Furisdiction of the person is that obtained by the appearance of

the defendant before the tribunal.

Territorial jurisdiction is the power of the tribunal considered with reference to the territory within which it is to be exercised. Consultative. It is said that in some cases one court may assist another by giving its opinion on matter pending in the latter court; in such a case the former court is said to act in its consultative jurisdiction, as opposed to its ordinary or judicial jurisdiction.1

3. Constitutional Limitations as to Jurisdiction.—The division of the government under the constitution of the United States into

Constitutional Limitations

JURISDICTION.

three departments, the legislative, executive and judicial, has imposed certain limitations upon the jurisdiction of these three departments.

(a) Constitutional Limitations; Jurisdiction of the Judicial Department Over the Executive Department and State Officers. It has always been admitted that the judicial department of the United States government has no jurisdiction over the President of the United States in his official capacity, he being only amenable, under the constitution of the United States, to impeachment, and, after impeachment, to indictment, trial, judgment and The heads of the various execupunishment according to law. tive departments and the other executive officers of the United States have been held to be subject to the jurisdiction of the judiciary department, not in the performance of their official or discretionary duties, but in the performance of those duties which are purely ministerial. This jurisdiction has, however, been

and agents. United States v. Lee, 106
U. S. 196.

su

1. Jurisdiction of the Judiciary Over Other Executive Officers.-What power was conferred by the constitution of the United States on the judiciary department to enquire into the conduct of the officers of the other departments of the government was discussed in the United States preme court as early as 1803, in the great case of Marbury v. Madison. In that case Marbury claimed to have been appointed a justice of the peace for the county of Washington, in the District of Columbia; that the appointment had been approved by the senate; that a commission had been duly signed by the president and delivered to Mr. Madison, the then secretary of state, to have the seal of the United States attached thereto; that such seal was attached, but that Mr. Madison, though requested so to do, refused to give up the commission. The complainant therefore asked for a mandamus to compel him to do so. court having first decided that the complainant had a right to his commission, and that the refusal to deliver it to him was a violation of that right for which the laws of the United States afforded him a remedy, then decided that the remedy was a writ of mandamus, saying, in er alia, “The intipolitical relation subsisting bemate president of the United tween the States and the heads of departments necessarily renders any legal investigaacts of one of those high tion of the officers peculiarly irksome, as well as

The

with respect to the propriety of enter-
delicate, and excites some hesitation
ing into such investigation. Impres-
or examination, and it is
sions are often received without much
reflection
this, the assertion, by an individual, of
not wonderful that in such a case as
his legal claims in a court of justice, to
which claims it is the duty of that court
to attend, should at first view be con-
sidered by some, as an attempt to in-
trude into the cabinet, and to inter-
It is scarcely necessary for
meddle with the prerogatives of the ex-
ecutive.
the court to disclaim all pretensions to
court is solely to decide on the rights
such a jurisdiction. The province of the
of individuals, not to enquire how the
duties in which they have a discretion.
executive, or executive officers, perform
Questions, in their nature political, or
which are by the constitution and laws
submitted to the executive, can never
be made in this court

"If one of the heads of departments commits any illegal act, under color of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How, this particular mode of deciding on the then, can his office exempt him from legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process?

253

"It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the

as to Jurisdiction.

rarely exercised.1 In accordance with this same principle, that is, distinguishing between official and ministerial duties, the United States courts have exercised jurisdiction over State offi

propriety or impropriety of issuing a mandamus is to be determined. Where the head of a department acts in a case, in which executive discretion is to be exercised, in which he is the mere organ of executive will, it is again repeated that any application to a court to control, in any respect, his conduct, would be rejected without hesitation.

But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the president, and the performance of which the president cannot lawfully forbid, and therefore is never presumed to have forbidden-as, for example, to record a commission, or a patent for land, which has received all the legal solemnities; or to give a copy of such record-in such cases it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment, that right be done to an injured individual, than if the same services were to be performed by a per

son

not the head of a department." Marbury v. Madison, 1 Cranch (U. S.), 137, 170, 171.

1. Exercise of Jurisdiction Over Executive Officers. In the case of Marbury v. Madison, 1 Cranch (U. S.) 137, the court refused the writ of mandamus because they had not original jurisdiction under the constitution to award it; but the principle there decided that a court can compel an executive officer of the government to perform a pure ministerial duty, has been always accepted as law. The duty, however, must be purely ministerial, and therefore, while there are a number of cases where the court refused to exercise the power, there seems to be very few in which the writ was ordered to issue. In the first case decided in 1838, the facts were that mail contractors were entitled under their contracts to certain credits, and an act of congress was passed providing that the solicitor of the treasury should settle the claim of the contractors therefor, up to a certain period; and the postmaster general was to give them credit therefor. The solicitor of the treasury did determine the amount, but continued to withhold the credit, and the postmaster general

254

termined that no further legislation in congress, being appealed to, had dethe matter was necessary. Upon these should issue to compel the postmaster facts, it was held that a mandamus general to give such credit. Kendall (U. S.) 524. This seems to be the only v. U. S. ex rel. Stokes et al., 12 Pet. United States; where a case in the supreme court of the has issued; but in a recent case, 1887, mandamus in the supreme court of the District of Columbia, it was held that when money is in the custody of the department of state, to which a petitioner has a clear legal right, and by an act of congress the secretary of state is directed to pay compel such payment. U. S. ex rel. it over to him, a mandamus will lie to 428. White v. Bayard, 5 Mackey (U.S.)

And in 1884, in the same court, it was commissioner of patents on the right decided that while the decision of the of an applicant to receive a patent is an be interfered with by a mandamus, yet act of executive discretion and cannot when he has exhausted his executive discretion and held that the applicant is entitled to a patent, there remains but performance of that act may be comthe ministerial duty to issue it, and the pelled by mandamus. U. S. ex rel. 229. Hoe v. Butterworth, 3 Mackey (U. S.)

The judicial department has refused the treasury to pay an officer of the to interfere to compel the secretary of United States his salary for the unexpired term of his office, from which he had been removed by the President of the United States. Ū. S. ex rel. Goodrich v. Guthrie, 17 How. (U. S.), 284, to compel the secretary of the navy to special act to pay pensions and arrears under a claimed a pension and arrears under a one who had already general act, there being a question as to whether the party was intended to rePet. (U. S.) 497; to ceive both. Decatur v. Paulding, 14 Brashear v. Mason, 6 How. (U. S.) 92, same effect is to compel the secretary of state to pay over the interest that had accumulated before final distribution. U. S. ex rel on a fund while it remained in his hands (D. C.) 310; to compel the secretary Angarica de la Rua v. Bayard, 4 Mackey

Constitutional Limitations

JURISDICTION.

cers. The respective State tribunals have adopted the same distinction as limiting their authority, but their decisions have not been uniform as to the position of the chief executive of the State, and their jurisdiction over him. It will, however, be generally presumed, until the contrary is proved, that all duties imposed upon the governor of a State are official and discretionary.2

of the treasury to allow and pay a claim against the United States, there being a question as to the lawfulness of a setoff. Mississippi v. Durham, 4 Mackey (D. C.) 235; to compel the secretary of the treasury in a case where the United States having brought suit were adjudged to be indebted to the defendants, to allow the defendants a credit of the Reeside v. amount of the verdict. Walker, 11 How. (U. S.) 272; to compel the superintendent of printing to deliver certain printing to the senate printer, who had been assigned the printing of the same by both houses of congress. U. S. ex rel. Tucker v. Seaman, 17 How. (U. S.) 225; to compel the commissioner of patents to examine into an application for a reissue of a patent made by an assignee when the commissioner has decided that the applicant did not have an interest entitling him to such reissue. Commissioner of Patents v. Whiteley, 4 Wall. (U. S.) 523; to compel the secretary of the interior and the commissioner of the land office to cancel an entry for land, or Gaines issue patents therefor. Thompson, 7 Wall. (U. S.) 347; Cox v. U. S., 9 Wall. (U. S.) 298; Litchfied v. Richards, 9 Wall. (U. S.) 575.

υ.

In a recent case in the U. S. court of claims, the defence was that the plaintiff had mistaken his remedy and that he should have applied to the proper court for a mandamus compelling the secretary of the treasury to pay him the amount he claimed to be due. But the court held that the right to this writ was extremely doubtful, there being but one case in which the supreme court had affirmed the power to issue the writ against the head of an executive department, and none in which the power to withdraw money from the treasury had been ruled or cancelled, and therefore decide the defence in sufficient and gave judgment for the plaintiff. Brown v. United States, 6 Ct. of Cl. 171.

of Jurisdiction by the 1. Exercise United States Courts Over State Officers. -The right of the United States courts to compel the performance of duties by

case,

State officers has been based on the
same principles, viz., that only a minis-
terial duty can be performed. Thus,
in the case of an application for an in-
junction to restrain a State board of
liquidation from using certain bonds
in liquidation of a certain debt, it was
court that the injunction had been
decided by the United States supreme
of the
properly granted by the circuit court,
the facts
under
the principle being as follows: Although
a State, without its consent, cannot be
sued by an individual, nor can a court
substitute its own discretion for that of
executive officers in matters belonging
to their proper jurisdiction, yet, when a
plain official duty, requiring no exer-
cise of discretion, is to be performed,
and performance is refused, any person
who will sustain personal injury by
such refusal may have a mandamus to
compel its performance, and when such
some positive official act, any person
duty is threatened to be violated by
who will sustain personal injury there-
of
cannot be had at law, may have an in-
by for which adequate compensation
to prevent it. Board
junction
S. 532, affirming McComb v. Board of
Liquidation et al. v. McComb, 92 U.
Liquidation, 2 Woods (U. S.) 48.

But a United States court will not on State indebtedness by a mandamus compel the payment of the interest due against State officers who refused to pay because such payment had been forbidden in a new constitution of the State. Louisiana v. Jewel, 107 U. S. 711.

Nor will a United States court grant an injunction to restrain State officers from revoking a licence which the State had granted, even though the cause of revocation was a breach of a condition imposed in granting the licence, which condition itself was contrary to the v. Continental Ins. Co., 94 U. S. 535, as constitution of the United States. Doyle explained in Barron v. Burnside, 121 U. S. 186, 199.

2. Jurisdiction of State Courts Over State Governors.-The principles established by the Supreme Court of the

255

Some State courts have exercised jurisdiction with the consent of the governor when the sole question at issue was the constitutionality of a statute. But State courts have always exercised jurisdiction over the other officers of the state government in cases where the relief sought was without question, and the duty was not discretionary, but ministerial,2 except when such officers were