Show THE MANDAMUS MA CASE CASZ uhe THE OF THE COURT at 2 this afternoon judge twiss in the court room boom of the third district court delivered his opinion in the above case it having been announced that the opinion would be delivered at this hour the courtroom cour court vroom froom room was nearly filled by the he t public anxious to hear bear the decision judge twiss said that the demurrer would be overruled as to the second and fifth 9 grounds rounds and sustained as to the first third and artl rt grounds As to the fourth ground the most important one he would read his opinion as follows I 1 the alternative writ of mandamus charges thatah that at fc general election me une relator received by a large majority the greatest number of votes cast for ifor delegate to congress that he was wag a resident of this territory and qualified to receive votes for said office and to be declared elected thereto that due demand was wag made upon el EE H Al murray urray governor of this territory that he declare the relator elected which demand was refused that subsequently on the ath day of january ISSI 1881 said murray left this territory orV ory whereby the respondent became the acting governor that on the ath day of february 1881 demand was made upon him to declare the relator elected to said office and to issue a certificate accordingly which was refused that he has no plain and adequate remedy in tho the ordinary courts of law the respondent is therefore commanded to declare george Q cannon elected to the office of delegate to the house or representatives for tile tilo congress of the united states and to issue a berti cleate accordingly or that he show good cause before this court to this alternative writ the respondent spon dent demurs and assigns among amon gother rother other reasons or grounds of demurrer the following that said writ does not state facts sufficient to constitute a cause of action or sufficient facts to entitle the plain plaintiff to a peremptory writ of mandate and that this court has lim no jurisdiction of the person of the defendant in said official character on the subject of this action this position of the respondent raises the bald naked question of the right of this court to direct the governor of this territory in the fhe performance of an executive duty the solution of this question has required an examination of a large number of authorities although so some me of them se seem em to be in conflict with others it will be found I 1 think upon a close examination that but few are really in conflict with the preponderance of authority the act required of the respondent by the alternate writ is quite dissimilar to the ordinary duties of a board of supervisors or the canvassers of election returns the two missouri cases 39 mo and 56 mo relied upon by counsel clearly show the different character of the duty of election canvassers and the act of the executive in declaring one among all other persons to dethe bethe bethe one elected in one case it is an act cle cie clerical rieal in its nature performed by an inferior officer whose duty is specifically assigned to him either cither by his superior or by athly the statutes tat tes and is purely ministerial alf inythe in the other case the duty is oneff one of many imposed upon the executive executive solely for the reason that its perfy performance armance is properly within the sphere of executive eloile powers and obligations section 1862 of the U S revised statutes 1878 provides that the delegate e ate to congress shall be elected by the voters in the territory qualified to elect members of the legislative assembly but neither this nor anyo an th er statute federal or orter ter orin or in anyway indicates how he shall proceed or upon what evidence he shall shail determine who 1 iq elected he is left to his own meth method od of solving the question in some cases there r ay be no difficulty or question others may be intricate and full of difficulties requiring the best beat of judgment and discretion in determining who is elected it matters not that in one particular instance one candidate may receive twenty times as many votes as all others it is the rule of law that applies alph esa in n all cases that is to guide the court if the judiciary can interfere in one case it may in any whenever in n its opinion the executive is pursuing or about to pursue a course contrary to the views of the court if the duty of the governor in determining who has the of votes thrown by the voters of the territory qualified fled to elect members of the legislative assembly and the issuing of the certificate of election is not a judicial ac act t it is far from being merely ministerial it is at least an executive duty of a political character which may at times re quire require the best and soundest discretion the state of nevada ex rd ret selden hetzel vs the baart of commissioners ners 8 nev I 1 have thus far referred mostly to the territorial lawse laws and to the special provision of congress we will now look loofe at some of tha the opinions of the federal and state courts involving the same or similar questions the federal constitution creates and the organic and statutory laws of this territory recognize the three great ordinate coordinate co branches of the government the legislative executive and judicial but no attempt has been made to define with any special care the nature or extent of the powers of either care therefore in all cases near the extreme limits of the powers of either department should be taken lest betres we trespass upon the enclosure of another for the executive in tilee the oman 0 of a duty purely aua aud ix exclusively vly b belonging to itself is as independent of aa i the judiciary is of the executive each is independent of the other in the performance of any act solely within tile tilo sphere of its powers in the language of mr justice wagner in state ex delvs governer governor 3 39 9 mo giving the opinion of the court says the interference ter ference of either branch with wilh vi ith the other would imply dependence and inferiority when by our peculiar frame of government there exists equality and anti independence if if in reply to this it should be paid that the governor of a territory is not the governor of a sovereign state it may with equal propriety berald bos ber aid ald the supreme court of a territory is not the supreme judicial courton court of a sovereign state both are the creatures of the federal government and each has the same relation to the other in its sphere and functions of government as the executive and judiciary of a state and therefore the opinions of the state courts are authority in the case at bar the following cases were either against the governor or the head of some state department in all of them mandamus was refused hawkins vs governor I 1 pike law vs towns 8 gro R people vs bissell 19 ills state vs governor I 1 dutch P houston ucb aeb cr B R co vs randolph 24 texas petition 32 maine chamberlain vs sibley 4 min state ex rel bartley vs governor do governor vernor vernon 39 mo magrun adjutant general vs sm smith rth ith governor 8 R RI 1 there are cases which decide that a mandamus against a governor may be issued dige directing the performance of a ministerial duty but the weight of authority is greatly the other way for the reason the courts do not and will not dut nut the judie judic judiciary Liry in conflict with tho the executive and that it was never intended they should in the language of the defender of the constitution aca A separation of the departments so far as practicable and the preservation of clear lines of division betwee between li them is the fundamental idea in the creation of all our constitutions and doubtless the continuance of regulated liberty ill lil erty depends on maintaining these boundaries websters works vol 6 p 1 izz in the case of the united states ex rel goodrich is vs guthery tary of the treasury 17 how the court says The power of the courts of the united S states tates to command the performance of any duty by either of the principal executive departments or such as is incumbent upon any executive officer of the government has been strongly contested in this court andin so far as that power may be supposed to have been conceded the concession has been restricted by qualifications which would seem to limit it to aag acts or proceedings by the officers not implied in ghe the several and inherent functions or duties dutie 8 incident to Ms office acts of a character rather extraneous trane ous and required of the individual rather than of the functionary in the ame pame r case ease the court says it is is admitted that by mandamus no act of an executive officer can be examined which involves the exercise of his judgment or discretion In Decatur vs paulding 14 peters p C 1 tanney says nor can it the court by mandamus act directly upon the of officer fleer and guide and control his judgment or discretion in the matters committed to his care in the ordinary discharge of his offic al duties I 1 the I 1 interference interfere nee nce of the c murts ur ta w with I 1 th the performance of the ordinary duties of the executive department of the government would be productive of nothing but misel mischief lief ilof and we are quite satis satisfied fled that such power was never intended to be given to them commissioner of patents vs whiteley 4 wall gaines vs thompson FW F wallan allan alian p it is my opinion that the action of the governor of this territory in declaring who is or may be elected delegate to congress and in issuing a certificate of election to the person who may be by him declared to be elec elected tedis is a part of the ordinary performance of his off official lelal duties a as the executive of this territory that the declaring of any person e elected beet ed and issuing a certificate of lention to such person as RA required required of him by section 1862 of the united states revised statutes 1878 are acts requiring the exercise of judgment and discretion and this court cat not by writ of mandate direct what particular course of or action lie shall or shall not take in the performance of an official duty within the sphere of the functions of his office when tile the o of any discretion ii required and anti that directing him by a peremptory writ of mandate to do an act acl within t lie scope of his official power which he be has on demand in tile the 0 of his discretion refused to perform would be assuming a grave responsibility unsupported by authority of law which might resulting result resul tin in irreparable mischief the demurrer will be overruled as ot the 2nd and and ath ground of demur and sustained as to the 3rd ard and ground mr brown gave notice of appeal from the decision |