Rice v. Draper

• Decision Date: 09 January 1911
• Citation: 93 N.E. 821,207 Mass. 577
• Parties: RICE v. Draper
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

207 Mass. 577

93 N.E. 821

RICE v. Draper

Supreme Judicial Court of Massachusetts, Suffolk.

January 9, 1911

DRAPER. ^[*] Jan. 9, 1911.

COUNSEL

Henry T. Richardson, for petitioner.

Dana Malone, Atty. Gen., and Frederic B. Greenhalge, Asst. Atty Gen., for respondent.

OPINION

KNOWLTON C.J.

Under the act of Congress of March 3, 1899, (Act March 3, 1899, c 445, 30 Stat. 1356), which is amendatory of 'An act to reimburse the Governors of states and territories for expenses incurred by them in aiding the United States to raise and organize and supply and equip the volunteer army of the United States in the existing war with Spain,' approved July 8, 1898, a sum of money was paid to Curtis Guild, Jr., then Governor of Massachusetts, to be paid to officers and men, referred to in the act, who served in the war with Spain. This money passed into the hands of his successor, the present Governor, and is now subject to his control. By the terms of the act such money, under the circumstances that existed in this state, was 'to be paid by the states and territories direct to the officers and men,' and none of it was 'to be covered into the treasury of the state or territory.' The petitioner claims a part of the money under assignments from 32 soldiers, the validity of which is questioned under section 3477 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 2320), and he has brought this petition for a writ of mandamus to compel the respondent to pay it over.

It is plain that the money came into the hands of the respondent in his official capacity, as Governor of the commonwealth, and that his only relations to it arose under the act of Congress which dealt with the Governors as the executive representatives of the states, and, in states where no payments had been made to the men for the services for which the money was awarded, the act sought to impose upon the Governors an official duty to pay the money to the men who were entitled to receive it. This duty having been accepted by Gov. Guild, and afterwards having been transferred to his successor, the respondent, and having also been accepted by him, the action which the petitioner seeks to compel is in no sense personal, but is strictly official. The most important question in the case is whether a writ of mandamus should be issued against the Governor of the commonwealth, to compel the performance of an official duty.

This question has been considered in many cases in other states, and the decisions are far from uniform. It is well established that a writ of mandamus will not be issued to compel the doing of a particular act that involves the exercise of judgment or discretion by a public officer. People ex rel. v. Morton, 156 N.Y. 136, 50 N.E. 791; State v. Chase, 5 Ohio St. 528. But, ordinarily, a public officer may be compelled to take some action, so far as to exercise his judgment and discretion in determining whether he ought to do or refrain from doing that which the petitioner desires of him in the performance of an alleged public duty.

The Governor of this commonwealth, under our Constitution, is the 'supreme executive magistrate.' He is the commander in chief of the military and naval forces of the state. In our Constitution the division of the government into three departments, each independent of the other, is provided for in language picturesque and emphatic, 'to the end that it may be a government of laws and not of men.' Const. Mass part 1, art. 30. In other states whose Constitutions recognize a similar division of the government, it is generally, if not universally, held that, in the performance of his political duties as the highest executive officer, the Governor is not subject to supervision or direction by the courts. But in some jurisdictions there are decisions that, in the performance of strictly ministerial duties which might have been imposed upon some other officer, the Governor may be compelled to act by a writ of mandamus. See Railroad Co. v. Moore, 36 Ala. 371; Harpending v. Haight, 39 Cal. 189, 2 Am. Rep. 432; Martin v. Ingham, 38 Kan. 641, 17 P. 162; Magruder v. Swann, 25 Md. 173; Chumasero v. Potts, 2 Mont. 242; Cotten v. Ellis, 52 N. C. 545; Greenwood Cemetery Land Co. v. Routt, 17 Colo. 156, 28 P. 1125, 15 L. R. A. 369, 31 Am. St. Rep. 284; Chamberlain v. Sibley, 4 Minn. 309 (Gil. 228); State v. Chase, 5 Ohio St. 528. But the weight of authority, furnished by decisions in a larger number of states, and supported, as we think, by stronger reasons, is in favor of the proposition that Governors of states are not amenable to the courts for their conduct in the performance of any part of their official duties. Hawkins v. Governor, 1 Ark. 570, 33 Am. Dec. 346; State v. Drew, 17 Fla. 67; Low v. Towns, Governor, 8 Ga. 360; People v. Cullom, 100 Ill. 472; People v. Bissell, 19 Ill. 229, 68 Am. Dec. 591; Hovey v. State, 127 Ind. 588, 27 N.E. 175, 11 L. R. A. 763, 22 Am. St. Rep. 663; State v. Warmoth, 22 La. Ann. 1, 2 Am. Rep. 712; In re Dennett, 32 Me. 508, 54 Am. Dec. 602; Sutherland v. Governor, 29 Mich. 320, 18 Am. Rep. 89; Vicksburg & M. R. Co. v. Lowry, 61 Miss. 102, 48 Am. Rep. 76; State v. Stone, 120 Mo. 428, 25 S.W. 376, 23 L. R. A. 194, 41 Am. St. Rep. 705; State v. Governor, 25 N. J. Law, 331; People ex rel. v. Morton, 156 N.Y. 136, 50 N.E. 791; Mauran v. Smith, 8 R. I. 192, 5 Am. Rep. 564; Bates v. Taylor, 87 Tenn. 319, 11 S.W. 266, 3 L. R. A. 316; Teat v. McGaughey, 85 Tex. 478, 22 S.W. 302; Houston, etc., Railroad v. Randolph, 24 Tex. 317. The subject is discussed learnedly by Mr. Justice Cooley in Sutherland V. Governor, 29 Mich. 320-323, 18 Am. Rep. 89, where he says: 'What is claimed is that, where the act is purely ministerial and the right of the citizen to have it performed is...