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3. To increase still further the pecuniary limit of the appelate jurisdiction of the supreme court. Whatever lawyers may think of this measure, it is safe to say it will never be a popular one. There is evidently a feeling on the part of the people now, that the highest court of the nation is already removed a long distance from them; and their representatives will probably hesitate before enacting a measure which seems to deny to the poor the same sort of justice which is accorded to the rich. Our conviction is that the present limit of two thousand dollars is high enough; and while we are not prepared to say that the time will not come when this limit will have to be increased, yet we believe that this should not be done until other means of relieving the judges of their excessive burden are exhausted.

4. ace it is apparent that some measure of relief must be speedily devised, it might be worth considering whether a beneficial measure would not be found in the establishment of two other courts of final resort, a tribunal of commerce, and a court of appeal in admiralty. The former court could be clothed with appellate jurisdiction of all commercial questions, including bankruptcy, thus giving us one final court of bankruptcy, instead of nine, which we practically have under the present system. With the establishment of the latter tribunal, the circuit courts might be relieved of their appellate jurisdiction in admiralty.

He is one of the stockholders of the bank and Bailey one of its creditors. Stockholders are, by art. 2, sec. 16 of the charter, "bound respectively for all the debts of the bank in proportion to their stock holden therein." The action below was at law, by one debt, without regard to the other creditors or the ability of the other creditor against one stockholder, to recover the full amount of his stockholders to respond to their obligations under the charter. The stock of Pollard, at its par value, exceeds in amount the debt owing to Bailey, but it is admitted that the other indebtedness of the bank is very large, and nearly, if not quite, equal to the entire capital.

Each stockholder is bound for the debts in proportion to his stock. His liability is not limited to the par value of his stock, neither is he bound absolutely for the payment of the full amount of that. He must pay a sum which shall bear the same proportion

to

the whole indebtedness that his stock bears to the whole capital, and is not required to pay more. For the purpose of this case it is not necessary to decide what effect the insolvency of any of the stockholders would have upon the liability of such as are solvent. It is certain that no stockholder is liable for more than his proportion of the debts. This proportion can only be ascertained upon an account of the debts and stock and a pro rata distribution of the indebtedness among the several stockholders. The proper action, therefore, to enforce the liability is one in which such an account can be stated and distribution made. Such an action calls specially for the exercise of the powers of a court of equity, which can bring before it all the necessary parties and adjust all their rights. Every stockholder, when called upon to perform his obligation, has the right to require that the extent thereof shall then be determined once for all, as well that which he is under to his associate stockholders, as that to the creditors. Otherwise he might be made to respond to the creditors under one rule, and obtion his relief from the other stockholders under another. The provision therefore, for a proportionate liability is equivalent to a provision for an appropriate form of equitable action to enforce it. The case is different from what it would be if the char

Over these two tribunals the supreme court might exercise a limited supervision for the purpose of determining questions of constitutional and public law, and such other important matters as might be certified to it from a divided bench. The influence of a final tribunal of commerce, would doubtless be beneficially felt in rendering our commercial law more uniform and homogeneous. The number of commercial cases which reach the supreme court is at present too limited for ter had provided generally that all stockholders should be individ

such a result to be attained.

Liability of Stockholders in Insolvent Corporations.
CHARLES T. POLLARD v. JOHN F. BAILEY, ASSIGNEE IN
BANKRUPTCY OF FOWLER & SOMERVILLE.

Supreme Court of the United States, October Term, 1874.
1. Insolvent Corporations - Proportionate Liability as Stockholders, how

Ascertained.-A bank charter contained a provision that " stockholders are bound re

spectively for all debts of the bank in proportion to their stock holden therein :' Held, that each stockholder, on the insolvency of the bank, was only bound to creditors to pay a sum which shall bear the same proportion to the whole indebtedness of the bank, that

ually liable for the payment of the debts. The cases from New York cited upon the argument, and which are suppossed to be in opposition to the view we have taken, involved the consideration of such liability.

But when sec. 16 is taken in connection with secs. 20 and 21, it is very apparent that it was the intention of the legislature only to charge the stockholders upon a proper account, and in the manner therein provided for. The intention of the legislature, when properly ascertained, must govern in the construction of every statute. For such purpose the whole statute must be examined. Single sentences and single provisions are not to be selected and construed by

his stock bears to the whole capital; that this proportion could only be ascertained in themselves, but the whole must be taken together.

equity, in a suit in which an account could be taken and an order for distribution made, once for all; and that one creditor før himself alone, could not, under this and other provisions of the charter maintain an action against a single stockholder, to enforce the lat

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As has been seen, sec. 16 created the liability, but provided no remedy for its enforcement except by implication. Section 20, however, provides in substance that if any debt due from the bank, exceeding one hundred dollars in amount, shall remain unpaid for more than ten days after proper demand, the holder may file a bill in the proper chancery court for the settlement of all the debts of the bank, if he elect so to do, and may, on certain specified proof, pray an injunction to restrain the bank and its officers from paying out, or in any manner transferring or delivering to any person any money or assets of the bank, or incurring any obligations until the order is vacated or modified. It further provides that, upon certain

In error to the District Court of the United States for the Middle findings, the chancellor shall proceed to enquire whether the bank District of Alabama.

Mr. Chief Justice WAITE delivered the opinion of the court. The right of Bailey to maintain his action against Pollard depends upon the construction to be given to the charter of the bank. Pollard does not deny his liability to the creditors, but insists that it cannot be enforced in this manner.

is solvent or not; and if, upon such enquiry, he shall find that it is not clearly solvent, he may make an order declaring the same to be insolvent and require its affairs to be wound up and settled, and, under certain circumstances, appoint a receiver for that purpose. Section 21 provides that if the bank be found insolvent, and settlement of its affairs ordered, the same shall be done upon bill

filed in said chancery court under the orders of the court and the rules in chancery, and that full distribution shall be made of the assets according to the rights of all parties, billholders having priority over other debts due from the bank. After the assets were exhausted, if they were not sufficient to pay all debts and liabilities, a further call was directed upon the shareholders for further payment| of capital to an amount equal to the deficiency, which was to be apportioned among all the shares of the stock, and an order made for the payment by each shareholder of the sum or proportion of his shares. This apportioned call the receiver was required to collect and apply.

The individual liability of stockholders in a corporation for the payment of its debts, is always a creature of statute. At common law it does not exist. The statute which creates it may also declare the purposes of its creation, and provide for the manner of its enforcement.

livered, that the lands designated as the state sections in what is known as the Memphis, El Paso and Pacific Railway reservation, were not open to location and patent at the date of appellee's location thereon in September, 1870. On the application of appellee a rehearing was granted October 21, 1872, and on the 15th of April, 1873, the case was again submitted to the court. And on the 21st of October, 1873, the court on the same grounds maintained in its former opinion, again rendered judgment reversing the judgment of the district court, and dismissing the case. On the 28th of November, 1873, appellee made application for a rehearing upon this second judgment of the court, which, by a special order, was continued to the present term, and on March 20, 1874, after, by permission of the court, most able and elaborate oral as well as written arguments of the questions discussed in the opinions of the court theretofore rendered, it was submitted to our consideration,

After an examination of the several sections of this charter, it We have endeavored to give that thorough examination of the cannot for a moment be doubted that it was not only the intention record, and patient and careful attention to the arguments and auto provide for a proportionate liability, but for a pro rata distribution thorities which have been submitted to our consideration, we felt of the fund arising therefrom among the different creditors, accor- was demanded before our final determination should be reached, ding to their several priorities. Every provision is entirely incon-not only by the unusual action of our predecessors in the special sistent with the idea that one creditor could, by an individual suit, consideration shown to a second application for a rehearing, but appropriate to himself the entire benefit of the security and exclude all others. A common fund was created for the common benefit, to be collected and distributed by the receiver, who was made the common agent of all. There was no liability except the deficiency. That was to be apportioned and collected for the common ben

efit.

also from the important, as well as peculiar and delicate character of the questions presented for judicial determination, the magnitude of the interest indirectly, if not directly, involved, and the great ability, zeal and learning which have been desplayed by counsel in its presentation. After doing this, we have reached the same result to which our predecessors arrived, and are constrained to say that in our opinion, as in theirs, the judgment of the district court should be reversed, and the case dismissed.

It was not only to be apportioned and collected, but the mode of apportionment and the manner of collection were especially provided for. The liability and the remedy were created by the same The refusal of an application for rehearing would ordinarily statute. This being so, the remedy provided is exclusive of all oth-suffice for the final disposition of the cause, without a presentation ers. A general liability created by statute without a remedy, may of the reasons of the court for its approval of the judgment previbe enforced by an appropriate common-law action. But where the ously rendered. And some members of the court believe that it provision for the liability is coupled with a provision for a special is unnecessary that we should do more in this case. · In that opinion, however, I am unable to concur.

remedy, that remedy, and that alone, must be employed.

It follows, as a necessary consequence, from these premises, that

the action of Bailey cannot be maintained, and that the demurrer to his declaration should have been sustained.

But it is claimed that by sec. 22, Bailey, as a billholder, had the right to move in the proper court for the collection of any bill, the payment of which had been refused. This clearly refers to an enforcement of the liability of the bank itself, and not that of the stockholders.

The judgment of the district court is reversed, and the cause remanded, with instructions to sustain the demurrer to the declara tion and give judgment accordingly.

Power of Judiciary of a State to Control the Acts of Officers of the Executive Department of the State Government.

JACOB KEUCHLER v. GEORGE W. WRIGHT.

Supreme Court of Texas, August, 1874.

1. Mandamus Against Officer of Executive Department of State Govern

ment.-The District Court of Texas has jurisdiction to award a mandamus against the commissioner of the general land office of the state to compel him to perform an official act which is clearly enjoined by law, and the doing of which is not discretionary with him. [Mr. Chief Justice Roberts dissenting.]

2. The Case Decided upon the Merits.-Upon an examination of the merits of this case, the court reverse a judgment of the district court awarding a mandamus against the commissioner of the general land office, and dismiss the suit.

Opinion of the court delivered by MOORE, J. The judgment of the district court in this case was reversed, and the cause dismissed by this court, on the 21st of October, 1872, upon the ground, as appears by the opinion of the court then de

Since this case was submitted to us a question has been discussed and decided in another case (Bledsoe, Compt., v. International Railroad Company), by the majority of this court, as organized for the decision of that case, which also presents itself at the threshold of our approach to the consideration of the proper determination and disposition of this one. The result of the decision of the special court in that case, if correct, authorizes the judgment which should be rendered in this case, and unless the grounds of our decision are indicated, it is left to inferences and conjecture whether we have refused to grant the rehearing because in our opinion our predecessors have reached a correct conclusion in a case in which they had jurisdiction, or because we hold their judgment dismissing the case, was correct for want of jurisdiction in either the supreme or district court, to entertain an application for or to grant a mandamus to the commissioner of the general land office. The latter certainly might be, and, in my opinion, would most probably be, the conclusion drawn from the judgment, if no opinion indicating the ground upon which it is rendered should be expressed. If this is not intended to be the import of our own action in this case, it should not be left in doubt. Although the court, on an application for a rehearing, may approve the judgment, if it does not believe the law is correetly laid down in the opinion, all must admit it should be corrected; otherwise it would be a snare to entrap litigants, as well as inferior courts in other cases. And surely, if the entire opinion of the court is extra-judicial, as in case where the court has no jurisdiction, and therefore, is not authorized to decide the questions which it undertakes to discuss, should the fact that we may concur in the correctness of the views which it has expressed, as abstract questions, justify us in letting them stand as judicial determinations, with the added weight of our seeming approval.

authority under the constitution to compel an officer of the execu-
tive department of the government to perform an official duty.
2. "The question" (i. e., in respect to the proposition just
stated), "may be said to have been authoritatively settled in this
state under the constitution of 1845, in the case of the Houston
Tap and Brazoria Railway Company v. Randolph" (24 Texas
335).

My former connection with the case of Bledsoe v. The International Railroad Company, would induce me to decline a discussion of the question decided in it, if I could satisfy myself that it was compatible with my duty as a member of the court to do so With the determination of that case, my interest in, and connection with the parties to, and matters involved in that litigation, ended. But with the legal propositions announced in it, when they arise, or are applicable in other cases in which it is my duty to act, I 3. "Under the old constitution the supreme executive power was must deal as with the opinion of the court in any other case. No vested in the chief magistrate; under the present constitution it is judge can long continue a member of this court without having to vested in the entire body of magistracy composing the executive consider and decide questions with which he may have had a pre- department, with the powers of each separately defined." vious professional connection. But when a case is presented It does not appear to be the purpose of the court to distinctly which calls for, and where public interest demands an expression insist that the jurisdictional power of the court to award a perempof his opinion, in my view of duty he has no right to withhold it tory writ of mandamus has been witheld from the district court from his mere personal repugnance to discuss a question with by the enumeration of the present constitution of the officers of which he may have been recently connected as counsel, or through which the executive department shall consist. This seems to be fear that his opinion as a judge may be imputed to the bias of the presented as an argument in favor of the correctness of the conformer advocate. As applications for mandamus against the Com-clusion drawn from the division of the powers of the government missioner of the General Land Office can only be brought in the into three distinct departments, announced as the pivot point of the District Court of Travis County, from which causes are returnable branch of the case then being discussed, and which, as is claimed, to this branch of the court, it may be concluded, unless the ques- has been authoritatively determined by the court prior to the change tion is decided before our adjournment on Friday next, the juris- in the phraseology of our organic law. That this change may dictional right of the district court to award a peremptory manda- authorize the same conclusion claimed from the division of the session at the capitol, beginning in April next, during which time powers of the government, seems, however, to be vaguely hinted the administration of the office may be greatly embarrassed, and states of the Union the executive power" (the chief, or supreme In the different in a subsequent paragraph, where it is said: many private rights may be abandoned or lost, from the doubt executive power, I presume, is meant), "is vested in the governor, and uncertainty as to whether the aid and authority of the court while in this state it is vested in the magistracy comprising the can be invoked for their protection and maintenance, or through executive department;" and the citation, in this immediate conthe conviction that it has been determined by this court that in nection, of the following cases, to-wit: Dennett, Pet'r, 32 Maine, every matter requiring official action there is no appeal from the 508; Mauran v. Smith, 8 R. I., 192; State v. The Governor, I determination of the commissioner, however evidently this may Dutcher (N. J.), 331; Law v. Towns, 8 Ga., 360; Hawkins v. The be the result of whim, caprice or mistake. And the commissioner, in Governor, I Ark., 570, in which, as well as a few others which whatever doubt he may be as to the proper discharge of his duty, might have been cited, it has been held in some of them, that the and however anxiously he may desire the judgment of the court court cannot, and in others that it will not award a peremptory as a guide in performance of the duty imposed on him, must mandamus against the governor. act on his uninformed judgment, or the advising opinion of the attorney-general. If such is the law, I think it should be clearly and distinctly announced. If it is not, any doubt as to it which may have arisen from anything heretofore said by the court, should be removed on the first occasion when it may by properly

mus to this officer will not come before this court until its next

done.

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The inference which seems to be suggested, is, if a mandamus does not go against the governor, because the chief or supreme executive power is vested in him, neither should it as to other officers who are invested in direct terms by the constitution with a part of the executive power. But why, I would ask, does this mere change in the phraseology of the constitution have this effect? It does not mark with any more distinctness the separation of the powers of the government into three departments. These officers, of whom the executive department shall consist, were as unquestionably executive officers, and belonged to the executive department before this change was made in the organic law, as since. Their powers and functions are precisely the same then as now. The difference seems more a matter of style than anything else, unless it was in

That the court had jurisdiction to award a mandamus against the Commissioner of the General Land Office, where the act in question is such as may be enforced by this writ, under the long and well established rules of law applicable to a proceeding of this kind, was generally regarded as clearly recognized, and as thoroughly settled by an unbroken current of decisions of this court, from its organization down to the recent decision of the court in the case of Bledsoe v. The International Railroad Com-tended thereby to more plainly indicate their independence of the pany, as any question which has heretofore called for judicial determination. That it may be seen whether a different rule is announced in the opinion of the court in that case, it is necessary to analyze and consider some of the propositions of law laid down in it, and the arguments relied upon to support and maintain them. In doing this I shall endeavor to confine myself to that part of the opinion which treats of the jurisdictional right of the court to award a peremptory mandamus to any of the class of officers to which the Commissioner of the General Land Office belongs. With regard to the decision of the court on the case before it, I have nothing whatever to do.

On looking to the opinion for the purpose for which I am considering it, the following propositions seem to me to be clearly and distinctly laid down as general legal propositions, which, if sound, are as applicable to this case as to the one then before the court, viz:

governor. Certainly it cannot warrant so fundamental a change in the structure of the government, the power and duty of the courts, and the rights of the citizen, as to justify the conclusion, if mandamus could be awarded against the officers named, under one form of constitution, it could not be under the other. It must be borne in mind, the point of discussion is not whether a mandamus may be awarded to one of these offices because of the nature or character of the act or duty to enforcee the performance of which the writ is asked; but it is, has the court jurisdictional power to award the writ against any officer who belongs to the executive department, in respect to any official act or duty, the performance of which has been positively enjoined by law.

Although it is not very distinctly presented in the opinion of the court, as great weight seems to be attached by the advocates of this theory of the effect of the division of the powers of the government, to the fact that it is held in the cases cited above, that a I. "It is considered that the district court has not the power and mandamus cannot be awarded against the governor, it may not be

filed in said chancery court under the orders of the court and the rules in chancery, and that full distribution shall be made of the assets according to the rights of all parties, billholders having priority over other debts due from the bank. After the assets were exhausted, if they were not sufficient to pay all debts and liabilities, a further call was directed upon the shareholders for further payment of capital to an amount equal to the deficiency, which was to be apportioned among all the shares of the stock, and an order made for the payment by each shareholder of the sum or proportion of his shares. This apportioned call the receiver was required to collect and apply.

The individual liability of stockholders in a corporation for the payment of its debts, is always a creature of statute. At common law it does not exist. The statute which creates it may also declare the purposes of its creation, and provide for the manner of its enforcement.

livered, that the lands designated as the state sections in what is known as the Memphis, El Paso and Pacific Railway reservation, were not open to location and patent at the date of appellee's location thereon in September, 1870. On the application of appellee a rehearing was granted October 21, 1872, and on the 15th of April, 1873, the case was again submitted to the court. And on the 21st of October, 1873, the court on the same grounds maintained in its former opinion, again rendered judgment reversing the judgment of the district court, and dismissing the case. On the 28th of November, 1873, appellee made application for a rehearing upon this second judgment of the court, which, by a special order, was continued to the present term, and on March 20, 1874, after, by permission of the court, most able and elaborate oral as well as written arguments of the questions discussed in the opinions of the court theretofore rendered, it was submitted to our consideration,

After an examination of the several sections of this charter, it We have endeavored to give that thorough examination of the cannot for a moment be doubted that it was not only the intention record, and patient and careful attention to the arguments and auto provide for a proportionate liability, but for a pro rata distribution thorities which have been submitted to our consideration, we felt of the fund arising therefrom among the different creditors, accorwas demanded before our final determination should be reached, ding to their several priorities. Every provision is entirely incon- not only by the unusual action of our predecessors in the special sistent with the idea that one creditor could, by an individual suit, consideration shown to a second application for a rehearing, but appropriate to himself the entire benefit of the security and exclude also from the important, as well as peculiar and delicate character all others. A common fund was created for the common benefit, of the questions presented for judicial determination, the magnito be collected and distributed by the receiver, who was made the tude of the interest indirectly, if not directly, involved, and the great common agent of all. There was no liability except the deficiency.ability, zeal and learning which have been desplayed by counsel That was to be apportioned and collected for the common ben-in its presentation. After doing this, we have reached the same result to which our predecessors arrived, and are constrained to say that in our opinion, as in theirs, the judgment of the district court should be reversed, and the case dismissed.

efit.

It was not only to be apportioned and collected, but the mode of apportionment and the manner of collection were especially provided for. The liability and the remedy were created by the same The refusal of an application for rehearing would ordinarily statute. This being so, the remedy provided is exclusive of all oth-suffice for the final disposition of the cause, without a presentation ers. A general liability created by statute without a remedy, may of the reasons of the court for its approval of the judgment previbe enforced by an appropriate common-law action. But where the ously rendered. And some members of the court believe that it provision for the liability is coupled with a provision for a special is unnecessary that we should do more in this case. In that remedy, that remedy, and that alone, must be employed. opinion, however, I am unable to concur.

It follows, as a necessary consequence, from these premises, that

the action of Bailey cannot be maintained, and that the demurrer to his declaration should have been sustained.

But it is claimed that by sec. 22, Bailey, as a billholder, had the right to move in the proper court for the collection of any bill, the payment of which had been refused. This clearly refers to an enforcement of the liability of the bank itself, and not that of the stockholders.

The judgment of the district court is reversed, and the cause remanded, with instructions to sustain the demurrer to the declara tion and give judgment accordingly.

Power of Judiciary of a State to Control the Acts of Officers of the Executive Department of the State Government.

JACOB KEUCHLER v. GEORGE W. WRIGHT.

Supreme Court of Texas, August, 1874.

1. Mandamus Against Officer of Executive Department of State Govern

ment.-The District Court of Texas has jurisdiction to award a mandamus against the commissioner of the general land office of the state to compel him to perform an official act which is clearly enjoined by law, and the doing of which is not discretionary with him. [Mr. Chief Justice Roberts dissenting.]

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Since this case was submitted to us a question has been discussed and decided in another case (Bledsoe, Compt., v. International Railroad Company), by the majority of this court, as organized for the decision of that case, which also presents itself at the threshold of our approach to the consideration of the proper determination and disposition of this one. The result of the decision of the special court in that case, if correct, authorizes the judgment which should be rendered in this case, and unless the grounds of our decision are indicated, it is left to inferences and conjecture whether we have refused to grant the rehearing because in our opinion our predecessors have reached a correct conclusion in a case in which they had jurisdiction, or because we hold their judgment dismissing the case, was correct for want of jurisdiction in either the supreme or district court, to entertain an application for or to grant a mandamus to the commissioner of the general land office. The latter certainly might be, and, in my opinion, would most probably be, the conclusion drawn from the judgment, if no opinion indicating the ground upon which it is rendered should be expressed. If this is not intended to be the import of our own action in this case, it should not be left in doubt. Although the court, on an application for a rehearing, may approve the judgment, if it does not believe the law is correetly laid down in the opinion, all must admit it should be corrected; otherwise it would be a snare to entrap litigants, as well as inferior courts in other cases. And surely, if

2. The Case Decided upon the Merits. Upon an examination of the merits of the entire opinion of the court is extra-judicial, as in case where

this case, the court reverse a judgment of the district court awarding a mandamus against the commissioner of the general land office, and dismiss the suit.

Opinion of the court delivered by MOORE, J.

The judgment of the district court in this case was reversed, and the cause dismissed by this court, on the 21st of October, 1872, upon the ground, as appears by the opinion of the court then de

the court has no jurisdiction, and therefore, is not authorized to decide the questions which it undertakes to discuss, should the fact that we may concur in the correctness of the views which it has expressed, as abstract questions, justify us in letting them stand as judicial determinations, with the added weight of our seeming approval.

My former connection with the case of Bledsoe v. The International Railroad Company, would induce me to decline a discussion of the question decided in it, if I could satisfy myself that it was compatible with my duty as a member of the court to do so With the determination of that case, my interest in, and connection with the parties to, and matters involved in that litigation, ended. But with the legal propositions announced in it, when they arise, or are applicable in other cases in which it is my duty to act, I must deal as with the opinion of the court in any other case. No judge can long continue a member of this court without having to consider and decide questions with which he may have had a previous professional connection. But when a case is presented which calls for, and where public interest demands an expression of his opinion, in my view of duty he has no right to withhold it

authority under the constitution to compel an officer of the execu-
tive department of the government to perform an official duty.
2. "The question" (i. e., in respect to the proposition just
stated), “may be said to have been authoritatively settled in this
state under the constitution of 1845, in the case of the Houston
Tap and Brazoria Railway Company v. Randolph" (24 Texas
335).

3. "Under the old constitution the supreme executive power was vested in the chief magistrate; under the present constitution it is vested in the entire body of magistracy composing the executive department, with the powers of each separately defined."

insist that the jurisdictional power of the court to award a perempIt does not appear to be the purpose of the court to distinctly tory writ of mandamus has been witheld from the district court by the enumeration of the present constitution of the officers of which the executive department shall consist. This seems to be

from his mere personal repugnance to discuss a question with which he may have been recently connected as counsel, or through fear that his opinion as a judge may be imputed to the bias of the former advocate. As applications for mandamus against the Com-presented as an argument in favor of the correctness of the conclusion drawn from the division of the powers of the government missioner of the General Land Office can only be brought in the into three distinct departments, announced as the pivot point of the District Court of Travis County, from which causes are returnable branch of the case then being discussed, and which, as is claimed, to this branch of the court, it may be concluded, unless the ques- has been authoritatively determined by the court prior to the change tion is decided before our adjournment on Friday next, the juris- in the phraseology of our organic law. That this change may dictional right of the district court to award a peremptory manda-authorize the same conclusion claimed from the division of the mus to this officer will not come before this court until its next

session at the capitol, beginning in April next, during which time the administration of the office may be greatly embarrassed, and many private rights may be abandoned or lost, from the doubt and uncertainty as to whether the aid and authority of the court can be invoked for their protection and maintenance, or through the conviction that it has been determined by this court that in every matter requiring official action there is no appeal from the determination of the commissioner, however evidently this may be the result of whim, caprice or mistake. And the commissioner, in whatever doubt he may be as to the proper discharge of his duty, and however anxiously he may desire the judgment of the court as a guide in performance of the duty imposed on him, must act on his uninformed judgment, or the advising opinion of the attorney-general. If such is the law, I think it should be clearly and distinctly announced. If it is not, any doubt as to it which may have arisen from anything heretofore said by the court, should be removed on the first occasion when it may by properly

done.

powers of the government, seems, however, to be vaguely hinted in a subsequent paragraph, where it is said: "In the different states of the Union the executive power" (the chief, or supreme executive power, I presume, is meant), "is vested in the governor, while in this state it is vested in the magistracy comprising the executive department;" and the citation, in this immediate connection, of the following cases, to-wit: Dennett, Pet'r, 32 Maine, 508; Mauran v. Smith, 8 R. I., 192; State v. The Governor, I Dutcher (N. J.), 331; Law v. Towns, 8 Ga., 360; Hawkins v. The Governor, 1 Ark., 570, in which, as well as a few others which might have been cited, it has been held in some of them, that the court cannot, and in others that it will not award a peremptory mandamus against the governor.

The inference which seems to be suggested, is, if a mandamus

does not go against the governor, because the chief or supreme executive power is vested in him, neither should it as to other officers who are invested in direct terms by the constitution with a part of the executive power. But why, I would ask, does this mere change in the phraseology of the constitution have this effect? It does not mark with any more distinctness the separation of the powers of the government into three departments. These officers, of whom the executive department shall consist, were as unquestionably executive officers, and belonged to the executive department before this change was made in the organic law, as since. Their powers and functions are precisely the same then as now. The difference seems more a matter of style than anything else, unless it was in

That the court had jurisdiction to award a mandamus against the Commissioner of the General Land Office, where the act in question is such as may be enforced by this writ, under the long and well established rules of law applicable to a proceeding of this kind, was generally regarded as clearly recognized, and as thoroughly settled by an unbroken current of decisions of this court, from its organization down to the recent decision of the court in the case of Bledsoe v. The International Railroad Com-tended thereby to more plainly indicate their independence of the pany, as any question which has heretofore called for judicial determination. That it may be seen whether a different rule is announced in the opinion of the court in that case, it is necessary to analyze and consider some of the propositions of law laid down in it, and the arguments relied upon to support and main-one form of constitution, it could not be under the other. It must tain them. In doing this I shall endeavor to confine myself to that part of the opinion which treats of the jurisdictional right of the court to award a peremptory mandamus to any of the class of officers to which the Commissioner of the General Land Office belongs. With regard to the decision of the court on the case before it, I have nothing whatever to do.

On looking to the opinion for the purpose for which I am considering it, the following propositions seem to me to be clearly and distinctly laid down as general legal propositions, which, if sound, are as applicable to this case as to the one then before the court, viz:

governor. Certainly it cannot warrant so fundamental a change in the structure of the government, the power and duty of the courts, and the rights of the citizen, as to justify the conclusion, if mandamus could be awarded against the officers named, under

be borne in mind, the point of discussion is not whether a mandamus may be awarded to one of these offices because of the nature or character of the act or duty to enforcee the performance of which the writ is asked; but it is, has the court jurisdictional power to award the writ against any officer who belongs to the executive department, in respect to any official act or duty, the performance of which has been positively enjoined by law.

Although it is not very distinctly presented in the opinion of the court, as great weight seems to be attached by the advocates of this theory of the effect of the division of the powers of the government, to the fact that it is held in the cases cited above, that a 1. "It is considered that the district court has not the power and mandamus cannot be awarded against the governor, it may not be

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