Arizona weekly citizen., 1889-07-13
Opinion by BARNES, A. J.

Opinion by BARNES. A. J.
 It will be conceded that the Governor the head of the Executive Department of the government-is not amenable to the Ju jicial Department by mandamus, to direct him in the exercise Of any of the powers entrusted to him as such, whatever the degree or character of the discretion imposed upon him.
 The Executive and Judicial depart ments have separate and distinct func- tions, clearly marked out and each IS independent of the other.
 The authority to direct the Governor by mandamus ii denied by very high authority and the difficulty of the en- forcement of the writ has been suggest ed with great force. The Court ought aot to issue the writ unless 1t IS pre- pared to enforce it.
 Without the means of enforcement the writ would be idle. Yet to enforce t, might deprive the Territory of the executive and public safety be Ieopar- lized. Low vs Towns Geo. 360. Flaw kins vs. Gov. Ark. 570.
 The right to direct the Governor has been limited to the performance of a mere ministerial duty where such an act has been required of him by law, and where the act is such one as might nave been imposed upon any other per son and to enforce vested private right.
 This was the limit in the case of Kendall vs. U. S., 12 Peters 524. Even in questions affecting private right, if the final decision is with the executive and the act is public act, he is inde pendent.
 People vs. Bissell, 19, Ill. 229.
 States vs. Chase 5, Ohio 535.
 Chamberlain vs. Sibley, Miss. 312
 Harpening vs. Haight, 30 Cal
 People vs. Hatch. B III, 9,
 Marburg vs. Madison, Cranch 3S4.
 In the latter case the Chief-J Justice declared:
 Tt is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety of issuing a mandamus IS to be determined. Where the head of a de- partment acts in case in which eXecu- tive discretion is to be exercised, in which he is the mere organ of executive will, it is again repeated that any appli- cation to Court to control in any re- spect his conduct, would be rejected without hesitation. But where he is di- rected by law to do certain act affect ing the absolute rigkts of individuals in the performance of which he is not placed under the particular direction of tho President and the performance of which the President cannot lawfully forbid. and writ may issue"
 Here is an application by Trustees of o9 ,o1 ol, ha Tvn sane Asylum-a branch of the executive and whose commission they hold as authority for the public duties they perform, seeking to mandamus the to perform a public duty. They have no personal vested rights.
 They ask as officers; not as individuals. No authority can be found where man. damus has been issued against Gov ernor of State or Territory in such a case. It is civil remedy for the pro- tection of purely civil rights. High, on Extraordinary Legal Renle dies, Sec. 4S0 ct ct seq. and eases cited: People vs. University, 1 Mich. 9S. High. on Extraordinary Legal Reme- dies Sec. 11S ct seq. and cases cited. The act which is sought to be enforced upon the Governor in this case is ono that IS included ID the inherent func- tons of his office. He is the official head of the Executive Department Of the Ter ritory, and as such the territorial, penal and charitable institutions are subordi- nate to him. These trustees hold his commission, and.he must see that the laws are faith fully executed by them. One of the means of doing so is to be found in the act sought to be enforced in this case. With it the Courts have nothing to do as the Governor must take the responsi- | Dility and it cannot by him or against ] him be sifted upon the Judicial depart 1 nent The writ is denied.
 JAMES H. WRIGHT,
 Chief Justice, J. E. WALKER, Concurring. ]
 Clerk. Esilaa 1.,lu S- 1S2O