People ex rel. Sutherland v. Governor

• Citation: 29 Mich. 320
• Court: Michigan Supreme Court
• Decision Date: 12 May 1874
• Parties: The People on the relation of John L. Sutherland and others v. The Governor

29 Mich. 320

The People on the relation of John L. Sutherland and others

v.

The Governor

Supreme Court of Michigan

May 12, 1874

Heard April 21, 1874

Application for mandamus to the Governor. Denied.

Order to show cause declined.

Alfred Russell, for relators.

Isaac Marston, Attorney General, for respondent.

Cooley J. Campbell and Christiancy, JJ., concurred Graves, Ch. J. did not sit in this case.

OPINION

Cooley, J.

This is an application for an order requiring the governor to show cause why he does not issue his certificate showing that the Portage Lake and Lake Superior ship canal and harbor have been constructed in conformity with the acts of Congress making a land grant for the same, and the acts of the Legislature of this State conferring the grant upon a corporation, which the relators now claim to represent.

When the application was first presented to us we declined to make the usual ex parte order until the question of our jurisdiction in the premises should have been argued, and this having now been done on the voluntary appearance of counsel for the relators, and of the attorney general on behalf of the governor, the question of jurisdiction is submitted for our decision.

The duty we are asked to compel the governor to perform is one imposed upon him by statute, and it consists in the issue of a certain certificate when he shall be satisfied that certain work has been done in conformity with the law. The purpose of the certificate is to furnish to the beneficiaries under the land grant the evidence of their right to the land, to which the certificate, if granted, is understood to entitle them; so that the question involved in the controversy is, so far as the relators are concerned, one of private right and private property. The governor, as we understand it, concedes that the canal and harbor are constructed in proper manner, but he insists that the spirit and intent of the federal and State statutes have not been complied with, inasmuch as the canal has been constructed upon private property, so that the public are not assured the benefits anticipated and meant to be secured in making the grant; and for this reason he refuses his certificate. The relators thereupon insist that this presents for our consideration the simple question whether the governor construes correctly the statutes involved, and if not, they claim to be entitled to the proper remedy from the courts. In other words, they insist that the question involved has become, by the concession of the governor that the work has been done, purely a judicial question, involving nothing but a proper construction of the law.

It is not claimed on the part of the relators that this court or any other has jurisdiction to require and compel the performance by the governor of his political duties, or the duties devolved upon him as a component part of the Legislature. It is conceded that these, under the constitution and laws, are to be exercised according to his own judgment, and on his own sense of official responsibility, and that from his decision to act or decline to act there can be no appeal to the courts. Nor is it pretended that where any executive act whatsoever is manifestly submitted to the governor's judgment or discretion, such judgment or discretion can be coerced by judicial writ. What is claimed is, that where the act is purely ministerial, and the right of the citizen to have it performed is absolute, the governor, no more than any other officer, is above the laws, and the obligation of the courts, on a proper application, to require him to obey the laws, is the same that exists in any other case where an official ministerial duty is disregarded.

It may be doubted if this concession would not require us to dismiss the present application, if not to deny our jurisdiction in all cases where the governor is respondent and his executive action or duties are involved. There is no very clear and palpable line of distinction between those duties of the governor which are political, and those which are to be considered ministerial merely; and if we should undertake to draw one, and to declare that in all cases falling on one side the line the governor was subject to judicial process, and in all falling on the other he was independent of it, we should open the doors to an endless train of litigation, and the cases would be numerous in which neither the governor nor the parties would be able to determine whether his conclusion was, under the law, to be final, and the courts would be appealed to by every dissatisfied party to subject a co-ordinate department of the government to their jurisdiction. However desirable a power in the judiciary to interfere in such cases might seem from the standpoint of interested parties, it is manifest that harmony of action between the executive and judicial departments would be directly threatened, and that the exercise of such power could only be justified on most imperative reasons. Moreover, it is not customary in our republican government to confer upon the governor duties merely ministerial, and in the performance of which he is to be left to no discretion whatever; and the presumption in all cases must be, where a duty is devolved upon the chief executive of the State rather than upon an inferior officer, that it is so because his superior judgment, discretion, and sense of responsibility were confided in for a more accurate, faithful, and discreet performance than could be relied upon if the duty were devolved upon an officer chosen for inferior duties. And if we concede that cases may be pointed out in which it is manifest that the governor is left to no discretion, the present is certainly not among them, for here, by the law, he is required to judge, on a personal inspection of the work, and must give his certificate on his own judgment, and not on that of any other person, officer or department.

We are not disposed, however, in the present case, to attempt on any grounds to distinguish it from other cases of executive duty with a view to lay down a narrow rule which, while disposing of this motion, may leave the grave question it presents to be presented again and again in other cases which the ingenuity of counsel may be able to distinguish in some minor particulars from the one before us. If a broad general principle underlies all these cases, and requires the same decision in all, it would scarcely be respectful to the governor, or consistent with our own sense of duty, that we should seek to avoid its application and strive to decide each in succession upon some narrow and perhaps technical point peculiar to the special case, if such might be discovered.

And that there is such a broad general principle seems to us very plain. Our government is one whose powers have been carefully apportioned between three distinct departments, which emanate alike from the people, have their powers alike limited and defined by the constitution, are of equal dignity, and within their respective spheres of action equally independent. One makes the laws, another applies the laws in contested cases, while the third must see that the laws are executed. This division is accepted as a necessity in all free governments, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. The executive is forbidden to exercise judicial power by the same implication which forbids the courts to take upon themselves his duties.

It is true that neither of the departments can operate in all respects independently of the others, and that what are called the checks and balances of government constitute each a restraint upon the rest. The Legislature prescribes rules of action for the courts, and in many particulars may increase or diminish their jurisdiction; it also, in many cases, may prescribe rules for executive action, and impose duties upon, or take powers from the governor; while in turn the governor may veto legislative acts, and the courts may declare them void where they conflict with the constitution notwithstanding, after having been passed by the Legislature, they have received the governor's approval. But in each of these cases the action of the department which controls, modifies, or in any manner influences that of another, is had strictly within its own sphere, and for that reason gives no occasion for conflict, controversy or jealously. ...