I. The Controller had no authority to draw the warrants claimed, unless the money to pay them was in the treasury, and consequently he cannot be compelled to do so. (Wood's Dig. 94, secs. 5 and 6.)
II. There was no specific appropriation of funds in the treasury for the payment of the warrants sought, and consequently the Controller had no authority to draw them. (Wood's Dig. 94, secs. 5 and 6; Redding v. Bell, 4 Cal. 333; Butler v. Bates, 7 Id. 137 .)
III. The claim should have been first presented to the Board of Examiners and approved by them, before the Controller could have been required to draw his warrants for the same. (Statutes 1856, 100; Statutes 1858, 212.)
Estill made his contract subject to all laws then existing, or such as might thereafter be passed. At that time the law made provision for the appointment of other auditing officers than the Controller. (Wood's Dig. 94, secs. 5 and 6.) And the Acts of 1856 and 1858, both in terms embrace this character of claims, as well as all others, which acts, if retrospective, merely affect the remedy and are therefore constitutional. (Sturgiss v. Crowning shields , 4 Wheat. 200; Mason v. Haile, 12 Id. 378; Butler v. Palmer, 1 Hill, 324 .)
The constitutionality of the Board of Examiners was affirmed in Ross v. Whitman (6 Cal. 361 ).
IV. Relator claims that he is entitled to draw ten thousand dollars per month from the State treasury, during the period of time that the State was in possession of the prison and bore the expenses of maintaining it. This is inequitable and unconscionable, and as this is in the nature of an equitable proceeding, such claim should not be maintained. No greater sum should be allowed in this proceeding than could be recovered in action at law, provided the State had authorized suit to be instituted. In such suit McCauley could only have recovered for the time mentioned, the amount of actual loss sustained by him. (Baldwin v. Bennett, 4 Cal. 392, and authorities there cited by Appellant's counsel; Cunningham v. Dorsey, 6 Id. 19 .)
V. Mandamus is not the proper remedy. The writ of mandamus can only be issued to an inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins upon such person, tribunal, etc. (Wood's Dig. 225, sec. 467.)
The Controller of State does not come within the category named. On the contrary, he belongs to a coordinate department of the government, of equal power and dignity to the judicial department, andin the discharge of the duties of his office, he is as independent of the judiciary as the latter is of the executive branch.
It is admitted to be difficult to cite judicial authority upon this branch of the case; and very naturally so, for the point involved is one of power, and in reference to which a constant struggle for the supremacy has been going on for years. The judiciary have assumed power in all cases where not resisted by the other departments of the government, and it is not to be expected that many cases can be found in which the judges themselves have acknowledged or admitted propositions against their exercise of power. (But see 1 Texas, 764; 2 Id. 497; 4 Pike, 220.)
VI. According to judicial authority, mandamus will not issue to compel the performance of an act which pertains to the discharge of the ordinary duties of an executive officer--such duties as necessarily result from the organization of the office--but only when the act is merely ministerial, created by act of the Legislature and is devolved upon the individual and not the officer. It is never used to compel the payment of money from the government treasury, nor in cases involving any investigation, examination or exercise of judgment or discretion. (Brashear v. Mason, 6 How. U.S. from latter part of page 100 to 103; Reesick v. Walker, 11 How. 289-290; Decatur v. Paulding, 14 Pet. 515, 16-18; United States v. Seaman, 17 How. 230-231; United States v. Guthrie, Id. 302, 303, 304; 3 Florida, 202 .)
VII. The State cannot be sued either directly or indirectly without its consent, and she is the only party in interest in this proceeding. (Reesick v. Walker, cited above.)
VIII. Admitting that the Act of 1856 was originally obligatory upon the Controller, still that of 1859 (Statutes 1859, 374) repealed it, which amounted to repudiation, and it cannot be denied that the State has a right to repudiate any demand she may see proper.
IX. The Court is asked to review its opinion, in the case of the State v. McCauley, holding the contract between Estill and the Commissioners binding upon the State, upon the grounds stated in the brief of appellant therein filed. (See 15 Cal. 436 .)
JUDGES: Field, C. J. delivered the opinion of the Court. Cope, J. concurring.
OPINION
FIELD, Judge
On the petitions, Field, C. J. delivered the opinion of the Court--Cope, J. concurring.
The Attorney General has filed a petition for rehearing in this case, and from a regard to the importance of the questions involved, and not from any new considerations presented, we have carefully reviewed our former opinion. We have felt a natural solicitude to advance only such doctrines as are supported by sound reason, and are in accordance with the fundamental principles of the Constitution and good government. It is not true, as asserted, that we have claimed the power to dispose of the funds of the public treasury in opposition to the declared will of the Legislature. Nothing can be more unfounded than this assertion. We have advanced no such pretension. We have simply undertaken, as was our duty under the Constitution, to declare, in a judicial proceeding, what the law is--what obligations the State has assumed by her contract, and decreed that the officers of the State shall yield obedience to the will of the State, and carry out her stipulations.
On the twenty-first of March, 1856, the Legislature passed an act authorizing and requiring the Commissioners of the State prison to lease the State prison grounds and property, with the labor of the convicts, for a period of five years, at a price not exceeding $ 15,000 a month, and appropriated that sum per month, or such sum per month less than that amount as might be agreed upon with the lessee, out of any money in the treasury not otherwise appropriated, to meet the obligations of the contract on the part of the State, and authorized and required the Controller to draw his warrants on the Treasurer for the same, and directed the Treasurer to pay the warrants on the application of the lessee at the end of each month. The contract with the lessee was made for a less sum: namely, for $ 10,000 a month--and as to the payments which it provides, purports to follow the exact terms of the act. Previous to its execution, and from the first of June, 1855, the administration of the State prison had been under the immediate control of the officers of the State, under the provisions of the Act of May 7th, 1855. The results of that administration are stated in the message of the Governor to the Assembly, accompanying the approval of the Act of March 21st, 1856, under which the contract was made. (Assembly Journal of 1856, 553.) By that message it appears, that from June 1st, 1855, to January 1st, 1856, the expenditures for State prison purposes, (including the construction of the prison wall) over and above the amount received from the brick manufactured during the period, amounted to the sum of $ 382,226.84, being an average sum of $ 54,603.83 per month. The cost of the wall was $ 180,235.09, which being deducted from the amount of the expenditures, left us the expenses of keeping the convicts, over and above the receipt of their labor, the sum of $ 28,855.96 a month. (Senate Journal of 1856, 375.) It also appears by the message that, according to a statement furnished by the Board of Directors, the expenses of the prison from the first of January to the first of April, 1856, would amount to the sum of $ 76,458.02, being a monthly average of $ 25,486; and that the aggregate of expenditures for ten months, exclusive of the proceeds of the prison labor, amounted to the enormous sum of $ 458,684.86, being a monthly average of $ 45,868.48. Deducting the cost of the prison wall, and the monthly average amounted to $ 27,844.97. It was under these circumstances, with the results of the administration of the prison by the officers of the State before the Legislature, that the law of March 21st, 1856, was passed, and the contract with the lessee was made. By the contract, not only were the expenses reduced nearly two thirds a month from what they were previously, but a release was obtained of a claim against the State of $ 48,800 for property purchased by the State Prison Directors, or other State officers, and of a claim for upwards of 2,000,000 of brick furnished for the prison wall. These observations, however, address themselves to the policy and expediency of the contract, with the consideration of which we have properly nothing to do. To the form of the contract and its assignable character, objections might with reason have been taken; but such was not the case. No objections of the kind were made. The contract was adopted and acted upon by the State, and thereby affirmed. It was recognized by subsequent legislation, and referred to in the subsequent message of the Governor. That contract is a valid contract and binding upon the State. By is the State leases the prison grounds and property, with the labor of the convicts, for the period of five years, and agrees, in the most solemn form, that the lessee shall receive warrants for the stipulated sum, and the Treasurer shall pay them at the end of each month, during the term, out of moneys in the treasury not otherwise appropriated. Under that contract, and reposing upon the faith of the State, the lessee and those representing him have received the convicts sent to the prison for the punishment of crimes, in the administration of the penal laws of the State, have kept them, fed them and clothed them. The State holds the lessee and his representatives to the obligations of the contract. She has never in the slightest degree discharged him or them from those obligations. On the contrary, she is daily sending to their care through her Courts, in the administration of her laws, persons convicted of the higher crimes. Through her Courts she condemns convicts to servitude in the prison kept under the contract, and pays for their transportation to that place; and yet, since the twenty-sixth of December, 1857, nothing has been paid to the lessee or those representing him under the contract. The burdens of the contract, involving the support of about six hundred convicts, are daily imposed upon those representing the lessee, and yet for the last thirty months there has been no corresponding discharge of the obligations on the part of the State.
And what is the pretense for asserting that the State has repudiated the contract, or is discharged from its obligations? Simply that the Legislature has repealed the law under which the contract was made. But what has that repeal to do with the case? The contract once made did not depend for its further existence upon the continuation of the act which originally authorized its execution. The authority under the law was exercised; the power of the Commissioners was exhausted, so far as the leasing of the prison and convict labor was concerned, when the contract was signed and accepted. The law had in that respect effected its purpose, and it was of no consequence whether it was suffered to remain any longer on the statute book or was repealed. A contract once made cannot be impaired, much less destroyed, by subsequent legislation, without violation of both Federal and State Constitutions. Nothing is clearer or better settled than this. If the Legislature could destroy a contract entered into by the State by the repeal of the law which authorized it, no contract could ever be made binding upon the State. The performance of the stipulation of any contract on her part, and the obligations to such performance, would depend purely upon the will of the Legislature. Such a proposition cannot be maintained. To assert it is to assert, in effect, that a principal who authorizes his agent to enter into a contract can set aside such contract, after it has been duly made, by revoking his power of attorney. The Act of March 21st, 1856, was the authority, the power of attorney, to the agents of the State to make the contract with the lessee; and the repeal, like the revocation by the principal of a power of attorney to his agent, cannot impair, much less destroy, the contract previously made.
We deny the proposition laid down in the petition of the Attorney General, " that the State has the right of repudiation, and did repudiate the demand (of the relators) by her repealing Act of 1859." We deny both the right to repudiate and the fact of repudiation. The State possesses no such right, but upon her rest the same obligations to do justice and keep faith as rest upon individuals. She cannot be sued, it is true, and hence demands against her must await the action of the Legislature in the appropriation of moneys for their payment. In that sense the Legislature possesses the power to postpone her general creditors indefinitely; in that sense only can the State repudiate; but the right and the power are not synonymous terms. The exercise of the power would never convert that power into a right. We deny the fact of the repudiation of the demand of the relators. By no act has the State said that she repudiated that demand. The repeal of the law, the revocation of the power of attorney under which the contract was made, did not, as we have already observed, affect the contract previously made. That contract remains as a subsisting and living thing, and through her Courts and officers the State every day recognizes its existence and obligatory force upon the relators representing the lessee.
Reference must be had to a power of attorney revoked in considering a contract made before the revocation. Reference must in like manner be had to a repealed law in considering a contract made under its provisions whilst it was yet in force. The contract refers to the law which authorized it. By the contract the State covenants, upon the considerations therein specified, to pay the lessee at the end of each month, during the continuance of the term of five years, the sum of $ 10,000, " in conformity with the law regulating the Board of said Commissioners and defining their powers and duties" --that is, that the Controller shall issue to the lessee his warrants upon the Treasurer, and the Treasurer shall pay them at the end of each month out of moneys not otherwise appropriated. This the State agrees the Controller and Treasurer shall do each month. This the State still says these officers shall do. The contract gives to the relators representing the lessee the right to the warrants and the right to have any unappropriated moneys in the Treasury applied towards their payment. Having this right, it would be a reproach to the jurisprudence of the State if the laws of the country furnish them no remedy when the right is withheld. This brings us to the consideration whether the right of the relators can be enforced by mandamus.
In our former opinion we examined at great length the power to enforce by mandamus the performance of the legal duty devolving upon the Controller. We have seen nothing since which has created a doubt of the correctness of the views we then expressed. We refer to the subject again, however, because of the absolute necessity of the power asserted to the due administration of justice, and to the existence of the Government as a Government of laws. In Marbury v. Madison (1 Cranch. 50 ), from which we then cited, the Supreme Court of the United States held that the relator was entitled to his commission as Justice of the Peace in the District of Columbia, to which office he had been appointed, and the commission for which had been signed by the President and sealed by the Secretary of State, and that to withhold the commission was an act not warranted by law, but violative of a vested legal right, and then proceeded to consider whether the laws of the country afforded him a legal remedy. " The very essence of civil liberty," says Chief Justice Marshall, who delivered the opinion of the Court, " certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of Government is to afford that protection. In Great Britain the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his Court ." And again: " The Government of the United States has been emphatically termed a Government of laws and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right. If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case." The Chief Justice then shows that there is nothing in the character of the case or the nature of the transaction which excepts it from legal investigation or excludes the injured party from legal redress, and as instances of cases where the performance of duties imposed upon the heads of the departments may be enforced, refers to the Act of 1794, concerning invalids, and the Act of 1796, authorizing the sale of lands above the mouth of Kentucky river. " By the act concerning invalids, passed in June, 1794," says the Chief Justice, " the Secretary of War is ordered to place on the pension list all persons whose names are contained in a report previously made by him to Congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law in precise terms directs the performance of an act, in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amendable to the laws of their country? Whatever the practice on particular occasions may be, the theory of this principle will certainly never be maintained. No act of the Legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common law. * * By the act passed in 1796, authorizing the sale of lands above the mouth of Kentucky river, the purchaser, on paying his purchase money, becomes completely entitled to the property purchased; and on producing to the Secretary of State the receipt of the Treasurer upon a certificate required by the law, the President of the United States is authorized to grant him a patent. It is further enacted that all patents shall be countersigned by the Secretary of State, and recorded in his office. If the Secretary of State should choose to withhold this patent, or, the patent being lost, should refuse a copy of it, can it be imagined that the law furnishes to the injured person no remedy?"
" It is not believed that any person whatever would attempt to maintain such a proposition."
" It follows, then, that the question, whether the legality of an act of the head of a department be examinable in a Court of justice or not, must always depend on the nature of that act ."
Throughout the whole opinion the Court disclaims all pretension of jurisdiction to intermeddle with the prerogatives of the Executive, or to interfere with the political powers with which the heads of the departments are clothed. " The province of the Court," continues the Chief Justice, " is solely to decide on the rights of individuals, not to inquire how the Executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are by the Constitution and laws submitted to the Executive, can never be made in this Court."
" But if this be not such a question; if, so far from being an intrusion into the secrets of the Cabinet, it respects a paper which, according to law, is upon record, and to a copy of which the law gives a right on the payment of ten cents; if it be no intermeddling with a subject over which the Executive can be considered as having exercised any control, what is there in the exalted station of the officer which shall bar a citizen from asserting in a Court of Justice his legal rights, or shall forbid a Court to listen to the claim, or to issue a mandamus directing the performance of a duty, not depending on executive discretion, but on particular acts of Congress and the general principles of law?" " If one of the heads of departments commits any illegal act, under color of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How, then, can his office exempt him from this particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process?"
" It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus is to be determined. Where the head of a department acts in a case in which executive discretion is to be exercised, in which he is the mere organ of executive will, it is again repeated, that any application to a Court to control, in any respect his conduct, would be rejected without hesitation."
" But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully forbid, and therefore is never presumed to have forbidden; as for example, to record a commission, or a patent for land, which has received all the legal solemnities, or to give a copy of such record; in such cases it is not perceived on what ground the Courts of the country are further excused from the duty of giving judgment, that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department. "
We have made these lengthy citations from the opinion of the Supreme Court of the United States, because they present with admirable clearness and precision the views on the subject under consideration, which are entertained with rare exceptions by the legal profession and the judiciary throughout the entire Union.
Where political power is vested in a public officer, he is responsible only in his political character to the country. Where discretion is vested in him he but conforms to the law in exercising that discretion. But where a question of political power is not involved, where no discretion exists, but a specific legal duty is imposed, ministerial in its character. such as the issuance of a patent, the delivery of a commission, the payment of a specific sum, or the drawing of a particular warrant, and in the performance of that duty individuals have a direct pecuniary interest the officer, like any other citizen, is subject to the process of the regularly constituted tribunals of the country. If this be not so, then the officer can " sport with the vested rights of others," and the government will cease to deserve the " high appellation" of being a government of laws, and the " obloquy" referred to by Chief Justice Marshall will be cast upon the jurisprudence of the country.
The Controller of the State is an officer of the executive department, but the greater part of the duties devolved upon him by the law are of a ministerial character. The Constitution does not define his duties. It only provides that there shall be such an officer, declares that he shall be subject to impeachment, the mode of his election, and that his compensation shall not be increased or diminished during his term of office. He does not hold his appointment of the Governor, is not responsible to him, and acts entirely independent of him. His duties are enumerated and defined by the law, and they are, as we have said, generally of a purely ministerial character. He has no discretion as to the issuance of warrants for appropriations for the public service. He cannot refuse his warrants for the salaries of the Governor and Judges, upon any notions that such matters rest in his discretion, and that in his judgment those officers have not performed their duties. He cannot undertake to say that in his judgment the capitol ought not to be erected at Sacramento, and therefore, in the exercise of his discretion, refuse the warrants for the appropriation made by the law. But if he cannot do this in the cases supposed, he cannot do it in any case where a specific ministerial duty is enjoined. But it is clear, it is asserted, that in those cases the law requires the issuance of the warrants, and it is not so clear in the present case. That may be a very good reason for the Controller to ask in the present instance the judgment of the Court upon the question as to what the law is; but the law being determined, the obligation becomes as clear and certain and imperative as in the cases enumerated. But it is further said, that to issue a mandamus to the Controller will be a great hardship to him, as he may be indicted under the statute for issuing the warrants in obedience to the Court, and be impeached by the Legislature. To this the answer is ready and complete. In the first place, there is no statute which forbids the issuance of the warrants, but on the contrary, the State, by her contract still subsisting and in force, directs and requires him to issue them. In the second place, the proposition of a possible impeachment is preposterous. The Legislature has declared that an officer, for willful disobedience to the mandate of the Court, shall be deemed guilty of a misdemeanor in office (Practice Act, sec. 479), and it would be a most unjust imputation upon the character of any legislative assembly to suppose, in the face of such a declaration, that it would present any articles of impeachment against an officer for yielding obedience to the law. The Legislature has undoubtedly the power--the physical power, so to speak--to impeach any officer; the Governor for vetoing a bill--the Judges for rendering a decision. So it has the power to impose a tax amounting to the entire value of the property upon which it is levied; but the possession of this power does not justify the supposition that it will be arbitrarily and tyrannically exercised. It is to be assumed in all cases of this kind that the members of the Legislative Assembly will be governed by sentiments of justice, and the ordinary rules of common sense which influence members of a civilized society. So a grand jury possesses the power to indict any one; but will it do it without proper evidence? Will it say that A killed B whilst B is still living? The possibility of a tyrannical exercise of power against a public functionary for the discharge of his duties, is no excuse for the neglect of those duties. But it does not appear to have occurred to the counsel of the respondent, that if the issuance or refusal of warrants was a mere executive act, resting in the discretion of the Controller, he possesses an inviolability from all personal responsibility for any breach of duty. Acts which are not the subjects of indictment or impeachment. For the exercise of discretion, allowed by the law, or necessarily incident to his office, he could never be held accountable. An unwise exercise of discretion there may be; but unless there be an ingredient of corruption or turpitude of some kind, there can be no ground for any criminal proceedings either before the Courts or the Legislature.
Again, the Controller is required to give a bond for the faithful performance of his duties, and all parties injured or aggrieved by the wrongful act or default of the officer, may institute suits thereon in their own names. (Act concerning Controller, of January 19th, 1850; and concerning Official Bonds, of February 9th, 1850.) But what relief can injured parties have upon such bond, if the acts of the Controller are matters resting in his discretion? The Controller may refuse a warrant to which an individual is entitled, and when suit is instituted for such refusal the answer would be made: " I am an executive officer; I am independent of the Courts; the issuance of that warrant was a matter resting in my discretion; I differ with the tribunals established for the construction of the law; I am sole judge in this matter" --and the answer would be perfect and conclusive. If the act alleged as a breach of the bond was a matter of executive discretion, that fact alone would be a complete determination of the suit. It is to such results that the preposterous claim asserted on behalf of the Controller must necessarily lead.
" It is not by the office of the person," says the Supreme Court of the United States, " to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined." The nature of the things to be done by the Controller is similar to the nature of the things to be done by the Auditors of the counties, and whatever immunities he possesses they possess. The duties of the two officers, though specifically different, are similar in their general nature. So the duties of the several County Treasurers are similar in their general nature of the duties of the Treasurer of the State, and those officers possess like immunities. Yet it would be a startling proposition that the Auditors and Treasurers of the several counties are wholly irresponsible to the law, or to aggrieved individuals for their errors, or for the abuse of their official trusts.
But it is only to the executive officers of the State, it is said, that this exemption from the legal process of the Court applies. The argument does not, however, stop with them. It establishes also the immunity of the county officers, if it establishes anything; for it is by the nature of the thing to be done, and not by the office of the person, that the propriety or impropriety of issuing a mandamus is to be determined.
In our former opinion, we stated that to the executive department belong all the numerous officers connected with the execution of the laws, and such is certainly the case; for the powers of the government, by whomsoever exercised, must belong to the one or the other of the three departments. If the officers do not belong to the judiciary or legislative department, they must fall under the executive department. The duties of the officers of the latter class are sometimes purely executive in their character, and sometimes purely ministerial. So far as they are of the latter character, they must--if law is to be administered and rights protected--be subject to enforcement by judicial proceedings. We will suppose, however, for the present, for the purposes of this case, that only certain officers of the State--the Governor, Secretary of State, Controller, Treasurer, Surveyor General, and Attorney General -- belong to the executive department; a supposition which has no warrant in the Constitution; and then test the doctrine of the respondent by the practical results to which it may lead. We will take for illustration the case of a person elected to the office of District Judge of the district of Sacramento. The proper certificate of the election is transmitted to the Secretary of State, and by him to the Governor. The latter officer signs a commission for the Judge elect, and hands it to the Secretary of State, that the seal of the State may be affixed and the commission then delivered. The Secretary of State, though appointed in the first instance by the Governor, is not responsible to that officer, but is independent of him. He is of opinion that the law authorizing the election was not constitutionally passed, or that the election was invalid, or that the candidate returned was ineligible, and he therefore declines, in the exercise of his discretion, to deliver the commission. Application is made to the Court for a mandamus to compel the delivery, but the writ is refused, for the act of delivery is an executive act, which is beyond the control of judicial proceedings. Suit is then brought upon the Secretary's bond for the refusal, by the aggrieved party, but the act being discretionary constitutes no breach of official duty, and judgment passes in favor of the Secretary. Complaint is finally made to the Legislature, and an investigation is ordered, and perhaps articles of impeachment are presented; but to both the ready answer is given--" The act of which complaint is made was of an executive character, resting in the discretion of the officer, and for an erroneous exercise of discretion--there being in it no ingredient of corruption or turpitude of any kind--no criminal proceedings either in the Courts or before the Legislature can be maintained." To punish for an unwise or erroneous exercise of discretion would be an act of simple tyranny. The impeachment would of course fail. In the meantime the Judge elect is deprived of his office, in which he has a vested right, and of its honors and emoluments; the people of the district are deprived of his services, their will is defeated, and they are subjected to the necessity of submitting to the exercise of judicial authority by an incumbent not of their choice, and who, it may be, for the most important public considerations, ought not to be retained in power. But we will take one step further; we will suppose the commission is delivered. The Judge enters upon the duties of his office, and at the end of the month applies to the Controller to issue a warrant for his salary. The Controller is not responsible to the Governor or Secretary; he is independent of both, and he entertains doubts as to the law directing the election and the qualifications of the candidate, and he therefore declines, in the exercise of his discretion, to issue his warrant. The same proceedings for a mandamus, and upon the officer's bond, and before the Legislature, as in the case of the Secretary's refusal to deliver the commission, are taken, and with the like result. In the meantime the Judge is deprived of his salary, which may constitute the only means of support for himself and family, and yet he is at the same time prohibited from the practice of his profession, perhaps to him the only other source of livelihood. He must resign his office, or await some providential influence upon the Controller's mind, by which the latter's views of his discretionary duty may be changed. But we will take still another step; we will suppose the warrant is issued and is presented to the Treasurer for payment. The Treasurer is not responsible to the Governor, the Secretary of State or the Controller. He is independent of all those officers, and he has doubts as to the validity of the election, or the right of the incumbent to the office, and he therefore declines, in the exercise of his discretion, to pay the warrant. The same proceedings by mandamus, and upon his bond, and before the Legislature, are instituted, as in the case of the Secretary's refusal to deliver the commission, and are followed by the same result. Thus the will of the people of the district may be defeated, and the purposes of the law evaded, and the vested rights of the Judge essentially impaired, by any one of these three officers of the executive department, upon the pretentious claim that the performance of the acts, which the law specifically enjoins upon them, is a matter resting in their discretion, for which they are not responsible to the law, but are above and independent of it.
Let us take another case to illustrate the practical results of the doctrine asserted. At its last session the Legislature passed an act for the construction of a State capitol at Sacramento, and appropriated $ 100,000 out of any moneys in the treasury not otherwise appropriated to carry the act into effect, and authorized the Commissioners designated therein, to enter into contracts for the work, and to draw orders from time to time, as the services provided are performed, upon the Controller, and directed that officer to draw his warrants upon the Treasurer for the amount of such orders. We will suppose the Commissioners have made the contract for the construction of the capitol, that the contractor has entered upon the performance of the contract, and commenced the erection of the building, and orders for the work performed are drawn upon the Controller, and application is made to him for his warrants. The issuance of the warrants is an executive act, resting in the discretion of the officer, and he has doubts as to the passage or construction of the statute, or the validity of the contract made thereunder, and he declines to give the warrants. He cannot be compelled to perform this duty by mandamus, and the mere erroneous exercise of his discretion is not a breach of his official bond, or the ground of criminal proceedings. The result follows--the work must cease, and the law for the year, at least, be practically defeated.
We might proceed and show that the doctrine asserted leads directly to the subversion of the rights of individuals, the derangement of the appropriations for the public service, the defeat of the will of the people, and practically gives to the officers of the State in the executive department, an absolute veto upon the most important legislation of the State. If such be in fact the constitution of our government, and the effect of the division of its powers into three departments, the government is not one of laws, and it is not worth a struggle for its preservation. There is something repugnant to all just notions of good government and of civil liberty, in the claim that these executive officers of the State, in matters purely ministerial, are supreme in their respective departments; that they can give effect or not, at their discretion, to the appropriations of the Legislature, and thus advance or suspend at their will the public works, and that they can pass absolutely upon the rights of individuals, without hearing, or any of the formalities provided for the protection of such rights. An impeachment could not be sustained, as we have said, if his acts are matters of discretion; but suppose it could be sustained, that result would not afford to the injured individuals his remedy. The impeachment is for the punishment of the officer, and not for the redress of the private citizen.
The case may arise when the Controller will deny that the incumbent of the office of Treasurer is properly in office, and refuse to issue his warrants upon him, or the reverse may occur, and the Treasurer may deny that the incumbent of the Controller's office is entitled to his place, and to refuse to acknowledge the validity of any warrants drawn by him. Who is to decide in cases of this kind? Has the judiciary no power to determine the matters in controversy? Again: the case may occur--and unfortunately for California, it has on one occasion, at least, occurred already--that the Treasurer may attempt to remove the funds to some other place than the capital--out, perhaps, of the State--for the alleged purpose of more conveniently meeting the obligations of the State; and will it be pretended that no process in restraint of such proceedings can issue from the Courts? If the acts of the Treasurer are matters resting in his discretion--if they are executive merely--and for which the officer is responsible only to the Legislature, the funds may be removed. The Courts cannot interfere, and before the Legislature can meet, the funds may be hopelessly lost to the State. These, it may be urged, are extreme cases; but if that Courts cannot compel any acts to be performed by the Treasurer, because all his acts are matters of discretion, they cannot restrain the performance of any acts by him, for the like reason.
We have supposed, for the purpose of illustrating the practical effect of the doctrine asserted by the respondent, that the exemption from legal control in matters ministerial, is limited to those who are specially termed State officers, though we have shown that immunities, if existing, as to them, must extend in like manner, to all the officers of the executive department. This being the case, the administration of the government would for all useful purposes be dissolved. All officers of that department, upon that doctrine, would be and are independent, not only of all process of the Courts, but of each other; or rather, the action of each is dependent for its efficacy upon the view which the others may take of their own duties. If this doctrine can be maintained, the government must cease to be one of law, and must sink into merited contempt for its weakness and inefficiency.
In our former opinion, we stated that the doctrine that the officers of the government can be compelled, by the compulsory process of mandamus, to the performance of mere ministerial duties, was held not only by the Federal Courts, but by the highest tribunal of nearly every State where the question has been raised. Since then our attention has been called to the case of Guthrie v. The United States (17 How. 234 ), as though we had misapprehended its effect, and to the case of Devine v. Harvey (7 Monroe, 440) as in conflict with our views. In speaking of the case of Guthrie v. The United States, we stated that the judgment of the Circuit Court refusing the mandamus was sustained on the ground that the writ was not a legal remedy to try the title of the relator to the office he claimed; that it is true, there are observations in the opinion of Mr. Justice Daniel, which apparently question the doctrine previously established by the Court, but that they seem to have been made with reference to disputed or controverted claims; for the opinion admits that it had been ruled that the power of the Courts of the United States, by mandamus, extended to such acts as are purely ministerial. We have again looked into the case, and we find that the statement as to the views of Mr. Justice Daniel is correct, and that the opinion delivered by him was the opinion of a minority of the Court. At the time, the Court consisted of nine Judges, one of whom, Mr. Justice McLean, was of opinion that the mandamus should issue; and four of whom, Justices Curtis, Nelson, Grier and Campbell, placed their concurrence in the judgment of affirmance on the ground that the writ was not a legal remedy to try the title of the relator to the office claimed, and expressly reserved the expression of an opinion upon any other question argued. If therefore, the case do not decide the proposition we have stated, it decides nothing. Certain it is, that the particular views advanced by Mr. Justice Daniel were not entertained, or at least were not concurred in, by a majority of the Court. In Devine v. Harvey, the Legislature of Kentucky had allowed a certain sum to Devine, and a creditor having judgment against him endeavored to subject the claim, by bill in equity, to the satisfaction of the judgment, making Devine, and the Auditor and Treasurer of the State, parties. The bill was filed under an act of the State authorizing a proceeding of that nature to subject any choses in action belonging to a judgment debtor after execution had been returned unsatisfied. The Court held that the bill would not lie, and that the Auditor and Treasurer were not proper parties, " but as Devine might have proceeded by mandamus against the Auditor and Treasurer to compel them to pay this money out of the treasury, in case of their refusal," it might be urged that the claim was, within the spirit of the terms, chose in action, and the equity of the act, were it not for the rule of law that the Commonwealth is not embraced by an act which is made to operate between individuals where there is nothing in the act showing an intention to that effect; and that by the act in question it was not the intention of the Legislature to include the State in the class of debtors who could be compelled to pay their debts to the creditors of their own creditors. This case, so far from being in conflict with our views, expressly recognizes the authority of the Court to issue a mandamus to the Auditor and Treasurer of the State to enforce the payment of a claim allowed by the Legislature.
In our former opinion, we referred to several adjudications of this Court, asserting the power of the District Court to issue a mandamus to the Controller of the State to enforce the performance of a ministerial act enjoined upon him by the law; to Fowler v. Pierce (2 Cal. 165 ), in which that Court was directed to issue the writ commanding him to audit the account of a member of the Legislature whose compensation was fixed by law; to People ex rel. McDougall v. Bell (4 Cal. 197 ), in which it was ordered to award the writ to compel him to correct an error in the auditing of an account; and to People v. Whitman (6 Cal. 659 ), in which it was instructed to allow the writ commanding him to draw his warrants on the Treasurer for compensation due the relator as Supreme Court Reporter. The legislative recognition of this power of the Court has been in accordance with the adjudications on the subject. In the act passed at the first session of the Legislature, organizing the District Courts, it is expressly provided that " they shall have power to issue and direct writs of mandamus, prohibition, quo warranto, habeas corpus, ne exeat and all other writs and processes to Courts of inferior jurisdiction, and to corporations and individuals, which shall be necessary to the furtherance of justice and the regular execution of the laws ." (Laws of 1850, ch. 33, sec. 8.) In the act to regulate civil proceedings, passed in 1851, a chapter is devoted exclusively to the subject of mandamus. The four hundred and sixty-seventh section of the act provides that the writ may be " issued by any Court in this State except a Justice's, Recorder's or Mayor's Court, to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station." That it was in contemplation of the Legislature that the writ might be issued to officers of the State, is evident from the provisions made in section four hundred and seventy-nine in case of disobedience to the mandate. That section reads as follows: " When a peremptory mandate has been issued and directed to an inferior tribunal, corporation, board or person, if it appear to the Court that any member of such tribunal, corporation or board, or such person upon whom the writ has been personally served, has, without just excuse, refused or neglected to obey the same, the Court may, upon motion, impose a fine not exceeding $ 1,000. In case of persistence in a refusal of obedience, the Court may order the party to be imprisoned for a period not exceeding three months, and may make any orders necessary and proper for the complete enforcement of the writ. If a fine be imposed upon a judge or officer who draws a salary from the State or county, a certified copy of the order shall be forwarded to the Controller or County Treasurer, as the case may be, and the amount thereof may be retained from the salary of such Judge or officer. Such Judge or officer for his willful disobedience shall also be deemed guilty of a misdemeanor in office." These sections have remained on the statute book without change since their passage in April, 1851.
We refer to these provisions of the law not as the source of authority to the District Court to issue the writ. The authority is inherent in the Court. The process is a part of that system of remedies furnished by the general principles of the common law, independent of the statute, for the enforcement of private rights. We refer to the legislation to show that the doctrine advanced by the respondent has no more countenance in any action of the legislative department than it has in the action of the judicial department. We believe, too, that the doctrine was never asserted in any of the numerous applications for the writ which have come before this Court--if we except perhaps one case, that of Nougues v. Douglass et al. (7 Cal 80 ). In that case the writ was asked against the Secretary of State and others, constituting Commissioners under the Act of April, 1856, for the erection of a State capitol, to compel them to draw their warrants upon the Controller in favor of the contractor; and yet at the same time, as it would appear from the opinion of Mr. Chief Justice Murray, the counsel of the relator denied the power of the Court to enforce the writ when issued. " According to the appellant's own showing," says the Chief Justice, " he has no right in Court, for he asks a mandamus to compel the Secretary of State and other officers to act in their official capacity, and at the same time denies the power of the Court to issue any process to carry its judgments into execution. According to the argument of the appellant, if we were to decide the law under consideration constitutional, and award the mandamus, the Secretary of State might refuse to obey the order, and here would be exhibited the anomaly of a Court with jurisdiction to hear and determine, without the power of carrying its judgments into effect-- a sort of legal monstrosity that never had an existence in any civilized system of jurisprudence .
According to the same argument, the Treasurer may refuse to pay every warrant presented to him, and the holder would have no relief."
It is unnecessary to pursue this matter any further. We have, for a second time, examined this question of power in the Courts at great length, because the doctrine asserted in opposition to its existence is fraught with the most pernicious consequences, is revolutionary in its character, and if sanctioned, will render the Government incapable of protecting a large class of private rights. That the doctrine if unsupported by reason, and opposed by authority, we think we have abundantly established. The petition for rehearing must be denied.
It only remains to consider the application of the relators for a modification of the judgment, so that it may order the writ to issue directly from this Court, instead of being remitted to the District Court, as in the usual way. For the application, it is urged that every question involved in the case is determined, and the only effect of remanding the case to the District Court will be to interpose unnecessary and highly injurious delays in the enjoyment by the relators of their ascertained rights. In opposition to this view, it is urged that the appellate power of this Court is to be exercised with reference to the judgments of the District Court, by reversing, affirming or modifying such judgments, and that the mode and manner of enforcing its appellate power in these respects is a matter of practice, and like the manner in which appeals may be taken or suits be brought, is the proper subject of legislative control, provided the jurisdiction itself be left intact, and that by statute the judgments of this Court are to be transmitted to the District Court to be there enforced through its processes. There is a difference of opinion between the Justices deciding this case on this subject, which must result in the defeat of the application.
The petition of the respondent for rehearing, and the application of the relators for a modification of the judgment, must be denied; and it is so ordered.