Rice v. Austin

• Decision Date: 01 January 1874
• Citation: 19 Minn. 74
• Parties: DANIEL RICE and others v. HORACE AUSTIN, Governor, etc.
• Court: Minnesota Supreme Court

Page 74

19 Minn. 74

DANIEL RICE and othersv.

HORACE AUSTIN, Governor, etc.

Supreme Court of Minnesota.

Henry J. Horn, Allis, Gilfillan & Williams, and W. K. Gaston, for petitioners.

F. R. E. Cornell, Atty. Gen., for respondent.

BERRY, J.

This is an application for a writ of mandamus to be directed to Horace Austin, governor of this state, commanding him to execute and deliver to the petitioners a deed of certain lands under the provisions of chapter 56, Sp. Laws 1862, and chapter 140, Sp. Laws 1866.

By chapter 56, Sp. Laws 1862, certain persons, to whose rights the plaintiffs claim to have succeeded, are appointed commissioners to survey, locate, and construct a state road, to facilitate the construction of which 10,000 acres of swamp land, belonging to the state, are appropriated. Section 4 of said chapter enacts that if, within a time specified, the road shall have been surveyed and constructed, and maps and field-notes filed as prescribed in said section, "then the aforesaid quantity of 10,000 acres of swamp lands shall be deeded by the state to said commissioners: provided, however, that the governor of the state shall have first been satisfied, after a proper inspection of the road by a competent agent appointed by himself, that the work required by the provisions of this section has been faithfully performed." Chapter 111, Sp. Laws 1866, which, to some extent, supplements and amends said chapter 56, after authorizing the commissioners before named to select the land appropriated as aforesaid, empowers the governor to convey the same to said commissioners or their assigns by sufficient deeds: "provided, however, that before the execution of the deeds of conveyance the governor of the state shall be satisfied" that said commissioners have constructed the road in accordance with the provisions of said chapter 56.

These quotations show that the duties imposed by the laws referred to are not imposed upon the person who was at the time of their enactment, or may since have been, the incumbent of the executive office, as a private person, but that they are imposed upon the governor in his official capacity. This proposition requires no proof; and yet we cannot forbear to remark that, unless it be sound, no legal duty whatever in the premises is imposed upon any one. That is to say, unless the incumbent of the gubernatorial office is bound to act under these laws as governor, he is not bound to act at all, not having assumed or undertaken to perform any duties except as governor. It is plain, however, that these duties pertain to the office of governor, or, in other words, they are executive duties.

Article 3 of our state constitution provides as follows: "The powers of government shall be divided into three distinct departments, — legislative, executive, and judicial; and no person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others, except in the instances expressly provided in this constitution." The judicial and executive departments are thus made distinct and independent, and, as neither is responsible to the other for the performance of its duties, so neither can enforce the performance of the duties of the other. Dennett, Petitioner, 32 Me. 508; Low v. Towns, 8 Ga. 372; Mauran v. Smith, 8 R. I. 192; Hawkins v. Governor, 1 Ark. 570; State v. Governor, 1 Dutcher, 349; H. T. & B. Ry. Co. v. Randolph, 24 Tex. 317; People v. Bissell, 19 Ill. 229.

Upon this ground the writ prayed for must be refused. We will, however, briefly notice one or two positions which have been taken in opposition to the views above expressed.

It is contended that the duties imposed by the laws referred to are not official duties of the executive department, because the legislature might have intrusted their discharge to any person, and hence it is argued that their performance may properly be compelled by mandamus. This position is well met by Chief Justice SHEPLEY in Dennett, Petitioner, supra. "It does not follow," he says, "that...