*608On Motion for Rehearing.
Wm. Alexander, Attorney-General, for appellant.
Jas. C. Walker, for appellee.
McAdoo, J.We see no reason to change the opinion of this court in this case.
The opinion of the Presiding Justice (Evans) render'ed on the original hearing we think is clearly based on the law of the case.
Whatever may be the status of the railroád sections in the event of their forfeiture, it is clear that the State sections were dedicated, under the Constitution of 1869, as well as under that of 1866, to the perpetual school fund, and not in any manner subject to entry and location, either under the homestead law or under any class of certificates. The inhibition is complete, and the Legislature- has no power to open these lands to any class of land claims against the State.
The former judgment and opinion of the court are adhered to.
Rehearing refused.
Opinion delivered October 31, 1873.
On Second Motion for Rehearing.
J. C. Walker, Sayles & Bassett, Walton & Green and Peeler & Fisher, for appellee on motion to rehear.
Geo. Clark, Attorney - General, filed an able brief for appellant, in which he contended—
*609I. That a second motion for rehearing is a novelty in our practice, and should not be entertained.
II. That the lands in question lost the character of “ public domain ” by the original act of February 4,1856, and the surveys and delineations thereunder, and no express legislative enactment has restored to them then-original character. (State v. Delesdenier, 7 Texas, 108; General Laws, 1870, Chapter 53.)
III. That having been segregated from the mass of “public domain” by the original act of February 4, 1856, and reserved for the use of the State, the people in their organic capacity have dedicated them to a particular public use, and the actual intent of the Legislature in the passage of the act of August 12, 1870, is immaterial. (Constitution, 1866, Art. 10, Sec. 3; Constitution, 1869, Art. 9, Sec. 6.)
IV. That the Constitution of 1866, though superseded, is not annulled in this' respect by its successor, but its provision as to reserved sections is revived and continued and in no manner qualified by Article 10, Section 5, Constitution of 1869. “ The lands heretofore reserved for the benefit of railroads or railway companies,” iu the last named sections, means just what it says, and cannot be extended by implication to lands reserved for the benefit of the State. And the views entertained and expressed by individual members of the convention cannot control or qualify the plain import of the language employed, for a constitution is the work of the people who adopt it, and not of the delegates who frame it. (Dorman v. The State, 34 Ala., 216; Gibbons v. Ogden, 9 Wheat., 188; Potter’s Dwarris, 675-676; Story on Cons., Sec. 451.) Says the eminent author in the section last quoted: “Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or-*610for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, ■founded on the common business of life, adapted to common wants, designed for common use, and fitted for common understanding. The people make them, the people ■.adopt them, the people must be supposed-to read them with the help of common sense, and cannot be presumed to admit in them any recondite meaning, or any extraordinary gloss.”
V. That the Constitution of 1866, and the government founded thereon, were not void, and executed acts thereunder will not be disturbed. (40 Ala., 451; 41 Ala., 423; 43 Ala., 340, 459.)
VI. That if the Constitution of 1866 was a nullity, these reserved sections had before been appropriated by valid legislation to the same use. (General Laws, 1858, Chap. 127, Sec. 11; General Laws, 1866, Chap. 143.)
Moore, Associate Justice. — The judgment of the District Court in this case was reversed and the cause dismissed by this court on the twenty-first of October, 1872, upon the ground, as appears by the opinion of the court then delivered, that the lands designated as the State sections in what is known as the Memphis, El Paso and Pacific Railway Reservation, were not open to location and patent at the date of appellee’s location thereon, in September, 1870.
On the application of appellee a rehearing was granted October 21, 1872, and on the fifteenth of April, 1873, the case was again submitted to the court, and on the twenty-first of October, 1873, the court, on the same grounds maintained in its former opinion, again rendered judgment reversing the judgment of the District Court and dismissing the case.
On the twenty-eighth of November, 1873, appellee *611made an application for a rehearing upon this second judgment of the court, which application, by a special order, was continued to the present term, and on March SO, 1874, after able and elaborate oral as well as written arguments of the questions discussed in the former opinions of the court- theretofore rendered, it was submitted to our consideration.
We have endeavored to give that thorough examination of the record and patient and careful attention to the argument and authorities which have been submitted to our consideration we felt was demanded before our final determination should be reached, not only by the unusual action of our predecessors in the special consideration shown to a second application for a rehearing, but also from thé important as well as peculiar and delicate character of the questions presented for judicial determination, the magnitude of the interest indirectly as well as directly involved, and the great ability, zeal, and learning which have been displayed by counsel in its presentation. After doing this, we have reached the same conclusion to which our predecessors came, and are constrained to say that in our opinion, as in theirs, the judgment of the District Court should be reversed and the case dismissed.
The refusal of an application for rehearing would ordinarily suffice for the final disposition of the cause, without a presentation of the reasons of the court for its approval of the judgment previously rendered. And some members of the court believe that it is unnecessary that we should do more than this in the present instance. In this conclusion, however, I am unable to concur.
Since this case was submitted to us, a question has been discussed and decided in another cause (Bledsoe, Comptroller, v. The International Railroad Company) by a majority of the court, as organized for the decision of that case, which also presents itself at the threshold of the proper determination and disposition of this one. *612The result oí the decision oí the court in that case, if correct, and such as should be adhered to and followed, authorizes the judgment which should be rendered in this case; and unless the grounds of our decision are indicated, it will be left to inference and conjecture whether we have refused to grant the rehearing because in our opinion our predecessors have reached a correct conclusion in a case in which they had jurisdiction, or because we hold their judgment dismissing the case correct for want of jurisdiction of the District or Supreme Court to entertain an application for, or to grant, a mandamus to the Commissioner of the General Land Office. The latter certainly might be, and I think would most probably be, the conclusion drawn from the judgment, if no opinion indicating the ground upon which it is rendered should be expressed. If this is not intended to be the import of our action in this case, it should not be left in doubt. Although the court on an application for a rehearing may approve the judgment, if it does not believe the law of the case has been correctly announced in the opinion delivered all must admit it should be .corrected; otherwise it would be a snare to entrap litigants as well as inferior courts in other cases. And surely if the entire opinion of the court is extra-judicial, as in a case over which the court has no jurisdiction, and therefore has no authority to decide the questions which it undertakes to discuss, the fact that we may concur in the correctness of the views which it has expressed as abstract questions would not justify us in letting them stand as judicial determinations with the additional weight of our seeming approval.
My former connection with the case of Bledsoe v. The International Railroad Company would induce me to decline a discussion of the questions decided in it, if I could satisfy myself that it was compatible with my duty as a member of the court to do so. With the determina*613tion of that case, my interest in, and connection with the parties to, and the matters involved in, that litigation ended. But with the legal propositions announced in it, when they may arise, or are applicable in other cases in which it is my duty to act, I must deal as with a former opinion of the court in any other case. Wo judge'can long continue a member of this court without having to consider and decide questions with which he may have had a previous professional connection. But when a case is presented which calls for, and when in his judgment public as well as private interest demands, an expression of his opinion, in my view of duty he has no right to withhold it from his mere personal repugnance to discuss a question with which he may have been recently connected as counsel, or through fear that his opinion as a judge may be imputed to the bias of the former advocate.
As applications for mandamus against the Commissioner of the General Land Office can only be brought in the District Court of Travis county, as heretofore held by this court (Bledsoe, Comptroller, v. International Railroad Co., ante, 537), from which causes are returnable to this branch of. the court, unless the question is decided before our adjournment on Friday next the jurisdictional right of the District Court to award a peremptory mandamus to this officer, it may be inferred, will not come before this court until its next session at the capital, beginning in April next, during which time the administration of the office may be greatly embarrassed, and many private rights may be abandoned or lost, from the doubt and uncertainty as to whether the aid and authority of the court can be invoked for their protection and maintenance, or through the conviction that it has been determined by this court that in every matter requiring official action there is no appeal from the determination of the Commissioner, however evidently this may be the result *614of ‘' whim, caprice, or mistake.” And the Commissioner, in whatever doubt he may be as to the proper discharge of his duty, and however anxiously he may desire the judgment of the court as a guide in the performance of the duty imposed upon him, must act on his uninformed judgment, or the advisory opinion of the Attorney-General. If such is the law, I think it should be clearly and distinctly announced. If it is not, any doubt regarding it which may have arisen from anything heretofore said by the court should be removed on the first occasion when it may properly be done.
That the court had jurisdiction to award a mandamus to the Commissioner of the General Land Office, when the act in question is such as may be enforced by this writ under the long and well established rules of law applicable to a proceeding of this kind, was generally regarded as clearly recognized and as thoroughly settled by an unbroken current of decisions of this court from its organization down to the recent decision of the court in the case of Bledsoe, Comptroller, v. The International Railroad Company, as any question which has heretofore called for judicial determination. That it may be sure whether a different rule has not been announced in the opinion of the court in that case, it is necessary to analyze and consider some of the propositions of law laid down in it, and the arguments and authorities relied upon to support and maintain them. In doing this I shall endeavor to confine myself to that part of the opinion which treats of the jurisdictional right of the court to award a peremptory mandamus to any of the class of officers to which the Commissioner of the General Land Office belongs. With regard to the decision of the court on the case before it, I have nothing whatever to do.
On looking to the opinion for the purpose for which I am considering it, the following propositions seem to me to be clearly. and distinctly laid down as. general legal *615propositions which, if sound, are as applicable to this case as to the one then before the court, viz.:
1. “ It is considered that the District Court has not the power and authority under the Consitution to compel an officer of the executive department of the government to perform an official duty.”
2. ‘' The question {i. e. in respect to the proposition just stated) may be said to have been authoritatively settled in this State under the Constitution of 1845, in the case of the Houston Tap and Brazoria Railroad Company v. Randolph.” (24 Texas, 335.)
3. “Under the old Constitution the supreme executive power was vested in the chief magistrate; under the present Constitution it is vested in the entire body of magistracy composing the executive department, with-the powers of each separately defined.”
It does not appear to have been the purpose of the court to distinctly insist that the jurisdictional power of the court to award a peremptory writ of mandamus has been withheld from the District Court by the enumeration in the present Constitution of the officers of which the' executive department shall consist. This seems rather suggested as presenting an additional argument in support of the correctness of the conclusion drawn from the division of the powers of the government into three distinct departments, announced as the pivot point of the branch of the case then being discussed, and which, as is claimed, has been authoritatively determined by the court prior to the change in the phraseology of our organic law. That this change may also authorize the same conclusion claimed from the division of the powers of the government seems to be vaguely hinted, it is true, in a subsequent paragraph of the opinion, where it is said, “In the different States of the Union the executive power” (the chief or supreme executive power I presume is meant) “is vested in the Governor, while in this State it-*616is vested in the magistracy comprising the executive department,” and by the citation in this immediate connection of the following cases, to wit: Demmitt, Pet, 33 Maine, 508; Manion v. Smith, 8 Rhode Island, 192; State v. The Governor, 1 Dutcher, N. J., 331; Law v. Towns, 8 Georgia, 360; Hawkins v. The Governor, 1 Arkansas, 57; in which, as well as in a few others which might be cited, it has been held in some of them that the court cannot, and in others that it will not, award a peremptory mandamus against the Governor.
The inference which seems to be suggested is, if a mandamus does not go against the Governor because the ■chief or supreme executive power is vested in him, neither should it as to other officers who are invested in ■direct terms by the Constitution with a part of the executive power. But why, I would ask, does this mere change in the phraseology of the Constitution have this effect? It does not mark with any more distinctness the separation of the powers of the government into three departments. These officers, of whom it is declared the executive department shall consist, were as unquestionably executive officers and belonged to the executive department before this, change was made in the organic law as since. Their powers and functions were precisely the same then as they are now. The difference seems more a matter of style than anything else, unless it was intended, as is probable, to indicate thereby more plainly their independence of the Governor in the discharge of such executive duties as were respectively intrusted to them. Whatever may have been its purpose, surely it cannot warrant so fundamental a change in the structure of the government, the power and duty of the courts, and the rights of the citizen, as to justify the conclusion if mandamus could be awarded against these officers under one form of Constitution it could not be under the other. It must be borne in mind the point of discussion is not whether a manda*617mus may be awarded to one of these officers because of the nature or character of the particular act or duty in question, to enforce the performance of which the writ is asked; but it is, has the court jurisdictional power to award the writ against any officer belonging to the executive department, in respect to any official act or duty whatever, however clearly clerical or ministerial it may be, the performance of which has been positively enjoined by law.
Although it is not very distinctly presented or strongly urged in the opinion of the court, still, as great weight seems to be attached by the advocates of this theory as to the effect of the division of the powers of the government into three departments, to the fact that it is. held in the cases' cited above that a mandamus cannot or should not be awarded against the Governor, it may not be amiss to say that it is by no means certain that the weight of authority is against the power of the court to award the writ where the character or nature of the official duty is such as may properly be enforced by mandamus. Many of the ablest courts of the country, if not a majority of them, have approved and virtuated the proposition so emphatically announced by Chief Justice Marshall, viz., “It is not by the office of the person to whom the writ is directed, but the nature of the thing tobe done, that the propriety or impropriety of issuing a mandamus is to be determined.”
After a careful examination of the authority of the court on an application for the writ against the Governor, the Supreme Court of Ohio declares: “However, therefore, the Governor in the exercise of the supreme executive power of the State may, from the inherent nature of the authority in regard to many of his duties, have a discretion which places him beyond the control of the judicial powers, yet in regard to merely ministerial duty enjoined on him by statute, which might have been de*618volved on another officer of the State, and affecting any specific private right, he may be made amenable - to the compulsory process of this court by mandamus-.’ ’ (State v. Governor, 5 Ohio St. R., 528.)
And says the Supreme Court of Alabama: “The doctrine that mandamus will lie against one of the executive officers of the government, to enforce the performance of a mere ministerial act, was distinctly affirmed in Kendall v. The United States, 18 Peters, 524, 595, 610, 626, 241. In that case Mr. Butler, the Attorney-General, admitted in his argument that “as the ordinary character of. an-officer’s functions would, not always- determine the true character of a particular duty imposed, by law, if an executive officer, the head of a-department, even the President himself, were required by law to perform an act merely ministerial and necessary to the completion or enjoyment of the rights of individuals, he should be regarded quoad hoc, not as an executive, buhas- a merely ministerial officer, and therefore liable to be: directed and. compelled to the performance, of the act hj-mandamus if Congress saw fit to confer the jurisdiction..” (12 Peters, 595.)
“The same principle applies to the: judicial officers who,- though not. answerable for errors, of judgment, however plain the mistake,, are responsible for any injury which results, from their failure to perform a ministerial duty cast upon them by law. In Furguson v. Earl of Kinnard, 9 Clark & Fin., 279, 290, Lord Brougham, after stating the first branch of this proposition, added: “ But where the law neither confers judicial power nor any discretion at all, but requires certain things to be done, everybody, whatever be its name, and whatever other functions of a judicial or discretionary nature it may have,, is bound to obey, and with the exception of the Legislature- and its branches everybody is liable- for the consequences, of! disobedience.” Lord Campbell said in *619the same case (p. 312): “When there is a ministerial act to be done by the persons who, on other occasions, act judicially, the refusal to do the ministerial act is equally actionable as if no judicial functions were, on any occasion, entrusted to them. There seems no reason why the refusal to do a ministerial act by a person who has certain judicial functions should not subject him to an action in the same manner as he is liable to an action for an act beyond his jurisdiction.” (See also opinions of Lord Lyndhurst and Lord Cottinham, pp. 280, 306.)
All this is but the result of the just and wholesome-principle that no public functionary, whatever his official rank, is above the law, or will be permitted to violate its express command with impunity. While, therefore, it is true that in regard to many of the duties which belong to his office the Governor has, from the very nature of the-authority, a discretion which the courts cannot control, yet in reference to mere ministerial duties imposed upon him by statute, which might have been devolved on. another officer if the Legislature had seen fit, and on the performance of which some specific private right, depends, he may be made amenable to the compulsory process of the proper court by mandamus. (Tennessee and Coosa Railroad Company v. Moore, 36 Ala., 371.)
In Harpending v. Haight, 39 Cal., 189, Wallace, J., says: “And it is settled by the uniform adjudications of this court that in such a case the writ will be issued against the Governor of the- State to enforce the performance of the act required.” (McCauley v. Brooks, 16 Cal., 11; Middleton v. Low, 30 Cal., 596; Stewart v. Haight, January term, 1874.) These authorities are supported by numerous cases adjudicated in other courts. And says Crockett, J., in the same case: “Any other rule than this would be subversive of private rights, and incompatible, with the fundamental principle of republican government, to-wit, that all public officers can be compelled by *620law to perform merely ministerial acts and duties involving the exercise of no discretion.” (See also Pacific Railroad v. Governor, 23 Mo., 353; Colten v. Ellis, 7 Law Reports, N. C., 545; Malpras v. Caldwell, N. C., January term, 1874; Magruder v. Swan, 25 Md., 172; Chamberlin v. Sibley, 4 Min., 309; The State v. Maffit, 5 Ham., Ohio, 358; Commonwealth v. Dennison, Governor, 24 How., 66.)
After a careful examination of the conflicting decisions of different courts on the question, a late commentator •on the law of mandamus says : ‘ ‘ But the better doctrine seems to be, that the Governor is not an exception to the general rule that all public officers may by mandamus be compelled.to perform an act clearly defined and enjoined by the law, and which is merely ministerial in its nature, and neither involves any discretion nor leaves any alternative.” ' (Moses on Mandamus, 82.)
An examination of the cases in which it has been decided that the writ will not issue to the Governor shows that it is so held on grounds not applicable to any other •officer of the executive department; This is plainly evident from the fact that in all the States in which these •decisions have been made it is well established that mandamus will lie to compel the heads of executive departments to perform mere ministerial duty.
Thus says the Supreme Court of Arkansas, in Hawkins v. The Governor, 1 Arkansas, 587, the case cited to -show that the writ cannot issue to the Governor: ‘ ‘All the officers of the government except the President of the United States and the executives of the States are liable to have their acts examined into by a court of justice.” And says the same court, in Black v. The Auditor of the State, 16 Ark., 238: “It is a well settled principle that mandamus will lie against the heads of departments of ■the Federal and State Governments to compel them to perform a mere ministerial act imposed upon them by *621law, though not in those acts requiring the exercise of judgment and discretion.” (See also Danley v. Whitely, 14 Ark., 687; Heampstead v. Underhill, 20 Ark., 337; Western v. Dane, 51 Maine, 461; People v. Adam, Auditor, 3 Mich., 427; Bay City v. The State Treasurer, 23 Mich., 500.) In the last of these cases a mandamus was awarded to enforce performance' of a duty resulting from a decision of the court holding a statute to be unconstitutional. (People v. Auditor, 17 Mich., 161; People v. Burridge, 38 Ill., 307; People v. Minor, Auditor, 46 Ill., 384; People v. Smith, 43 Ill., 219; People v. Secretary of State, 58 Ill,, 90.)
The ground upon which its decision is made is thus declared by the Supreme Court of Georgia, in the case of Law v. Towns, Governor, 8 Georgia, 360: “ But while we are unable to give a satisfactory legal reason why the remedy should be denied to the citizen, yet we are satisfied that for political reasons alone the remedy by mandamus ought not to be enforced against the chief executive officer of the State.” And in the subsequent case of The State v. Powers, 14 Georgia, 338, the court says : “ In every well constituted government the highest judicial authority must necessarily have a supervising power over all inferior or subordinate tribunals, magistrates and all others exercising public authority. If they commit errors, it will correct them. If they refuse to perform their duty, it will compel them — in the former case by writ of error, in the latter by mandamus.”
In the Constitution of each of these States, as indeed is the case in that of almost every State in the Union, there is the same division of the powers of government as in our Constitution. And in nearly all of them the chief or supreme executive power is vested in the Governor, without naming in specific terms the other officers of the executive department. But in all of them, it is believed, the officers usually spoken of as officers of the executive de*622partment are created, and their functions mainly defined. The Constitution of Ohio is the only one which has come under my observation in which the samé enumerated officers of which the executive department ■shall consist is expressly declared, as is done in the present -Constitution of this State. The Constitution of Indiana, however, though not in the precise terms as ours, is clearly the same in effect. In it heads of departments are denominated administrative officers. But in the division of the powers of government into three departments it is declared that the executive, department includes the administrative. In both of these States mandamus will lie to these officers. (Dodd v. Miller, 14 Ind., 433; Smith v. Talbot, Auditor, 11 Ind., 144.) And in Beal v. Ray, 17 Ind., 554, it seems to be intimated that it will lie against the Governor. And so it is held in Ohio, as has been already shown. (State v. Governor, supra.)
But if it is insisted that the specification ih the Constitution of the different officers of whom the executive department shall consist, why may it not be held in favor of the greater liberty and better protection of the rights of the citizen, that the Governor, if not previously so, has been placed upon the same footing with other executive •officers, and is thereby subject to the process of the court in matters of mere ministerial duty affecting private •rights, which involve neither judgment nor discretion, rather than to conclude that the other officers named are taken by it from under the control and restraining power ef the judiciary, in discharge of official duties of this character, if aforetimes they w-ere subject to it.
I will next consider whether it has been authoritatively decided by this court that the District Court has not the power and authority, under the Constitution of 1845, to compel an officer of the executive department to perform an official duty.
"The only authority relied on .to /maintain this proposi*623tion is the case of the Houston Tap and Brazoria Railroad Company v. Randolph, 24 Texas, 335. That it may appear that this was the ground upon which that case was decided, an extract is made from the opinion delivered by the present Chief Justice, which I readily confess appears to show that he then entertained the same views on this question as are now expressed in the case upon which I am commenting. But if I have not misapprehended the position of the Chief Justice in regard to the matter, he does not hold that that case was decided by the court upon the ground indicated in this extract from his opinion, but concedes that the writ was refused be-' cause it appeared, as is clearly shown in the opinion, that the act in question involved executive judgment and discretion, and was not merely ministerial, even if it had satisfactorily appeared from the petition that the relator was entitled to anything under the law upon which the proceeding was based. It is well known that Judge Bell, who was then an associate justice of this court, maintains that the grounds just suggested were those upon which the case was decided. And certainly no one who has examined the reports of this court from its organization to the time when that case was decided can hesitate to say that Judge Wheeler, the Chief Justice and remaining member of the court, could not have concurred in a judgment denying to the court jurisdictional authority to -award a writ of mandamus to the heads of the executive departments in respect to mere ministerial duty.
But if he may not look to these extraneous sources to ascertain the grounds upon which the judgment of the court was rendered, the opinion itself, it seems to me, does not leave it a matter of doubt. The merits of the question presented by the record are elaborately discussed and fully and clearly disposed of and decided. The additional or individual views of the judge delivering the opinion are brought forward and presented as tending to *624support, the conclusion otherwise reached. If, however, the court had no jurisdiction, and it was then, as scrupulous as it was in the case of Bledsoe v. The International Railroad Company — and we have no reason to conclude that it was not — it would not have felt at liberty to consider the case on its merits.
I also insist that the decision of the court should- not be held to have been made upon the ground indicated in the extract from the opinion to which I have referred, because a decision of this point, was not necessary for the disposal of the case, and it is not the custom of the court to finally decide important constitutional questions when not required to do so, and especially when they have not been discussed by counsel, but are suggested by the court in its opinion. Such a construction of this decision would in effect overrule a number of former decisions, yet there is no intimation in the opinion that such was its intention. It has not heretofore been held to have decided this question. But if it does decide it, it is in effect overruled by subsequent decisions of the court, wherein the jurisdictional authority, which it is now claimed was denied, has been assumed and exercised, and wherein the prior decisions supporting the authority are relied upon, and recognized as still in force, and wherein the views expressed in this case, and which arenow claimed to be an authoritative decision of the question, are evidently repudiated and denied. (Durnett v. Crosby, 28 Texas, 182; Tabor v. Commissioner, etc., 29 Texas, 508; Railroad Company v. Commissioner, etc., 36 Texas,. 382.)
If I am correct in these views, however great may be-the respect to which the legal opinion of the learned judge by whom the proposition was-first suggested- in. this court is entitled, or whatever consideration may be. due to the force of reasoning with which he has maintained it, or weight of authority from other sources by which he may have sustained it, still it cannot be said that it has. *625been authoritatively decided by this court, as claimed in the opinion on which I am adverting. And if this proposition, now for the first time decided by this, or, as I think, any court whatever, can be maintained, it must be upon some other authority than the former decisions :of this court. It must, indeed, be done by authority of sufficient weight to overturn its settled course of decision and its well established practice from its organization down to the past few weeks.
A few of the former decisions of this court, in which this jurisdiction has been recognized, and in some instances exercised, are cited, and though their authority is not directly denied, they are commented upon, as it seems to me, as if for the purpose of weakening their force. A petition for a mandamus, it is said, has never been sustained in this State against the Governor, Secretary of State, Comptroller, Treasurer, or Auditorial Board, though many have been filed and prosecuted ; and out of the numerous cases against the Commissioner of the General Land Office, in a very few only has the judgment of the court gone against him. The first of the cases cited was, it is suggested, between two claimants, and the writ was incidental; in the second there was no statement of facts, and in neither was the jurisdictional right to the writ argued by counsel or discussed by the court. The principles announced in the subsequent decisions assume to be drawn mainly from these two cases, and the decisions of the Supreme Court of the United States upon the subject, which, however, seems to be thought not to warrant them.
In response to these suggestions I must, with all due deference, say, that I see nothing in this examination, as it is called, into the origin and history of the cases referred to, the pith of which I have endeavored to sum up above, which tends to deny the jurisdictional power of the court to award the writ to the heads of the executive *626departments, or to detract from the authority of the former decisions of the court on this subject. That only a few of the cases against the Commissioner, and none of the many prosecuted against the other executive officers; have been sustained, exemplifies the efficiency and faithfulness of these officers in the discharge of their official functions, and especially in the performance of such ministerial duties as they have been required to perform. 'The decisions also aid us in discriminating between executive acts, which as a general rule are committed to the judgment and discretion of the officer to whom they pertain, and those which are merely ministerial, in respect to "which he has neither by .the character of his office nor the terms of the law imposing the particular duty official judgment or discretion. Indeed, these numerous cases, and the long and uniform course of judicial action, in the course of which neither counsel have suggested nor the court intimated a doubt as to its jurisdictional authority to. award a mandamus against any of these officers in respect to ministerial duties, should be held at this late day as conclusively settling the question. The power or jurisdiction of the court to award the writ was at the threshold of every case. And unless there was jurisdiction “to compel an officer of the executive department of the government to perform an official duty,” the discussion or consideration of the character of the particular duty in question was unnecessary, and, as the court now says, extra-judicial and without authority. 'Nor does it matter that there may be conflicting interest involved in respect to the ministerial duty the performance of which is sought to be enforced. In such cases it appears to be in accordance with precedent and principle to make those claiming an interest parties to the proceeding. (The Queen v. Powell, etc.; The Queen v. Evan, etc., 1 A. & E., 554.) Nor can the want of a statement of facts detract from the authority of the other case on the question of *627jurisdiction. This fact, it seems to me, must have presented the question of jurisdiction more directly and prominently to the attention of the court. And had it been a matter about which there could be a doubt, it can hardly be supposed it would not have been noticed by the eminent judges then composing the court. Nor should it, I submit, lessen the weight to be attached in this court to the unbroken current of its former decisions if it should be found that a somewhat broader scope has been given to the writ of mandamus by these cases than has been done by the Supreme Court of the United States. I do not concede, however, that there is any such difference. I cannot protract this opinion by the comparison ; but while, no doubt, excerpts may be selected from different opinions of the two courts which would present an apparent difference in their rulings in some instances, I am fully satisfied, where the facts in each case are considered, and these excerpts are read and construed in the light of these facts, it will be found that there is no substantial difference in their ruling on the subject.
But the authority of the court to issue a mandamus to officers of the executive department does not rest alone upon the practice and usage of the court as shown in the numerous cases in which it has been applied for, and in which the court has acted on such application without doubt as to its authority to grant the writ, from its very organization until' it was suggested in the opinion in the case of the Houston Tap and Brazoria Railroad Company v. Randolph, supra, and a like continued exercise of jurisdiction y/ithout question since then until the present time. The' Legislature has expressly conferred the jurisdictionAf it had authority to do so, and it had not been already c, uferred by the Constitution. The 4th Sectiqmcíf tlie act organize the District Courts, and to djefine their power and jurisdiction, passed May 11, 1846, reads: “The judges of the District Courts and each of *628them, either in vacation or term time, shall have authority to grant, on petition to them therefor, writs of habeas corpus, mandamus, injunction, sequestration, error, and supersedeas, and all other remedial writs known to the law, returnable,” etc. (Paschal’s Digest, Article 1407.) To whom under this full and unlimited grant of authority may the writ go ? The authority conferred is without limitation or restriction. Can we say that any particular class of persons or officers are exempted from it any more than from any of the other writs mentioned in connection with it % Certainly not. The grant of authority is as broad and comprehensive as the common law from which we get the writ. It is limited only by the extent to which judicial authority has been restrained, by the Constitution and may not be conferred by the Legislature.
But the advocates of the theory which I am endeavoring to combat maintain that the division of the powers of the government- by the Constitution requires that the statute granting this general authority shall be so construed as not to include officers of the executive department. If this is the proper and necessary interpretation of the Constitution, their conclusion cannot be controverted, however general may be the language of the statue. But this is certainly not the construction given it by the Legislature. It manifestly intended and supposed the writ might go to these officers, for it further enacts “that all writs of mandamus sued out against 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 piay be.”
The executive department has always heretofore concurred with the judicial and legislative departments in this interpretation of the Constitution and thp jurisdictional power of the courts to issue the writ to tiieJieads of the executive departments, touching matters of mere ministerial duty. .From the organization of the govern*629ment to the present moment, so far as i am informed, or as can be ascertained by the records of this court, no officer of the executive department has ever denied or controverted the authority of the court to grant the writ, or failed to yield cheerful obedience to it. In this very case, in which the power has been denied by this court, the defendant did not, in the court below, controvert the jurisdiction of the court to award the writ, but placed his defense upon other and entirely distinct grounds. Indeed, in the case of the International Railroad Company v. Bledsoe, on an application to this court for a mandamus touching the same matter, decided at the last term, and dismissed for want of original jurisdiction by this court, the. ground taken by the Attorney-General- and his associate counsel was, that jurisdiction was conferred upon the District Court by the Constitution and the statute to which I have referred.
How, with respectful deference, I ask, is there anything in the familiar division of the powers of the government into three distinct co-ordinate departments, and the inhibition of the exercise by either one of them of any power properly pertaining to either of the others, which has been thus long overlooked, which requires this court to hold a statute enacted by the Legislature, so often acted-upon by the judiciary and acquiesced in by the executive department, to be unconstitutional ? A like division of power is a fundamental provision, riot only in the Constitution of the United States, but also in the Constitution of probably every State in the Union. Tet such a restraint upon the judicial department (except in a few of the States, where it has been held, upon political considerations, that the writ- cannot issue against the Governor) has never received the slightest consideration. And in not one of these States, so far as I have been able to ascertain, has this construction been intended so as to exempt any other executive officer than the Governor from liabil*630ity to the writ. Thus, in the case of The People v. Bagley, Governor, etc., decided by the Supreme Court of Michigan, April term, 1874 (St. Louis Law Journal), in which it is held the writ cannot issue against the Governor, Mr. Justice Cooley says : “In many cases it is unquestionable that the head of an executive department may be required by judicial process to perform a legal duty, while in other cases, in our judgment, the courts would be entirely without jurisdiction ; and as regards such an officer, we should consider the nature of the case, and the duty to be performed must determine the right of the court to interfere in each particular instance. Where the head of a department acts as the mere assistant or agent of the executive in the performance of a political or discretionary act, he is no more subject to the control of the courts than the chief executive himself; but where a ministerial act is required to be done by him, independently of the executive, though in a certain sense he is an executive officer, it would be as idle to dispute his responsibility to legal process as it would be to make the same claim to exemption on behalf of an officer entrusted with similar duties of lower grade. This is emphatically the case under the Constitution of this State, which provides for the election of State and inferior officers alike by the people, and makes the chief officers of the State below the Governor as independent of his control in the performance of their duties as are the officers of the counties or of the townships.”
And certainly the cases from the Supreme Court of the United States cited to establish the first proposition discussed in the opinion, viz., that the act to be done involved judgment and discretion, so far from supporting the second proposition, that an officer of the executive department cannot be compelled to perform an official act, are directly the other way. Decatur v. Paulding, 14 Peters, 515, draws the distinction between the two classes *631of official duty, in one of which the performance of the act in question may be enforced by the writ, in the other it may not. The facts showed the case before the court belonged to the latter class; the writ was therefore refused. While in the preceding case of Kendall v. United States, 12 Peters, 610, in which the like distinction was pointed out, the facts warranting it, the writ was awarded. That the defendant was a member of the cabinet, holding his office at the pleasure of the President, seems from the judgment of the court to have been of no consequence. It should be noted, also, that every objection suggested in the opinion in the Houston Tap and Brazoria Railroad case, and now held to warrant the conclusion that the court has not the jurisdictional power to issue the writ to an officer of the executive department, was most strenuously and ably presented and urged upon the court in the motion of the respondent and by counsel who opposed the grant of the writ, though most of them were either modified or conceded to be erroneous by the distinguished lawyer who then filled the office of Attorney-General. Neither does the case of the United States v. Guthrie (17 Howard, 284) militate against the authority of the court to issue the writ, but on the contrary recognizes and upholds its power to do so in proper cases, although the manner in which the quotation made from Mr. Justice Daniel’s opinion, beginning in the middle of a sentence, might suggest a different impression.' The case was an application for a mandamus to the Secretary of the Treasury to compel the payment of the salary claimed by the relator after he had been removed from office by the President.
The opinion of Judge Daniel from which the quotation is made was concurred in by three other members of the court. In it he says : ‘ ‘ Thus it has been ruled that the only acts to which the power of the courts by mandamus extends are such as are purely ministerial, and in regard *632to which nothing like judgment or discretion in the performance of his duties is left to the officer; but that where the right of judgment or discretion exists in him, it is he, and not the courts, who can regulate its exercise.”
Four other judges concurred in the judgment refusing the writ, upon the ground that a writ of mandamus to the Secretary of the Treasury was not a legal remedy by which to try the-title of the relator to the office claimed: by him. And until his title had been legally tried and determined, he could take no step to compel the payment of the salary. From which it seems to be inferable, if his title to the office had been legally established, or had not been in question, he might, in their opinion, have compelled payment of the salary by mandamus. Thus stands the case with eight of the nine judges then composing the court. The ninth, Mr. Justice McLean, held the applicant was entitled to the office claimed, and that the mandamus ought to be awarded.
The jurisdictional power to award the writ in respect to a matter of mere ministerial duty has never been questioned by this court on the ground of the division of the powers of the government between its three distinct and independent departments. The point upon which all the cases have turned has been whether the duty to be performed was ministerial in its character, or was it an executive act requiring the exercise of official judgment and discretion or involved the exercise of official functions in respect to which the court had no right to interfere. (United States v. Seaman, 17 How., 225; Commonwealth of Kentucky v. Dennison, Governor, 24 How., 98; United States v. Commissioner, 5 Wall., 563; Gaines v. Thompson, 7 Wall., 347; Litchfield v. Register, 9 Wall., 575; Commonwealth v. Boutwell, 13 Wall., 526.)
The law upon this subject has never been, and I imagine will never be, more clearly and correctly stated than it is in the opinion of Judge Marshall, in the case of Mar-*633bury v. Madison, 1 Cranch, 137. I am aAvare'that it is becoming somewhat common of late years, in some courts,' and with some political theorists, to attempt to disparage the authority of this opinion by speaking of it as a mere dictum. Suppose it is, it is from a judge whose dicta carry greater Aveiglit of authority with the legal profession than do the judgments of but few courts. If it be a dictum, the chain of reasoning by which its conclusion is reached is Avrought with a force of logic in which there is no flaw and from which there is no escape. It has been frequently referred to as of the highest authority in subsequent cases in the same as Avell as in other courts. It is cited with approval in many of the cases relied upon in the opinion of this court controverting its conclusions, as will be seen by a reference to them. It has been quoted with" approval by the most, if not all, of our commentators, and if its authority has been impugned or denied by any I am ignorant of it.
“The government of the United States,” says the judge, “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.” Again: “It follows, then, that the question, whether the legality of an act of a head of a department be examinable in a court of justice or not, must always depend on the nature of the act.” And, finally, he says : “The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But 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 *634himself injured has a right to resort to the laws of his country for a remedy.”
But if the court in such case undertake to grant relief and apply a remedy for that which no one can deny to be a wrong, has it passed beyond the constitutional limitation of judicial power, and undertaken to exercise executive functions and duties. If it has, then was this great judge and the court over which he presided in error as to the essential elements of judicial power. It is an error, however, in which they have fallen in common with the courts of England and the sages of the common law from its earliest time, and which has been shared by the courts of all the States of America and the Legislatures of most of them, as is shown by their repeated grants of writs of mandamus to executive officers, and the many statutes specifically regulating and defining this writ as a means of enforcing the performance of duty in many cases by these officers, which must be held unconstitutional if to enforce obedience and compel the discharge of such official duty \>y mandamus is the.exercise of executive power.
If one of these officers will not obey a plain and direct command laid upon him by law, but refuses to perform the duty required, no one doubts that an injury is done the individual who is thereby deprived of the enjoyment of that to which by law he is entitled. If this is “a government of laws,” is there not some remedy for this wrong? If it is not mandamus, what is it? These suggested an impeachment, or the election of some one else who will perform the duty required. But certainly neither of these are remedies for the injury done the individual. If an officer acts ignorantly instead of viciously or corruptly, ordinarily he should not be impeached. Should his conduct warrant his impeachment, it is not probable the manner in which he may discharge his mere ministerial, .duties, in which private individuals are alone di*635rectly interested, will attract sufficient public attention to render such a result practicable. But if he is impeached,this is for the wrong done the public for breach of official duty, and not a redress of an individual injury. (Ethridge v. Hall, 7 Port., 47.) Still less can it be supposed the election of some one else, at the expiration of his official term, is a remedy for the wrong done. This, indeed, is too obvious for comment. It is a fundamental principle that mandamus does not lie where there is any other adequate remedy by the ordinary process of the court. But the remedy must be adequate for the relief of the relator. Hence it has always been held the writ will not be refused because the default complained of may subject the defendant to indictment. (10 Ad. & E., 531; 10 Wend., 395; Spencer, 659; 2 B. & A., 644.) Nor is the liability of the officer to an action on his official bond a reason for the refusal of the writ. (State v. Dougherty, 45 Mo., 294.)
Although not directly insisted upon in the opinion of the court, in some of the cases cited and relied upon, some weight seems to be attached to the fact that in England it is held that a mandamus cannot, in any case, be' granted against the king; nor the servants of the crown,, strictly as such, being the depositaries of public money..
The rule as respects public officers, whether of the treasury or others, will, I think, be found, on an examination of the cases, not materially dissimilar from that held by most of the American courts. Thus, in the case of The King v. The Lords Commissioners of the Treasury, 31 Com. L. R., 139, it was decided “that a mandamus-lay to the Lords of the Treasury to order payment, inasmuch as the claimant had no other remedy, and as the writ was demanded, not against the king, but against officers into whose hands money had been paid under an act of Parliament for the use of an individual.” While in the cases of The King v. The Lords Commissioners,. Id., *636424; Same v. Same, Id., 427; and Ricketts ex parte, Id., 434, the writs were refused because the acts in question involved discretion. In the case of Regina v. The Lords Commissioners of the Treasury, 71 Com. L. R., 357, which came before the Queen’s Bench, H. T., 1851, on an application of Lord Brougham as surviving trustee of Queen Adelaide, late Queen-Dowager, to compel the payment of a proportional part of the quarterly sum of £25,000 of her annuity, which would have become payable on the thirty-first of December, 1849, had she survived until that time, Lord Campbell, C. J., said: “ The court would not extend the writ of mandamus to a case to which it was not applicable merely because the objection was waived. But we thinlc that if the claim be founded in law, mandamus is the proper remedy. ”
That the writ will not issue to the king is, it is said,, because it would be an .incongruity in the sovereign commanding itself, and also because obedience could not be enforced. (Tapp. Mand., 161-2.) And because, as may also be added, as to matters of complaint against the king, and as to money in the treasury held in his. name, and as a part of the public money in contemplation of law subject to Ms command, there is another adequate. ■and well recognized remedy, viz., by petition of right. (Queen v. Powell, 41 Com. L. R., 574.) But none of these objections are applicable to writs of mandamus to ■executive officers under our theory of government. The writ with us does not go in the name of any officer, but in that of the State, or people; and until we are prepared to admit that some of our officers are superior to the people from whom they derive their authority, and are not amenable to the law, they should be required to yield -obedience to its commands. There is no just ground of •objection to the j urisdiction of the court, from the fact that all public officers, like individuals, must look to the judicial department for the proper interpretation and *637construction of the law, and when it is judicially • announced they must observe and follow it, or suffer the penalty if they wantonly disobey it.
Nor can I see any reason to fear that anarchy will result from the exercise of this power by the court in the-future more than it has in the past. It is an unwarranted, supposition, I think, to say that the officers of the executive department would entertain-the idea, much less undertake, to obstruct the due course of the law, or attempt to-thwart or defy the judgments of the courts. But if such, should be the case, ample provision has been made for filling the places of such recusant officers and protecting the country against anarchy or revolution.
It is asked, if the officer obeys the mandate of the-court, and does the act commanded, who performs the official duty, the officer or the court who commands him t I answer, unquestionably the officer. It might with equal propriety be asked in cases of litigation between private-parties, who performs the matter adjudged, the court or the party required to do so by its judgment ?
While it must be admitted no human government can be organized which will in all instances secure the citizen in the complete and perfect enjoyment of all his rights of person and property, and that there must be an end to-controversy somewhere, whether the result attained is-what it should be or not, yet I cannot see that this is a reason why the citizen should be deprived of all remedy touching matters of individual right depending upon the performance of a mere ministerial duty by one of these executive officers. The time-honored maxim that there is-a legal remedy for every wrong, if not true to the letter, is surely persuasive that an element of judicial power of so much importance, recognized from time immemorial by the courts of the country from which our jurisprudence is derived and exercised under similar constitutional provisions and restrictions as in ours by the courts *638of probably every State in the Union, is not denied to our -courts. (Northwestern N. C. R. Co. v. Jenkins, 65 N. C., 173; State v. Lawrence, 3 Kan., 95; State v. Secretary of State, 33 Mo., 293; People v. Smith, 43 Ill., 219; Hemmerick v. Hunter, 14 La. An., 221; State v. Wotnowski, 17 La. An., 156; State v. Draper, 48 Mo., 213; Swan v. Buck, 40 Miss., 219; Swan v. Work, 24 Miss., 439; Ex parte Pickett, 24 Ala., 91; Ex parte Echols, 39 Ala., 698; State v. Bordelen, 6 La. An., 68; People v. Smith, 48 Ill., 219; People v. Secretary of State, 58 Ill., 90; Swan, Auditor, v. Josselyn, 14 S. & M., 106; Auditor v. Adams, 13 B. Monr., 150; Douglass v. Hastings, 11 Wis., 448; State Bank v. Hastings, 15 Wis., 75; Free Press Association v. Nichols, 45 Vt., 7; Bryan v. Collett, 15 Iowa, 538; Auditor v. Hardin, 8 B. Monr., 648.) In the last two of these cases the same objections to the jurisdiction of the court which has been relied upon here were directly presented and lucidly discussed, and decided in favor of the jurisdictional right of the court to award the writ.
To enquire into and determine as to matters of this character, and to prevent the rights of citizens from being “ spirited away” at the “ whim or caprice” of officers in the discharge of ministerial duty, is plainly, in my opinion, the exercise of the judicial power conferred by the Constitution. The courts of England and America have always claimed and used it as one of their judicial functions. The legislative and executive departments of the different States as well as ours-have at all times heretofore recognized and acquiesced in its exercise by the judicial department, even where it has not been regulated and defined by statute, which, however, has been done in a number of States, and in most of them these executive officers are in terms made amenable to the writ, which is clearly unconstitutional if executive and not judicial power is attempted thereby to be conferred upon the courts.
*639What is the nature or character of the power exercised when a wrong is redressed, or relief granted by writ of mandamus, in a case of admitted jurisdiction, to a purely ministerial officer, who is invested with no executive or discretionary functions whatever % Is it executive or judicial % Certainly no one can doubt that it is the latter. In England the writ issues in the king’s name, and from his Court of the King’s Bench, because he is said to be the fountain and source of justice, and in early times he is supposed to have sat in this court in person to administer justice to his subjects. It is therefore called a prerogative writ. But, whatever speculative deductions as to its original character may be indulged in by antiquarians who seek to trace back to their origin the various writs and forms of judicial proceeding, through and by which justice is now administered, this writ has certainly' from the earliest days of the common law been recognized and used as a judicial writ of the most extensive remedial nature. (3 Com., 110.) Its use as a judicial writ, it is said, may be traced to the reigns of Edward II. and Edward III. (Ren & Askew, Burr., 2186.) Whether with us it should be called a prerogative writ or not is of no importance. Though as the people here may certainly with as much propriety be regarded as the source and fountain of justice as is the king in England, I cannot see that there is any great incongruity in calling it by this familiar common law appellation. It is, however, a judicial writ, whether it also be called a prerogative one or not, by which the sovereign people grant relief when there is a clear legal right and no other specific adequate remedy. It cannot be controverted that under the constitutional distribution of power between the three departments, the authority to grant relief and administer justice by means of this judicial writ, to the full extent of its common law functions, is directly invested in the judicial department, or if not thereby directly conferred, *640it certainly might be conferred by the Legislature, not only to the extent to which the writ has been used at common law, but to the full extent and limit to which judicial power might authorize its use if its common law use fell short of this, unless the authority to do so is clearly withheld or denied by some other provision of the Constitution. That it has been withheld as to executive officers it is claimed is a necessary result from the division of the powers of the government between the three departments. But can it with any propriety be said the grant of all executive power to the executive department is a’ denial of or withdrawal from the judicial department of any part of the judicial power as clearly and unqualifiedly granted to it as the executive power is to ■the executive department ? Certainly not. The mere character of the officer by whom an act is done, of which complaint is made to the court,, surely does not change .the nature of the function or power exercised by the courts, and hence it has always been held, as we have heretofore shown, that it is the nature of the act to be performed, and not the character of the officer, which determines the right or duty of the court to award the writ.
It is the function and purpose of the judicial department of the government to expound and determine the law, to redress wrongs occasioned by its violation, and .grant relief by enforcing obedience to it; while it is' that of the executive department to execute and carry into effect the laws declared and enacted by the legislative department, and expounded and interpreted by the judicial .department. And I do not see how it can be said that there is any interference with the proper exercise of the official functions or power of an executive officer more than any other by compelling him to do an act wherein he is entrusted with no executive or official discretion, but ¡which the law positively and directly commands and his *641official obligation clearly binds him to perform, hTo on,e denies that the writ may be awarded to an inferior court. Discretion in such case cannot be controlled, but action may be commanded. The superior court does not thereby perform the act required to be done by the inferior tribunal, or exercise its function. It merely, in the discharge of its own duty, enforces obedience to law and, the fulfillment of duty by the inferior tribunal to whom the writ goes.
But if the exercise of such power by the judicial, department in any way trenches upon the powers of the executive department, as the grant of power in the Constitution to the former is as unqualified as it is to the latter, all that can be said is that the line of division between these conflicting grants of power must be ascertained and fixed where the proper interpretation of the Constitution places it. Were this attempted, there would be but little difficulty, I think, in showing by the well established canons of construction that the courts do not exceed the limits of their jurisdictional authority in requiring by mandamus executive officers to perform strictly ministerial duties. But this, it seems to me, is altogether unnecessary; for if the correct conclusion to be drawn from this division of the powers of the government in the Constitution admits of any real doubt, it is now too late, to change the contemporaneous and long continued construction heretofore given it by the three departments of the government, tacitly sanctioned by the action of the several conventions by whom our different constitutions have been framed, as well as the concurrent usage, and construction, legislative, executive and judicial, in all of our sister States with similar constitutional provisions and restrictions. The practical interpretation so long and so uniformly held and observed here and elsewhere must still be maintained and followed. Political and executive acts which are committed to official discretion an.d deter*642mination are subject to political inquiry alone, and not to judicial cognizance; while in respect to those of a different character, which involve no discretion, the courts may inquire, and enforce their performance by mandamus.
But there is in fact no conflict between the powers conferred upon these two departments. To execute the law, discharge and fulfill the duties required by the functions of office, or to see that this is done by their subordinates and those upon whom such duties devolve, is one thing— to inquire, expound, interpret and decide the law, and •enforce its observance, is altogether another. The first is -clearly the discharge of executive or administrative duty, while the second is plainly the exercise of judicial authority.
It can with much less propriety be said that the court by the exercise of jurisdiction in such cases interferes with the executive department, than does an executive officer who refuses to obey a plain command laid on him by the Legislature, or a judgment pronounced by the court, interfere with the constitutional functions of the legislative and judicial departments.
The right to a patent, as between conflicting locators, it must be admitted is a legal right founded in and secured by law, and should be ascertained and determined by its proper construction and application. But if a patent to which the applicant is plainly entitled is willfully withheld from him by the Commissioner, is there no remedy for the wrong done him by the denial or refusal of this right ? If so, how and where is it to be asserted ? Is the right of the applicant to the patent committed to the final determination of the Commissioner? If so, is he not entrusted with judicial functions ? Should it be said the issuing of the patent is an executive act, which does not'determine the conflicting rights of adverse claimants, but thi§ must be done by a resort to the courts after the *643patent has issued, then I ask, if the court may review the action of the Commissioner, cancel and annul the patent, and require him to issue another, or divest the title out of the party who the Commissioner has decided was entitled to it and vest it in another, who administers his office, the Commissioner or the court who controls his action or moulds it to conform to its decision ? Is it any greater interference with his executive functions for the court to interpret the law and settle the conflicting rights of the parties so that the Commissioner may properly discharge his executive duty by a patent to the party legally entitled to it before he has acted than afterwards to review and set aside his decision? Suppose in the judgment of the court it is necessary in order to do justice between the parties that the patent which has been issued should be canceled, but the Commissioner refuses to cancel it, is the court powerless to administer the law and do justice because the Commissioner is an executive officer and cannot be compelled by the court to perform any official duty? Or suppose there is no conflicting claimant to the land, but the Commissioner, without reason and contrary to law, simply refuses to give the applicant his patent (though it may be in his hands ready for delivery), is the right of the party to be held forever in abeyance unless some one else will assert a claim and procure a patent, and thereby enable him to get into court and establish his title ? But after the Commissioner has issued a patent and recourse is had to the court for redress by the party whose claim has been rejected, the evidence to establish his right is on file or of record in the office, and subject to the control of the Commissioner.
The law says certified copies of all papers belonging to the office shall be received as evidence. But suppose the Commissioner, believing the court has no jurisdictional authority to review or interfere with his official action, should, for this or any other reason, refuse to *644furnish copies of such papers when demanded, is there no legal remedy by which the performance of this official duty may be enforced? (Doyle’s case, 1 Brev., 238.)
With more show of reason may it be claimed that the judiciary cannot set aside an act passed by the Legislature because it believes such act unconstitutional. Why should it? The Legislature is an independent department of the government; it’ is not inferior to the judicial department; it should have the same right to judge of its constitutional powers and functions as the latter; it must be presumed to be equally competent and honest; if it errs, the people can correct its error; responsibility must rest somewhere; if the court set aside its action, and the Legislature will not yield, conflict may ensue. Tet at this day who doubts that the right and duty of doing this is a part of the judicial power conferred by the Constitution on the court ? And experience proves the exercise, of this power by the court, like that of enforcing obedience to the law by executive officers in matters wherein they are entrusted with neither judgment nor discretion, tends not to discord but to harmony and unity of action in all the departments of the government. A contrary rule would enable a single subordinate officer of the executive department to thwart the legislative will, obstruct the judiciary, and defy the chief executive officer of his own department. Surely no peculiar theory of government, the exigency of no particular case, should induce us to follow an interpretation which leads to such results. I am therefore of opinion that the proposition announced in the opinion to which I have referred, ' ‘ 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,” in the broad and unqualified terms in which it is laid down, cannot be maintained, and furnishes no reason for the dismissal of this case.
*645The facts presented in the petition would, in my opinion, under the rulings of this court in other cases, warrant a mandamus if the land for which a patent is demanded had been subject to location at the time appellee sought to appropriate it. If a party has a clear legal right to a patent, although this clear legal right may to a certain extent be dependent upon antecedent questions of law, it has been held the right may be settled by a proceeding of this character. (Commissioner G. L. O. v. Smith, supra; Bay City v. State Treasurer, 23 Mich., 500.)
Without wishing to be understood as concurring in the entire argument presented in the opinions of the court heretofore rendered by our predecessors, I conclude by .saying that I concur in the conclusion reached by them that the land in question had been severed from the mass of the public domain, and was not subject to location at the date of appellee-’ s file. The motion for a rehearing should therefore be overruled.
I am authorized to say that Mr. Justice Gray, who was a member of the court when this motion was argued and submitted to us, expressed before his resignation his concurrence in the disposition now made of it.
Rehearing refused.
Mote. — I deem it proper to say that my opinion in this case was prepared before I was aware that it was the intention of the Chief Justice to present in a written opinion his views upon the question which I have discussed. And as our mutually decided convictions and the fact that it had been fully considered by the other members of the court in the case of Bledsoe v. The International Eailroad Company rendered its discussion in the consultation unnecessary, I was uninformed as to the reasons upon which he based his conclusion, except as I inferred them from his previous official action. Nothing which I have said can therefore be regarded as a comment upon any of the positions assumed in his opinion or as a rejoinder to his arguments in their support.
I may also add that, as I was disqualified from sitting in the Bledsoe case, I was uninformed of the views to be presented by Mr. Justice Devine in his separate opinion in that case until it was read to the court on the day before its adjournment, or I might have avoided trespassing upon some of the ground occupied by him. George F. Moore.