to their mere will. It is purely arbitrary, and acknowledges neither guidance, nor restraint."

66

In fact, however, the court found in this case that the evidence showed that the ordinances in actual operation had been so exclusively directed against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they were applied by the public authorities charged with their administration, and thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the law which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the Fourteenth Amendment to the Constitution of the United States." And the court add, "Though the law itself be fair on its face and impartial in appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution." The judgment of the court was that the petitioners could not be punished for a violation of the ordinances in question.

Taken by itself the language of the court, as will be seen by the quotations which have been made, indicate a view that in no case may an arbitrary discretionary power be granted to a public official which will compel any person" to hold his life, or the means of living, or any material right essential to the enjoyment of life at the mere will of another." The force of this holding is, however, somewhat weakened by the fact that, as has been seen, the court found that, whatever the terms or intent of the ordinances in question, they had actually been administered in a grossly partial and unjust manner. And also, and more importantly, in the later case of Wilson v. Eureka City3 the court expressly upheld the constitutionality of an ordinance committing the right of the plaintiff with reference to the removal of a building owned by him, to the unrestrained discretion of a single official. The summary of 31 173 U. S. 32; 19 Sup. Ct. Rep. 317; 43 L. ed. 603.

cases in the State courts, given by the court in Re Flaherty,31a in which unrestrained discretion is sustained, is quoted with approval, the court declaring the discretionary power to be "based on the necessity of the regulation of rights by uniform and general laws a necessity which is no better observed by a discretion in a board of aldermen or council of a city than in a mayor, and the cases, therefore. are authority against the contention of plaintiff in error." 32

In this case it is certain that the Supreme Court commits itself to the doctrine that administrative officials may, in certain cases at least, be given a discretionary power to act according to their own unrestricted judgment as to what the circumstances require, and

31a 105 Cal. 558.

32 See also Davis v. Massachusetts, 167 U. S. 43; 17 Sup. Ct. Rep. 731; 42 L. ed. 71. The summary of cases given by the court in Re Flaherty is as follows:

"Statutes and ordinances have been sustained prohibiting awnings without the consent of the mayor and aldermen (Pedrick v. Bailey, 12 Gray, 161); forbidding orations, harangues, etc., in a park without the prior consent of the park commissioners (Commonwealth v. Abrahams, 156 Mass. 57), or upon the common or other grounds, except by the permission of the city government and committee (Commonwealth v. Davis, 140 Mass. 485); 'beating any drum or tambourine, or making any noise with any instrument for any purpose whatever, without written permission of the president of the village,' on any street or sidewalk (Vance v. Hadfield, 22 N. Y. 588); giving the right to manufacturers to ring bells and blow whistles in such manner and at such hours as the board of aldermen or selectmen may in writing designate (Sawyer v. Davis, 136 Mass. 239); prohibiting the erecting or repairing of a wooden building without the permission of the board of aldermen (Hine v. The City of New Haven, 40 Conn. 478); authorizing harbor masters to station vessels and to assign to each its place (Vanderbilt v. Adams, 7 Cow. 349); forbidding the occupancy of a place on the street for a stand without the permission of the clerk of Faneuil Hall Market (Nightingale, Petitioner, 11 Pick. 168); forbidding the keeping of swine without a permit wing from the board of health (Quincy v. Kennard, 151 Mass. 563); forbidding the erection of any kind of a building without a permit from the commissioners of the town through their clerk (Commissioners, etc. v. Covey, 74 Md. 262); forbidding any person from remaining within the limits of the market more than twenty minutes unless permitted to do so by the superintendent or his deputy (Commonwealth v. Brooks, 109 Mass. 355)."

1:

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$790. Mandamus.

In an earlier chapter of this treatise it has been pointed out that the courts will not by mandamus or other writ attempt to control the exercise by executive or administrative agents of a discretion given them by the Constitution or statutes. This, as we have geen, excludes from the field of judicial review all those acts which, as political in character, are purely discretionary. It also excludes an attempt upon the part of the courts to control all other administrative and executive acts in so far as there is possessed by those officials intrusted with their performance, a discretion as to how the nets shall be performed at all. Where, however, an act, not purely political in character, is by law required of an officer, the per88 187 U. S. 94; 23 Sup. Ct. Rep. 33; 47 L. ed. 90.

formance of which involves the exercise of a discretion, the courts may require that that discretion be exercised and the act performed. Furthermore, whether or not an officer has overstepped the limits of the discretionary powers granted him is always a proper subject for judicial determination.

That a mandamus will lie to compel the performance of purely ministerial acts, that is, those not involving the exercise of political or administrative discretion, is a principle that antedates the adoption of the United States Constitution.

§ 761. Ministerial Acts: Marbury v. Madison.

The American case which is usually cited as establishing once for all this rule is Marbury v. Madison. That case, however, was a contribution to the law of the subject, not as determining the principle itself, but as declaring its applicability to the heads of the great departments of the Federal Government. In this case the court had been asked to issue a mandamus directing the Secretary of State to deliver a certain commission to office which had been approved by the Senate and signed by the President.

35

In his opinion, Marshall, after repudiating any claim on the part of the court to interfere with the President or other executive agents in the exercise of their political functions, or those discretionary in character, said: "But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts, he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others. Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself in

34 1 Cr. 137; 2 L. ed. 60.

35 Even as to this point it has been argued that the opinion is obiter inasmuch as the court finally declared that it was without jurisdiction to entertain the suit as an original suit, in which form it had been brought. Mandamus will not lie to compel the Secretary of the Treasury to pay an official salary. United States v. Guthrie, 17 How. 284; 15 L. ed. 102.

says:

jured, has a right to resort to the laws of his country for a remedy. The question whether a right has vested or not, is, in its nature judicial, and must be tried by the judicial authority." The chief justice then goes on to consider whether the head of one of the great departments of government is so intimately connected with the President as to place him outside of the reach of the court's order, and "If one of the heads of departments commits any illegal act, under color of office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How, then, can his office exempt him from this particular mode [mandamus] of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process? It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the 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 grounds the courts of the country are further excused from 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."

§ 762. Mandamus May not be Used in Place of an Appeal.

The courts will not interfere by mandamus with executive officers of the government in the exercise of their ordinary official