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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.35 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.
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
41 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.
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 says: "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
duties, even where those duties require an interpretation of the law. The writ of mandamus, in other words, is not to be used as a writ of error in place of an appeal. If there has been a misinterpretation of the law by the executive officer, the court, if it has been given jurisdiction, will correct it on appeal, or the person who believes himself injured may institute appropriate civil or crim inal proceedings.36
In Bates & Guild Co. v. Payne37 the authorities are reviewed, and a doctrine stated that is not quite as broad as that declared in Oil Co. v. Hitchcock, the court pointing out that "even upon mixed question of law and fact, or of law alone," the action of the official "will carry with it a strong presumption of its correctness, and the courts will not ordinarily review it, although they have the power, and will occasionally exercise the right of so doing."
In Marquez v. Frisbies the court declare that "it is a sound principle that where there is a mixed question of law and fact, and the court cannot so separate it as to see clearly where the mistake of law is, the decision of the tribunal to which the law had confided the matter is conclusive."
When a subordinate administrative officer is overruled by his superior who has an appellate administrative jurisdiction over him, his duty to obey is a ministerial one and may be compelled by mandamus.39 The federal court must, however, have been granted, by statute, the authority to issue the mandamus and, in fact, no such general authority has been granted by Congress to the federal courts. It has, however, been held, that the courts of the District of Columbia, having been granted general common-law powers, possess the authority."1
36 Riverside Oil Co. v. Hitchcock, 190 U. S. 316; 23 Sup. Ct. Rep. 698; 47 L. ed. 1074.
37 194 U. S. 106; 24 Sup. Ct. Rep. 595; 48 L. ed. 894.
38 101 U. S. 473; 25 L. ed. 800.
39 United States v. Miller, 128 U. S. 40; 9 Sup. Ct. Rep. 12; 32 L. ed. 354. 40 United States v. Black, 128 U. S. 40; 9 Sup. Ct. Rep. 12; 32 L. ed. 354; United States v. Windom, 137 U. S. 636; 11 Sup. Ct. Rep. 197; 34 L. ed. 811. 41 Kendall v. United States, 12 Pet. 524; 9 L. ed. 1181; United States v. Schurz, 102 U. S. 378; 26 L. ed. 167.
§ 763. The Amenability of the President to Compulsory Judicial Process.
From the foregoing it has appeared that, for the performance of a purely ministerial act, a mandamus will lie to the heads of the great departments of the Federal Government, and, a fortiori, to their subordinates. We have now to inquire whether the President, the chief executive of the nation, is, with reference to the performance of a purely ministerial act, similarly subject to compulsory judicial process. This question has several times been before the courts, and though not often passed upon in limine, has been uniformly answered in the negative.
In Marbury v. Madison2 the question was as to the issuance of a mandamus not to the President but to the Secretary of State. It was argued, however, that the Secretary acted as the agent of the President, and that the President, as Chief Executive, was not amenable to the writ. The court, in its opinion, held that the Secretary was, as to the action prayed for, subject to the writ, but conceded that in cases in which the Secretary was but carrying out the political or discretionary will of the President, the writ would not issue. In this case it will be remembered that the court finally refused to issue the injunction to the Secretary on the ground that the provision of the act of Congress giving the original jurisdiction under which the suit had been brought was unconstitutional. President Jefferson, however, declared that had the mandamus been awarded, he would have considered it an infringement upon his executive rights and as such would have resisted its enforcement with all the power of government.
In Marbury v. Madison the court did not intimate what its position would be in case the performance directly by the President of merely ministerial duties was prayed.
In the trial of Aaron Burr for treason the amenability of the President to a judicial process was brought directly into issue. Marshall, who was conducting the examination, issued, at the request of the defense, a subpœna duces tecum directing President Jefferson to appear and bring with him a certain letter to himself
42 1 Cr. 137; 2 L. ed. 60.
from General Wilkinson. Jefferson refused to appear or to bring the letter. That a compulsory process should be thereupon issued to the President does not appear to have been even considered, but upon a discussion as to whether the Attorney-General should permit the defense to have the examination of a copy of the letter which had been put into his, the Attorney-General's, possession, Marshall said: "I suppose it will not be alleged in this case that the President ought to be considered as having offered a contempt to the court in consequence of his not having attended; notwithstanding the subpoena was awarded agreeably to the demand of the defendant, the court would, indeed, not be asked to proceed as in the case of an ordinary individual." 43
In another account of the same trial the Chief Justice is reported to have said: "In no case of this kind would the court be required to proceed against the President as against an ordinary individual. The objections to such a course are so strong and obvious that all must acknowledge them. . . . In this case, however, the President has assigned no reason whatever for withholding the paper called for. The propriety of withholding it must be decided by himself, not by another for him. Of the weight of reasons for and against producing it he himself is the judge.” “
§ 764. Mississippi v. Johnson.
In Mississippi v. Johnson, decided in 1866, a perpetual injunction was sought to restrain the President from executing the Reconstruction Acts, which were alleged to be unconstitutional. The petition set out that legal secession of a State was impossible, and hence "it was impossible for her people, or for the State in its corporate capacity, to dissolve that connection with other States, and that any attempt to do so by secession or otherwise was a nullity," and that Mississippi "now solemnly asserted that her connection with the Federal Government was not in anywise
43 Burr's Trial, III, 37. Published by Westcott & Co., Washington City, 1807.
44 Burr's Trial, II, 536. Hopkins & Earle, Philadelphia, 1808. 45 4 Wall. 475; 18 L. ed. 437.