This case came before this court on appeal by A. Bledsoe, as Comptroller of the State of Texas, from a judgment or decree of the District Court of Travis county, on a petition for mandamus commanding him to countersign and register certain bonds, claimed by the International Railroad Company, and fully described or set forth in their petition.
The dismissal of the cause for want of jurisdiction by the majority of this court led to a dissent on the part of two members. Justice Reeves has expressed his views in an opinion in which I concur, and I have considered it proper to express at length my opinion, and refer to some of the authorities that have led, in connection with those cited by Judge Beeves, to the formation of that opinion.
The importance of the question at this time, when viewed in the light in which it is placed by the opinion delivered, is greater than perhaps it at first view appears either to the public or the legal profession. Important not alone by reason of. the tax necessarily required to pay *578the interest and principal upon the several millions of .indebtedness from which the decision has apparently, relieved the taxpayers of the State, or by the failure of the company to obtain a decree of the court in its favor, which would entitle it, under its contract with the State, to a partial compensation for the money expended in the construction of'á great public highway nearly two hundred miles in extent, one-half the distance between the eastern and western boundaries of the State. Kor is the case alone important from the fact that this judgment deprives the company of the only known legal remedy by which its rights in the subject matter of the suit can be ascertained, determined and enforced.
There is another view of this case, and the question is of far more importance than the rights of any one individual or corporation embraced in this suit, or the release of the people from any amount of taxation likely to be cast on them. The question presented by the judgment and in substance declared in the opinion of the court is, that the members of the executive department of the government (not alone the Governor and Lieutenant Governor, but the Comptroller of Public Accounts,'the Treasurer, the Commissioner of the General Land Office, the Attorney-General, the Secretary of State, and the Superintendent of Public Instruction) are, each and all, in matters relating to their official duties, not subordinate to and bound by the laws which the Legislature may enact for their guidance and control; but if, in the opinion of any such official, the law does not harmonize with his view of the Constitution, or of expediency, or from any other cause, whether mere whim, caprice, official insolence, or reasons of a private or personal character, he may with impunity follow the bent of his inclinations; that he cannot be coerced into an obedience of the law by the court, being authorized by express statute to act by reason of the fact that each and all of the officers above *579named are styled in the Constitution of 1869 “of the Excutive Department ” of the State.
This portion of the opinion justifies the statement that the judgment and opinion draw after them consequences infinitely more important than those embraced in the pleadings of the parties to this suit.
To the judgment rendered and the opinion delivered I cannot yield my assent. I am unable to comprehend how, under our form of government and the line of decisions of our own court,, the Supreme Court of the United States, and those of our sister States, there is in any branch of the executive department of this State a power to refuse or fail to act in a case where there is' a plain, positive, peremptory constitutional enactment requiring action by an officer or officers. To hold that there is such power in an officer of this character, in view of the law and precedents, is in effect admitting .that a citizen having a clear legal right, with a channel through which his rights could flow to him, as indicated by law, should, nevertheless, from the mere will of an officer directed to set his right in motion, or give him evidence of it, have his right obstructed, delayed, or forever lost to him. It will be admitted that if the Comptroller can (as in this case it is declared he can) set aside a plain and positive requirement of the law on the plea that his legal adviser, the Attorney-Gfeneral, advises him he ought not to act, then he may, and so may every other officer of the executive department, disregard with impunity any other act of the Legislature that in his opinion or that of his legal adviser interferes with his official duties, or, as was said in this case, is “unconstitutional, oppressive, or unjust in its workings.” To admit this would be an acknowledgment that the final adjudication of a constitutional question rests with the officer or with the AttorneyGreneral and not with this court.
This I cannot assent to, as it would create an irrespon*580sible power in those officers that was not intended by the framers of .the Constitution ; a power defiant of law and above judicial inquiry; a power before which the citizen would be powerless, and in whose presence the judicial power of the State would stand impotent, emasculated, and paralyzed, unable to declare a rule, or enforce a mandate.
I believe the decision in this case has mistaken the law, has overlooked precedents, and is not in harmony with our system of government or laws.
In the opinion of the majority-of the court it is said, “A mandamus will issue only when the duty to. be performed is ministerial in its character; and when a duty is imposed upon an officer requiring the exercise of judgment or' discretion, a mandamus will not lie.”
In the case before the court a ministerial act was required of the Comptroller, and-nothing more. His duty under the law was to countersign and register the bonds— no judgment exercised or discretion permitted.
The opinion declares that “The word ‘ministerial’ has reference generally to an act done under authority of a superior, and in this sense it could never apply to the chief executive-with respect to anything required by the legislative authorities.”
In reply to this, the superior in the order to countersign and register the bonds was the legislative voice, speaking or ordering by the law of the land. As regards the executive, or its application to him in this case, it is sufficient to state that discretion was left by the act in the Governor; none whatever in this matter was given to the Comptroller.
Again, this is a proceeding against the Comptroller; the Governor is not a party, and in no way interested in this suit more than any other tax-paying citizen of the State.
The opinion declares that “ Where the line of demarka*581tion lies between a ministerial act and an act involving the exercise of judgment is not always easy to determine.”
This is undoubtedly correct. In this case, however, I think the line of demarkation is so plain that " he. who runs may read,’ ’ and being so plain, in my opinion, I have believed it proper to tread boldly on in the path so found, to its legitimate conclusion, when the rights of the State or the citizen required it.
Judge Ferris, in the opinion, states : “In this case it is contended that under the 9th Section of the act incorporating the International Railroad Company, the part to be performed by the Comptroller of the State, to-wit, countersigning and registering the bonds, is a mere clerical or ministerial duty, in which nothing is left to his discretion or judgment. There is discretion or judgment to be exercised somewhere, and by some person or persons, for it is expressly provided that no bonds shall be issued to said company until it shall have completed twenty miles of said railroad, etc. * * * ■ It is evident that the sworn statement of the engineer and the report of the agents were intended to furnish evidence only upon which, the proper tribunal might act. It is that this tribunal is the Governor, but it is difficult to see wherein the authority to decide is granted more to him than to the Treasurer or Comptroller.”
The authority given exclusively to the Governor to decide upon the character of the road, etc., and the number of miles completed, is found in Section 9 of the act incorporating the company, as likewise his exclusive authority to appoint or select the officers or agents of the State to examine and report upon the condition of the road previous to the issuing or delivery of the bonds. This section further shows that the purely ministerial act of the Treasurer in signing the bonds after the Governor, and the merely ministerial act of the Comptroller to countersign and register the bonds, has nothing to do with the *582inquiry into the condition of the road, or the issuance and delivery of the. bonds — the signing, countersigning and registering being all that either of these officers are even permitted to do, with reference to the question of the execution, issuance, or delivery of the bonds.
The opinion declares, “it is more reasonable to conclude that the prohibition of the issuance of the bonds includes also their execution, and that as it is necessary for the Governor, Treasurer and Comptroller to participate in their execution, it is the duty of each one to see to it that the proper and necessary work is first performed,' when, if in their judgment the law should be complied with by the company, the proper bonds could be issued, and by the Governor delivered to the company.”
The charter, when read, however, leaves us in no doubt as to the intention of its framers as to who should decide the question as to the propriety of issuing or delivering the bonds.
The execution of the bonds is one act; their issuing or delivery is an entirely distinct and separate act. The bonds may be executed, but may never be delivered. The issuance and delivery of a bond are almost synonymous terms. (See Webster’s definitions of the words issued or delivered.) In fact, these terms are used in Section 9 of the act as the equivalents of each other, when it states the bonds “ shall be delivered by the Governor to the president or such other officer of said company,” etc.; and further, ‘ ‘provided, that no bonds under this act shall be issued to said company until it shall have at least completed twenty miles of said railroad, whereupon said bonds shall be issued and delivered for that amount of said railroad,” etc. Hence it follows that the Treasurer and Comptroller being only required to sign, and the Comptroller to register, the bonds, they nor either of them have no more connection with the issuing or delivery of them than has the Commissioner of the General *583Land Office. There is not a sentence in the law relative to the action of the Comptroller concerning the execution, issuance, or delivery of the bonds, save the command to countersign and register. He is not even made the keeper of the reports of the engineer or State agents, or the receipts for the bonds delivered. These papers are filed in the office of the Secretary of State.
It has been ably argued by the Attorney-General, on behalf of the Comptroller, that he is, by Article 4, Section 1, of the Constitution, named as an officer of the executive department in connection with the other officers there named; and the opinion of. the court refers to this fact as extending to him some undefined immunity from the action of the courts in the enforcement of the law against him as an officer which was not enjoyed by his predecessors under the former constitutions of the State.
This constitutional declaration is nothing more than the statement of the merest truism. The Comptroller never, in our history as a Republic or State of the Union, belonged to, nor was he ever considered as belonging to, either the judicial or legislative departments of the government ; he, as also all the other officers mentioned in Article 4, Section 1, were always considered, and in fact belonged to, the executive department of the government.
It has been contended that inasmuch as the Constitution declares in genenal terms the powers and duties of the Comptroller (although it lies with the Legislature to prescribe those duties), the Comptroller is practically independent of legislative direction, and that the words of the Constitution (after prescribing in general terms his duties), “and perform such other duties as may be prescribed by law,” should not interfere with his judgment of what is best for the people of the State; that he is to decide, and if he thinks proper it is for him to declare, whether a positive law commanding the performance of a ministerial act shall be obeyed or.not. *584The argument seems to be of this character. If the Comptroller refuses to obey the law, he is exercising judgment or discretion; if he is exercising judgment or discretion, it must be a judicial and not a ministerial act; ■and being a judicial and not a ministerial act, that officer and all others belonging to the executive department of the State are governed not by the law, but by their views of what is most expedient.
Under this State of affairs the private citizen is remediless ; the public interests can be trifled with or entirely disregarded; rights. the most important or sacred can be delayed or trampled down with impunity, because the courts cannot interfere with the failure or refusal of the official to act; the voice of the law cannot be heard and the arm of the law cannot strike; the one is dumb and the other paralyzed, in the presence of that sentence, “an officer of the executive department of the government.” The opinion, it is true, does not in terms so declare, but the ideas thus expressed will be found in it.
The objections expressed in the opinion that the bonds are made payable in the city of New York, and the question as to the propriety of the Governor controlling the money so raised, can be briefly-answered, so far as the question before the court is concerned; it will suffice to say that these questions were not presented in the pleadings of the appellant, neither are they nor either of them complained of or alluded to in the letter from the late Attorney-General to the Comptroller, and referred to in the answer of appellant; they are questions not raised in the case either in briefs or argument of counsel.
The opinion further declares, “It is considered that the District Court has not the power and authority under the Constitution to compel an officer of the Executive Department of the Government to perform an official duty. This conclusion must follow from the structure of our government, and the distribution of powers under *585the Constitution, between the independent departments of government,” etc.
By official duty is meant (doubtless) some duty necessarily connected with the office, or authorized or commanded by law. The proposition embraced and the principle enunciated in the preceding” paragraph quoted is laid down without qualification, reservation, or limitation, and unhesitatingly asserts that neither Comptroller, Treasurer, Secretary of State, Commissioner of the General Land Office, Attorney-General, or Superintendent'of Public Instruction, can, even in the simplest ministerial duty, no matter how important or great the interests involved, be compelled by mandamus to obey a precise, positive law. This is investing these officers with an infallibility of judgment that renders law inoperative when its madates and their discretion meet in opposition.
It is stated in the opinion: “If there is no other remedy than by mandamus against the Comptroller for the non-performance of official duties, the same could be said of the Governor and a judge of the court.”
The question has been so held with reference to judges that a mandamus will lie to compel a judge to proceed to judgment. In the case of a Governor being liable to mandamus, see Middleton v. Lowe, 30 California, 601, where the court held that the signing of a patent by the Governor was a purely ministerial act, and where the prerequisites to obtaining a patent existed a mandamus would lie; adding, that “The constitutional injunction ‘ that he shall see that the laws are faithfully executed’ cannot change the character of a duty which the Legislature has seen fit to impose upon him; for if the given duty is ministerial when it is required to be performed by any officer, it remains of the same nature though required of the chief, executive officer of the State.”
The Supreme Court of the United States has recently affirmed the same principle in the case of Davis v. Gray, *58616 Wallace, 203, in the injunction granted by the United States Circuit Court of Texas, enjoining Governor Davis and the Commissioner of the General Land Office of Texas from issuing patents on surveys within the reservation set apart to the Memphis and El Paso Railroad Company. It is said in the opinion that “it must be considered that a petition for a writ of mandamus has never been sustained in this State against the Governor, Secretary of State, Comptroller, Treasurer, or Auditorial Board.”
They have been sustained against the Commissioner of the General Land Office. The power of the court to grant the writ has never been denied by the court whenever the facts of the particular. case brought the complaint within the letter and reason of the law, save in one solitary instance — Houston Tap and Brazoria Railroad Company v. Randolph, 24 Texas, 317 — which, so far as the inability of the court to issue mandamus to the head of a department or bureau, has been subsequently overruled. See Railroad Company v. Commissioner, 36 Texas, 384, in which the court said: “We can see no reason why the propriety of issuing the writ of mandamus in any proper case to the Commissioner of the Land Office, or to any other officer of the State government, should ever have been brought into question;" ’ the court adding, “there are cases in which the writ of mandamus is the only proper remedy for a right withheld.”
In allusion to the act of the last Legislature respecting a compromise between the State and the company, it was said that “there is a provision in the act that the same shall not be considered as in any way interfering with the litigation in this case,” and “ that moreover there is no expression recognizing the State of Texas as a party.”
To this it may be answered, that the act looked in its very nature and in its terms to a decision on the merits as. the only decision to be considered of force and effect *587in the compromise agreed to by the State and the company. Some of the ablest lawyers in the State were members of the Legislature that passed the compromise act; their special attention was directed to this measure, and a feeling of great interest was entertained by those holding different views respecting the question presented ; it was known to all that a verdict and judgment had been rendered in the District Court of Travis county against the late Comptroller, and that the cause- was pending in this court on appeal from the District Court. It is therefore barely supposable that in view of the interest felt, and the discussions on this question in the Legislature;, that that body would have passed this act in its present-form unless it had been believed that this court could take jurisdiction, and it certainly was the desire; and I believe the intention is sufficiently expressed, that this-court should pass on the rights of the State and the corporation by “a decision on the merits.” It is in effect a recognition of the State of Texas being interested in the question, and that her rights or liabilities should be determined by a judgment on the merits of the question. A different construction would seem to imply that the Legislature deliberately passed an act involving the credit of" the State and several millions of dollars to the interested, parties in the controversy, to- be decided by this court,, and yet failed to express, and did not desire, that this court should make a decision in favor of or against either party on the merits of the case.
Passing from the opinion, I will refer to some of the-principal cases where this court under the State, and the-former Supreme Court under the government of the Republic of Texas, uniformly held the doctrine that a mandamus would lie to the head of a department or bureau to compel the performance of a clear ministerial duty and enforced that doctrine by a judgment of' the court whenever the applicant showed such a state of facts as *588"brought him with a clear legal right before the court. This power so exercised had for its sanction a long line of precedents in the courts of that country from which we have derived the greater part of our system of jurisprudence.
The court had as precedents for its action the decisions of the Supreme Court of the United States and those of our sister States, and had in addition to these precedents the law of January 25, 1841, and the present law passed June 26, 1846. See Hartley’s Digest, Article 643, wherein the authority is given to issue the writ by the District Court of the county where the seat of government is located, “ against the heads of any of the departments or bureaus of government.”
• The cases referred to in the opinion, as showing a refusal to grant the writ, will be briefly referred to. The first in order is Glasscock v. The Commissioner of the General Land Office, 3 Texas, 53. In this case the applicant for the writ failed to show that his certificate, by virtue of which he claimed a patent, had been recommended for patent by the investigating board of commissioners, which was an indispensable prerequisite to the Commissioner issuing a patent, the court declaring in substance that the writ would issue to compel the performance of a duty clearly enjoined by law and ministerial in its character. The next case cited is that of Bracken v. Wells et al., 3 Texas, 90.
This was a petition for mandamus to compel the surveyor of Gonzales county to survey on an invalid certificate. Chief Justice Hemphill states the case as follows: “A court cannot issue a mandamus to compel a public officer to perform an act which is not clearly prescribed by law, or to compel a surveyor to make a survey upon an evidence of claim which is prohibited by the law from .being received as proof for that purpose.”
This caseis.not.opposed to the doctrine of jurisdiction. *589The next case in order is the case of Smith v. The Commissioner of the General Land Office, 5 Texas, 480. In this case the court said: “We conclude that a mandamus may issue to compel the Commissioner of the Land Office to issue a patent when it shall have been made to appear to the court that the "right of the party is cleár, and that it has been refused by the Commissioner.” The-petitioner, Smith, did not bring himself within the terms of the law, so as to be entitled to a patent, other parties having prior claims to the land, and his prayer was therefore not granted.
The succeeding case referred to is the case of Arberry v. Beavers, 6 Texas, 464. In this Case Arberry, as chief justice of Cass county, refused to receive or count the-votes returned from several precincts in a contest between, the towns of Jefferson'and Linden, he alleging the returns were not made in accordance with law. On a petition for mandamus the District Court rendered judgment against him. On appeal to this court the judgment of the District Court was reversed, on the grounds that petitioners had omitted to state in their pleadings that they were qualified citizens of Cass county, and that the duty-was not ministerial, but of a judicial character, that officer having to make calculations and determine whether or-not the returns were properly certified, and whether the election, as shown by the returns, was conducted according to law, and the returns made to him in accordance with the statute; and the law providing no mode for reviewing his judgment, it was to be held as final.
The court in this case declaring that “When the performance of a ministerial duty is enjoined by law upon & public officer, or inferior judicial tribunal, the court upon an application for a mandamus will judicially determine-the legal rights of the applicant, and will of necessity decide whether the duty exists.”
This opinion certainly states the existence of the citizen’s-*590right to a mandamus, and the determination of the court to enforce the right when the occasion requires it.
I believe the four cases cited in the opinion, and here •referred to, do not weaken in the slightest degree the position I have assumed, that a mandamus will lie to compel a public officer to perform a duty required of or cast upon him by law, when that duty is purely ministerial in its character (as is the duty of the Comptroller in this •case), when that duty does not involve the exercise of judgment or official discretion.
I further believe that these four cases establish the principle just stated, so far as the declaration of a court’s -opinion can go in a case, where it is necessary to declare the opinion of the court.
I will refer to decisions of our court which establish the principle stated, either by necessary implication or direct decision or declaration.
This principle was declared in Board of Land Commissioners v. Bell, Dallam, 366. In the case of Bradley v. McCrabb, Dallam, 504, the peremptory mandamus was granted by the District Court and affirmed by this court. In the case of Roman v. Moody, Dallam, 512, the District Court granted a mandamus, and this court affirmed the judgment. In Cullum’s Administrator v. Latimer, 4 Texas, 334, the court said, “ The writ issues to compel the performance of a duty,” and reversed the judgment of the District Court, which had refused the mandamtos. In the case of Horton v. Brown, 2 Texas, 98, a mandamus issued to compel the Commissioner of the Land Office to issue a patent. In Horton v. Pace, 9 Texas, 81, the principle was upheld that a mandamus would issue when the party showed a right under the law applying to his case. In McLelland v. Shaw, 15 Texas, 319, which was a proceeding to recover a bounty or allowance from the government to those who had been carried prisoners from San Antonio to Mexico, the court held that a mandamus *591should not be granted, because the evidence showed that petitioner had not been carried as a prisoner to Mexico, or out of San Antonio. The principle was not, however, called in question, that in a case coming within the terms of the act a mandamus would issue. In Durrett v. Crosby, 28 Texas, 687, the principle is adhered to.
The case of League v. De Young, 2 Texas, 200, cited in brief of appellant, on examination will be found not in conflict with the authorities here cited.
League sought by mandamus to compel the district surveyor to survey on a fraudulent land certificate, for the purpose of testing the constitutionality of the land law. The court decided that it was in effect a suit against the State, and of an evasive character; the complainant not having sued the State in the mode pointed out by law, he could not be heard in the mode selected by him.
The case of the Houston Tap and Brazoria Railroad Company, heretofore alluded to, and which has been relied on in argument, and which is declared by Judge Ferris to have authoritatively settled the question of mandamus to a public officer in this State, I will endeavor to show does not in principle antagonize what I have assumed, namely, the power of the court, under the authority of numerous decisions of our own and other courts, to issue a mandamus to a public officer commanding him in a merely ministerial act to obey the law. While the court in that case'declared in general terms that a mandamus would not lie to compel the Treasurer to pay a warrant, and while the opinion in that case contains an interesting and able disquisition on the functions, duties, and possible abuse of powers by the co-ordinate departments of the government, yet, properly considered, that portion not bearing on the pleadings or facts of the case cannot be held as a part of the judgment in that case: first, because it was necessary for the decision of the question; second, because the question turned and was *592decided upon the insufficiency of the warrant, signed only by the Governor and Attorney-General, and the defective character of petitioners’ pleadings, they failing to aver that the railroad was one of those entitled under the law to the loan from the school fund, which last objection was an all-sufficient one.
Again, in this case the court laid a stress on the fact that although the law required the action of the Governor, the Attorney-General and Comptroller, it appears that the first two had only signed the warrant or certificate, and the court said: “It is not contended that the warrant would be valid unless the Comptroller had participated with the other members of the board when the claim was acted on by them.” This was no doubt the correct view, and has been so held in other States. (See Hamilton v. The State, 3 Indiana, 452, and cases there cited.)
While the pleadings and facts in the case of the Houston Tap and Brazoria Railroad Company completely sustain the judgment of the court in refusing the mandamus, I believe an examination of the case shows that the conclusions drawn from it in the briefs and argument of appellant’s counsel, and in the opinion in the present case, are far beyond its legitimate effect; that the objections here presented to its being extended beyond the question presented by and decided in that case are fully sustained, and that it cannot be legitimately invoked as overthrowing a long line of decisions, from the earliest days of the Republic down to that time. Whatever application might have been made of that case to others when it was decided, does not and cannot now exist. The broad principle laid down, outside of the case, with reference to issuing the writ of mandamus, has been, as already alluded to in this opinion, overruled in the case of the Houston and Great Northern Railroad Company v. Commissioner of the General Land Office, 36 Texas, 399.
*593The acknowledgment of the power of the court to issue the writ of mandamus and the exercise of that power by the courts of Texas, with reference to public officers, being shown, a reference to the decisions of .the Supreme Court of the United States and the Supreme Courts of the different States will show that the principle has been sustained in numerous cases. The following cases referred to in the brief of appellee’s counsel fully sustain the position: See 1 Cranch, 137; 12 Peters, 526; 5Ohio St., 529; 23 Missouri, 353; 4 Minnesota, 309; 7 Ohio St., 372; 5 Hamilton, Ohio, 358; 8 Monroe, Ky., 440; 14 Ark., 687; 10 Wisconsin, 518; 6 Ohio St., 318; 4 Michigan, 27; 12 Ohio, 54; 3 Indiana, 452; 19 Barbour, 472; 23 Barbour, 339; 1 Selden, 65; 15 Barbour, 529; 12 Barbour, 607; 4 Hill, 634; 41 Maine, 15; 17 Howard, 275; The People v. The Secretary of State et al., 58 Illinois, 90.
The leading and among the earliest cases in the United States, since their organization under the Constitution, is the case of Marbury v. Madison, 1 Cranch, 167, which originated in a petition for a mandamus to Mr. Madison, Secretary of State, to compel him to deliver to Marbury and three others commissions as. justices of the peace for the District of Columbia, which had been signed by Mr. Adams, but not delivered previous to the expiration of his term of office.
The Supreme Court, as is well known, decided that the court had no original jurisdiction beyond that declared in the Constitution, and which limited its jurisdiction to the enumerated cases “ affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party;” that Congress could not in violation of the Constitution confer jurisdiction upon the court; and the proceeding being an original proceeding and not within the constitutional grant of power, it could not be heard.
*594Chief Justice Marshall, knowing .the importance of the principle involved in that case, felt that the occasion .demanded from the court a full exposition of the nature of the .writ; that its importance alike to the individual citizen and the country at large required a declaration of the powers and duties of the courts to compel a public officer to perform a plain and positive ministerial duty, imposed upon him by law, where no other adequate remedy or mode of proceeding "was open to the citizen. He delivered a lengthy opinion, distinguished as much for its simplicity of statement as it is for its broad illustration and logical deductions, in which the entire question is reviewed and conclusions stated on the power to issue the writ of mandamus.
This opinion is considered the ablest ever delivered on this subject, and worthy of the enlightened and-profound, jurist who declared it. It stands out as a great landmark to.the profession, and has been respected and followed in principle for nearly three-fourths of a century.
In this opinion Judge Marshall, quoting from 3 Blackstone, page 23, declares: “ It is a general and indisputable rule, that where there is a legal right there is also a legal remedy, by suit or action at law, whenever that right is invadedand at page 164, that “it is a settled and invariable principle, in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.” And- speaking of this country, Judge Marshall declares that which we have all been taught, but which it is - well frequently to repeat: “ The government of the United States has been emphatically termed a government of laws and not of men. It will, certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.”
After alluding to the powers of.the President -of the United States, of his right to appoint certain officers — and *595in that case the Secretary of State — and of the absolute immunity from civil interference in the discretion to be exercised on all political questions, the court used the following language : “ But when the Legislature proceeds to impose on that officer other duties where he is directed peremptorily to perform certain acts, when the rights of individuals are dependent 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.”
In this case Judge Marshall, after a full discussion of the question, showed that the views of the court were not novel, that it was but adhering to established legal usage and judicial precedent, and quoted from Lord Mansfield, in the case of The King v. Baker, 3 Burrows, 126, as follows: “Whenever there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern or attended with profit), and a person is kept out of possession or dispossessed of such right, and has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, good order and good government.”
The question of mandamus came again before the Supreme Court of the United States in the case of Kendall v. The United States, 12 Peters, 532. In that case Congress passed an act authorizing the Solicitor of the Treasury to examine the accounts and report the amount due Stokes and other mail contractors, and directing the Postmaster Greneral to pass to the credit of the parties, on the books of his office, the amount ascertained by the solicitor to be due them.
That officer made his report and found a large amount due the parties for carrying the mails.
The Postmaster Greneral passed to the credit of Stokes *596and his associates a portion of the amount stated by the Solicitor of the Treasury and refused to credit the balance, some forty thousand dollars — he, from data furnished by his office, being satisfied that he had passed to their credit the amount justly due.
A mandamus was sued out from the United States Circuit Court for .the District of Columbia, and judgment rendered against the Postmaster General, who brought the case by writ of error to the Supreme Court.
The case was thoroughly argued by some of the ablest counsel in the country, and a judgment rendered affirming the decree of the Circuit Court.
The dissenting opinion turned, not on the power of the court to hear and determine a suit of that character, but upon the question whether or not the Circuit Court had, under the law, jurisdiction to issue the writ of mandamus, not alone in that case but in any case.
The decisions of the courts in the various States sustain and have enforced the principle that a mandamus will lie to compel a public officer, where the law declares it a ministerial act, not necessarily requiring the exercise of judgment or display of discretion.
In the case of Griffith v. The Secretary of the Land Office, 5 Binney, the Supreme Court of Pennsylvania asserted the law to be that a mandamus would lie where the act to be performed was of a ministerial character, not involving judgment or discretion, and when there was no other specific remedy.
In the case of Page, 2d Auditor, v. Howard, 8 Ky., 648, it was held that the 2d Auditor — an officer in that State performing duties similar to the Comptroller in this — had no discretion “to issue or not to issue the salary due an officer.” The court then declared that “the executive department and all its officers are as much bound by the constitution and laws as the legislative, and have no more power to violate these laws;” * * * *597that “the judiciary pretends to no direct control over the action of the Legislature or of the supreme executive, but it may decide upon the validity of the acts of either, affecting private rights, and by the writ of mandamus it may coerce a ministerial officer, though of the executive department, to the performance of a legal duty, for the infraction of a legal right.”
In the case of Napa Valley Railroad Company v. Napa County, 30 California, 437, the court held that “according to a well settled rule of construction, when a public body or officer has been empowered to do an act which concerns the public interest, "the execution of the power may be insisted on as a duty,” * * * and that “ railroads concern the public interest, as a matter of legal judgment.” (Citing 3 Hill, N. Y., 615; 2 California, 412; 3 Paige, N. Y., Clarke v. The City of Rochester; 5 Id., 124.)
In the case of Chatterton v. The Secretary of State, 58. Illinois, 9, in a petition to compel the State 'Auditor to draw his warrant on the State Treasurer for the contract price of 1000 reams of printing paper, and to compel the Treasurer to pay the same, the prayer of the relator was granted, and a peremptory mandamus directed to issue, “ requiring the Auditor to draw his warrant for the 1000 reams received by the State, and requiring the Treasurer to countersign the same, and to pay it when there shall be funds in the Treasury subject to its payment.”
In the case of the State of Ohio v. Todd and others, 4 Hammond’s Ohio Reports, 351, a rule was issued against the Court of Common Pleas to show cause why a mandamus should not issue to compel them to sign “a bill of exceptions.” The court held the power existed, and said : “The authority to issue a mandamus in a case like the present cannot be doubted. The power is incident to supervising courts, and there are instances of its exercise both in England and this country.”
*598In the foot-notes of this case reference is made to the case of State of Ohio v. Moffit, 5 Ohio, 358, where “a mandamus was allowed to compel the Speakers of the two houses of the General Assembly to sign a certificate of an election and in 5 Ohio, 542, “to compel judges to proceed with a trialand in 9 Ohio Reports, Smith v. Commissioners, etc., “to compel an auditor to issue an order for fees to which the party was entitled.”
In Chamberlain v. Henry H. Sibley, Governor, etc., 4 Minnesota Reports, 309, the court declared that when ‘ ‘ some official act not necessarily pertaining to the duties of the executive of the State, and which might as well be performed by an officer, is directed by law to be done, then any person who clearly shows himself entitled to its performance, and has no other adequate remedy, may have a writ of mandojmus against such officer, even although the law may have designated the chief executive of the State as a convenient officer to perform the duty.”
In the case of Duffield et al. v. Whittemon, 4 Gibbs’ Michigan Reports, 28, an application was made to compel by mandamus the State Treasurer to give notice that the notes of the Government Stock Bank at Ann Arbor would be redeemed at the State Treasurer’s office — the bank having failed to redeem when demanded, taking for the purpose of evasion a single note, putting it through a pretended scrutiny in regard to its genuineness, then paying on that note, taking the next and passing it through a pretended examination, and so on during bank hours. The Treasurer, on affidavits stating the facts, delayed and evaded the requirements of the law. The court-directed the writ of mandamus to issue against him.
In the case of Robert H. Morris v. Edmonds, etc., 15 Barbour, 529, a motion was made for a mandamus to compel Edmonds, as chamberlain of the city, and treasurer of the city and county of New York,- to pay the amount of an account approved by the Board of Super*599visors of the county. The court sustained the motion, and ordered a peremptory mandamus to enforce the payment. It was said in the argument before this court that the great interests (in a money point of view) with which the Comptroller of the State is entrusted render it improper to award a mandamus. His official action is concerned, and yet it is well known that the officer in the case just cited is entrusted with moneyed interests many times greater than those committed to the direction of the Comptroller.
“In the matter of James Turner,” 5 Hammond’s Ohio Reports, 542, in which a proceeding was had by mandamus to compel the Court of Common Pleas of Fair-field county to proceed with the trial of Turner on an indictment for murder, a peremptory mandamus was granted, [the court saying the court below might have exercised discretion if deemed proper, but they could not abstain from action, as a failure of justice might follow.
The citation of cases might be extended, if deemed necessary to show that the power to issue the writ is of the broadest character as regards the position of the person against whom it is sought, and that in its enforcement in proper cases there is no official dignity above its reach.
It was stated in the argument of appellant, and is intimated in the opinion of the majority of the court in this case, that there was danger of an encroachment by this branch of the government on one of the co-ordinate branches of the government, and remarks in the way of a caution to the court were made. The past history of this court, through all the twenty-eight years of its existence, and composed as it has been of twenty-two members, negatives any presumption of encroachment or undue assumption of jurisdiction on its part. The present, like its former members, are aware that its real strength lies in its adherence to well established principles, and that *600anything like even an attempted encroachment upon the rights of other departments of the government would be merely grasping at the shadow and losing the substance.
In all its history but one instance of the kind can be found, and that long-to-be-remembered case presents a striking example of the want of power and utter failure on the part of any department of the government of this State when it attempts an encroachment upon the rights or powers of the others. The plain duty and the sole mission of this court is an adherence to established principles and in all cases to follow the law.
Justice Moore, having been of counsel, did not sit in this case.