State v. Stone

• Decision Date: 27 February 1894
• Parties: STATE ex rel. ROBB v. STONE, Governor.
• Court: Missouri Supreme Court

25 S.W. 376

120 Mo. 428

STATE ex rel. ROBB v. STONE, Governor.

Supreme Court of Missouri, Division No. 2.

February 27, 1894.

CONSTITUTIONAL LAW — EXECUTIVE POWERS.

Const. art. 3, divides the power of government into three departments, — legislative, executive, and judicial, — and declares that no persons in charge of one department shall exercise any powers properly belonging to either of the others, except where permitted by the constitution. Article 5, §§ 1, 4, 5, vest the supreme executive power in the governor, require him to see that the laws are faithfully executed, and to perform such duties as are prescribed by law. Article 14, § 6, provides that he shall take an oath to demean himself faithfully in office. Held, that mandamus will not lie to compel him to perform any duty pertaining to his office, ministerial or political, and whether commanded by the constitution or by some law passed on the subject.

Application by the state, at the relation of Edward A. Robb, for mandamus to compel William J. Stone, the governor, to order to be paid to relator money due relator under a contract with the state. A demurrer to the petition was sustained, and relator appeals. Affirmed.

Edward Robb and Silver & Brown, for relator. The Attorney General, for respondent.

SHERWOOD, J.

The relator in this case, Edward J. Robb, was employed by David R. Francis, then governor of the state, as counsel on behalf of the state in the case of the State of Missouri v. Louis Ulrich, at that time pending in the supreme court of the United States. This employment had its origin in an act of the 36th general assembly approved March 25, 1891, which authorized and empowered such employment to be made, at and for a sum not exceeding the sum of $500; all disbursements out of the fund thus created to be made upon the order of the governor. By an act approved March 31, 1893, the general assembly reappropriated said amount for the purpose aforesaid, which act provided that all disbursements under this section should be made by order of the governor, and that counsel fees should be paid "only on determination of suit." The sum which David R. Francis, then governor, agreed to pay relator for his services as counsel in that cause, was the said sum of $500, in consideration of which sum relator agreed to represent the state as counsel in said cause until the determination thereof. After thus entering into such contract, relator duly performed all of its conditions on his part, and discharged his duty as counsel for the state thereunder, until the final determination of said cause, which resulted in Ulrich dismissing his appeal therein on the 15th of May, 1893. No part of the amount appropriated by the general assembly for the payment of counsel fees, and agreed to be paid relator, has ever been paid him. On the 22d day of August, 1893, relator presented his said contract with, and claim against, the state of Missouri, to Gov. William J. Stone, exhibiting to him at the same time all necessary papers, etc., and asked that said sum of $500 be paid to relator, but which sum said governor neglected and refused to order to be paid to relator. Upon these facts thus presented in the petition, relator prays that an alternative writ of mandamus issue, directed to the governor, commanding him, etc. Waiving the issuance of the alternative writ, the governor has entered his appearance herein, and by his counsel has filed a general demurrer to relator's petition, to the effect that the petition does not state facts sufficient, etc.

As the petition states a good contract with, and cause of action against, the state, and the demurrer admits the allegations of the petition to be true, the only question for determination is whether the respondent is amenable to the process of this court in a case of this sort; in other words, whether this court has jurisdiction to entertain this application made by relator. The inquiry thus suggested brings into prominence article 3 of our constitution, by which it is provided that: "The powers of government shall be divided into three distinct departments — the legislative, executive and judicial — each of which shall be confined to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any powers properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted." In this instance, we, constituting a portion of the judicial department of the government, are called upon to exercise, or what amounts to the same thing, to control the exercise of, powers belonging exclusively to the executive department of that government. To such action on our part the organic law interposes an insuperable barrier. In addition to the provisions of the organic law quoted, that instrument also declares that: "The supreme executive power shall be vested in a chief magistrate, who shall be styled `The Governor of the State of Missouri.'" Const. art. 5, § 4. Section 6 of the same article requires that "the governor shall take care that the laws are * * * faithfully executed." Of the same article, section 1 provides that the governor "shall perform such duties as may be prescribed by law." And section 6 of article 14, as a prerequisite to his entering on the duties of his office, prescribes that he "take and subscribe an oath to support the constitution of the United States and of this state, and to demean himself faithfully in office." Under these plain and comprehensive provisions, it must be apparent that any duty "prescribed by law" for the governor to perform is as much part and parcel of his executive duties as though made so by the most solemn language of the constitution itself. Conceding the validity of any given law, the fact that the duties which it prescribes are merely ministerial cannot take them out of the domain of executive duties, nor make them any the less those which "properly belong" to the executive department of the government. And should we, by our process, be able to compel the performance by the governor of such duties, we would, in effect, and to all intents and purposes, be performing those duties ourselves; for there can be no substantial distinction drawn between our assumption of duties pertaining to another department of the government, and our intervention resulting in the compulsory performance of such duties. "Qui facit per alium," etc. Nor does the fact that any duty which the law prescribes for the governor to perform might have been assigned to some other officer, who would have been amenable to the process of this court, alter the conclusion to be reached, or vary the result; for the fact would still remain that the act required to be done was nevertheless an official one, assigned by the legislative department of the government to be performed by the executive department, eo nomine, — by the governor, and by him alone, — and therefore, if he is not bound to obey the law in question as governor, he is not bound to act at all, since he only assumed to obey the laws in his gubernatorial capacity, and not otherwise or elsewhere. See Rice v. Austin, 19 Minn. 103, (Gil. 74.) So that we should manifestly be trenching on the exclusive powers of two separate magistracies of the government, should we assume to...