I dissent from the opinion of the majority of the court, and propose to present my views on the questions discussed in the opinion.
The act of the Legislature making the decision of this court the basis for a settlement obviously contemplated as a contingency a decision on all the questions touching the merits of the controversy as made by the pleadings. I think the case as it is presented by the pleadings is properly before the court for that purpose — if not with the consent of the State, certainly without its objection. The majority of the court think otherwise. From that view of the matter I dissent. Had it not been decided in Davis v. Gray, 16 Wallace, 203, that making a State officer a party does not make the State a party, it might still be contended that the same result would follow when the State, after having intervened, afterwards voluntarily *571withdrew and ceased to be a party to the litigation, and' that the State did not object to the prosecution of the suit as originally instituted against the Comptroller.
The jurisdiction to enquire into the power of the Legislature to pass an act, and to decide whether the enactment is constitutional or not, has never been denied to the courts, and its exercise has never been regarded as encroaching on the powers properly belonging to the other branches of the government. «The validity of the act does not depend upon the motives which may have induced its enactment. Such a test as that has never been applied, and when the effort has been made the courts have refused to interfere, having no jurisdiction over the subject. If the act was passed by the- Legislature, and received the approval of the Governor, the only question, that can arise is whether the Legislature had the power-under the Constitution to pass it. If it had, the enactment is binding alike on all the departments of the government. This is not a new question, and requires no extended argument for its support, if former adjudications are to be followed; and nothing more is necessary than to cite the authorities which are thought to be conclusive on the point and referred to in the briefs of counsel for appellee. (Wright v. Defrees, 8 Ind., 298; Ex Parte Newman, 9 Cal., 502; Johnson v. Higgins, 3 Met., Ky., 566; People v. Draper, 15 N. Y., 545; Sunbury and Erie Railroad Company v. Cooper, 33 Penn. St., 278.)
If the jurisdiction of the courts to pass upon the constitutionality of a law be admitted, it is not readily perceived upon what principle an officer of the government (no matter to which department he may be attached)could disregard the sentence and be heard to assert that he was not bound by the obligation it imposes, unless he is prepared to advance a step further and declare his independence of the law itself, though the duty was only *572ministerial. That would be the result of the doctrine contended for.
The Comptroller does not rest his defense upon that ground, but says it is a case for the decision of the court, as will be seen by his letter to the Governor declining to countersign and register the bonds without the slightest intimation that he regarded his action as final.
The right to issue the writ of mandamus in a proper case finds ample support in the practice of this court •as shown by the following cases, and others might be cited: Ward, Commissioner of the Land Office, v. Townsend, 2 Texas, 581; Glasscock v. Commissioner of the General Land Office, 3 Texas, 51; Commissioner of the Land Office v. Smith, 5 Texas, 471; Meyer v. Carolan, 9 Texas, 250; Arberry v. Beavers, 6 Texas, 457; Horton v. Pace, 9 Texas, 81.
This question was not regarded as an open one as early .■as the decision in the case of the Commissioner of the General Land Office v. Smith, above cited. Justice Wheeler, in delivering the opinion of the court in that -case, said : “The practice of resorting to this proceeding (mandamus) against this officer, and to enforce the performance of this particular duty, is believed to have had its origin almost as early as the creation of the office itself, and to have been continued, without a question as •to its legality, down to the present time” (1849). In Meyer v. Carolan, Chief Justice Hemphill,,in vacation, had issued an alternative mandamus against Carolan, as clerk of the District Court, to approve an appeal bond and compel him to send up to the Supreme Court a transcript of the record in the case. Justice Lipscomb, in delivering the opinion of the court, said : ‘' The clerk is re-quired to take and approve an appeal or writ of error bond, and send up to this court a complete transcript of the record of the case as .it is of record in the District •Court. If, after taking the bond, ..the .clerk should fail or *573refuse to send up a transcript of the record, the writ of mandamus would lie, because he would have exercised and discharged the only discretion reposed in him by law, and what remained — the sending up a transcript of the record — would be purely a ministerial act, in which he would have nothing to exercise his judgment upon.”
The distinction between a ministerial act and one of judgment is clearly shown in this case. The sufficiency of the security was a question of fact to be passed upon by the clerk, in which the exercise of his judgment was. required, and the performance of that duty could not be compelled by mandamus. The sending up the transcript was an act defined and enjoined by law, without consulting either his discretion or his judgment; and, therefore, a proper case for the writ. Other cases might be cited in which the right to issue the writ is not questioned, but-was refused because the applicant failed to show that ho was entitled to it' on the facts of his case, but the references here made will suffice on the practice of the court..
The right to issue the writ does not rest alone on the practice of the courts of this State. It is recognized by the Legislature and all departments of the government, and the practice is in harmony with the decisions of the-courts of other States and of the United States.
By the act to organize the District Courts, and to define their powers and jurisdiction, the judges have authority to grant writs of habeas corpus, mandamus, injunction, sequestration, error and supersedeas, and all other remedial writs known to the law; providing, that all writs, of mandamus sued out against the heads of any of the departments or bureaus of government shall be returnable before the District Court of the county in which the seat of government may be. (Article 1407, Paschal’s Digest.) The statute of 1841 contained a similar provision. The only limitation on the power to grant the writ is, that it must be returnable at the seat of government. It is not re*574stricted. to cases against the Commissioner of the Land Office; it is general, and applies to any of the heads of departments. “It lies” (said the court in the case of the Commissioner of the Land Office against Smith) “as a private remedy to compel the heads of departments to perform a duty in cases where the duty is plain, and where there is no discretion,” and where the duty is ministerial in its character. Parties whose rights are affected must be made parties in a proceeding by mandamus, is the uniform decision of this court — a lifeless form, on the supposition that the court cannot redress the wrong. The heads of departments are public officers, and their offices are created by the Constitution, and I see no good reason why the Comptroller should be excepted out of the provisions of a general statute, applying in its terms not less to him than to others sustaining to the government the relation of public officers. I find no good reason why a suit- or should be denied redress, if he shows himself to be entitled to it, on a proper application invoking relief when it has been denied him by the Comptroller, and when it -would be granted if refused by the Commissioner or other -officer of the government. In England this process is ■called a prerogative writ, by way of distinction from writs of common right, and because it relates to the pub-,lie and the government. It issues out of the Court of King’s Bench, to compel performance of an act enjoined •by law, and for which there is' no other adequate legal remedy. In .modern practice it is not regarded as a prerogative writ, and it is nothing more than a suit or action at law between’the parties in cases where it is the appropriate remedy. Regarded as a suit or action, it is embraced in the grant of jurisdiction given to the District ■Court “ of all suits,-complaints and pleas whatever, with•out regard to any distinction between law and equity, when the matter - in -controversy shall be valued at or ¡amount to one hundred dollars.”
*575In delivering the opinion of the court in Kendall against Stokes et al., 3 Howard, 100, Chief Justice Taney said: “The remedy in that form (by mandamus') originally was not regarded as an action by the party, but as a prerogative writ, commanding the execution of an act where otherwise justice would be obstructed, and issuing only in cases relating to the public and government, and it was never issued where the party had any other remedy. It is now regarded as an action by the party on whose relation it is granted, but subject still to the restriction that it cannot be granted to a party where the law affords him any other adequate means of redress.” (Kendall v. The United States, 12 Peters, 615; Commonwealth of Kentucky v. Dennison, 24 How., 97; Marbury v. Madison, 1 Cranch, 49 and 137; The People v. Secretary of State et al., 58 Illinois, 90; Auditor of Marion v. The State, 3 Indiana, 452, Porter; The People v. Edmonds, 19 Barbour, 472.)
The duty imposed upon the Comptroller in this case is defined and enjoined by law, is ministerial in its nature, and does not involve the exercise of judgment or discretion. The ninth section of the charter provides “.that said bonds shall be signed by the Governor and the Treasurer of the State of Texas, and countersigned and registered by the Comptroller, with the seal of the State of Texas affixed thereto, and shall be delivered by the Governor to the president or such other officer of said company as shall be specially appointed to receive and receipt for the same, on the sworn statement of the chief engineer of said company, and the written report of such officers or agents of the State as the Governor may have appointed for that purpose, that ten miles of said railroad have been completed in a thorough and substantial manner, which affidavit and report, together with the receipt for said bonds, shall be filed in the office of the Secretary of State ; jprovided, that no bonds under this act shall be issued to *576said company until it shall have completed at least twenty miles of said railroad, whereupon said bonds shall be issued and delivered for that amount of said railroad, and thereafter for every ten miles, according to the terms and conditions of this charter.”
The duty here enjoined on the Comptroller is clearly defined, and is a clerical or ministerial act, referring nothing to his judgment or discretion, only requiring him to countersign and register the bonds. The bonds are to be delivered by the Governor; the officers or agents of the State to examine the road are appointed by the Governor ; the affidavit of the engineer and report of the agent so appointed, with the receipt for the bonds, must be filed in the office of the Secretary of State; and the seal of the State, of which the Governor is the keeper, must be affixed to the bonds — all to be done without the agency, and certainly without any discretion, of the Comptroller.
The authority of the Comptroller to superintend the fiscal affairs of the State is enjoined as a duty, and is not a power to be exercised at his discretion without warrant of law. The Legislature may direct the manner of its exercise, and require him to perform such other duties as may be prescribed by law appertaining to the duties of his office, and not inconsistent with the Constitution. If the duty is ministerial, and he refuses to comply, it is a case for a mandamus ; but not, if he is authorized to exercise his judgment or discretion. The appropriation of money for purposes of internal improvement, and the payment of the interest and principal in the future, and providing adequate means for that purpose, come within the scope of legislative power, over which the Comptroller has no discretion; and it is not within the scope of his general duties relating to the fiscal affairs of the State. Where the appropriation is specific, the Comptroller cannot divert it and apply it to a different object, and he would have no control over the fund, and could exercise *577no discretion in regard to it; nor can he order the payment of money without authority of law. (Article 4, Section 90, of the Constitution; Article 19, Section 6 and Section 93.)
The question whether the Comptroller could properly assess the tax without a levy was not the ground of the application for the writ, and that question may never arise. The compromise act, as it is called, provides for the levy, if the decision should be for the company on the merits. This I think invites discussion on other questions left undecided in the opinion, and which should be met and disposed of. But as that is not done, I shall not discuss them, resting my opinion on the questions I have indicated.