or to submit his official acts, as governor, to the scrutiny of any court. An order was granted on the governor to show cause why he should not appear and testify. After argument, ZABRISKIE, Chancellor, said: "The governor cannot be examined as to his reasons for not signing the bill, nor as to his action in any respect regarding it. But there is no reason why he should not be called upon to testify as to the time it was delivered to him. That is a bare fact that includes no action on his part. To this extent, at least, I am of opinion that he is bound to appear and testify. But I will make no order on him for that purpose. Such order ought not to be made against the executive of the State, because it might bring the executive in conflict with the judiciary. If the executive thinks he ought to testify, in compliance with the opinion of the court, he will do so without order; if he thinks it to be his official duty, in protecting the rights and dignity of his office, he will not comply even if directed by an order. And, in his case, the court would hardly entertain proceedings to compel him by adjudging him in contempt. It will be presumed the chief magistrate intends no contempt, but that his action is in accordance with his official duty."

In Hartranft's Appeal, 85 Pa. St. 433, 447, GORDON, J., commenting on this case, says: "If we adopt this opinion as a sound exposition of the law, the case before us is determined; for the matter is left to rest solely on the opinion of the executive, although his opinion be clearly contrary to that of the court. We are inclined to think

the conclusion thus reached is wise and discreet; and it is supported by the best text writers of our times."

"What, then, are the duties, powers and privileges of the governor? In the language of the constitution, article 4, section 2, 'The supreme executive power shall be vested in the governor, who shall take care that the laws be faithfully executed.' Also, same article, section 7: The governor shall be commander-in-chief of the army and navy of the commonwealth, and of the militia, except when they shall be called into the actual service of the United States.' He is, also, invested with the appointing and pardoning powers; the power to convene the legislature in cases of emergency, and to approve or veto bills submitted to him by the gen eral assembly. It is scarcely conceiva

ble that a man could be more completely invested with the supreme power and dignity of a free people. Observe, the supreme executive power is invested in the governor, and he is charged with the faithful execution of the laws, and for the accomplishment of this purpose he is made commanderin-chief of the army, navy and militia of the State. Who, then, shall assume the power of the people and call this magistrate to an account for that which he has done in discharge of his constitutional duties? If he is not the judge of when and how these duties are to be performed, who is? Where does the court of quarter sessions, or any other court, get the power to call this man before it, and compel him to answer for the manner in which he has discharged his constitutional functions as executor of the laws and commanderin-chief of the militia of the commonwealth? For it certainly is a logical sequence that if the governor can be compelled to reveal the means used to accomplish a given act, he can also be compelled to answer for the manner of accomplishing such act. If the court of quarter sessions of Allegheny county can shut him up in prison for refusing to appear before it and reveal the methods and means used by him to execute the laws and suppress domestic violence, why may it not commit him for a breach of the peace, or for homicide, resulting from the discharge of his duties as commander-in-chief? And if the courts can compel him to answer, why can they not compel him to act? All these things, we know, may be done in the case of private individuals; such an one can be compelled to answer, to account and to act. In other words, if, from such analogy, we once begin to shift the

supreme executive power from him upon whom the constitution has conferred it to the judiciary, we may as well do the work thoroughly and constitute the courts the absolute guardians and directors of all governmental functions whatever. If, however, this cannot be done, we had better not take the first step in that direction. We had better, at the outstart, recognize the fact that the executive department is a co-ordinate branch of the government, with power to judge what should or should not be done within its own department, and what of its own doings and communications should or should not be kept secret, and that with it, in the exercise of these constitutional

powers, the courts have no more right to interfere than has the executive, under like conditions, to interfere with the courts. In the case of the State v. Warmouth, 22 La. Ann. 1, it was held (per TALIAFERO, J.,) that, under the division of powers, as laid down in the Federal and State constitutions, the judiciary department has no jurisdiction over or right to interfere with the independent action of the chief executive in the functions of his office, even though the act he is required to perform be purely ministerial. This is putting the matter on very high grounds, for, in such case, no other officer would be exempt from the mandatory power of the judiciary. No case could more forcibly exhibit the extreme reluctance of courts to interfere with the functions of the supreme executive, for the hypothesis put is the refusal of a governor to perform a duty cast upon him by law of a character strictly ministerial. We think, however, that the ground upon which this decision stands is substantial; for as the learned justice well argues, the difficulty arises in the attempt to establish a distinction between ministerial and discretionary acts as applied to the governor, and then to conclude that the former may be enforced by judicial decree; it is objected, however, that the doctrine is unsound in this, that it gives to the judiciary the large discretion of determining the character of all acts to be performed by the chief executive; that this would infringe his right to use his own discretion in determining the very same question; that he must necessarily have the unconditional power of deciding

what acts his duties require him to perform, otherwise his functions are trammelled and the executive branch of the government is made subservient to the judiciary. The principle enunciated, in the above stated case, applies with greater force to that we now have under consideration; for, if the governor's discretion may not be interfered with in a matter purely ministerial, much more may that discretion not be interfered with in a case which pertains to his office and duties as commander-inchief, in the discharge of which the constitution makes that discretion his peculiar and absolute prerogative." Per GORDON, J., Hartranft's Appeal, 85 Pa. St. 433, 444, et seq.

1. See State constitutions and statutes of several States. Stimson's Am. Statute Law.

In Alabama, Kentucky and Missouri he can command in the field only when authorized to do so by the legislature, and in Maine, Massachusetts and New Hampshire he cannot order the militia out of the State without the authority or consent of the legislature.

But a writ of mandamus is not issuable to direct him as commander-inchief to perform a duty which is properly within the sphere of his duties, though the same is imposed upon him by statute. Mauran . Smith, 8 R. I. 192; s. c., 5 Am. Rep. 564.

2. U. S. v. Clayton, 2 Dill. (U. S.) 219.

3. Baxter v. Brooks, 29 Ark. 174; Chadwick v. Earhart, 11 Öreg. 389.

Under the constitution of Delaware the governor is the sole judge of "extraordinary occasions for convening

the legislature. Whiteman v. W. & S. R. Co., 2 Harr. (Del.) 514.

Chief of Cherokee Nation "Governor ' Within Statute.-Under the statutes of North Carolina (Bat. Rev. ch. 35, § 8) which provide that "when any deed concerning lands in this State shall have been executed, and it may be desired to take the acknowledgment or probate thereof out of the State, but within the United States, it shall be lawful for any judge of a supreme, superior or circuit court within the State or territory where the parties may be to take the probate. And the certificate of such judge with the certificate of the governor of the State or territory annexed to such deed," etc., that he was such judge shall be sufficient to admit the deed to probate and registration in this State. A deed was offered which had been acknowledged, and which was certified to by the judge of the circuit court for the southern judicial circuit of the Cherokee nation and the chief of the Cherokee nation; objection was made that it was not properly proved; but the court held the probate of the deed sufficient, and ordered it to be registered, READE, J., saying: "It was discussed before us whether the Cherokee nation is to be considered a State or territory or a foreign nation. Its status is anomalous. It is certainly not a foreign nation, but is a part of the United States territory, using territory in its general sense. It is not a State in the sense in which the other States are called. Nor yet is it an organized territory as the organized territories are. And yet it is a territory of the United States set apart for the Cherokee nation with an organized government, legislative, executive and judicial, under the protection of the United States government, and under its tutelage and guardianship. And for the purposes now under consideration it must be considered a 'territory' 'within the United States.' Taking it to be a territory within the sense of our statute, still it is objected that the certificate is not by the governor' of the territory. It is the proceeding before the judge and his certificate that constitute the probate. The only object of the governor's certificate is to prove to our courts here that he was a judge. That can best be done by the chief executive officer of a State or territory who carries its great seal, and such officer is in the United States called governor, except in the

8 C. of L.-89

Cherokee nation, where he is called chief. He is, however, the governor of the Nation' and carries its seal. The governors of the States are frequently called chief executive officer, chief magistrate, commander-in-chief. And so we say king, sovereign, monarch, designating the same officer and office. Giving to our statute a liberal and useful construction, it means the chief executive officer in the State or territory bearing the great seal. There is no officer in the Cherokee nation called 'governor, so far as we know. And the 'chief' discharges the duties which usually pertain to the office of govennThe 'chief' is therefore for our purposes 'governor.' Whitsett v. Forehand, 79 N. Car. 230.

or.

Word Governor as Descriptio Personæ.-A complaint for foreclosure alleged that "A. W. R., Governor of the State of Wisconsin," claimed an interest in the mortgaged premises, and it was held, that the words "governor," etc., were mere descriptio personæ, and did not raise the question whether the court had jurisdiction of an action against the governor in his official capacity, COLE, J., saying: "The counsel for the respondent states in his brief that the main and important question in this case is, whether R., as governor of the State, was liable to be prosecuted in the circuit court for the purpose of cutting off any right or interest in the mortgaged property vested in him as the executive of the State. It is argued that the executive, being a co-ordinate branch of the gov ernment, is not liable to be sued in the courts of the State. Whether these propositions are correct or not, we shall not stop to inquire, for the reason that according to our understanding of the complaint, they do not arise in the case, and are not before us. The action is to foreclose a mortgage. It is alleged in the complaint that Alexander W. Randall, governor of the State of Wisconsin-with many other persons who are made parties defendant-claims to have some interest in the mortgaged premises. But what that claim or interest is does not appear, further than that it alleged to to be subsequent to the mortgage, and subject thereto. It is the usual allegation in a complaint for the foreclosure of a mortgage as against subsequent incumbrances. We are not authorized to assume from the words 'Governor of the State of Wisconsin,'

that Randall is sued in his official character as executive of the State; or that the State has any right or interest whatever in the mortgaged property to be affected by the litigation. On the contrary, we think the fair inference is, that Randall is a subsequent incumbrancer, or is in some way personally interested in the mortgaged premises. The words 'governor,' etc., are evidently merely descriptio persona, and have no more significance, as here used, than any other title or description that might have been given him. They certainly do not show that he is sued in his official character as chief magistrate, or that he represents any interests which concern the State. If he is a subsequent incumbrancer, or is interested in the mortgaged property as trustee or otherwise, we do not suppose the fact that he is governor will prevent a foreclosure of the mortgage, or deprive the court of the power of making a decree barring his equities in the real estate." Bridgeport Savings Bank v. Randall, 15 Wis. 541.

1. Grade of Crime.-The constitution of New York provides that "courts of special sessions shall have such jurisdiction of offences of the grade of misdemeanors, as may be prescribed by law." By an act of the legislature, exclusive power to hear, try and determine "all cases of petit larceny, not charged as a second offence," was conferred upon the court of special sessions in M county. It was contended that this act was unconstitutional, because petit larceny was not an offence of the grade of misdemeanor. But it was held that the statutes of the State, by reason of the penalties imposed, had made petit larceny an offence of the grade described, and that the act was therefore constitutional. Said the court: "The section of the constitution referred to

does not name any particular crime or offence, but includes all of a certain grade Grades of crime, in legal parlance, are always spoken of and understood as higher or lower in grade, or degree, according to the measure of punishment attached and meted out on conviction, and the consequences resulting to the party convicted. Punishments are attached by law to offences, according to what is deemed to be their heinousness,

consequences

and other injurious upon society. In this way they are ranked or graded, and by this rule the rank or grade of a crime is determined." People v. Rawson, 61 Barb. (N. Y.) 619.

To Grade a Highway.-A statute of Rhode Island provided for the compensation in damages of the injuries caused to the owners of abutting property "by any change in the grade of a highway." On the question as to whether this statute applied to a case where there was a change of grade in a highway in which the former grade had not been established by the public authorities, it was urged by counsel that if it were so construed as to include such case, it would follow that any existing highway which had been wrought might be regarded as graded, and consequently, that no such highway could be graded by order of the public authorities without entitling abutters injured by the change to damages, a proposition that confessedly could not be maintained. But, said the court, which held that the case in dispute was included within the statute, in answer to this objection: “To grade a highway is to do more than simply prepare it for travel; for this may often be accomplished by slight superficial changes." Aldrich v. Aldermen of Providence, 12 R. I. 243.

To Change the Grade of a Street.-By the charter of a city, a grade established by the city could not be changed or altered except upon the petition of the owners of two-thirds in value of the property on both sides of the street where the change was to be made. The city, by ordinance, without any petition having been presented, caused a street with an established grade to be macadamized. The material used for macadamizing raised the street about twelve inches. It was held that the ordinance and the paving thereunder, were not in conflict with the charter. Said the court: "This was the only change (the change in the level of the street caused by the paving) that can be claimed, but it cannot be considered an alteration of the grade, for we will presume, in the absence of any proof to the contrary, that the surface of the street was left at the proper grade line to receive the material." Warren v. Henly 31 Iowa 31.