State v. Dike

• Decision Date: 01 January 1873
• Citation: 20 Minn. 314
• Parties: STATE OF MINNESOTA ex rel. COUNTY TREASURER OF MILLE LACS CO. v. E. W. DIKE, Treasurer of the State of Minnesota. SAME v. S. P. JENNISON, Secretary of the State of Minnesota.
• Court: Minnesota Supreme Court

Page 314

20 Minn. 314

STATE OF MINNESOTA ex rel. COUNTY TREASURER OF MILLE LACS CO.

v. E. W. DIKE, Treasurer of the State of Minnesota.

SAME v. S. P. JENNISON, Secretary of the State of Minnesota.

Supreme Court of Minnesota.

Alternative mandamus.

Lochren, McNair & Gilfillan, for relator in the first case.

Geo. P. Wilson, Atty. Gen., for respondent.

Bigelow, Flandrau & Clark, for relator in second case.

M. S. Wilkinson, for respondent.

YOUNG, J.

These are two alternative writs of mandamus, directed to the state treasurer and to the secretary of state, respectively.

In the first case, upon the return of the writ, the attorney general, appearing in behalf of the respondent, objected to the jurisdiction of the court to compel the state treasurer by mandamus to the performance of any official act. The objection is well taken.

The third article of the constitution provides as follows: "The powers of the 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 fifth article provides as follows: "Section 1. The executive department shall consist of a governor, lieutenant governor, secretary of state, auditor, treasurer, and attorney general, who shall be chosen by the electors of the state."

In the recent case of Rice v. Austin, 19 Minn. 103, (Gil. 74,) — an application for a mandamus to the governor, — after much consideration, and a careful examination of the authorities, it was held that the executive and judicial departments, being made distinct and independent by the third article of the constitution, and neither being responsible to the other for the performance of its duties, so neither can enforce the performance of even ministerial duties by the other. As the state treasurer is, equally with the governor, an officer of the executive department, the case of Rice v. Austin, which we are satisfied was decided correctly on principle and authority, is conclusive against the jurisdiction of the court, and the proceeding against the treasurer must be dismissed.

In the proceeding against the secretary of state the relator seeks to compel the respondent to audit certain accounts for public printing, performed by the relator for the state, under a contract with the commissioners of public printing, pursuant to chapter 46 of the Laws of 1868.

By that act it is provided as follows: "Section 1. The secretary of state, state treasurer, and state auditor shall be ex officio commissioners of public printing during the term of office respectively."

It is argued by the relator's counsel that the duties imposed on the respondent by this statute are imposed on him, not as secretary of state, but as a member of the board of commissioners, created by the section quoted; that therefore the duty of auditing these accounts is not the duty of the secretary as an executive officer; and that, for this reason, the case is distinguishable from Rice v. Austin, supra, and a mandamus may properly be directed to the respondent, not in his character of secretary, but as a commissioner of public printing.

The act, however, provides (section 15) that "the secretary of state * * * shall audit all accounts for printing and binding executed under the provisions of this chapter." The duty is cast upon the secretary eo nomine, and is thus made his official duty, as an executive officer, according to the rule laid down in Dennett, Petitioner, 32 Me. 508, and adopted and followed in Rice v. Austin.

The distinction taken in Chamberlain v. Sibley, 4 Minn. 312, (Gil. 228,) between the different kinds of acts required by law to be done by executive officers, was not necessary to the decision...