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thority by the constitution and destroy and mine what are and what are not lawful duties overthrow the executive department.

of the Governor under the constitution, conThe Court was equally in error in holding trary to all other authorities on that subthat any construction of the constitution by ject, and to determine for the Governor the Governor not in harmony with that of when he may or may not use the militia in the Court would be a violation of the law.

protection of executive authority, although What right has the court under a constitu- every other court that has spoken on that tion to construe the constitution for its Gov- subject has held that when the Governor ernor and require him to accept its will? It acts as commander-in-chief of the militia, was further said:

his action cannot be questioned by any au“The military would be in duty bound to

thority or in any place. disregard the illegal command of the Gov- The language, “No man in the country ernor, if he should order them to use phys- is so high that he is above the law, no ical force against the sheriff."

officer of the law may set the law at deThis was an invitation to the militia to

fiance with impunity," quoted from United construe the constitution and determine

States v. Lee, is not in conflict with the whether an order of its commander-in-chief views of Governor Small's counsel, nor the was lawful, and, in effect, invited insubor

weight of authority. We have never condination of the militia when called upon to tended that he has, nor does he claim, a execute the law in accordance with the

personal exemption from arrest and trial judgment and will of the executive. It re

for a supposed criminal offense committed quires no legal acumen to see that such a

either while in office or before he took ofprinciple would be destructive of repub-fice, but that to arrest him and put him upon lican government and it can have no sup- trial while in office would be to practically, port from any person who prefers orderly either temporarily or permanently, depose government to anarchy.

the Chief Executive, cause a suspension of The direct statement that a Governor, executive functions and thereby inevitably the supreme executive, has no authority to encroach upon the executive department. restrain the sheriff, an inferior of his de- We insist this is true, both as a matter of partment, from doing what in his judgment | fact and as a principle of law. It results is in violation of the constitution is a fallacy from the impossibility of separating the pertoo patent for acceptance by any unbiased son of a Governor from the office in which mind in the habit of considering legal ques- he functions. So long as he holds the office tions, and it is equally clear that that was it is ever with him. As President Jefferson not a question within the jurisdiction of the said in the Burr case, in declining to obey courts of Wisconsin.

a subpoena sent to him by Chief Justice It is further said:

John Marshall: "To comply with such calls “As commander of the militia, he (the would leave the Nation without an execuGovernor) has no right to use the military tive branch, whose agency, nevertheless, is force of the state to defy the officers of understood to be so constantly necessary the law. The military would be in duty bound to disregard the illegal command of

that it is the only branch which the Constithe Governor if he should order them to use

tution requires to be always in function." physical force against the sheriff."

It is true, as advanced by Professor BalThis position places the Supreme Court lantine, that section 3, article 7 of the Conof Wisconsin in the strange attitude not only stitution of Illinois, exempts from arrest of assuming that the Governor could not electors during their attendance upon elecexercise honest judgment in conflict with the views of the Court, but also arrogates

(5) Ex parte Moore, 64 N. C. 802; Ex parte

Kerr, 64 N. C. 816. to the Court the exclusive right to deter

106 U. S. 196.


tions and in going to and returning from the Chase of the Supreme Court of the United same, except for treason, felony or breach States, aptly described a similar contention of the peace. And, it is also true that a like as that of Professor Ballantine as "an abexemption exists in favor of senators and surd and excessive extravagance,” and said: representatives during the sessions of the “It was admitted on the argument that General Assembly, and in going to and re- the application now made to us is without turning from the same. But that does not

precedent; and this is of much weight

against it. Had it been supposed at the argue that the absence of a like provision against it.

bar that this court would in any case interin relation to the Governor supplies a basis

pose by injunction to prevent the execution for the contention that he has no such ex- of an unconstitutional act of congress, it emption.

can hardly be doubted that applications with

that object would have been heretofore adThe Governor is a branch of the legisla

dressed to it. * * * The fact that no such tive department. It is his duty to pass upon application was ever before made in any all legislative bills and either approve or dis- case indicates the general judgment of the approve of them. Would Professor Ballan- profession that no such application should

be entertained." tine have us believe that the framers of our constitution thought it necessary to provide

In the case of State v. Holden, in which such immunity for the senators and repre

it was sought to have a bench warrant issentatives and proper to leave it in the

sued for the arrest of the Governor and power of the courts at will to take the Gov- prosecute him for an alleged criminal act ernor from the performance of much more

committed while acting as commander-inimportant legislative duties than can possi

chief of the militia, it was said: bly devolve upon them when he is passing

"The learned counsel were unable to show upon the acts of a legislative session?

any precedent which would sustain applica

tion of affiant and this fact goes far in showWould that not be a strange inconsistency

ing no such judicial power exists." to be found in so important a document as

So, that there are no decided cases where a State Constitution? Is not the absence

this question has been directly involved of a constitutional provision privileging the

argues that the courts have heretofore deGovernor from arrest clear demonstration

clined to attempt to coerce a Chief Executhat the framers of the constitution under

tive rather than that no such case has arisen, stood that he would not at any time be sub

or that the law is contrary to the opinion ject to arrest without such express exemp

expressed by Governor Small's counsel. tion ?

Where, nevertheless, the question has arisen, A very large number of cases have arisen

it has been uniformly held that the, Gorin which this question has been incidentally ernor cannot be arrested or coerced by judiscussed, but we are not aware that it has dicial process; and the exemption has been ever before directly arisen in any court of put upon the broad ground that the person this country. The principle for which we of the Chief Executive and his office are so contend seems to have always been conceded inseparable that his personal liberty cannot upon fundamental principles deduced from be restricted or his right to go where he will the nature of the office and the evident im

and do what he will impaired without also possibility of separating the person of a encroaching upon the executive office, and chief executive from the chief executive

destroying its free and independent exercise function,

by the Governor. In a case where the acts of the President If arrested, the Governor might be put in of the United States as Commander-in-Chief jail, and if put upon trial he would be comof the Army were questioned by a suit against him, quoting from Chief Justice

Mississippi V. Johnson, (U. S.) 4 Wall.

475-502. Marshall in an earlier case, Chief Justice

(8) 64 N. C. 829.

pelled to remain personally in court during from interference by court procedure which his trial, though it might consume months. might result in the arrest or coercion of the If subject to arrest and trial for an offense

Governor. alleged to have been committed before he Professor Burgess of Columbia Univertook office, he may also be arrested and put sity, an eminent text-writer on Constituupon trial for an offense alleged to have tional Law, speaking of the immunity of the been committed while in office—even for an President from arrest, says: alleged malfeasance or misfeasance in office "He is privileged from the jurisdiction of or palpable omission of any duty of office, any court, magistrate or body over his


son. for the section of the Constitution in rela

He cannot be arrested or restrained

of his personal liberty by anybody, or anytion to a judgment of impeachment only thing, not even for the commission of murremoves the officer impeached from office der. He is responsible to one body only, and disqualifies him to thereafter hold office, viz: The Senate of the United States, orand provides:

ganized as a court of impeachment under

the presidency of the Chief Justice of the “The party, whether convicted or acquit

United States. * * * ted, shall, nevertheless, be liable to prosecution, trial, judgment and punishment accord

"There is no danger to the people in this ing to law.”

principle. There would be great and con

stant danger in the opposite theory. Under If he can be thus prosecuted during his

the opposite theory, any magistrate might, term of office for treason or felony, he may at the instigation of any individual, cause be put upon trial for the most insignificant interregnum or a devolution of the presimisdemeanor, at the will of the most insig-dential office, thus defeating the will of the nificant and irresponsible court. If he can

whole people in the choice of the Presi

dent, and exposing the whole people to the be prosecuted on a criminal charge at all,

danger of anarchy. Moreover, as I have he would have no right to choose the time said, the principle only suspends the liabilof his arrest or trial, hence his arrest or ity of the President to process. Upon his trial might suspend or defeat performance descent from office he becomes immediately of the most important public duties that may

liable to prosecution for every crime and

snisdemeanor committed while in office."10 devolve upon a Governor. These vital facts

Professor James Albert Woodburn of and fundamental principles are ignored by

Indiana University, in his recent work on the doctrinaires followed by Professor Bal

The American Republic, quotes Professor lantine, but cannot be ignored with hope of

Burgess with approval and adds : reaching a correct conclusion.

“This exemption from process of the The authorities are conclusive in support courts is only temporary, the right of proseof the opinion given to Governor Small. In cution is only suspended. Upon his retireevery case where the question of coercing or

ment or removal from office, the ex-presi

dent becomes immediately liable to prosearresting a Governor has been considered, it

cution and punishment for every crime comhas been held that his office is immune from

mitted while in office." interference and that he cannot be personal- In the case of People v. Dunne, supra, ly arrested or put in duress without an en- it was said: croachment upon the functions of the Ex

“The duty or power committed to one ecutive Department, except in Wisconsin, branch of the government for its exercise and, we submit, that no sound lawyer on by the constitution is not subject to interreflection can give unbiased support to the

ference, control or dictation by another

branch ;" Ekern case. The immunity from prosecu

and approval was given to the separate opintion and imprisonment has always been put

ion of Justice Breese in the Bissell case in upon the high ground of the public welfare

these words: and the safety of the chief executive office


Sec. 208 Criminal Code.

2 Pungas Political Science and Constitutional Law, 245.

"It was said that the court had no control appointed or named on a board it would be over Gov. Bissell to perform any duty, and optional with the Governor as to whether that in matters of public dụty the court he would serve, and discussing his independcommitted him to the high tribunal of his

ence under the Constitution, said: own conscience and the public judgment.” The rule we invoke was correctly stated

No court can coerce him. No court can

imprison him for failing to perform any act, as long ago as the time of Lord Mansfield,

or to obey any mandate of any court.not in relation to the King, but the Governor

In the case of Rice v. Draper,15 a petition of the Island of Minorca. In Fabregas v..

for mandamus against the Governor was Mostyn, 11 he said:

applied for. The Supreme Court of MassaNo criminal prosecution lies against a

chusetts said: Governor and no cit'il action lies against him because what would be the consequence.

“An order under a writ of mandamus Why, if a civil action lies against him and against the Governor, if he should refuse a judgment obtained for damages, he might to obey it, might present a strange specbe taken up and put in prison on a capias,

tacle of a direction by the court to the exand therefore, locally during the time of his ecutive forces of the government to coerce government the court in the Island cannot and punish the chief executive officer of hold plea against him.”

the state who commands and controls the In State v. Holden (Governor),12 a crim-military forces that are ultimately relied up

on for the maintenance of the law. * * * inal prosecution in which a bench warrant

The Governor shall answer to his own conwas sought for the Governor's arrest, it was

science, to the people who selected him, and said:

in case of possible commission of high

crimes or misdemeanors to a court of im“The government was formed for the benefit of all the citizens of the state, and it

peachment." would be of little force and efficiency if the

In the case of People v. Morton, 16 the Governor (in whom is vested the supreme New York Court of Appeals said: executive power of the state) could be ar

"The only way in which mandamus may rested, and thus virtually deposed by a warrant from the Judiciary issued upon the ap

be enforced is by commitment of the party plication of an individual citizen, for al

who refuses its command, as for contempt.

But the courts have no power to commit the leged excess of authority, the performance of what the Governor may consider his ex

Governor for a contempt. They have no

power over his person. He may be imecutive functions.” The constitutions of North Carolina and

peached, but there is no other way in which

he may be deprived of his executive of Illinois both provide that impeachment shall not exempt the officer impeached from prosecution, trial and judgment for any

The arrest or prosecution of the Governor criminal offense committed while in office,

of Illinois would leave the state government so the rule is the same whether the charge without an executive head. The duties of is one of offense committed before or after his office are all personal and can be perthe person took office.

formed by no other person as his proxy or In the case of Appeal of Hartrauft, Gov

agent. There is no constitutional provision ernor,1it was held that the Governor could

which would devolve the office upon any one not be made subject to a decree in chancery,

else in such case. Section 17 of article 5 because it could not be enforced except by only authorizes the Lieutenant Governor to attachment, and the Governor could not be

exercise the office in case of the death, conlawfully taken on attachment. The same

viction on impeachment, failure to qualify, rule was applied in Thompson v. German Valley R. Co.14 In the case of State v.

(14) Frazier, 114 Tenn. 519, it was said that if

(15) 207 Mass. 577, 32 L. R. A. (N. S.) 355. (16)

See also Major v. Shields, 272 Mo. 342; (11) 1 Cowper 161.

United States v. Clayton, Fed. Case 14814; Hovey. (12) 64 N. C. 829.


22 N. J. Eq. 111.

41 L. R. A. 331.


Governor v. State, 217 Ind. 588; State v. Fletch(13)

er, 39 Mo. 508; State v. Stone, 120 Miss. 438.

82 Pa. St. 433.

resignation, absence from the state, or other

The absurd and vicious consequences of disability. The other disability referred to the contrary doctrine applied under the Conmust be personal to the Governor and under stitution of Illinois appear in these considthe doctrine ejusdem generis can only relate

erations : to such disability as is indicated by the

(1) In directing process for the arrest words, "death," "conviction on impeach

of the Governor after he had honestly dement," "failure to qualify," resignation," or

termined that to submit to the jurisdiction "absence from the state," in either of which

of the court would violate his duties and absence of the power to function is complete

oath of office was an effort to displace the and either temporary or permanent. There

will and judgment of the Chief Executive is no provision under which it could be

in relation to an executive duty with the argued that the arrest and trial of the Gov

will and judgment of the court, and an enernor upon a criminal charge, or even his

deavor to coerce the chief of the executive conviction, would vacate his office. While

department, in violation of the Constitution. conviction for embezzlement would disqual

(2) If arrested or tried, during arrest ify him to hold office, he would still remain

or trial, the functions of the executive office in office until divested by a court procedure

will be suspended and the government of or by impeachment.

the state would be without a head. These authorities are all based upon the

(3) If convicted, the Governor would single proposition that because of the absolute identity of the person of the Governor

have the power to immediately pardon himwith his office and the physical inability to

self, as his conviction would not suspend the coerce, imprison or put a Governor upon

pardoning power which rests with him alone. trial for a supposed criminal offense without

(4) The Constitution creates the Govinterfering with the functions of the execu

ernor the supreme executive officer of the tive department and depriving the state of

state, and in arresting him, a subordinate the executive head, the governor is exempt

officer of his department, the sheriff, coerced from arrest during his term of office, but it

him to imprisonment on the command of a is everywhere recognized that he is not

co-ordinate branch of the government, the above the law, but subject to it and can only judiciary, thereby suspending the continuous be punished in accordance with it after his functioning of the executive department in

violation of the Constitution.18 person is lawfully separated from the chief executive office.

(5) The Governor, as commander-inAs said by the Supreme Court of Mis- chief of the militia, is vested with power, souri in the Major case:

not only to call out the militia at will, but "The Governor's duty devolves on him

to determine for himself when to do so, and by law under a higher authority than the what shall be done in obedience to the comorder of a court, i. e., the mandate of the

mand of the Constitution to take care that constitution. The duties thus conferred are

the laws be faithfully executed and to suppolitical, and his acts are entirely independent of the judiciary and for a failure to

port the constitution; and his acts in accordperform which he is responsible to the peo

ance with his judgment as to when and how ple alone..."

he shall exercise that power cannot be quesThose who so loudly proclaim that the tioned in any place or by any person, except Governor should be subject to the Courts for a willful, that is, a knowingly and purmerely attempt to subordinate the executive posely committed violation of the Constito the judicial departments and make the tution. 19 judge the supreme authority, not only over his department, but over the executive de- (19) In re Moore, 64 N. C. 802; In re Kerr,

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64 N. C. 816; People v. Dunne, 258 Ill. 441; Peopartment as well.

ple v. Bissel, 19 Ill. 229.


Burr case.

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