The Advocate and news., 1899-02-15

Of this question to the Governor. He is
made the sole judge. No review Of his
decision is provided for. His decision
upon this question is as binding as the
| final decision Of the court When de-
cided by hlm the question becomes, in ef-
feet, res adjudicata. If the trainers Of
the constitution had intended otherwise
they would have provided some means OF
review. 1t cannot be successfully con-
| tended that the courts can treat this
question as one OF fact and decide 1t as
other questions Of fact are decided for
such would be the exercising OF authority
which the constitution has conferred
alone upon the Governor. 1t was never
intended that the courts should try and
decide the existence or non-existence Of
facts for the purpose or determining
whether the Legislature should be con-
Vened, or, after it had been convened,
whether the facts warrant its convening
or not.
Special sessions Of the Legislature are
usually called to meet some present ne
cessity, and If resorts may be had to the
courts to review the question of the ne
cessity, the object Of conVening the Leg
islature would in many instances, be de-
feated.
IF the Governor has the right to de-
eide this question he has the right to
decide 1t one way or the other according
to his own conviction, and no state of
facts could exist that would warrant the
courts in compelling by mandamus the
issuance Of proclamation for special
session when he had determined no ex-
traordinary occasion existed. Neither
would injunction lie to prevent him from
Issuing his proclamation when he had
determined an extraordinary occasion
did exist although the facts upon which
he reached such determination may not
be sufficient to warrant the conclusion.
Acts of this nature on the part of the
Governor cannot be controlled by the
courts, because his acts are the discre-
tiOnary acts of an executive officer. The
rule seems to have been well settled that
the discretionary acts of an executive Of
ticer cannot be controlled by the courts.
But his acts which are purely minister
ial may be so controlled. 1t is practically
conceded in this case that the act of a
Governor in determining the necessity
for calling special session of the Legis-
lature is discretionary executive act
But 1t was claimed by defendant that
there was an abuse by the Governor Of
his discretionary power; that when the
executive had abused his discretionary
power the courts may not control his
action, but they may destroy the fruits Of
his act; that in issuing the call for a
special session in the case under con-
sideratiOn the Governor abused his dis
cretionary power; that no extraordinary
occasion existed; that therefore his call
was inviolation Of the constitution; and
that the Legislature which convened in
pursuance to the call was uncOnstitu-
tionally convened, and therefore its acts
null and void
Doubtless there are many cases both
both executive and legislative where this
principle may be applied, but the acts Of
the Governor in passing upon the neces-
sity of convening the Legislature in spec
ial session does not fall within this class.
II the courts are to retry and decide the
question of fact what assurance have we
that the facts upon which the Governor
decided the question will be presented
to the court? In passing upon the Ques-
ton, the Governor may have knowledge
of facts sufficient to justify the call and
yet be of such a character as not to be
presentable to the courts.
"But 1t is argued that if the courts
cannot enter upon an investigation of the
facts existing, for the purpose of de-
terming whether an extraordinary occa-
sion existed or not, they may look to the
reasons stated in the proclamation OF the
Governor and If the reasons there given
together with the facts of which the
court takes judicial notice do not consti-
tute an extraordinary occasion the courts
should declare that no extraordinary oc-
casion existed.
so far as we are advised there Is no
law requiring the Governor to give the
reasons in his proclamation why he de-
sires the Legislature to convene. When
he deems the occasion sufficient he may