Omaha daily bee., 1898-05-15

could do no wrong, he therefore could not
be mandanused by himself The Judges o'
the Kings bench who acted as the sersauts
or officers Of the king could not issue a
writ requiring the sovereign to act. Neither
tan our highest courts issue n writ to o,ir
soveitigns. the people. commanding them
TO act In certain manner. but to say that
the courts who are by the constitution
clothed with the exclusive power OF inter-
preting the law cannot by their mandate
require a coordinate branch OF the gov
ernment to obey the law as so interpreted
is TO maintain that the executive is not OILY
to execute, but also to pass Judgment upon
the law, thereby creating him a law unto
himself. The logic Of respondents position
Ia that after q certain law Is placed upon
the statute books prescribing certain ex-
ecu!lve acts the court shall not say how
that ministerial act is to be performed. This
Capitalization Of power in one official sub
verts the very division Of powers contem-
plated by the constitution. The exemption
OF the governor as claimed by the respond
ent is the shadowy relic Of a doctrine Of
mcdiaeval times, pertaining alone to SOW
ereignty, and can have no place in free
republic, where the sovereignty Is In the
people and where the constitution provides
for the performance Of the executive du
ties by other officers in case of absence. dis
ability, resignation or death.
The governor Is merely the head of the ex-
ecutive department Of the state government.
His colleagues are by section l. article v, Of
the constitution. the lieutenant governor,
secretary OF state, auditor, treasurer, super
intendent OF public instruction. attorney gem
eral and commissioner Of public lands and
buildings, and certainly the reason of the
| rule OF exemption from mandamus applies
| as forcibly to one as to the other.
The following, among the numerous ad-
publications Of this court awarding the writ,
not alone against the governor but also
| against other members of the executive de-
| partment, certainly settles the rule in this
state in favor of the issuing OF the writ :.
State against Babcock. 10 Neb.. 23O: state
| against Benton, 25 Neb., 27S, 756: State
| against Babcock, 90 Neb, GA: State against
Holcomb, 46 Neb.. 612
| Referring To other cases Tho ro,o,or save.
'N
Subject to Mandamus.
This court has in the two cases renorted
| in 31 Neh state aga;nst Thavor naro 90
| and State against Elder at mage 1ea nIaced
| the right to issue a mandamus IN tha 60
ernor or other executive oficer n nerforn,
| a ministerial duty bevond controversy In this
state. Especially in the case ~ State
against Elder does Judge Cobb review NJ
| some LENGTH tho corsti,,.,onoI nuo,,,n, a.
senaratine and desnina tha ',ar,oi,s ,a,s
of the several denartment. Tha iu5ao po s.,,s
| on nape 175. wy
| "it will be observed thot H.. rosro,,o,,,,
serious ground of obiection tn ,ha imrisd,.
l <Nf
he ia the speaker NJ The boms. ~ ranrosouta
tiyes and the presiding ofBcer ~ tho ioin,
convention Of the two houses. The letter OF
the statute makes no exception in man.
| damus, In favor OF the functions OF such
omcer; so that II he Is person upon whom
tne law mas specially enjoined the perform
ahce OF an act. or acts, as duty result
ing from an once, trust. or station, he is
IN the race OF all cavil, within the letter
| fr
.he me Jurisdlction OF the court therein" And
a,so on page ~: IN these examples the
| ~, ~ eu Tue hterai sense OF article
ond ue i,. constitution, construing It's meaning
| innur,hon. W We .nae tne respective duties
arata donartr.,. npon anu appilcaole 10 eacn sep
6ned to ~ aInno. hmt a., iniiien' are con
| view nor oan a. ~ uu' =. uiu hol take tn'
Of either tho ioaisIot;,, 'na' MneIe an once'
| ments. or tho iudici., shom es, uepal.
cute An jmnerativa J,,tw ir,'ns,, " eAe
upon the Office NJ Tho ;ronr,Ho0. W iaN
detriment and prejudice NJ a citis.r ~ Wv ~
the public, through tbis copstitutinna, ~
vision, while the courts have mi nnmop - y -
redress in cases of delinouent iudicia, on
GERS, they are prohibited from considerin,
any fragrant violation of the constitution ~
laws by officers Of the other departments
lest the court trench upon their prerogative
No such limited and sinister construction
can be placed upon the second article with
| ~, 'io'atihs the spirit or the first, ant
violating many OF its provisions"
Several assertions made by the responden
In his brief. the relator says, call for refuta
| tiOn, and he refers to them as: follows. :
l. The respondent attemnts to ,,s.,,, =,
course in delegatinp duties s;r,no.aS ~, ~. ~,
upon him to private citizen whon, ~ 30, III
| a referee, on the eround that ba n,os ~
busily engaged i'm the afYaira ~, tho 80,
to turn aside to attend nersonaIIv =" ~
| charges nreferred oSaIn.. ~" Ii, =" VI
missioners. narticnlarIv In his Im.to, -on on..
nected with the enlistment anS n,oh,I;votio vI,
of troops. At the time these ,n,neachnsn
charges were filed with the governor no cal
for troops had been made nor wo. thar
anv cali imminent And nv tho t,r,a ~
decision ia rendered In tbis smit Tho s,a,
| militia will douhtIesa have heon nustar.