
thoriz,s h'm to make and it l. is the court is
ppwercSs to control him. Wher- this discretion
exists mandamus does cot lie to direct The man
ner Of its use, nor viii Injunction step IN to con-
lrOl or intercept lis use.
1t is proper To say, however, that this restraint
upon proceedings by the court does not intend
denial OF The legal or constitutional rights Of any
person, hut onl ~ that the party aggreivcd mast
seek his redress in some other way than by ii
suit against the nffi"er in flul1. In the present
case, tor ms aurr, II the Commissioners haXeeX-
creased 'h"r discretion in \ manner u invade
the i-@tl or Constitutional rights of the com
ptutnt lhal VIII be AVAILABLE ior tivt.nc. IN any
action against said complainant founded ca The
volrtl N .. The regulations oi The Commissioners.
Ih.s i clearly rccpscniz II in the case OF IN re
Ayers, where ihr court. though holding tie in
junction agsins, Sat- officers restraining item
from bfn!sing suits IN the name o. the Sla,e 10
b" VOID, i"'naiel in rights which cna,d not b..
thus enforced cou.a be projected IN lctrnce of
suits against the iniutcd party. See opinion pp
1915
1t the act creating the Commission WIS unc0n
Sj'fntpnal and vpd j, may DC thai Tie Com.
m'SNnncIS, rot in slch case being Officers bur
only lli'lINitutis really unci0lheI with Office
would t'c Snbl"ci IL sni' II void &c. could not
confer any discretion ~ them; but It's consiitu-
iIonaNlV - not contested, except against the cx-
tent ot power caim II for iilu Commits ,ion-''the
power OF the Legislature 10 create a COM
ms rlon with power to III ,liA schedules winch
shall be primi t;tcfe evid nee o. reasonab!ene,s
OF rates fixed 10y H." not being doubted bv the.
compny's counsel, saw that " it cannot m ,k,.
them conclusive In regard 10 this, it is said