State v. Governor

The Chief Justice

delivered the opinion of the court.

An application is made to the court for a rule upon the governor of the state, requiring him to show cause why a mandamus should not be awarded, commanding him to issue a commission to the applicant, as surrogate of the county of Passaic. As important public interests wen liable to be affected by any delay on the part of the court in announcing the decision, it was intimated at the last term, upon the close of the argument, that the application would he denied. The importance of the questions involved, and the learning and research manifested on the argument, render it proper that the grounds of the decision should be distinctly stated.

The motion is denied, first, because there is no evidence be fore the court, that a commission has been demanded *344 by the applicant, or that the governor has refused to issue it. This fact should affirmatively appear as the foundation of the application. The facts, as they appeared before the court, are, that there are two claimants to the office ; one holding the decision of the board of county canvassers in his favor, the other claiming to have a majority of the legal votes cast .at the election. The parties agreed to submit the legal questions involved, to' the decision of this court, the governor postponing his action to' afford an opportunity for that purpose. While we cheerfully concede that the spirit which prompted the arrangement is worthy of commendation, as alike lib.erable and honorable, we cannot close our eyes to the fact, that it does not present a proper case for a writ of mandamus. It is an effort, not to constrain the doing of an act which the governor has refused to perform, but to obtain by amicable arrangement the opinion of this court, upon a disputed question of law touching the result .of a popular election. It is obvious, too, that an answer to the rule to show cause, if made fully according to the truth of the case, will exhibit the utter futility of the whole proceeding. The court are not the constitutional advisers of the executive, and it is neither consistent with law nor propriety, that a decision pronounced upon an important question of public right, in a proceeding instituted ostensibly for the redress of a private injury, should assume the character, and perform the office, of a mere advisory opinion.

But if this difficulty, under the peculiar circumstances of this case, should be regarded as formal, rather than meritorious, and as presenting no insuperable objection to the action of the court, the mandmvus must be denied, upon the ground, that the applicant, upon the facts disclosed, is not entitled to the relief sought for. The case made on the part of the applicant, assuming it to be fully established by the evidence, is, that the applicant, according to the returns made by the boards of election of the *345 several townships to the board of county canvassers, received a higher number of votes for the office of surrogate than any other candidate, and was consequently entitled to the determination of the board of county canvassers in bis favor; that the board of county canvassers made their statement of the result of the election, and their determination as to the person elected, contrary to the truth bf the case, upon incompetent and illegal evidence, and not upon, and only upon, the statements presented and laid before the board, by members of tlie various township boards, as prescribed by law. It is admitted that the official certificate of the result of the election, made by the board of county canvassers, shows that another individual, and not the applicant, received the highest, number of votes. It is also conceded that, by the determination of the board of county canvassers, it was determined that another individual, and not the applicant, was duly elected to the office of surrogate. The certificate of the result of the election and the determination of the board of canvassers, verified as required by law, have been filed in the office of the clerk of the county, and also in the office of the secretary of state. It is sought, by the applicant, to avoid that certificate and determination of the board of county canvassers, as illegally made, and to have a commission issued to the party having the highest number of votes according to the returns of the boards of election of the several townships, and according also, as Is contended, to the truth of the case, as it appears upon the evidence befoi-e the court.

It is made a question whether, by law, the board of county canvassers are empowered to determine who is elected surrogate or clerk, and whether it is, by the act, made the duty of the governor to issue a commission to those officers, in accordance with such determination of the board. By the 76th and 77th sections of the election law, the hoard of county canvassers are required, in case *346 of an election for member of tbe senate, members of tbe general assembly, sheriff and coroners, to determine who are duly elected, and to make a certificate of their determination. By the 78th section of the act, they are required, in the case of an election for a member of the senate, members of the general assembly, sheriff and coroners, or any of them, to make the statement of the result of the election, and their determination as to the persons elected, and in all other cases to make the statement of the result of the election, upon, and only upon, the statements which shall be produced and laid before the board, as directed in the act. The succeeding sections' direct that, in the case of an election of a member of the senate, members of the general assembly, sheriff and coroners, or any of them, the clerk of the county shall make eojfies of the determination of the board, and the certificate appended thereto, and shall deliver a copy, duly certified, to each person elected,a and shall also transmit a similar copy, duly certified, to the secretary of state, to be filed in his office as an official paper. By the 81st section it i enacted, that when any person, who shall at such election have been elected to the office of sheriff or coroner, shall produce before the governor such a certified copy as is above mentioned, to which there shall be added the certificate of six freeholders of the county in which such election shall have been held, certifying that such person has been duly elected, the governor shall forthwith commission such person as such sheriff or coroner. These sections make provision for a certificate of the determination, by the board of county canvassers, of the persons elected, only in the case of an election of members of the legislature, sheriff and coroners. And the governor, is required to issue a commission in accordance with such determination, only in the case of sheriff and coroners. They are silent as to the office of clerk and surrogate. These sections are a substantial transcript from the act of 1839, *347 which was passed before the offices of county clerk and surrogate were made elective by the people. They specified all the county officers which were then chosen by popular election, and declared upon what evidence tho governor should act in issuing commissions to all such county officers as were required to be commissioned by him. The act of 1846 has adopted these sections without .material alteration, and lias also retained the form of the certificate of the result of the election, and of the determination of the board of county canvassers.

But, by the 58th section of the act of 1846, it is enacted that the provisions of the act relative to the statement of the result of the election by the board of county canvassers, and also relative to tho statement of the determination of said board, shall apply to the votes for clerk and surrogate. There seems, however, to be no provision in the act, expressly requiring the governor to issue his commission in accordance with such determination, in the case of the election of clerk or surrogate. Yet we think that the sound construction of the statute requires that such interpretation should be adopted, and that the governor is required to issue a commission in the case of the election of county clerk and surrogate, upon the same evidence as is designated in the case of other county officers. The act has established two tribunals, whose province it is to determine upon the election of all state and county officers chosen by the people. The result of the election of all county officers is submitted to tho determination of tho board of county canvassers. The result of the election of the governor, members of congress, and electors of president and vice president, is submitted to the determination of the board of state canvassers. The powers of these hoards, within their respective jurisdictions, are substantially the same. They officially determine what persons are elected to office, and the governor is required to issue commissions in accordance with rucli *348 determination. It is obvious, from the whole scope of the act, that it was the design of the 1 egislature to specify, in all cases, the evidence upon which commissions for office hould issue, They have required that the same evidence hall be furnished of the election of clerk and surrogate, as of other county officers. They have required that evidence to be filed in the office of the clerk of the county, and in the office of secretary of state as an official paper, and to be furnished to the persons elected. A sound and liberal construction of the act requires that commissions should issue in all cases upon the same evidence. Upon any other construction, there is no designation whatever of the evidence upon which a commission in the case of the election of clerk or surrogate shall issue, nor is there any provision made for procuring competent evidence of the election of these officers. The act clearly contemplates, and its policy requires, that the commission of the county clerk and sun’ogate should issue in accordance with the same rule which applies to other county officers commissioned by the governor. Such we understand to have been the uniform, practice under the act.

If this be the true construction of the act, it is clear that the application for a mandamus must fail. The governor is required by law to issue the commission in accordance with the determination of- the board of county canvassers. That determination is in favor, not of the applicant, but of another individual. We are asked to direct a commission to be issued in direct conflict with the plain requirements of the act.

The statements accompanying the official certificate of the board of county canvassers are not authorized by law, and constitute no part of the return. They must be rejected as mere surplusage. They form no ground upon which the governor could act in issuing the commission.

The board of county canvassers clearly erred in the grounds of their determination. They had no authority *349 to examine the regularity of the proceedings of the township boards, or to look behind the official returns made by them. All the evidence produced before them, outside of the official returns made as prescribed by laws, was unauthorized and illegal. It could constitute no legitimate basis for determination. The statute is too clear to admit of misconstruction. It prescribes, with minuteness and preci sion, the mode in which the judges of election in the township shall canvass and estimate the votes, and make and return their statement of the result to the county board. It directs that the board of county canvassers shall make their statement of the result, and their determination as to the persons who shall be elected, upon, and only upon, the statements which shall be produced and laid before the board, as directed in the act. The legitimate ground of their decision is not only pointed out, but every other is expressly excluded.

That this action of the board does not conclude or prejudice the right of the party aggrieved to the office, if elected by a majority of votes, is conceded. But the question now is, not who is entitled to the office, but who, by the terms of the act, is entitled, in the first instance, to the commission. If the act makes it incumbent upon the executive to issue a commission upon certain specified proof, this court, under color of trying the final right to the office, cannot instruct him to disregard the plain requirement of the statute.

In the third place, we are of opinion that the mandamus must bo denied, upon the broad ground that this court has no power to award a mandamus, either to compel the execution of any duty enjoined on the executive by the constitution, or to direct the, manner of its performance. The exercise of such power would be an unwarrantable interference with the action of the executive within his appropriate sphere of duty. The constitution has divided the powers of government into distinct departments, and *350 cautiously provided for their independent exercise. It has expressly forbidden any person belonging to, or constituti lg one of these departments, from exercising any of the powers properly belonging to either of the others, excej t as expressly provided in the constitution itself. It has vested in the governor all the executive powers of the government. Among the powers specifically enumerated, is that of issuing commissions under the great seal of the state to all such officers as shall require to he commissioned. The issuing: of the commission under the constitution of this state is clearly an exercise of political power. In regax’d to any other executive duty prescribed by the constitution, it has never been pretended that' the judiciary has the power to enforce its execution; or to direct the manner of its performance. . The constitution requires that the governor is to take care that the laws he faithfully executed; can the judiciary compel the performance of this duty ? He is required to sit as' a member of the court of pardons; can the judiciary interfere if the duty is neglected?' Why is it that' in this particular branch of executive duty, (the issuing of commissions) and in no other, the court may interfere ? It is' said' that the granting of a commission is a mere ministerial act; but is it, therefore, less an executive act ? As' contradistinguished from judicial duties, all executive duties are ministerial. The idea seems to be entertained that the duty of the executive becomes ministerial, when no discretion is left as to the manner of its performance, and that in such case the court may interfere to compel its performance. If this be the test", it follows,, that wherever the executive duty is clear the- judiciary is authorized to interfere'; bu't in al] cases of' doubt or difficulty, or uncertainty, the responsi Bility of acting rests upon the executive alone. In many cases the law allows the executive no discretion. The duty must be performed' in strict accordance with' the law, but'this court has not, therefore, power to • order the *351 duty to be performed. All executive duty is required to be executed by a higher authority than the order of this court, viz. by the mandate of the constitution. The absence of discretionary power cannot change the character of the act, or warrant the interposition of the judiciary.

If by ministerial duties, are meant duties performed by one acting under superior authority, or not with unlimited control, none of the duties of the executive are ministerial. All the ^powers conferred by the constitution upon the governor are political powers, all the duties enjoined are political duties. Touching all the powers conferred on the executive by the constitution, he is entirely independent of the control of the judiciary, being responsible to the reople alone, and liable to impeachment for misdemeanor m office.

While it is the acknowledged duty of courts of justice to exert all their appropriate powers for the redress of private wrongs, it is no less a duty sedulously to guard against any «ncroachment upon the right, or usurpation of the powers, of the co-ordinate departments of government. In the delicate and complicated machinery of our republican system, it is of the utmost importance that each "department of the government should confine itself strictly within the limits prescribed by the constitution.

It is obvious that the exercise of the power now invoked, will have a direct and immediate tendency to bring the executive and judicial departments of the government into conflict. It cannot alter the principle, that in the present case the governor' assents to the- application. We have Mr. Jefferson’s authority for saying, that if the Supreme Court had granted a mandamus in the case of Marberry v. Madison, he should have regarded it as trenching on his appropriate sphere of duty; that he had instructed Mr. Madison not to deliver the commission, and that he was prepared, as president of the United States, to maintain his own construction of the constitution with all the *352 powers of the government, against any control that might be attempted by the judiciary, in effecting what he regarded as the rightful powers of the executive and senate within their peculiar departments. Jefferson's Works, vol. 4, p. 75, 317, 372.

Whether these views be correct or erroneous, they sufficiently evince that the judgment of the court would have been rendered utterly nugatory by the power of the executive, and exhibit in a striking point of view the danger of even a seeming encroachment on the rights of a co-ordinate department of government. In view of the importance of maintaining the harmonious operation of the different departments of government, the court, in the exercise of its powers, should tread upon no doubtful ground. . ¡..

This view of the constitutional power of the court is confirmed by the fact, that in the whole history of our government (state or federal) there has been, so far as we are aware, no instance of the exercise of the power now invoked. In the only court in which the exercise of the power has been asked, its existence was denied. Hawkins v. The Governor, 1 Ark. R. 570.

The ease of Marberry v. Madison ( 1 Cranch 137 ) is the only authority relied upon in support of the application. Giving to that case all the effect'of a judicial decision upon the point under consideration, (which cannot legitimately be claimed for it), and all the weight to which the eminent character of the tribunal itself, and the cogent reasoning by which its conclusions are sustained, entitle it, it does not decide the' point now in question. Some of the positions of the court would seem to warrant the conclusion that a mandamus might issue against the president. But no such proposition is announced or attempted to■ be-maintained, and the language of the court, as applied to the case then under consideration, warrants no such inference as is attempted to be drawn from it.' The application in-that *353 .case was for a mandamus, to compel the secretary of state of the United States to deliver to the applicant a commission, to which the seal had been affixed, which had been signed by the president, and over which it was, therefore, held by the court that the president had ceased to have any control. The counsel of the applicant, in his argument in support of the application, emphatically disclaimed the pretence that a mandamus could in any case go to the president. He said.it certainly cannot, in all cases, .goto the •secretary of state, nor to the president in any case. An idea has gone forth that a mandamus to a secretary of state is equivalent to a mcmd,amus to the president of the United States. I declare it to be my opinion, grounded on a comprehensive view of the subject, that the president is not •amenable to any court of judicature for the exercise of his high functions, but is responsible only in the mode pointed out in the constitution. The secretary of state acts in two capacities; as the agent of the president, he is not liable to a mandamus, but as a recorder of the laws of the United States, as keeper of ■ the great' seal, as recorder of deeds of lands, of letters patent, and of commissions, &c., he is a ministerial officer of the people of the United States. This distinction is adopted by the court. “It is,” says Chief Justice Marshall, “ decidedly the opinion of the court, that when a commission has been signed by the president, the appointment is made; and that the commission is complete when the seal has been affixed to it by the secretary of state. When the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed. The discretion of the executive is to be exercised until the appointment has been made; but, having once made the appointment, his power over the office is terminated in all eases where, by law, the officer is not removable by him.” Again, he says, “ Where the head of a department acts in a case in which executive discretion is to be exercised, any application to the court, to control, in any *354 respect, Ms conduct, would be rejected without hesitation. Rut where he is directed by law to do a certain act affect ing the absolute right 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.” The distinction is clearly drawn between the president himself, and the head of a department acting in a matter, which, in the opinion of the court, had passed beyond the’ control of the president, which he had no right to forbid, and which, therefore, it was to be presumed he had not forbidden. The case affords no warrant for the present application.

The order must be denied.

Cited in State v. Common Council of Rahway, 4 Vr. 113; State v. Board of Chosen Freeholders of Camden Co., 6 Vr. 221.