CHAPTER 7. MANDAMUS AGAINST THE STATE. § 89. Cannot obtain a mandamus indirectly by obtaining one against an officer. 90. When the writ goes against the officers to enforce a liability of the state. § 89. Cannot obtain a mandamus indirectly by obtaining one against an officer.— In England it is well settled law that the writ of mandamus will not run against the sovereign. The reasons assigned for this ruling are, that it is incongruous for the sovereign to command himself to do an act, and because in case of disobedience the command of the writ is enforced by attachment of the person.1 In America the same conclusion is reached, but the reason therefor is because no suit can be brought against a state, unless it consents thereto.2 In neither country will litigants be allowed to evade this rule, and the writ of mandamus will not be allowed to run against the servants of the crown or state, as such, in order to enforce the satisfaction of claims upon the crown or state. The writ cannot be used to make a contract which will bind the state, as to compel the executive council to contract with the relator, as the lowest bidder, to publish the state reports; nor can it be used to compel a state to fulfill its contract, as to IQ. v. Powell, 1 Q. B. 351; R. v. Customs (Com'rs), 5 A. & E. 380. 2 Ottawa Co. (Sup'rs) v. AuditorGen., 69 Mich. 1; Aplin v. Grand T. Co., 73 Mich. 182; People v. Dulaney, 96 Ill. 503; State v. Burke, 33 La. An. 498. 3 De Bode, In re, 6 Dowl. 776; Q. v. Lords Com'rs of the Treasury, L. 6 R. 7 Q. B. 387; Cunningham v. 4 Chance v. Temple, 1 Iowa, 179. 5 Mills Pub. Co. v. Larrabee, 78 Iowa, 97. "Ayers, In re, 123 U. S. 443, 503; People v. Dulaney, 96 Ill. 503. compel the secretary of state to deliver copies of certain laws to the public printer to print, when by subsequent statute the printing thereof is to be let to the lowest bidder.' The writ has been denied, as being indirectly a suit against the state: to compel the commissioner of the state general land office to issue patents for the state lands without paying the fees due to the state therefor;2 to make state officers pay out money in the absence of an appropriation, and of a warrant; to compel the auditor-general to pay over to a county treasurer the proceeds of certain taxes collected by him;" and to compel the state treasurer and auditor to audit and pay certain coupons according to a statute after the passage of a subsequent statute, which appropriated the funds to another purpose." The courts are not authorized, when a state cannot be sued, to set up their jurisdiction over officers in charge of the public moneys so as to control them as against the political power in their administration of the finances of the state. The officers owe duty to the state alone. They can only act as the state directs them to act, and hold as the state allows them to hold. They can be moved through the state, but not the state through them.' Where a mandamus was applied for to compel a county to levy a tax to pay its indebtedness to the state, and in another case to compel a county treasurer to pay over money collected by him for the state, the county was not allowed to assert a set-off against the state, because the state could not be sued directly or indirectly. A mandamus was sought to compel the admission to a customary or copyhold estate. Such writs were formerly brought against the steward alone, but the court had ruled that the writ must also run against the lord of the manor in order more effectually to protect his rights. In this case the queen was the lord of 1 Marshall v. Clark, 22 Tex. 23. Contra in State v. Barker, 4 Kans. 379, wherein only the inviolability of a contract is considered. 2 Taylor v. Hall, 71 Tex. 206. 5 Ottawa Co. v. Auditor-Gen., 69 Mich. 1. 6 State v. Burke, 33 La. An. 498. Louisiana v. Jumel, 107 U. S. 711. 8 Aplin v. Van Tassel, 73 Mich. 28; Aplin v. Grand Traverse Co. (Sup'rs), 73 Mich. 182. the manor. The relator sought to have the writ run to the steward alone. The court stated that, if the writ were obeyed when issued to the steward alone, the property of the crown would be indirectly affected, and that the grown was as much entitled to protection as a subject. The writ: was therefore refused, since it could not issue against the suv ereign.1 $90. When the writ goes against the officers to enforce a liability of the state. It does not, however, follow that this writ is never issued to compel the performance of a ministerial act connected with the liabilities of the government. There are cases when the writ will so issue, yet they must be where the government itself is liable and is willing to pay its debt, but the officer himself has improperly refused to act. Where money was appropriated to pay the arrears of the relator's pension, and the lords of the treasury admitted to him they had the money appropriated for him, a mandamus was issued against them to compel them to issue an order therefor in the relator's favor. They were officers of the crown, but this was only the case of public officers having control of a sum of money for a particular purpose. When such officers act merely as servants of the crown, amenable alone to the crown, owing no duty to the relator, the writ is refused. Where the lords. commissioners of the treasury had received the money to pay the costs of criminal prosecutions, they were not required to pay certain items of a criminal prosecution.' Where the amount appropriated to pay a pension was thrown into the general fund applicable to other accounts, and never reached the lords commissioners of the treasury for the purpose of paying that pension, a mandamus to compel them to use it to pay that pension was refused. 1Q. v. Powell, 1 Q. B. 351. 2 Reeside v. Walker, 11 How. 272; Chance v. Temple, 1 Iowa, 179. King v. Lords Com'rs of the Treasury, 4 A. & E. 286. 4Q. v. Lords Com'rs of the Treasury, L. R. 7 Q. B. 387. 5 King v. Lords. Com'rs of the Treasury, 4 A. & E. 984. CHAPTER 8. MANDAMUS TO THE EXECUTIVE OFFICERS OF THE GOVERN MENT. § 91. The three co-ordinate independent branches of the government. 92. Mandamus to the president of the United States. 93. Mandamus to the governor of a state. 94. Mandamus refused against the governor of a state. 95. A case wherein decided that the writ would not issue against a 96. $7. governor. Case where it was decided that a governor is amenable to this writ. 98. Mandamus to the governor of a state from a federal court. 100. Mandamus to heads of federal executive departments. 101. 102. Cases of mandamus to heads of federal executive departments. 103. Mandamus to a state treasurer. 104. Mandamus to the comptroller of a state. 105. Mandamus to the auditor of a state. 106. Mandamus to commissioner of state land office. $91. The three co-ordinate independent branches of the government.- In the constitutions of the several states, and in that of the United States, the powers of government are divided between three departments, the legislative, judicial and executive. One department enacts the laws, another interprets them, and the third enforces them. These departments are co-ordinate branches of the government, entirely independent of each other, and each is supreme in its own domain. It then became important to determine to what extent the judiciary department could interfere in the operations of the other departments by the use of the writ of mandamus. While on the one hand it is claimed that the judiciary must be supreme in the determination of all questions which come before it in the course. of legal proceedings, yet on the other it is asserted that the other departments, being supreme in their spheres of action, cannot be controlled by the judiciary, nor can the judiciary direct them or supervise them in the performance of their duties. § 92. Mandamus to the president of the United States.At an early period in the history of this country the supreme court of the United States, which in such cases is the final judicial arbiter, determined that the president of the United States, so far as his powers are derived from the constitution, is beyond the reach of any other department except the impeaching power; that his powers are political, and in the exercise thereof he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. As a consequence of these decisions, no one has ever sought to obtain a mandamus against the president of the United States. § 93. Mandamus to the governor of a state. The governors of the various states occupy a position similar to that of the president of the United States, being the heads of the executive departments of their respective states, and the constitutions of the various states generally specifically state, which the United States constitution does not, that the legislative, judicial and executive departments shall be distinct and independent of each other, and that the officers of one department shall execute none of the duties of either of the other departments. As might be expected, the rulings of the various state supreme courts are not in harmony on the question whether a mandamus can be issued to a state governor. Those courts which grant the writ against the state governor claim that the judiciary is supreme in its domain, and that therefore the authority of the judiciary is supreme in the determination of all legal questions involved in any matter judicially brought before. it; that the law exempts no one from the operation of the 1 Marbury v. Madison, 1 Cranch, 2 People v. Brooks, 16 Cal. 11. 137; Kendall v. United States, 12 Pet. 524. |