Page:Hawkins v. Governor.pdf/2

Rh mandamus to the Governor, where he wrongfully withholds a commission, which ht is by law required to issue.

This, we conceive, has been settled by this court in the case of Taylor vs. The Governor, (ante, 21) where it was decided that this court had the power to award a mandamus—inasmuch as that case was of the same nature with the present; and it may well be concluded that the court meant to say that it had the power to award the mandamus to the Governor, in case the applicant was clearly entitled to his commission—as otherwise that case would have been disposed of for want of jurisdiction, without the elaborate investigation of the applicant's right into which the court went.

In the case of Marbury vs. Madison, 1 ''Cond. Rep. 267, the Supreme Court of the United States decided, that "where the Legislature proceeds to impose on that officer, (the Secretary,) other duties (than his political ones;) when he is directed peremptorily to perform certain acts, when the rights or individuals are dependant on the performance of those acts, he is so far the officer of the law;'' is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others." By the law creating the office of Commissioner of Public Buildings, the Governor is required to commission that officer. If that law was in force at the time of the election, all that the Governor is required to do, is to perform a ministerial act—and he thus comes within the reasoning above quoted. For—as that court further said—"where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for remedy." And the whole reasoning of the court in that case applies so directly to the present, that it is needless to do more than refer the court to it.

, contra:

The first question is, can a mandamus be awarded against the Governor of the State?

The doctrine in the case of Marbury vs. Madison is usually referred to as authorizing such a procedure, and however vain it may appear, it can probably be shown that it does not possess the force of a judicial precedent, except as to one isolated point—of jurisdiction alone.

Upon a careful examination of the case as reported in 1 ''Cond. Rep.'' 267, it appears that one principle alone is settled by the court, and that