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 person 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 governinent 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 the postmaster general continued to withhold the credit, and

congress, being appealed to, had determined that no further legislation in the matter was necessary. Upon these facts, it was held that a mandamus should issue to compel the postmaster general to give such credit. Kendall v. U. S. ex rel. Stokes et al., 12 Pet. (U. S.) 524. This seems to be the only case in the supreme court of the United States; where a mandamus has issued; but in a recent case, 1887, 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 it over to him, a mandamus will lie to compel such payment. U. S. ex rel. White v. Bayard, 5 Mackey (U. S.) 428.

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

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

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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 amount of the verdict. Reeside v. 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 issue patents therefor. Gaines v. Thompson, 7 Wall. (U. S.) 347; Cox v. U. S., 9 Wall. (U. S.) 298; Litchfied v. Richards, 9 Wall. (U. S.) 575.

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 insufficient and gave judgment for the plaintiff. Brown v. United States, 6 Ct. of Cl. 171.

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

State officers has been based on the same principles, viz., that only a ministerial duty can be performed. Thus, in the case of an application for an injunction to restrain a State board of liquidation from using certain bonds in liquidation of a certain debt, it was decided by the United States supreme court that the injunction had been properly granted by the circuit court, under the facts of the case, 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 exercise 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 duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby for which adequate compensation cannot be had at law, may have an injunction to prevent it. Board Board of Liquidation et al. v. McComb, 92 U. S. 532, affirming McComb v. Board of Liquidation, 2 Woods (U. S.) 48.

But a United States court will not compel the payment of the interest due on State indebtedness by a mandamus against State officers who refused to pay because such payment had been forbidden in a new constitution of the State. Louisiana 7. 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 constitution of the United States. Doylev. Continental Ins. Co., 94 U. S. 535, as 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

United States have determined the action of the respective State tribunals. Here also the cases are few wherein the right has been exercised. As regards the governor of a State, the principle has been laid down that his position is more analogous to that of the president of the United States than to that of the heads of the executive departments, and therefore it is extremely doubtful whether in any case the court could regulate his actions; and that, in any event, "the presumption in all cases must be, where a duty is devolved upon the chief executive of the State rather than upon an inferior officer, that it is so because his superior judgment, discretion and sense of responsibility were confided in for a more accurate, faithful and discreet performance than could be relied upon if the duty were devolved upon an officer chosen for inferior duties." Sutherland v. The Governor, 29 Mich. 320, 324; s. c., 18 Am. Rep. 89.

In some States, however, the courts have undertaken to decide what are and what are not properly executive duties, and to assert a right to control the governor's action in some cases, while admitting their want of jurisdiction to do so in others. Harpending v. Haight, 39 Cal. 189; Bonner v. State, 7 Ga. 473, 480; Magruder v. Swann, 25 Md. 173; State v. Chase, 5 Ohio St. 528; Chamberlain 7. Sibley, 4 Minn. 309; People v. Bissell, 19 Ill. 229; People v. Hatch, 33 Ill. 9; People v. Yates, 40 Ill. 126; State v. Kirkwood, 14 Iowa 162. While there are some jurisdictions where it has been held that the executive and judicial departments are entirely distinct, and therefore neither can enforce the performance of even ministerial duties by the other. Hawkins v. Governor, 1 Ark. 570; State v. Towns, 8 Ga. 360; Rice v. Austin, 19 Minn. 103; State v. Champlin, 2 Bailey (S. Car.)

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And it would seem to be clear that State courts have no power to review the exercise of a discretionary power by the executive. State v. Cahen, 28 La. Ann. 645.

1. Jurisdiction Over State Governor by Consent.-In a case where an application was made for a mandamus ordering the governor of a State to issue certain bonds providing for an act of assembly, he refusing to do so on the ground that the act was unconstitutional; in that case the relator and the respondent agreed to a case stated to secure a decision as to the constitutionality of the act, and the court having decided that the act was constitutional refused a peremptory mandamus, but entered a rule nisi. Pacific Railroad v. The Governor, 23 Mo. 353. In some of the early cases this method of securing a legislative construction of an act was adopted and accepted by the courts, not entering, as is stated in one of the cases, upon the enquiry as to how the writ will be enforced, because we are not allowed to suppose that the question will arise, feeling assured that the sole purpose of the governor is to obtain a judicial construction of the statute in question" Cotten v. Ellis, 7 Jones (N. Car.) L. 545; see Minnesota & Pacific R. R. Co. v. Sibley, 2 Minn. 13; People v. Palmer, 64 Ill. 41. See the article on CONSTITUTIONAL LAW, § 4, c. Encroachments on Executive Department. Am. & Eng. Encyc. of Law, vol. 3, p. 685.

2. Jurisdiction of State Courts Over

State Officers.-The jurisdiction of State courts over State officers has been frequently discussed. The right of the party to the relief sought must be beyond question, and it must also appear that the officer has no discretionary power. Towle v. State, 3 Fla. 202.

State courts have held that they had the power to compel a State treasurer to deliver up bonds which were deposited with him under a law held to be unconstitutional. People ex rel. La Grange v. State Treasurer, 24 Mich. 46S. A secretary of State to revoke the licence of a foreign corporation. State v. Doyle, 40 Wis. 175. A State Comptroiler to countersign and register bonds. Bledsoe v. International Railroad Co., 40 Tex. 537. A State auditor to issue a warrant for money due from the State

been proved to us, and we know of none. The State also pledged its faith and credit for the same purpose; and it would not be pretended that we have authority to enjoin the legislature to respect this part of the pledge by providing adequate taxation. For such a pledge, as well as for the one insisted on, the remedy is a moral one, to be enforced by means of the moral sense of the community operating upon the legislature, and by means of the moral sense of the civilized world operating upon both the people and the legislature; an influence and responsibility to which all States are subject." Sunbury & Erie R. R. Co. v. Cooper, 33 Pa. St. 278, 281.

So it has been been decided that the court will not compel a speaker of the house of representatives to transmit a bill to the senate, because he is alleged to have erred in the construction of a constitutional provision requiring a two-thirds vote to pass such bill. Ex parte Echols, 39 Ala. 698. Nor will a secretary of State be compelled to promulgate a law passed by the State legislature. State v. Deslonde, 27 La. An. 71.

See also note 1, infra, Jurisdiction of the Judiciary Department Over Political Questions, and note 1, p. 260, Jurisdiction of the Legislative Department Over the Judiciary Department.

1. Jurisdiction Over Political Questions.-"Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in the court." MR. CHIEF JUSTICE MARSHALL, in Marbury v. Madison, I Cranch (U.S.) 137, 170; Dickey v. Reed, 78 Ill. 261. Such questions are solely within the jurisdiction of the executive and legislative departments. Thus the settlement of natural boundaries is not a judicial question. "The judiciary is not that department of the government to which the assertion of its interests against foreign powers is confided; and its duty commonly is to decide upon individual rights, according to those principles

which the political departments of the nation have established." Foster v. Neilson, 2 Pet. (U. S.) 253, 307; U. S. v. Arredondo, 6 Pet. (U. S.) 691, 711.

This principle was recently applied in the Supreme Court of the United States in a suit brought to determine the validity of the retrocession by congress to the State of Virginia of that part of the District of Columbia as originally constituted, which was ceded by Virginia to the United States, and it was held that since congress had repeatedly recognized the transfer, and asserted and affirmed it, a suitor in court was estopped from denying its validity. Phillips v. Payne, 92 U. S. 130.

And in the French spoliation cases. recently decided in the court of claims, it became necessary to determine whether war existed between France and the United States at the time the claims arose, and the court held, that concerning the question whether the war existed and the nature and extent of it if it did exist, the judicial department must follow the political, and after an exhaustive review of the actions of congress and the executive at the period in question and thereafter, rested its decision of the question in favor of the claimants on the result of that examination. Gray Admr. v. United States, 21 Ct. of CI. 340.