Bryan v. Cattell

• Decision Date: 06 April 1864
• Citation: 15 Iowa 538
• Parties: BRYAN v. CATTELL, Auditor of State
• Court: Iowa Supreme Court

15 Iowa 538

BRYAN v. CATTELL, Auditor of State

Supreme Court of Iowa, Des Moines

April 6, 1864

[Syllabus Material]

Appeal from Polk District Court.

MANDAMUS. It appears from the pleadings and the agreed statement of facts, that the plaintiff was elected to the office of District Attorney for the 5th judicial district for four years from the first day of January, 1859. He was duly commissioned, qualified, and entered upon the discharge of his duties. In July, 1861, he was commissioned captain of company D, 1st Iowa Volunteer Cavalry, for three years or during the war; was mustered into the service, and so continued until after the commencement of these proceedings,--his legal residence remaining, however, in Warren county, in said district. His salary was paid him regularly until the 1st of January, 1862. After accepting his commission as captain, or at least prior to said 1st of January, 1862, and until after making this application, he was absent from the State in the military service of the United States, and did not during that time discharge any of the duties of the office to which he was elected. On the 1st of April, 1862, John Leonard was appointed by the Governor to fill the vacancy declared by the executive to exist in said office of District Attorney, who qualified, entered upon and actually discharged the duties thereof, receiving each quarter thereafter the salary as appropriated by law.

This proceeding was instituted in January, 1863, to compel the Auditor of State to issue warrants on the State Treasurer for the salary due and owing, as is claimed, the said plaintiff for the quarters ending the first days of April, July and October, 1862. The defendant, by the Attorney-General, denied the jurisdiction of the Court, and upon this and several other grounds resisted the allowance of the writ. On the hearing, the peremptory writ was ordered, and respondent appeals.

C. C Nourse, Attorney-General, for the appellant.

I. The District Court has no jurisdiction over the Auditor and Treasurer of State. The Constitution makes it the duty of the Auditor to settle all claims against the State Treasury, and to draw warrants for money directed by law to be paid out of the Treasury. The law provides for no appeal from the decision of the Auditor, and he is not a person or tribunal inferior to the District Court. Const., art. 3, § 1; art. 4, § 22; Revision, 1860, chap. 7, § 71; The United States v. Guthrie, 17 How. 287; The Case of Dennett, 32 Maine 508; 8 Ga. 360; Hosmer v. Surveyor, &c 7 Tex. 764.

II. This Court cannot control the discretion or review the judicial determination of the Auditor, on mandamus. His duties are not purely, ministerial. Decatur v. Paulding, 39 U.S. 497, 14 Pet. 497, 515, 10 L.Ed. 559; The United States v. Seaman, 58 U.S. 225, 17 How. 225, 15 L.Ed. 226.

III. The right to an office cannot be tried on mandamus. Quo warranto is the proper remedy. The People v. Stevens, 5 Hill 629; 7 How. Pr. R., 128.

IV. The acceptance of a commission from the Governor of the State as captain in the military service of the United States operated as a resignation of the office of District Attorney. The People, ex rel., v. Carrique, 2 Hill 93; Will. Municipal Corp., 240; Rodman v. Harcourt, 4 B. Monr., 224; King v. Patterson, 4 B. & A., 1; Johnston v. Maystron 1 H. B., 261.

V. Chapter 54 of the acts of the 9th General Assembly, Laws of 1862, applied to officers who, at the date of its approval, had accepted commissions in the military service, as well as to those who should thereafter accept commissions. The Legislature may, as to unearned salaries, either increase or diminish the salary or abolish the office, unless there is some specific constitutional prohibition. Connor v. The Mayor, &c., 1 Seld. 285.

Casady & Polk for the appellee, contended: 1. That the Courts may, by mandamus, compel an executive officer to discharge an official duty which involves the exercise of no discretion, citing Auditor v. Hardin, 8 B. Monr., 648 Kendall v. The United States, 37 U.S. 524, 12 Pet. 524, 610, 9 L.Ed. 1181; The Auditor v. Adams, 13 B. Monr., 150; Divine v. Harvie, 7 Monr. 443; Reeside v. Walker, 52 U.S. 272, 11 How. 272, 13 L.Ed. 693; Burnet v. The Auditor of Portage County, 12 Ohio 54; The State v. Moffit, 5 Id. 358; Smith v. The Commissioners of Portage County, 9 Id. 26; The State, ex rel., v. The Treasurer of Wood County, 17 Id. 184; The State ex rel. v. The Auditor of Hamilton County, 19 Id. 116. 2. That the act of 1862, if construed to apply to officers who accepted military commissions prior to its enactment, is of doubtful constitutionality. Pritchard v. Spencer, 2 Ind. 486; 1 Kent's Com., 455; Bouv. Law Dict., "Retrospective." 3. That the offices of District Attorney and of captain in the volunteer service are not, in legal contemplation, incompatible. District Township of Dubuque v. The City of Dubuque, 7 Iowa 262; Bouv. Law Dict., "Incompatibility."

Hon. GEORGE G. WRIGHT, Chief Justice, Hon. RALPH P. LOWE, Judge, Hon. JOHN F. DILLON, Hon. CHESTER C. COLE, Judge.

OPINION

WRIGHT, Ch. J.

By the Attorney-General it is claimed: First, That the District Court of Polk County, had no jurisdiction to award this writ for the purpose, and under the circumstances disclosed in this record. Second: If the court had jurisdiction,, then that the Auditor decided correctly in refusing to draw the warrants on the plaintiff's demand, and the writ should, therefore, have been denied.

In obedience to what we understand to be the nature and character of this writ, the power of the judiciary, and the adjudications upon the subject, we are clearly of the opinion that the jurisdictional objection is not well taken. This writ issues upon the order of a court of competent jurisdiction, and when from the District Court, it commands an inferior tribunal, corporation, board or person, to do, or not to do an act, the performance or omission of which the law specially enjoins as a duty, resulting from an office, trust or station. The Supreme Court may also issue it when necessary to the District Court, or in any other case where it is necessary to enable it to exercise its legitimate power. The law also declares that the writ may be granted on the petition of any private party aggrieved, without the concurrence of the prosecutor for the State. Rev. §§ 3761-3764. The objection made is, that the District Court of the county where the Auditor of State resides, has no power to order this writ; that he is not an inferior tribunal, board or person, within the meaning of the statute. It is obvious that the Supreme Court could not order the writ, for it would not go to the District Court, nor would it be necessary to enable it to exercise any legitimate power. If the jurisdiction exists anywhere, therefore, it must be in the tribunal selected in this instance.

The powers of the State government are divided into three separate departments, (the executive, legislative, and judicial,) and no person charged with the exercise of powers properly belonging to one department shall exercise functions appertaining to either of the others, except as in the Constitution is expressly directed or permitted. Const. § 1, art. 3. The Auditor of State belongs to the executive department. § 22, art. 4. And from these provisions the argument is that in ordering this writ, the District Court assumed that the executive department was inferior to the judicial, or that the Auditor, who is the general accountant of the State, was an inferior officer or person. The argument, however, mistakes the meaning of the constitutional provisions quoted, and as a consequence reaches a wrong conclusion.

No one now doubts the power of the judicial department to declare void an act of the Legislature, if in conflict with the Constitution, though the act may have been passed with all the required formalities, and received the executive sanction. And yet we have never heard it suggested that in this, the judicial was exercising functions appertaining to the legislative department. Nor has it to our knowledge ever been supposed that in exercising such power, the courts assumed that the legislative and executive were inferior to the judicial power. The Constitution, by the inhibition in question, designed, (we state the proposition by way of illustration), to prevent the executive of the State from being at the same time a judge of the Supreme Court; a member of this Court from being, during his term of service, Secretary of State, or Treasurer; a member of the Senate or House from being Governor; the judicial department from discharging duties or exercising the functions devolving upon or appertaining to the executive. Thus, the Governor cannot adjudicate cases pending in this Court, nor can this Court grant pardons and reprieves. So neither can this Court make the law, nor can the Legislature assess fines, or render judgments. To some tribunal, however, must be entrusted the power of passing upon the legality of the acts of those filling these several departments, and especially the executive and legislative. And to assume that if this power is exercised, there is an interference with the functions of such other departments, awards conclusiveness to their action. For such action either is or is not conclusive. No one pretends that it is always free from examination or correction. If claimed to be illegal, what tribunal, under our form of government, determines it? Most clearly the judicial. And yet such examination cannot be had, according to the argument now under consideration, without improperly interfering with the functions of another co-ordinate department, without infringing upon the Constitution.

MARSHALL, Ch. J., in Page v. Hardin, 8 B. Monr., 648, (in an...