The herald and news. [volume] (Newberry S.C.) 1903-1937, 1907-03-29

~OrNSoN-NSA
thing when the chief of the execu-
tive department. is concerned.
y Conflict in Decisions
There is great and ireconcilable
conflict among the authorities on the
question as to whether writ Of man.
: damus may issue against the COVER
nor. On one hand in Alabama, Cali
fornia, Colorado, Montana, Nebraska,
North Carolina, Ohio, it has been de-
cided that such writ will issue. While
on the other, hand in Arkansas, Flor
ida, Georgia, Illinois, ETC., jurisdiction
5 to issue such writ against the gov
ernor is denied. We have no case in
J this state which is controlling on the
question at issue. The nearest ap-
}proach is.Greer against Gov. Taylor,
in which the court held that the writ
of prohibition will not lie against the
Agovernor to restrain him from grant
ing a commission to an officer who
has been improperly elected. AS the
: writ of prohibition only goes to pre-
vent an inferior judicial tribunal or
officer from acting without or in ex-
cess Of jurisdiction, it is manifest
that prohibition would not lie against
the governor to prevent The pcrfor-
nance of a non-judicial act, such as
issuing a commission to an officer,
' duty strictly political and executive.
The principle that may be drawn
from that case is that court will not
restrain performance Of an execu-
tive duty imposed upon the governor
by the constitution
The court then reviews a number
Of authorities in cases brought in
other states as nearly like the case
under consideration as could be OBJ
tanned. It then says:
Case On Principle.
GAS we have no controlling case in
this state we will consider the oues-
tion on principle. The writ of certi-
orari is issued by superior court to
an inferior judicial or quasi judicial
tribunal or officer to certify the re-
cord Of trial to the superior court for
its review to ascertain whether the
inferior tribunal had jurisdiction or
exceeded its powers or committed
substantial errors Of law, but not to
review the facts. Tt is suggested that
governor can never be an inferior
tribunal since he is the supreme ex-
ecutive officer. This reason would be
impregnable if the constitution, which
vested the supreme and circuit courts
with judicial power had at the same
time created the governor a judicial
tribunal or made it his executive
function to remove officers for cause
after notice and opportunity of hear
ing. Then it could be said the pow
er of removal, whether judicial or
executive, was a coordinate power be-
yond control of the regular courts
just as the high court of impeach-
ment could be. In this case, however,
the governor does not derive his pow
er to remove directly from the con-
stitution, but by creation Of an act
of the legislature. Therefore, if the
power to remove officers is judicial,
the tribunal designated to exercise
the power is judicial, and must Of
necessity be an inferior jurisdiction
in legal sense, because the legisla-
turc is wholly without power to ere
ate a judicial tribunal which is not
inferior to the judicial power vested
in the courts. The fact that the pow
er was conferred on the governor may
have force in determining whether
the intention was to create the gov
ernor into judicial tribunal, but if
admitted that the governor had been
created such judicial tribunal by act
Of the legislature it follows inevita-
bly, that with respect to such fnc-
tons he would be subject to review
by such tribunal. Several reasons
are suggested against this view. One
is that in case of resistance by the
governor the court would have no
power to enforce it's mandate. That
is a political reason, not legal rea-
son. The adequacy Of the court s
power to enforce its judgments can
never be a test Of jurisdiction. The
duty of the court is to declare the
law and it must always rely upon the
executive department to execute the
law declared. In any defiant con-
troversy between the judiciary and
either Of the other coordinate de-