Show THE MANDAMUS CASE Judge TwIss Delivers His Opinion and Sustains the Demurrer At 2 oclock on Thursday afternoon after-noon quite a large number of persons per-sons assembled in the District Courtroom I Court-room to hear the decision of Judge Tsviss in the mandamus case Among others present were Hon I John T Caine who with Hon W IL Hooper has acted for Hon Geo Q Cannon all through this case Secretary Sec-retary Thomas the respondent a I actinggovernor A G Campbell who has been given the certificate I the attorneys and many others who were all inside the bar enclosure Outside there was also a large number num-ber of persons A little business was transacted before Judge Hunter I Hun-ter and when this was finished Judge Twiss took a seat on the bench beside Judge Hunter lie commenced by briefly stating that the second and fifth grounds ot the demurrer would be overruled and briefly gave reasons for so doing do-ing and that the other three would b sustained He said two of the Doints in the demurrer went to the heait of the matter and on these points he had reduced his opinion to writing which he read as follows fol-lows The alternative writ of mandamus charges that at the last general election the relator received by a large majority the greatest number of votes cast for delegate to Congress Con-gress that he was a resident of this territory and qualified to receive votes for said office and to be declared de-clared elected thereto That due demand was made upon I Murray Mur-ray governor of this territory that he declare the relatpr elected which demand was refused that subsequently subse-quently on the 8th day VI I January 1681 sad Murray left this territory whereby the respondent became the actinggovernor That on the 5th day of Febrnary 1881 demand was made upon him to declare the rela tor elected to sad oflice and to issue a certificate accordingly which was refused That he has no plain and adequate remedy in the ordinary courts of law The respondent is therefore commanded to declare George Q Cannon elected to the oflice of delegate to the House of Representatives for the FortySev enth Congress of the United States and t issue a certificate accordingly or that he show good cause before this court To this alternative writ the respondent re-spondent and assigns among other reasons or grounds of demurrer cemur rer the following That said writ does not state facts sufficient to constitute a cause of action or sufficient facts to en title the plaintiff to a peremptory writ of mandate and That this court has no jurisdiction of the person of the defendant in said official character on the subject of this action acton This position of the respondent raises the bald naked question oft of-t e right of this court to direct the Governor of this Territory in the performance of an executive duty The solution of this question has required re-quired an examination of a large number of authorities although some of them seem to be fia conflict with others it will be foundI 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 3S and Co Mo 48 relied re-lied 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 be the one elected in one case it is an act clerical in its nature performed by an inferior officer whose duty is specifically assigned to him either by his superior or by the statutes and is purely ministerial in the other case the duty is one of many imposed upon the executive solely for the reason that its performance is properly within the sphere of executive ex-ecutive powers and obligations Section 1862 of the united States Revised Statutes ISiS provides that the delegate to Congress shall be elected ll the voters in the territory terri-tory qualified to elect members of the Legislative Assembly But neither this nor any other statute federal or territorial directs or in any way indicates how he shall proceed or upon what evidence he shall determine who is elected He is left to his own method of solving the question In some cases there may be no difficulty or question others may be intricate in-tricate and full of diflicultiesrequir ing the best of judgment and discretion discre-tion in determining who is elected ton lI 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 ap-plies in all cases that is to guide the court If the judiciary can interfere inter-fere in one case it may in any whenever in its opinion the executive execu-tive is pursuing or about to pursue a course contrary to the views of the cour I the duty of the governor gov-ernor in determining who has the greatest number of votes thrown by the voters of the territory qualified to elect members of the Legislative Assemblyand the issuing of the certificate cer-tificate of election is not a judicial act it is far from being merely ministerial min-isterial it is at least an executive duty of a political character which may at times require the best and soundest discretion The State of Nevada e rel Selden Hetzel t the Board of Commissioners S Nev 309 309I I have thus far referred mostly to the territorial laws and to the special I spe-cial provision of Congress We will i 1 now look at some of the opinions of the federal and state courts involving involv-ing the same or similar questions The federal constitution creates and the organic and statutory laws of this territory recognize the three great coordinate branches of the government the legislative executive execu-tive and judicial but no attempt has been made to define with any special spe-cial care the nature or extent the powers of either Care therefore in all cases near the extreme limits of the powers of either department should be taken lest we trespass upon the enclosure of another for the executive in the performance of a duty purely and exclusively belonging be-longing itself is as independent of the judiciary a the judiciary is of the executive Each independent of the other in the performance of any act solely within the sphere of its powers In the language of Mr Justice Wagner in state e rel t Governor 39 Mo 2SS giving the opinion of the court says The interference in-terference of either branch with the other would imply dependence and inferiority when by our peculiar frame of government there exists equality and independence I in reply to this it should be said that the governor of a territory is not the governor of a sovereign state it may with equal propriety be said the supreme court of a territory tory is not the supreme judicial court of a sovereign state Both are the creatures of the federal government and each has the same relation to the other in it 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 J the head of some state department in all of them mandamus was reused re-used Hawkins t Governor 1 Pike 570 Law t Towns 8 Gro R 300 People t Bissell 1 Ills 220 State 1 Governor 1 Dutch 331 Houston c B R Co vs Randolph 24 Texas S17 Sennit Petition 32 Maine 5U8 Chamberlain t Sibley 4 M 309 State e rel Bartley t Governor 39 Mo 383 Maurun Adjutant General vs Smith Governor 8 B 1192 There are cases which decide that a mandamus manda-mus against a governor may be issued directing the performance of ministerial duty but the weight of authority is greatly the other way for the reason the courts do not and will not put the judiciary in conflict with the executive and that it was never intended they should In the language of the defender of tbe Constitution A separation of the departments so far as practicable practic-able and the preservation of clear lines division between them i the fundamental idea in the creation of all our constitutions and doubtless doubt-less the continuance of regulated liberty depends on maintaining I these boundaries Websters works yol 1 p 122 In the case of the United States f < e ret Goodncn t liuthery secretary secre-tary of the treasury 17 How 2S4 the court says The power of the courts of the United States to command com-mand the performance of any duty by eituer of the principal executive departmtnts or such 1 is incumbent incum-bent upon any executive officer of the government has been strongly contested in this court and in so I far as that power may be supposed ito i I-to have been conceded the concession conces-sion has been restricted by qualifications qualifi-cations which would seem to limit it to acts or proceedings by the officers offi-cers not implied in the several and inherent functions or duties incident inci-dent to his office acts of a character rather extraneous and required of the individual rather than of the I lunctionary in tie same case the court says It is admitted that by mandamus no act of an executive officer ca be examined which involves in-volves the exercise of his judgment or discretion In Decatur t Paulding 14 Peters p 497 C J Tanney says Nor can it the court by mandamus act directly di-rectly upon the officer and guide and control his judgment of discretion discre-tion in the mater committed to his care in the ordinary discharge of his official duties The interference of the courts with the performance of the ordinary duties of the executive department of the government would be productive produc-tive of nothing but mischief and we are quite satisfied that such power was never intended to be given to them Commissioner of Patents t Whiteley 4 Wall 534 Gaines v I Thompson F Wallan p 31 It is my opinion that the action of the Governor of this territory in declaring de-claring who is or may be elected delegate to Coiigrees and in issuing a certificate of election t the person who may be by him declared to be elected is a part of the uJinary performance of his official duties as the executive of this territory that the declaring of any person elected and issuing a certificate of election to such person as required of him by Section 1802 of the United States Revised statutes 1S78 are acts requiring re-quiring the exercise of judgment and discretion all this court cannot can-not by writ of mandate direct what particular course of action he shall or shall not take in the performance of an official duty within the sphere of the functions of his office when the exercise of any discretion is required re-quired and that directing him by a peremptory writ of mandate to doan do-an act within the scope of his official cial power which he has on demand de-mand in the exercise of his discretion discre-tion refused to perform would be assuming a grave responsibility unsupported un-supported by authority or law which might result in irreparable mischief The demurrer will be overruled as to the second and fifth grounds of demur and sustained as to the first third and fourth grounds When the reading had been completed com-pleted Judge Sutherland arose and said he understood that the effect of sustaining the three points was to hold that the mandamus did not lie to which Judge Twiss gave an affirmative answer Mr Brown said he would appeal from the decision deci-sion and after some talk between counsel it was settled that Judge Sutherland should draw up the findings find-ings and present them this morn ing when Mr Brown would formally form-ally take an appeal |