It is true that in the instance before us the interposition of the court is not sought to enforce action by the Executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of Executive discretion. It was admitted in the argument that the application now made to us is without a precedent; and this is of much weight against it.

Had it been supposed at the bar that this court would, in any case, interpose by injunction, to prevent the execution of an unconstitutional act of Congress, it can hardly be doubted that applications with that object would have been heretofore addressed to it.

Occasions have not been wanting.

The constitutionality of the act for the annexation of Texas was vehemently denied. It made important and permanent changes in the relative importance of States and sections, and was by many supposed to be pregnant with disastrous results to large interests in particular States. But no one seems to have thought of an application for an injunction against the execution of the act by the President.

And yet it is difficult to perceive upon what principle the application now before us can be allowed and similar applications in that and other cases have been denied.

The fact that no such application was ever before made in any case indicates the general judgment of the profession that no such application should be entertained.

It will hardly be contended that Congress can interpose, in any case, to restrain the enactment of an unconstitutional law; and yet how can the right to judicial interposition to prevent such an enactment, when the purpose is evident and the execution of that purpose certain, be distinguished, in principle, from the right to such interposition against the execution of such a law by the President?

The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.

The impropriety of such interference will be clearly seen upon consideration of its possible consequences.

Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the Acts of Congress, is it not clear that a collision may occur be tween the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its

mandate and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?

These questions answer themselves.

It is true that a State may file an original bill in this court. And it may be true, in some cases, that such a bill may be filed against the United States. But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.

It has been suggested that the bill contains a prayer that, if the relief sought cannot be had against Andrew Johnson, as President, it may be granted against Andrew Johnson as a citizen of Tennessee. But it is plain that relief as against the execution of an act of Congress by Andrew Johnson, is relief against its execution by the President. A bill praying an injunction against the execution of an act of Congress by the incumbent of the Presidential office cannot be received, whether it describes him as President or as a citizen of a State.

The motion for leave to file the bill is, therefore,

Denied.

STATE EX REL. v. STONE.

120 Missouri, 428. 1894.

SHERWOOD, J. The relator in this case, Edward J. Robb, was employed by David R. Francis, then Governor of the State, as counsel on behalf of the State in the case of The State of Missouri v. Louis Ulrich, at that time pending in the Supreme Court of the United States. This employment had its origin in an act of the thirty-sixth General Assembly, approved March 25, 1891, which authorized and empowered such employment to be made, at and for a sum not exceeding the sum of $500; all disbursements out of the fund thus created to be made upon the order of the Governor. By an act approved March 31, 1893, the General Assembly reappropriated said amount for the purpose aforesaid, which act provided that all disbursements under this section should be made by order of the Governor, and that counsel fees should be paid only on determination of suit.

The sum which David R. Francis, then Governor, agreed to pay relator for his services as counsel in that cause was the said sum of $500, in consideration of which sum relator agreed to represent the State as counsel in said cause until the determination thereof. After

thus entering into such contract, relator duly performed all of its conditions on his part and discharged his duty as counsel for the State thereunder, until the final determination of said cause, which resulted in Ulrich dismissing his appeal therein on the fifteenth of May, 1893.

No part of the amount appropriated by the General Assembly for the payment of counsel fees and agreed to be paid relator, has ever been paid him. On the twenty-second of August, 1893, relator presented his said contract with, and claim against, the State of Missouri to Governor Wm. J. Stone, exhibiting to him at the same time all necessary papers, etc., and asked that said sum of $500 be paid to relator, but which sum said Governor neglected and refused to order to be paid to relator. Upon these facts thus presented to the petition, relator prays that an alternative writ of mandamus issue directed to the Governor, commanding him, etc. Waiving the issuance of the alternative writ, the Governor has entered his appearance herein, and by his counsel has filed a general demurrer to relator's petition, to the effect that the petition does not state facts sufficient, etc.

As the petition states a good contract with, and cause of action against, the State, and the demurrer admits the allegations of the petition to be true, the only question for determination is, whether the respondent is amenable to the process of this court in a case of this sort; in other words, whether this court has jurisdiction to entertain this application made by relator. The inquiry thus suggested brings into prominence article 3 of our constitution by which it is provided that: "The powers of government shall be divided into three distinct departments - the legislative, executive, and judicial -each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted."

In this instance we, constituting a portion of the judicial department of the government, are called upon to exercise, or what amounts to the same thing, to control the exercise of powers belonging exclusively to the executive department of that government. To such action on our part the organic law interposes an insuperable barrier. In addition to the provisions of the organic law quoted, that instrument also declares that: "The supreme executive power shall be vested in a chief magistrate, who shall be styled the Governor of the State of Missouri.'" Const., art. 5, sec. 4. Section 6 of the same article requires that "the Governor shall take care that the laws are .. faithfully executed." Of the same article, section 1 provides that the Governor "shall perform such duties as may be prescribed by law." And section 6 of article 14 as a prerequisite to his entering on the duties of his office, prescribes that he "take and subscribe an

...

oath to support the Constitution of the United States and of this State, and to demean himself faithfully in office."

Under these plain and comprehensive provisions, it must be apparent that any duty "prescribed by law" for the Governor to perform, is as much part and parcel of his executive duties as though made so by the most solemn language of the Constitution itself.

Conceding the validity of any given law, the fact that the duties which it prescribes are merely ministerial cannot take them out of the domain of executive duties nor make them any the less those which "properly belong" to the executive department of the government. And should we by our process be able to compel the performance by the Governor of such duties, we would in effect and to all intents and purposes be performing those duties ourselves; for there can be no substantial distinction drawn between our assumption of duties pertaining to another department of the government, and our intervention resulting in the compulsory performance of such duties; qui facit per alium, etc.

Nor does the fact that any duty which the law prescribes for the Governor to perform, might have been assigned to some other officer who would have been amenable to the process of this court, alter the conclusion to be reached or vary the result; for the fact would still remain that the act required to be done was nevertheless an official one, assigned by the legislative department of the government to be performed by the executive.department, eo nomine by the Governor and by him alone, and therefore if he is not bound to obey the law in question as Governor, he is not bound to act at all, since he only assumed to obey the laws in his gubernatorial capacity and not otherwise or elsewhere. See Rice v. Austin, infra. So that we should manifestly be trenching on the exclusive powers of two separate magistracies of the government, should we assume to exercise jurisdiction in this case.

Abundant authority establishes the position here taken that mandamus will not issue to the Governor to compel the performance of any duty pertaining to his office, whether political or merely ministerial; whether commanded by the constitution or by some law passed on the subject. People ex rel. v. Governor, 29 Mich. 320; Hawkins v. Governor, 1 Ark. 570; State ex rel. v. Warmoth, 22 La. Ann. 1; State ex rel. v. Warmoth, 24 La. Ann. 351; State ex rel. v. Board, 42 La. Ann. 647; Mauran v. Governor, 8 R. I. 192; Rice v. Austin, 19 Minn. 103; Dennett, Petitioner, 32 Me. 508; Railroad v. Lowry, 61 Miss. 102; State v. Governor, 25 N. J. L. 331; State ex rel. v. Drew, 17 Fla. 67; Hovey v. State ex rel., 127 Ind. 588 (which distinguishes or virtually overrules Gray v. State ex rel., 72 Ind. 567); People ex rel. v. Bissell, 19 Ill. 229; People ex rel. v. Yates, 40 Ill. 126; People ex rel. v. Cullom, 100 Ill. 472; Turnpike Co. v. Brown, 8 Baxt. (Tenn.) 490; Bates v. Taylor, 87 Tenn. 319; State ex rel. v. Towns, 8 Ga. 360; Railroad v. Randolph, 24 Tex.

317; Appeal of Hartranft, Governor, 85 Penn. St. 433; Mississippi v. Johnson, 4 Wall. 475.1

There are many respectable authorities, however, which maintain views diametrically opposed to those here advanced. Most of them will be found collated in the brief filed for relator. Railroad v. Moore, 36 Ala. 371; Middleton v. Low, 30 Cal. 596; Land Co. v. Routt, 17 Col. 156; Gray v. State ex rel., 72 Ind. 567; Magruder v. Swann, 25 Md. 173; Groome v. Gwinn, 43 Md. 572; Chumasero v. Potts, 2 Mont. 242; State ex rel. v. Blasdel, 4 Nev. 241; State ex rel. v. Governor, 5 Ohio St. 528; State ex rel. v. Nicholls, 7 S. Rep. (La.) In addition to those cited, see Martin v. Ingham, 38 Kan. 641; State v. Thayer, 47 N. W. Rep. 704.2

The fact that the Governor has voluntarily submitted himself to the jurisdiction of this court has been pressed upon our attention as a reason why we should pass on or adjudicate the question submitted; and cases have been cited, among them Railroad v. Governor, 23 Mo. 360, as showing that where the Governor does not claim his exemption, then this court may adjudicate the matters at issue and leave the Governor to claim his exemption afterwards. But we regard such cases as wrong in theory and unsafe and unsound in practice. If we have authority to render a judgment, then we have jurisdiction to enforce that judgment by all appropriate process, and need not inquire whether any exemption from that process will be pleaded. If, however, we have no jurisdiction over the chief magistrate, his consent will not confer it on us. We will not assume a jurisdiction if we have it not; " we will not sit as a moot court and pass upon questions and enter a judgment thereon which we are powerless to enforce. "For all jurisdiction implies superiority of power; authority to try would be vain and idle, without an authority to redress; and the sentence of a court would be contemptible, unless that court had power to command the execution of it." 1 Cooley's Blackstone, 242. As we do not possess any jurisdiction over the Governor, we shall decline any further discussion of this cause, hold the demurrer well taken, and deny the issuance of the peremptory writ.

All concur.

1 To these citations may now be added People ex rel. v. Morton, 156 N. Y. 136 (1898). — [ED.].

2 Among these cases should be cited Harpendig v. Haight, 39 Cal. 189 (1870). — [ED.].