I am of the opinion that a writ of mandamus cannot be issued against either the governor or lieutenant-governor, because the imprisonment of either, which might follow a failure to obey the writ, would disturb the constitutional balance of power between the three great departments of government. As to the governor this is obvious, but the same reason applies to the lieutenant-governor also, because at any moment by the death, resignation, inability or absence of the governor the powers and duties of the office devolve upon the lieutenant-governor. Whatever would interfere with his freedom of action when it became his duty to act as governor would interfere with the executive office itself, and might leave the state with no executive head able to act at a time of the greatest need. But while the Constitution, as well as the courtesy due from one department of government to another, forbid the courts to command the governor to do this, or to refrain from doing that, it is still their duty to announce the law, but, under the circumstances, to withhold the command and leave the responsibility of complying with the law, as laid down by the courts, with the chief magistrate. It seems to me, therefore, that we should decide the appeal upon its *Page 149 merits, subject to the limitation suggested as to the form of the judgment to be pronounced.
Upon examining the record I think the relator was removed in violation of chapter 716 of the Laws of 1894 for the reasons given by the Appellate Division in its opinion. (24 App. Div. 563. )
The judgment appealed from should, therefore, be so modified as to simply adjudge that the relator was improperly removed and that he is entitled to immediate reinstatement, without costs to either party as against the other.