I concur in overruling the motion for a rehearing and that the judgment of the District Court rendered in this case shall be reversed, the lands not being open to location and survey. My concurrence does not arise from any doubt as regards the jurisdiction of this court to issue a mandamus against the Commissioner of the Land Office in a proper case, I refer to my dissenting opinion in the case of Bledsoe v. The International Railroad Company, and I concur' generally in the opinion delivered by Justice Moore in the present case.
Roberts, Chief Justice. — This was a suit, for mandamus instituted in 1871 by George W. Wright to compel the Commissioner of the General Land Office of the State of Texas to issue to him a patent to lands which he had located and surveyed by virtue of a land certificate for the unlocated balance issued to Henry Buckler, for six hundred and forty acres of land, assigned in writing to said Wright by Eliza Higgins, widow of Henry Buckler, and her present husband, William L. Higgins, and Isabella Buckler, claiming to be the widow and heir of Henry Buckler ; to which written transfer of said certificate is attached the private acknowledgment of the said *647married woman, taken before a justice of the peace in the State of Arkansas. This land certificate was located and surveyed on lands known as the “ State sections” within the Memphis, El Paso and Pacific Railroad Reservation. The Commissioner appeared, by the Attorney-General, and demurred to the petition of Wright, and justified his refusal to issue the patent on the ground that the lands located and surveyed by Wright were, by the Constitution and laws of the State in force, reserved from location by virtue of such certificate.
The only evidence before the court was a certified copy of the papers on file in the General Land Office. The court below determined (the case being submitted to the court on the pleadings and on said certified copy of the papers in the Land Office) in favor of the plaintiff, and awarded a peremptory mandamus against the Commissioner, from which judgment an appeal was taken and brought into this court in 1872.
The Supreme Court in 1872 delivered an opinion and rendered a judgment reversing the judgment below'and dismissing the suit. At the same term a rehearing was granted. In 1873 the Supreme Court delivered another opinion, sustaining 'the first, and confirming its own judgment already rendered in the case.
At the same term, in 1873, another motion for rehearing was made by Wright, which was continued at the last term and the judgment suspended to await the determination of the motion for rehearing. The case now stands before this court upon that motion for rehearing. It has been argued before the court to enable its present members to determine upon the propriety of granting the rehearing.
Having examined into the merits of the case and jurisdiction of the court, and finding no ground to believe that a rehearing would result in any substantial change in the judgment of the court already rendered by our *648predecessors on the bench at a former term, and in support of which they had delivered two opinions, I was inclined to join in simply refusing the motion without an opinion, thereby leaving the case to be a decision of our predecessors made at a former term.
As, however, it has been deemed appropriate by some of my brethren — the court now being full, with all the regular members on the bench — to express an opinion upon the question of jurisdiction on account of an opinion lately delivered, wherein there was a divided court and a special justice on the bench. (Bledsoe v. The International Railroad Company), I deem it an opportune occasion to present my own views upon the question of jurisdiction in this case, having been in part expressed previously in the case of Randolph v. H. T. and B. Railroad Co., 24 Texas, 317. It is proper, also, that I should say that the majority of the court, of which I was one, in the International Railroad case, did not intend, in making that decision, to influence the decision of this or any other case against the Commissioner of the General Land Office by the reasons given or arguments used therein. Nor is anything designed to be said in this opinion by way of aiding or supporting what is decided in that case, being fully satisfied that the opinion in that case is amply able to stand alone.
In this opinion it is designed to present the provisions of the Constitution, the statutes and previous decisions of this court, so as to furnish the materials within themselves sufficient to enable a judgment to be formed of the true ■merits of the case. This, and a want of time at the close of a long session, will necessarily lengthen it beyond what might be desirable, and prevent it from having the system that might otherwise be given to it.
My opinion is, that the mandamus will not lie in this case, on the following grounds :
1. A mandamus cannot be legally issued to any one of *649the heads of the executive department in the State -of Texas to compel him to exercise any power in the performance of an official function confided to him as such executive officer by the Constitution and laws of this State.
2. That the issuing of the patent under the law and facts as presented in this case is the exercise of a power in the performance of such an official function so confided to him.
3. That the Commissioner of the General Land Office, under and by virtue of the Constitution of the State of Texas adopted in 1869, and the laws of the State consistent therewith, is one of the heads of the executive department in the government of the State of Texas.
There might be other objections raised upon a rigid examination of it; such as, that it is an agreed case to get a legal opinion from the court; the proof of the facts pretermitted, and not examined into by the court below; defect in the mode of proving the right of the plaintiff below to the certificate, and in his consequent right to sue; and defect in parties to the suit, it being ex officio known to the court that Kuechler, former Commissioner, is not now in office. These, however, are matters peculiar to this case, and will not be noticed otherwise than incidentally, if at all, not being necessary to accomplish the purpose of this opinion.
It may be well to give by way of introduction what is said of the writ of mandamus as a remedy in law books and decisions that treat of the subject.
“ A writ of mandamus is in general a command, issuing in the king’s name from the Court of King’s Bench, and directed to any person, corporation, or inferior court of judicature within the king’s dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the Court of King’s Bench has previously determined, or at least *650supposes, to be consonant to right and justice.” (2 Cooley’s Blackstone, 110.)
“ To render the mandamus a proper remedy, the officer to whom it is directed must be one to whom, on legal principles, such writ may be directed, and the person applying for it must be without any other specific and legal remedy. * * * Questions in their nature political, or which are by the constitution and laws submitted to the executive, can never be made in this court.” (1 Cranch, 279.)
“It lies where there is a refusal to perform a ministerial act involving no exercise of judgment or discretion. It •lies also where ,the exercise of judgment and discretion are involved and the officer refuses to decide, provided that if he decided the aggrieved party could have his decision reviewed by another tribunal. * * * * * It is applicable only in these two ■ classes of cases. It cannot be made to perform the functions of .a writ of error.” (Commissioner v. Whitley, 4 Wall., 534.) Korean it be used so as to act as an appeal from the determination of the officer in the exercise of executive functions. (17 Howard, 225; 7 Wall., 352.)
As all the decisions assert that the act required to be done by one of the high-executive officers must be a ministerial act, and that where public duties are confided to him by law “he is not subject to the control of the courts in the exercise of the judgment and discretion which the law reposes in him as part of his official functions” (9 Wall., 312), it may be well to furnish one of the numerous attempts that have been made to define or describe this distinction between ministerial and official acts, which it may become material to quote and. notice more •particularly hereafter. •
“ The distinction between ministerial and judicial and .other official acts seems to be, that where the law prescribes and defines the duty tq.be performed with such *651precision and certainty as to leave nothing to the exercise-of judgment or discretion, the act is ministerial ; but where the act to be done involves the exercise of discretion or jiidgmentin determinining whether the duty exists, it is not to be deemed merely ministerial. ’ ’ (5 Texas, 479.)
A reference to the two acts (and it is believed to be the only two acts which have been adjudged by the Supreme Court of the United States, during its existence of over-eighty years, to have been such ministerial acts) will, perhaps, serve to aid somewhat in a proper understanding of such definitions.
“ Where a commission to a public officer” (a justice of the peace in District of Columbia) “has been made out,, signed and sealed, and is withheld from the person entitled to it” (by the Secretary of the United States), “it is-a plain case for a mandamus either to deliver the com»mission or a copy of it from the record. (Marbury v. Madison, 1 Cranch, 268.)
The facts in the second case were, that Stokes et al.were mail contractors, and had their credits allowed and. accounts adjusted in the Postmaster General’s Office: while W. T. Barry was in that office. His successor,, Amos Kendall, struck out and disallowed part of the allowances and credits. Congress passed a law directly requiring the Postmaster-General to credit Stokes et al. with» whatever sum of money the Solicitor of the Treasury (to whom the same law referred the matter to be settled and the result to be reported to the Postmaster-General)should decide to be due them. The report of the Solicitor being made, the Postmaster-General still withheld the credit. (By the laws of the United States then in, force, the account as made out in the department would have been prima facie evidence as to the state of the account, in a suit against Stokes et at. BrigMley's Digest, 862.) Suit of mandamus being brought against Kendall, the Supreme Court sav:- “He was simply required. *652to give the credit. This was not an official act in any other sense than being a transaction in the department where the books and accounts were kept, and was an official act in the same sense that an entry in the minutes of the court pursuant to an order of court is an official act.”
Justice Catron, in the case of Decatur v. Paulding, 14 Peters, 521, gives the following quotation and explanation of this decision: “He was (say the court) simply required to give the credit, and this was no more an official act than making of an entry by a clerk, by order of a •court of justice; it was in every just sense a mere ministerial act.” He adds: “Had it not teen placed on this narrow ground, the decision of the court coicld not hare been made.' ’ Diligent search has been made through the •decisions of the Supreme Court of the United States, and this is the first and last and the only case that has been found in which a mandamus has been sustained in that court against any one of the heads of the executive department of the government.
The first one, Marbury v. Madison, though it seems to have originated the doctrine in this country, by .an opinion of transcendent ability — studied and artistic as .an argument — was on a point no.t necessary to be decided in the case for want of jurisdiction in the court, it being an original suit filed in the Supreme Court of the United States, of which that court, being an appellate court •(with a few express exceptions), had no jurisdiction to try .and determine. All the fact necessary to determine their right to act was the original petition or application for the writ alone. .All of the opinion based upon facts outside of and beyond that was a mere dictum of the court;, :and upon that dictum the subsequent decisions were based so far as it was followed at all.
The questions arising upon the right of a court to :award a mandamus to any of the high executive officers -of the State bring into consideration the structure and *653operations of the government far more extensively than usually attend legal investigations, and necessarily invite to- a much broader view of the subject. Those who advocate a liberal exercise of this power by the courts usually base it upon certain general propositions, announced as axiomatic truths in a government of constitution and laws, such as the following: “bio:man or body of men, officer or citizen, is above the law, and all are bound to obey the law.” “For every legal right, when withheld,, there must" be a legal remedy.” “It is the peculiar province of the courts to construe, declare, and enforce the law in vindication of the legal rights of the citizen.”
Without entering into a minute discussion of how far these propositions are theoretical, and with what qualifications they must be subject in the practical operations of any government, it will suffice to embrace them all in one general exposition, which is, that in every organized government there must of necessity be a finality — a finality in the determination of the rights of individuals, in whatever departments they may arise or pertain to, and some man, or set of men, must make the final determination. In a despotism, such one man is easily pointed out. In a republican state, such as ours, wherein all of the powers of government are divided into three distinct departments, there must be a final determination of each department for itself of all such matters as are assigned to it in the division. Otherwise there is no division — no binding, effective, and “distinct” division of powers. The framers of our Constitution were determined to leave1 no equivocation or doubt on that subject, if it were possible to prevent it by plain words.
“Article II.--Division of the Powers of Government.
“Sectioh 1. The powers of the government of the State of Texas shall be divided into three distinct depart*654ments, and each of them be confided to a separate body of magistracy, to-wit: those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person or collection of persons, being of one of these departments, shall exercise .any power properly attached to either of the others except in the instances herein expressly permitted.”
The departments of government shall be distinct; that ■is, so separated as not to be confounded with each other. 'To make this doubly sure, it is also added, in effect that they shall be kept separate in person and .in action. A judge, for instance, shall not be an Attorney-General, nor shall he exercise any power properly attached to the office of Attorney-General; such, for instance, as giving advice to the Commissioner ■ of the General Land Office .about how to discharge his official duties; nor can he be -called on or required so to do, even though the Legislature should pass a law requiring him to do it.
That is simply because the Constitution in plain terms ■forbids it.
The division made by the Constitution in and of itself -produces co-ordinancy in the three departments, and the -separate indepenence of each one from any conjunction with, or control by, the others in their allotted sphere of action. If this be not so, then there is no division. If one department may exercise its duties according to its -own judgment, except when another department choses to control it and make it perform its duties in another •and different way from that dictated by its own judgment, then in that event there has been no division of the powers of government into three distinct departments, mnd Section 1 in Article 2 of the Constitution means nothing.
The duties of each of these departments in relation to fhe rights of individuals involve matters of law and of *655fact to be determined on; and when a final determination has been reached in any department to which the subject matter properly belongs, there is no power in another department to order that final determination to be changed or reversed by the department first making it. If the Governor will not sign a patent or a commission, who can order him to do it and make him obey? If the Supreme Court will not decide a case when they can and ought to do it under the law, who can order them to do it? If the Legislature will not vote an officer his salary to which he is entitled under the organic law, who can order the Legislature to do their duty and make them do it? Bach department may have its own reasons for not acting, or, if possible, none at all. The land locator who failed to get his patent, the litigant demanding a decision in the Supreme Court, and the officer who had asked for his well-earned salary, have each found whether or not every man or- set of men are bound to obey the law, whether or not there is a legal remedy for every legal right withheld, and whether or not it is the peculiar province of the courts to construe, declare, and enforce the law in vindication of the rights of an injured citizen.
But suppose they act according to their judgment instead of refusing to act, and act contrary to the interest and supposed legal right of the several applicants, what remedy have they to coerce different action ? That the independent separate action and co-ordinancy of the three distinct departments in dealing with the rights of the individual involving facts and the law relating thereto may be further illustrated, let it be supposed that a locator applies to the Land Office for a patent, and presents to the Commissioner a certificate, a transfer to himself, and a survey. These are all facts involving law questions in determining their sufficiency. The Commissioner examines his maps in connection with the survey to fix the locality of the land, and other titles in his office *656if necessary to ascertain whether the- land is vacant or not; he finds the land has been previously appropriated by a Spanish or Mexican grant; he examines into the facts relating to that title; he. turns then to the various laws affecting the validity of the old grant; and upon full consideration of the facts and the law he determines that the owner of the old grant has a vested right of property in the land, and he having determined that for himself refuses the patent to the locator. Now if the Commissioner is an executive officer, not subject in that particular determination to the control of any other department, it is a finality as to the issue then presented. The locator may stand upon his certificate thus located, and contest the validity of the old grant in a suit in court, and the court may determine that he has the better title, and, if so determined by the court of last resort, that will be a finality as to the issue then presented, and no other department can cause it to change that final determination. If the locator instead of applying to the Land Office had applied to the Legislature, submitted his facts to their consideration, and had procured a declaration of annullment of the old grant and a legislative grant of the land by metes and bounds to himself, the owner of the old grant might institute a suit in court and have his adjudged to be the better title to the land.
Thus each -department may act as a check upon the others, by each acting independently in its own sphere— the check being rather negative in relation to the other departments than positive and affirmative control over them. It is thus the three acting in separate independence, and at the same time in harmonious co-ordinancy and co-operation, that good government may be accomplished. It is deemed sufficient to quote one remark of the court in the case of Kendall v. The United States, in which it is said : “The theory of the Constitution undoubtedly is, that the great powers of government are *657divided into separate departments, and so far as these powers are derived from the Constitution the departments may be regarded as independent of each other.” (13 Peters, 609.)
The remaining question to be presented in this connection is, does the Commissioner of the General Land Office belong to the separate body of magistracy to whom are confided the executive powers of the government of the State of Texas % The most perspicuous answer to this question is made by a quotation from the Constitution and laws, with a brief reference to his official duties thereunder.
“Article IV. — Executive Department.
“ Section 1. The executive department of the State shall consist of a chief magistrate, who shall be styled the Governor, a Lieutenant Governor, Secretary of State, Comptroller of public. Accounts, Commissioner of the General Land Office, Attorney- Gen eral, and Superintendent of Public Instruction.”
Section 33, after prescribing the manner of the election of the Commissioner, and that his term of office and qualifications shall be the same as those of the Governor, says further: “He shall be the custodian of the archives of the land titles of the State, the register of all the land titles hereafter granted, and shall perform such other duties as may be required by law.”
Other sections of the same article prescribe the duties of the other heads of the executive department.
Article 10 establishes the General Land Office at the seat of government, and authorizes the Legislature to establish such subordinate offices as they may deem expedient.
Various laws have been passed, and are now in force, authorizing the Commissioner to appoint a corps of *658draftsmen, translators and clerks, for the dispatch of the business of his office, and prescribing various duties relating to the perfecting and securing of land titles. It is provided also that he shall have a seal, and that “all patents for lands emanating from the government shall be in the name and by the authority of the State, and under the seals of the State and the General Land Office, and shall be signed by the Governor and countersigned by the Commissioner of the General Land Office.” (Paschal’s Digest, Tit. Land, Articles 4280-1.)
Thus is his position as one of the heads of the executive department secured by a higher sanction than that of the Commissioner of the General Land Office of the United States. It is higher because it is ordained by the Constitution, and not by a law that the Legislature can change or repeal, and because he has a greater independence in the tenure of his office, and thereby is more independent of the control of the chief magistrate. He is elected by the qualified voters of the State, as the Governor is. The fact that he is vested directly, and not mediately through the Governor, with a definite portion of the ¡Dowers of the executive department can hardly be held to render him any more liable to the control of the judicial department than if he were created by law the minister or official servant of the Governor, subject to his direction and control in the performance of the executive acts confided to him by the Constitution and laws. This constitutional independence in him as a member of the executive department constitutes a limitation upon the powers of the Legislature in prescribing “such other duties” as he may be-required to perform. They must be executive, pertaining to his distinct portion of that department. His determinations, though they may and usually do require a consideration of both law and facts, have neither the conclusiveness of judgments nor the force of laws. Nor can the Legislature impose on him *659duties extraneous and not pertaining properly to the business of his office. For if they could, they would thereby efface and destroy the specific designation, and break down the barriers of the division of the powers of government made by the Constitution, which it is not within the power of any law to do, whatever may be, or may have been, its source. (Marbury v. Madison, 1 Cranch; Cooley’s Constitutional Limitation, and cases cited, pp. 115, 116.) For the same reason a judge, as belonging to a different body of magistracy, cannot by law be required to exercise any power properly attached to the Commissioner in the official discharge of his executive duties, unless it can be found to be an excepted ‘ instance’ ’ which has been “expressly permitted” in the Constitution itself. (See end of Article 2, Section 1, Constitution of 1869.)
This leads us to look to the judicial department to see if an instance of exception to the distinct division of the powers of government can be found there expressly permitted.
“Article Y. — Judicial Department.
“Section 1. The judicial power of this State shall be vested in one Supreme Court, in District Courts, and in such inferior courts and magistrates as may be created by this Constitution, or by the Legislature under its authority.”
“Sec. 8. The Supreme Court shall have appellate jurisdiction only, which, in civil causes, shall be coextensive with the limits of the State.” (And by the late amendments, “in criminal causes” also.) * * * * * “The Supreme Court and the judges thereof shall have-power to issue the writ of habeas corpus; and under such regulations as may be prescribed by law may issue the writ of mandamus, and such other writs as may be necessary to enforce its own jurisdiction.” * * *
“ Sec. 7. The District Court shall have original juris*660diction of all criminal cases; * * "f and of all suits, complaints, and pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at, or amount to, one hundred dollars, exclusive of interest; and the said courts, and the judges thereof, shall have power to issue the writ of habeas corpus, and all other writs necessary to enforce their own jurisdiction and to give them a general superintendence and control over inferior tribunals.”
It is to be noticed that in the above section conferring jurisdiction upon the Supreme Court there is given the power to issue the writ of mandamus, which is not expressed in the section defining the jurisdiction of the District Court. The use and purpose for which the writ of mandamus was permitted to be issued by the Supreme Court and the judges thereof, as well as the connection in which it is found, with “such other writs as may be necessary to enforce its own jurisdiction,” rebuts the conclusion that it was designed by the fact of naming that writ to confer on that court and the judges thereof any transcendent power of government over and above that which had been conferred upon them as a portion of the judicial department. Had it been so intended, the exception in their favor of the exercise of a power not judicial in its character should have been indicated as “ expressly permitted,” as it was provided it should be in the 2d Article of the Constitution, and should not have been left to be deduced by implication and inference from the use of the word mandamus, so connected in the sentence in which it is used as to militate against any such intention. Much less could any such intention be presumed in reference to the powers conferred on the District Court by the Constitution in defining its jurisdiction. (McIntire v. Wood, 7 Cranch, 504; Graham v. Norton, 15 Wall., 427.) In other words, we find nothing here that consti*661tutes an exception in favor of the judicial department in the general division and distribution of the powers of the government. No other part of the Constitution expressly permits any portion of the judicial department to exercise the powers confided to the heads of the executive department, or to cause them to perform their executive powers, or to receive, entertain, and decide an appeal from their determinations, made in the official performance of their executive duties.
It follows from these principles that the executive has no power to order the courts to render their judgments in a particular way, nor have the courts any power to order the executive to perform his official functions done in the discharge of his executive powers and duties in any particular way contrary to his own determination on the law and facts involved therein. For if they can, they are in effect exercising the powers confided by the Constitution to the executive, on the principle of the rule of universal application — which cannot be evaded by indirections— that what one does by or through another, he does himself ; and even stronger still, what one forces another to do against his will, he does himself, and is generally alone responsible for it.
The views here announced may not in the main be contested as to the executive duties to be performed by the chief magistrate — the Governor of the State. But it is denied that they apply in the same degree to the several heads of the executive department, and particularly to the Commissioner of the General Land Office.
This is contended for on the grounds that the enumeration of the Commissioner as one of the officers of the executive department is merely formal, that he performs the same duties and is subject to the same control of the courts by the writ of mandamus as he was formerly when his office was created and his duties prescribed by the acts of the Legislature and by the laws generally, and *662that the District Court at the seat of government, under the constitution and laws of the State, including the English Common Law, adopted in 1840, and now in force (except so far as it is not inconsistent with our Constitution and statutes), is authorized to issue to him a mandamus requiring him to issue a patent, upon his refusal, when it shall be established in court, upon a trial of the cause, that according to the facts and law applicable thereto he ought to issue it.
This induces a retrospect into the state of the law and decisions in this State upon the subject of mandamus.
The Constitution of 1845 as well as those subsequently adopted contain substantially the same provisions in reference to the jurisdiction of the courts as that of 1869, previously quoted. They contained the same division of the powers of government into three distinct departments, vested in the Governor alone the executive powers oE the government, and provided for a General Land Office, but the Commissioner was not mentioned, nor were his office or duties prescribed.
By the act of the Legislature the jurisdiction of the District Court was defined by reiterating in substance the powers conferred in the Constitution, to which was added, “and generally to do and perform all other acts pertaining to courts of general jurisdiction.” It was also provided in the same act that “The judges of the District Courts and each of them, 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 according to law; provided, that no mandamus shall be granted on an ex parte hearing, and any peremptory mandamus granted without notice shall be deemed void; and further provided, that all writs of mandamus sued out against the heads of any of the departments or bureaus of government shall be *663returnable before the District Court of the county in which the seat of government may be.” (Paschal’s Digest, Articles 1405, 1407.)
These are the only laws and statutes in force in the State of Texas relating to the writ of mandamus, and which alone have been in force since they were enacted in 1846, except the common law as applicable thereto. The adoption of the common law of England in 1840, and its continuance in operation to the present time, does not bring with it and make of force in this State the English statutes extending from 9 Anne to 6 and 7 Victoria, as late as 1843; nor the rules of practice under them in the English courts, by which the proceedings under the writ of mandamus have to a large extent been assimilated to though not made regularly in all respects a personal action. (Tapping on Mandamus, marginal page, 439-454; Id., 282, marginal page and following, as to proceedings under, etc.) Under this state of the law, the question was presented to the Supreme Court in 1849 of the right of the court to award the writ of mandamus against the Commissioner in a cage involving the full exercise of his official judgment upon the facts and law relating to the issuing of a patent upon certificates located and surveyed upon the land. The court decided in favor of the right of the court to entertain jurisdiction of the case as a proper one for the writ, but decided against the issuance of a peremptory mandamus upon the merits of the case. (Commissioner v. Smith, 5 Texas, 471.)
The court in that case say: “ The first question here presented can scarcely be' considered now as an open question. The practice of resorting to this proceeding against this officer and to enforce the performance of this particular duty is believed to have had its origin almost as early as the creation of the office itself, and to have been continued without a question as to its legality down to the present time.” (2 Texas, 581.) But the right to *664this remedy in a case like the present rests upon other authority than the practice of courts. By a statute of the Congress of the Republic, approved January 25, 1841 (5 Statutes, 84, Sec. 9), it is enacted that “all writs of mandamus sued out against the heads of any of the departments or bureaus of the government shall be made returnable before the District Court at the seat of government.” It is well known that this statute was adopted in consequence of a practice then prevailing of calling upon the Commissioner of the General Land Office, by process from the courts of remote counties, to show cause against the issuing of this writ in cases like the present in such distant counties. This act certainly recognizes the right to obtain the writ at the seat of government. It must moreover be regarded as a legislative recognition of the legality of the practice then existing of employing this writ as a private remedy, for it was its use as such •which the Legislature undertook to regulate. The use of the writ as a private remedy seems to be comformable to modern practice. A part of the same section in the act of 1841 provided that “the several judges of this Republic in issuing writs of mandamus are hereby directed to observe the rules which govern writs of mandamus at common law as modified by the statutes of this Republic.” And by this same section it was declared that the Rules of Practice adopted by the Supreme Court in 1840, authorizing ajperemptory mandamus before notice, was contrary to law. (See Acts 3d Cong., p. 84; and for Rules see 1 Texas, 852.)
There was then no additional statute relating to mandamus except that defining the jurisdiction of the District Court, by which the judges were given the right “ to grant the writs of habeas corpus, mandamus, injunctions, supersedeas, and all other remedial writs known to the law.” (Laws 1st Cong., p. 200, Sec. 4, approved December 22, 1836.)
*665The two cases decided by this court, in which the peremptory writ was granted against the Commissioner, previous to the opinion in 1849 above quoted, were Horton v. Brown, 3 Texas, 78, and Ward, Commissioner, v. Townsend, 3 Texas, 581, decided in 1847; the first of which was a suit between two litigants in relation to the right to land, commenced in 1839, in the county of Bastrop, and the writ to the Commissioner was incidental to the suit, and awarded upon a reversal and reform of the judgment below. The decision was made by two judges alone, and one of them a special judge. In the second there was no statement of facts, and the rule was therein adopted that in the absence of a statement of facts “the legal intendment is in favor of the judgment.” In neither of these two cases was the right to the writ argued by the attorneys or discussed by the court. The two cases in Dallam’s Digest have no reference to the Commissioner of the General Land Office.
Having brought to view the previous laws and decisions ■of this State that were referred to and were in contemplation of the court in making the decision in the case of Commissioner of General Land Office v. Smith, in 1849 (5 Texas, 471), it may be well to make another reference to the opinion, so that the legal principles there laid down and afterwards followed in one and announced in several, as to the Commissioner, may be fully and certainly understood. After announcing the' rule extracted from the decisions of the Supreme Court of the United States, that a mandamus will issue to an officer of the government only when the duty to be performed is ministerial in its character, and not when the performance of the duty requires judgment and discretion, the learned justice conveys his own view of “the distinction between ministerial and judicial and other official acts.” As authority for which he cites 13 Peters, 534, 609; 14 Peters, 497; 7 Cr. R., 504; 6. Wheat., 598; 6 How. R., 92, 100, *666101, -102; B. L. Com. v. Bell, Dallam, 366; Monthly Law B., N. S., Yol. 1, No. 9, p. 399.
To illustrate his view of the distinction still more-clearly he proceeded to say in the same connection: “There are various duties assigned by law to the Commissioner of the General Land Office to be performed before the patent can issue. He must pass upon the validity of the certificate and the survey; he must determine whether both are of such a character as, under the law, to-entitle the party to a patent; he must also determine whether the land sought to be conveyed was vacant when located, or was appropriated by any previous claim which he is required by law to respect. When these and such other questions as may address themselves to the Commissioner, under the laws prescribing his official duties, shall have been resolved in favor of the applicant, his right to his patent is clear and indisputable. The issuing' of the patent then becomes a mere ministerial act, involv - ing no exercise of judgment, and one which the Commissioner has no discretion to refuse. To withhold it would be the violation of a vested right.”
Further on, he says : “We conclude that a mandamus may issue to compel the Commissioner of the General Land Office to issue a patent when it shall have been made to appear to the court that the right of the party is clear, and that it has been refused by the Commissioner.” (5 Texas, 479, 480.)
Here is presented a supposed case of the most common occurrence, and of the highest order of the exercise of official duties, involving questions of law and fact at every step of the investigation, for the determination of which it is often required that all of his powers of judgment and discretion must be put forth to perform his duty. '
It Is just such a cáse as the one we now have before us of Kuechlerv. Wright. In all the other cases against the *667Commissioner the same doctrine is practically held, notwithstanding but one other case has been found since that" opinion was delivered wherein the peremptory writ was adjudged to be ordered. (H. & G. N. R. R. Co. v. Kuechler.) In that case both law and fact were required to be judged of iu the discharge of his official duty, and it could not have been decided with any reference to whether or not the act required to be performed was a ministerial act, in contradistinction to one requiring the exercise of judgment, as that distinction is drawn in the-decisions of the Supreme Court of the United States, but' simply followed in the track of the former decisions made in this court before the adoption of the Constitution of 1869, which made the Commissioner one of the constitutional heads of the executive department. There has never been a judgment rendered by the Supreme Court of Texas awarding a writ of mandamus against the Governor, the Attorney-General, the Secretary of State, Comptroller of Public Accounts, Treasurer, or against the Auditorial Board, and only three against the Com- - missioner of the General Land Office.
In view of all the matters here presented, what is the legitimate conclusion to be drawn from the opinion of' Justice Wheeler in Commissioner General Land Office v. Smith, 3 Texas, which has been frequently announced and followed in one case against the Commissioner since it was delivered ? The answer seems inevitable that he • was regarded by the court as a mere ministerial officer, whose office was created and whose duties were prescribed by the acts of the Legislature, whose office was a sort of bureau or mere commission of inferior grade, whose acts were neither directed by nor could take shelter under the executive department. The distinguished counsel (Volney E. Howard) who argued against the mandamus seems to-have taken it for granted in his brief that the Commissioner was then a ministerial officer. (3 Texas, 477.)
*668Indeed if the case supposed by Justice Wheeler in his -opinion, involving as it does the whole range of facts and •law as does now the case before us of Kuechler v. Wright, is a case wherein he is required to perform a ministerial act only, then it must of necessity follow that he then performed no other than ministerial acts. For he performs none other more complex, more difficult, or of a character to require more official information and the exercise of more discretion and judgment than in the supposed case. The statutes of 1841 and 1846, recognizing the right of the District Court at the seat of government to issue the writ of mandamus against the heads of departments and bureaus, can surely not be construed to authorize the use of the writ to review and revise, as if upon appeal, all the proceedings of the heads of the executive department, or to confer the power as to them further than to ministerial acts.
It is of the first importance that this matter should be thouroughly understood as a-starting point to the further consideration of whether or not a mandamus can be sustained against the Commissioner under the facts of this case, now that he has been made a constituent portion (by designation) of the executive department in the government of the State of Texas; and it is for that reason that pains have been taken in this opinion to bring out and present to view everything by which an intelligent conclusion could be arrived at from the matters so presented.
■ We are admonished that it is of very great importance in another point of view when we turn to the late decision ■of the Supreme Court of the United States in the case of Davis v. Gray, wherein the court sustain an injunction against the Governor and Commissioner of the General Land Office restraining them from issuing patents to certain lands claimed as reserved to the Memphis, El Paso and Pacific Railroad Company, in which it is said, in .reference to suits wherein the State is interested through *669its officers, as in this case now before ns: “ According to-the jurisprudence of Texas, suits of this character can be maintained against the public officers who appropriately represent her touching the interests involved in the-controversy. In the application of this principle there is no difference between the Governor of the State and the officers of a State of lower grades. In this respect they are upon a footing of equality. A party by going into a national court does not lose any right or appropriate-remedy of which he might have availed himself in the-State courts of the same locality. The wise policy of the Constitution gives him a choice of tribunals. In the former he may hope to escape the local influences which sometimes disturb the even flow of justice. And in the-regular course of procedure, if the matter be large enough, he may have access to this tribunal as the final arbiter of his rights. Upon the grounds of the jurisprudence of both the United States and of Texas, we hold this bill well brought as regards the defendants” (that is the Governor and Commissioner of the General Land Office of Texas). (16 Wall., 221-2.) That suit was. brought in the Circuit Court of the United States for the-Western District of Texas, since the adoption of the Constitution of 1869, and was decided in the Supreme Court of the United States at the December term, 1873, upon the authority of the cases cited therein, of Texas decisions, to-wit: Ward v. Townsend, 3 Texas, 581; Cohen v. Smith, 3 Id., 51; Commissioner General Land Office v. Smith, 5 Texas, 471; McLelland v. Shaw, 15 Texas, 319; Stewart v. Crosby, Id., 547; H. and G. N. Railroad Company v. Kuechler, 36 Texas, 382.
Every one of these Texas cases (except the last, which-simply follows the others) are based upon the principles-announced in the case of Commissioner v. Smith, as before shown, and, as it is believed, cannot be placed upon any other principle than that the Commissioner was a *670ministerial officer, and was not then regarded or treated by ’the courts of Texas in passing upon his acts as one of the ■heads of the executive department of the State of-Texas.
It might be appropriate in reference to the case now before us to see in what light the Commissioner of the General Land Office of the United States is regarded by ‘the Supreme Court of the United States.
It was decided by the Supreme Court of the United States that a writ of mandamus would not issue to the Commissioner of the General Land Office in a case involv'ing the exercise of judgment upon a complication of facts, or, to use the language of the court, which “calls for the exercise of the judicial functions of the officer,” and it is added, in reference to whether a writ would lie against him at all, “ we have found no case in which this ■power has been exercised.” (5 Wall., 565, U. S. v. Comr.)
The case of Gaines v. Thompson was an injunction against the Secretary of the Interior and Commissioner of the General Land Office to restrain them from canceling an entry under which lands were claimed. In denying the right to the injunction, which was regarded as being analogous in principle to mandamtis (as was done in the case of Davis v. Gray, above quoted), the court say: “A ministerial duty, the performance of which may in proper cases be required of the head of a department by judicial process, is one in which nothing is left to discretion.”
“The action of the officers of the land department with which we are asked to interfere in this case is clearly not of this character. The validity of plaintiff’s entry which is involved in their discretion is a question which .requires the careful consideration and construction of more than one act of Congress. * * * * It is far - from being a ministerial act under any definition given i by-this court.” (7 Wall., 353.)
*671The same opinion, quoting and applying to that case with approbation a part of the opinion of Chief Justice Taney in the case of Decatur v. Paulding, 14 Peters, 497, says: “ The court could not entertain an appeal from the decision of one of the secretaries, nor revise his judgment in any case where the law authorized him to exercise judgment or discretion. IsTor can it hj mandamus act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care. * * * The interference of the courts with the performance of the ordinary duties of the executive department would be productive of nothing but mischief, and we are quite satisfied that such a power was never intended to be given to them.” (7 Wall., 352.) What is here said may be applied with equal or greater force to the case before us: that a careful consideration and construction of more than one law has to be made by the Commissioner; that it requires judgment and discretion both as to the law and to the facts; that a mandamus sustained would be the act of the court in guiding and directing his judgment or discretion in the ordinary exercise of his official duties ; and that it would in effect be entertaining and passing upon an appeal in a regular trial de novo from his determination — as much so, indeed, as an ordinary appeal or certiorari from a justice’s court to a District Court. (Decatur v. Paulding, 14 Peters, 515.)
A mandamus cannot be made to perform the functions of a writ of error, nor be made to subserve the purpose of deciding a legal question merely as devised and obviously intended in this case. (Commissioner of Patents v. Whitley, 4 Wal., 534, 523; Tapping on Mandamus, 68.)
“ When the duty is not strictly ministerial, but involves discretion and judgment, like the general doings of a head of a department, as was the respondent here, and as was *672the case here, no mandamus, lies.” (Reeside v. Walker, 11 Howard R., 290.)
A third and still later case may be referred to, which, if possible, still more strongly enforces the doctrine that the Commissioner of the General Land Office cannot be required by mandamus to issue a patent to land. It is the case .of the Secretary of the Interior v. McGarrahan, 9 Wall., 312, 314, in which it is held that “though mandamus may sometimes lie against an executive officer to compel him to perform a mere ministerial act required of him by law, yet such an officer to whom public duties are confided by law is not subject to the control of the courts, in the exercise of the judgment and discretion which the law reposes in Mm as part of his official functions.” After referring to the case of Kendall v. The United States, 12 Peters, 608, in which it had been decided that a writ of mandamus could be issued to enforce the performance of a purely ministerial act by one of the heads of the executive department, the opinion proceeds to say: “Subsequent decisions of this court have affirmed the same principle. But in all of the subsequent cases the principle is strictly limited to the enforcement of mere ministerial acts, not involving the necessity of taking proofs, and it has never been extended to cases where controverted matters were to be judicially heard and decided by the officer to whom the writ is required to be addressed.” As authority for these principles there is cited Decatur v. Paulding, 14 Peters, 497; Brashear v. Mason, 6 Howard, 99; Gaines v. Thompson, 7 Wall., 353; Reeside v. Walker, 11 Howard, 289; United States v. Seaman, 17 Howard, 230; United States v. Guthrie, 17 Howard, 304; Commissioner of Patents v. Whitley, 4 Wall.; United States v. Commissioner, 5 Wall., 563.
To apply the principle established by such an unbroken line of authorities to the case then under consideration, the opinion proceeds: “Patents for land are re*673quired to be signed by the President in person, or in his name by a secretary under his direction, and they are to be countersigned by the recorder of the General Land Office.” (4 Statutes at Large, 663; 5 Id., 417; see also the statute of Texas previously quoted, requiring patents to land to be signed by the Governor and countersigned by the Commissioner of the General Land Office.) “Such patents cannot be issued and delivered to any party without the signature of the President, and no proceeding to compel either the Commissioner of the General Land Office or the Secretary of the Interior to issue such patents can be sustained while that provision of law remains unrepealed.” (The Secretary v. McGarrahan, 9 Wall., 314; citing United States v. Land Commissioner, 5 Wall., 563.) Ko subsequent decision of the Supreme Court of- the United States has changed or varied this ruling, and therefore it would be useless to attempt to add any other authority to the overwhelming weight already piled up perhaps superfluously.
These decisions of the Supreme Court of the United States positively deciding against the right of the courts to coerce the issuing of a patent by a mandamus to an executive officer were made long after all of the decisions of the Supreme Court of Texas (except that of H. & G. N. R. R. Co. v. Kuechler, in 36 Texas) in relation to the rights of the courts to issue a mandamus against the Commissioner of the General Land Office to issue a patent for lands, having all been rendered since 1866.
It might be well to notice that the very authorities cited in the Texas decisions to warrant the mandamus against our Commissioner of the General Land Office are the same as those cited by the Supreme Court of the United States to warrant their refusal of it against their Commissioner; and still our decisions are cited by that court to warrant the writ even against the Governor, when such a ruling had never been made by our court as to the *674Governor or the heads of departments, but only against the Commissioner, treated as a ministerial officer.
¿Now in view of -these decisions, can it be said with any propriety that in law, or by any mode of constitutional construction of the powers of government, the Commissioner of the General Land Office of the United States, whose office is created and whose duties are prescribed by-acts of Congress, occupies a different and higher position in the executive department of the general government than that occupied by the Commissioner of the General Land Office of the State -of Texas towards the executive .department of the State of Texas since the adoption of the Constitution of 1869, in which he is expressly named as one of the executive officers? Is he still to be treated by the courts as a mere ministerial officer, all of whose official functions of the highest and most complex character can be controlled by the courts of this State ? He is as independent in his position as the Governor is, and has a separate line of duty as plainly marked out. His department is equally important with any others. He has the highest title to office that it is possible to confer in this country — by a designation in one of the three departments in the Constitution and by an election .by the qualified voters of the whole State. Authorities might be cited to show the view of other courts as to the necessary effect .of an. officer deriving his authority :by designation from the Constitution. (One only as a sample, The People v. The Canal Board, 13 Barbour, N. Y. R., 438.) But why call in aid to confirm that which the Constitution itself positively affirms ? So far from this change being made without a purpose by the framers of the Constitution, it is in accordance with the settled tendency, that has been growing and increasing its manifestations in public acts for the last half century, to lessen the direct power and influence of the chief executive ,by securing the independence of the heads.of *675departments. All public history attests the fact that constitutions, laws, and decisions of courts, and the construction of all of them, are progressive, as public events arouse to action great minds in impressing and infusing their views into them. Two such events did "occur forty years ago or over in the public history of this country,. which excited an universal interest and great conflict of. opinion as to what were and what should be the relations between the different departments of republican government. It was an undeveloped issue which had been long forming that then blazed forth. One of them resulted in fixing strongly in public sentiment the doctrine that the courts have a controlling power to a certain scarcely definable extent over the executive department, or some of its officers, and that the decisions of the courts of last resort constitute the law binding on the other departments. This has borne all along many fruits in most, if not all, of the States, and lately some very bitter fruits in a few of them. (See Durell case in Louisiana, and cases in Arkansas and Texas not yet reported, wherein civil war was the result in two, and nearly reached in the third State.)
The other event referred to was made the means of exciting a serious apprehension of danger from uniting “the sword and the purse” in the hands of the chief executive, which resulted in the effort to secure the independence of the different departments, as far as practicable, from the direct control of and discretionary removal by the chief executive. This has continually manifested itself ever since in the constitutions of many of the States, whose constitutions have been formed or amended since that time, by naming the several heads of departments with the chief executive. (See Constitutions, of New York, 1846; Maryland, 1851; Virginia, 1851; Kentucky, 1850; Ohio, 1851; Indiana, 1851; Florida, 1838; Arkansas, 1836; Iowa, 1846; Calafornia,-.) Whereas *676many of the older constitutions are conformable in this respect, with some variations, to the Constitution of the United States.
This sentiment culminated in the passage of the “Tenure of Office Bill” (as it is called) by the Congress of the United States, very shortly after which this Constitution was framed and adopted in Texas in 1869. It would, be a very unwarrantable presumption to conclude that the framers of this instrument did not appreciate and act upon this pervading sentiment when they have in a manner so unusual and so pointedly declared that “the executive department of the State shall consist of a chief magistrate, who-shall be styled the Governor, a Lieutenant .Governor, Secretary of State, Comptroller of Public Accounts, Treasurer, Commissioner of the General Land Office, Attorney-General and. Superintendent of Public Instruction,” and then devoted a separate section to each one, defining distinctly his position and duties in the executive department of the government..
To be required to say that this Constitution does ■ not make for this State a divided executive department, with the several heads thereof independent of the others, and still each one in his own sphere of duty vested with a constituent portion of the supreme executive powers of the State by force of a line of decisions of this court made under a Constitution that did not do this as to the Commissioner of the General Land Office,. and contrary to the decisions of the Supreme Court of the United States, wherein the Commissioner, of the General Land Office, created by statute, is treated as one of the executive departments by reason of his connection with the President in the discharge of his official duties, would be, as it is respectfully submitted, to place the authority of preyious precedents aboye the Constitution, and, in effect, to adopt a doctrine similar to that of Lord Coke as declared-in Doctor Bonham! s case, while Chief Justice *677of the King’s Bench, “'that the common law doth control acts of parliament, and adjudges them void when against common right and reason.” (1 Kent. Com., marg. p. 448, 8 co. 118).
With the evils of such a system of divided executive department we have nothing to do as a court. Some of them were alluded to long since in a decision of this court delivered by me. (The State v. The Southern Pacific Railroad Company, 24 Texas.) Bishop, whose philosophic explorations into and expositions of the science of the law has placed the bench and bar under many obligations, has suggested some appropriate rules by which to determine the weight of authority.
“ 1. Whatever may be the language of the judges, the decision, as a precedent in the strict sense binding in future causes, extends no further than the facts involved in the case as appearing in the record.
“2. It is not binding as to any matter to which the mind of the court did not advert, even though within the record.
“ 3: It is not binding as to any point not necessary to be passed upon in order to decide the cause.
“4. As to the reasons given by the judges in passing upon the questions necessarily involved in the cause, and strictly within the record, these are in a qualified sense to be regarded as the law of the case, but they are not absolutely so.” (Bishop’s First Book of the Law, 394.)
These rules may deserve consideration in reference to what follows, without being repeated, as well as to that which has already been exhibited in this opinion.
Under the state of the law and of the constitutions, and the material change of the Constitution in reference to the Commissioner’s position in the executive department, as have now been brought to view, together with the former decisions of this court in relation thereto, the conclusion, it seems to me, is inevitable, that he stands *678in that department as the equal of the Governor and of the other high executive officers, and independent of them in his own sphere of action; and that if the statute of this State did authorize the courts to pass upon and revise all of his official conduct, treating him as only a ministerial officer when those decisions were made, the Constitution has lifted him from that inferior station, and that now his official acts requiring judgment and discrelion can no more be directed or controlled by the courts than those of the other heads of the executive department.
There are other considerations rising above the mere critical construction of words in laws and constitutions, and pertaining to the history and intrinsic nature of the thing itself, that fixes beyond the possibility of a doubt that the issuing of a patent to land is a high official function done exclusively in the exercise of the executive department of the government. In past time, when the-sovereign was the owner of the vacant domain, his grant was an absolute investiture of title, as in case of William Penn and Lord Baltimore. When republican governments were formed in America, the unappropriated vacant lands belonged to the people of the States as bodies politic, and afterwards much of it to the government of the United States. Universally, at least without any known exception, such lands have been granted under provisions of the constitutions and laws devised for the purpose, through the executive head of the government, State or Federal, aided by such officers as might be associated with or placed under him in the executive department.
Again, there is such a thing in legal science, as well as in natural philosophy, as that of fixing the position and class of an object in a system by the nature, qualities, and attributes of the the thing itself. By such a process of examination there is no escape from the conclusion *679that the act of issuing a patent is the exercise of an executive function. The instrument upon its face bears the indelible impress of an executive agency, acting for the body politic organized — the State. Like most executive acts, it only imports in legal effect prima facia right, which may be inquired into, not having the conclusive force of a law passed or a judgment rendered. It neither concludes the State nor individuals when issued under a defect of right and to the prejudice of prior vested rights. (Smith v. Power, 2 Texas, 72; Tapping on Mand., 440.)
If this judgment had been rendered in favor of Wright, and the patent had issued under it, it would not have vested in Wright any higher title by virtue of the judgment than if it had issued without the mandamus. The State is no party to the suit, nor are other individuals who may have an interest. It is a matter simply between Wright and the Commissioner. The Commissioner does not own the land, and a judgment against him for Wright recovers nothing but a writ — a writ to force an executive officer to perform an executive act in the usual course of his official business. Tapping, speaking of the effect of sucha judgment in a similar matter, says, “It neither gives a right nor concludes one; it confers no title per se, but merely a legal capacity to assert one,” etc. (440.) If Kuechler dies or gets out of office before the writ is executed, the judgment is dead also. (United States v. Boutwell, 17 Wall., 609; Secretary of the Interior v. McGarrahan, 9 Wall., 313.)
It has more the attributes and qualities of an investigation for contempt of court than of a personal action at law to recover a private right withheld by an officer.
The issuing of a patent may be shown not to be a ministerial act by presenting as nearly as practicable what has been regarded as a ministerial act by the Supreme Court of the United States, by which the difference may be plainly seen.
*680It now therefore remains to be seen whether or not the laws of this State do or may impose a duty upon one of the heads of the executive department to perform any act which may be properly denominated ministerial in its character, in contradistinction to an ordinary official executive duty, and which the courts, being of another department of the government, can force him to perform against his will, through the proceeding of mandamus or any other process from the courts; and if so, is it possible that the issuing of a patent by the Commissioner of the General Land Office in a case like the present one of Kuechler v. Wright can possibly be such an act.
The legal mind, not only in this State but-in all of the States, as shown by their decisions, is directed to the decisions of the Supreme Court of the United States as the source of light on that subject, and when they are examined it is found that whatever power the courts have to draw such a distinction between the several acts of an executive officer and to compel the performance of those adjudged to be ministerial is derived from the principles of the common law as applied to our system of government through the power of the courts to issue the writ of mandamus.
It is proposed now to see if in importing the common law across the Atlantic this high prerogative writ of the king or queen of England — “one of the fknvers of the crown ” — has, in the distribution of the powers of government, been placed by the framers of our constitutions in the judicial department in its full proportions and vigor as it existed at common law in the Court of King’s Bench in England. For we have not adopted thet English statutes regulating it as a remedy somewhat analogous to an ordinary action at law requiring a, judgment and allowing a writ of error, all of which did not .exist at common law any more than in a proceeding for contempt of court. (Tapping, 472 to 490; 1 Chitty’s General Practice, 791.)
*681The powers of government in England have been distributed by immemorial- custom and precedent, mutual adjustment and adaptation, without any written Constitution defining the distribution. For the present purpose it is sufficient to say that parliament enacts the laws and the king executes them through the agencies from time to time used for that purpose. The power of the king to execute is commensurate with the power of parliament to enact laws. There is no limitation in the extent of the power to execute, but only in means to be used, which have by degrees fallen into particular agencies and regulated forms. In early times much of this was done directly by orders of the king and his council, some of which are still extant, signed “p ipm Regem t cons.” But he used this means of suspending laws as well as of executing them, and as it grew into disfavor the cabinet or ministers of State, the courts of Chancery and of King’s Bench, enlarge their powers so as to accomplish the same objects in a manner better regulated and with more justice to the subject. Through these three channels the executive power of the government was exercised, except so far as it was entrusted to inferior tribunals, all of whom were in some way under the control and direction of these three high agencies. The Court of King’s Bench, where the king was supposed to preside, as doubtless he did in early times, was not limited to the exercise of merely judicial functions, but by the use of the writ of mandamus (which is the language of royalty itself) could cause “ any person, corporation, or court of judicature” to perform any duty required of them by law. It is said to be founded on Magna Charla, wherein the king had pledged himself that there should be no failure or refusal of justice and right. It was used as " a suppletory means of substantial justice in every case where there is no specific legal remedy for a legal right.” (Tapping, 62.) That is, it filled *682up the vacuum, wherever there was a deficiency in the execution of the laws on account of a right not coming under the regular forms of procedure in some of the courts of law or equity. There could be no need of. issuing the writ to the ministers of State, or to those officers under their direct control and direction, and it was not done because the king could have the laws executed in those executive departments through another channel than a resort to the Bang’s Bench and avoid the necessary confusion consequent upon such an attempt. It does not lie against the king because disobedience must be enforced by attachment. “ ¡Neither will it lie to command the officers- of the crown as such (Tapping, 161), nor against Lords of the Treasury (Id., 315), nor Commissioners of Customs (Id., 164), nor against superior courts. (Id., 161.)
“A peremptory mandamus is not a judicial writ founded on a record, but a mandatory writ which the court of B. R. issues when it is satisfied of the prosecutor’s right.” (Tapping, 437.) In its exercise there the question of whether or not the act is ministerial is not always the test of the grant of it. “Thus the court will not grant the writ where a matter is left to the discretion of an individual or body of men, which discretion has been exercised, and no ground appears that it has been done wrongfully.” “Where a discretion is given, by it is understood a sound discretion, for the Court of B. R. has power to and will redress things otherwise done.”' It must be a public duty, the performance of which is enforced, for where it is private other remedies are adequate. (Id., 64-5.)
It was not for the want of power that the writ- was not issued in many cases where it wag, refused, being discretionary and not a writ of right, because of a respect for other tribunals, or because it would produce conflict and confusion in the execution of the law. Still it is evident *683that the power was and still is exercised over a great many subjects that might not readily be considered strictly judicial, and it was exercised by virtue of the guardianship and control.of the crown over all public institutions, tribunals, officers, corporate bodies, and corporations within the kingdom, as a royal prerogative never yet surrendered. What would be thought in this country of a writ of mandamus issued by the District Court to compel a railroad company to proceed in making its road, or to the trustees of a graveyard to admit a citizen to be buried in a public burial ground, or of the judge of the Travis County District Court taking a personal view of a steam planing shop in the city of Austin, and upon his own disgust at the noise, smoke, and handling of plank on the sidewalk, should issue a writ of mandamus to abate or suppress it as a public nuisance ? Yet such are the extraordinary powers that the Court of King’s Bench can and does exercise by authority of the common law in England. (Tapping, 293, 108, 220.)
The matters to which special attention is invited are, that this great power of the Court of King’s Bench was largely executive in its character, and, as claimed with apparent pride by some of the judges, was exercised by that court in virtue of the king’s prerogative to execute the laws in cases not falling within their judicial functions, and yet they did not issue the writ to the king’s ministers, or to their subordinate officers. The powers of government were not divided as here into three distinct bodies of magistracy, but as to the persons exercising power there was a peculiar admixture in the exercise of their powers. The fact that the House of Peers constituted the High Court of Appeals, and not the king himself, tended to establish an independent judiciary, as far as practicable, consistent with its appointment by the crown, which, having been long fostered by the greatest-talents of the country, suggested the idea which was *684incorporated in American constitutions in the creation of ■a separate and independent department styled the judicial department, to be co-ordinate with the legislative and -executive departments. In doing so, the question may now be asked, to which department was this extra-judicial portion of this high prerogative power of the Court of King’s Bench confided ? Although there seems not to have been any express separation and reappropriation -of that power as exercised by the Court of King’s Bench, the failure to do which has continually produced and still produces perplexity and uncertainty in adjudications in relation to them, still it is surely safe to say that that portion of the power of the crown which was entirely •executive in its character, that was exercised by his ministers of State, was given certainly and exclusively to the ■chief executive and to such officers as might be associated with him in the executive department of the government. If this be correct, the conclusion would inevitably follow that our courts, to whom have been confided only judicial powers, cannot compel the heads of the. executive department to perform any of their executive functions.
The practice of the government of the United States for over three-fourths of a century is the highest authority that could be adduced in favor of that position. During all that time the President, made by the Constitution the chief executive of the government, has controlled the heads of the executive ■ department provided ■for his aid by laws of Congress, in the exercise of their •official functions in the execution of the laws, even to the extent of removing some of them to carry out his •construction of law. His judgment and discretion has been the finality — the final determination of last resort' in reference to the rights of individuals arising in and pertaining to that department without the interference or aid •of the courts in ordering and directing as to the manner in which they should be disposed of by any of the heads *685of the executive department, with one solitary exception,, if that can be regarded an exception, which was in the mandamus case of Kendall v. The United States. (12 Peters, 524.)
In that case as well as in the case of Marbury v. Madison, where the writ did not issue only for want of jurisdiction, such interference and control by the courts of the official functions of the heads of the executive department in the exercise of the powers confided to them by the constitution and laws was expressly and most earnestly disclaimed. Chief Justice Marshall says : ' ‘ With respect to the officer to whom it would be directed, it is not wonderful that in such a case as this the assertion by an individual of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should at first view be considered by some as an attempt to intrude into the cabinet and to intermeddle with the prerogatives of the executive. . It is scarcely necessary for.the court to disclaim all pretensions to such a jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment.” (Marbury v. Madison, 1 Cranch 279.) Again in the same case it is said: “By the Constitution of the United States the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his .political character and to his own conscience. To aid him in the performance of these duties he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases their acts are his acts, and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.” Speaking of the Secretary of State, he says in this connection : “This officer by that act (meaning act of Congress) is to- conform exactly to the will of the *686President. He is the mere organ by which that will is ■communicated. The acts of such an officer, as an officer, can never be examinable by courts.” (Id., 277.) The opinion proceeds to argue that the commission had been -completed by signing and sealing, after which no further official act was necessary ; the right was vested, the paper was the evidence of his right, the delivery of it was a personal act. To enforce that act the writ would lie. But how does the learned Chief Justice show that the Secretary of State was a person to whom the writ could ■be directed ? He could not do that from the common law -of England, upon which the general right to the writ as a ¡remedy was based. No precedent in England or America was cited for it, nor, as is it believed, could it have.been •cited.
He informs us himself as to this, which may here be ¡seen. He says : ‘ ‘ The act to establish the judicial courts •of the United States authorizes the Supreme Court of the United States to issue the writs of mandamus in cases warranted by the principles and usages of law to any courts appointed, or persons holding office under the .authority of the United States. * * * The Secretary of State being a person holding an office under the authority of the United States, is precisely within the letter of the description,” etc. (Id., 281.)
The only point really decided in that case was that that very law was unconstitutional on account of its attempt to confer original jurisdiction on the Supreme •Court.
The case of Kendall v. United States came up on appeal about thirty-five years afterwards, and in its decision: this matter of basing the right to issue the writ on this ¡unconstitutional statute does not seem to have been noticed at all.
In the case of Kendall v. United States, where the •writ was issued to compel an allowance of a “ credit,” *687the court say : “We do not think the proceedings in this case interfere in any respect whatever with the rights or duties of the executive, or that it involves any conflict of powers between the executive and judicial departments of the government. The mandamus does not seek to direct or control the Postmaster-General in the discharge of any official duty partaking in any respect of an executive character, but to enforce the performance of a ministerial act, which neither he nor the President had any authority to deny or control.” But suppose that the President had assumed the authority to order the Postmaster-General not to enter the “credit,” and the court had ordered (mandamus) him to enter the “credit,” which ought he to have obeyed, the President or the court? It is unfortunate that such a question is not directly presented and solved in the opinions in either of the two cases. President Van Buren, though applied to in that case, would not “commit” himself by ordering the Postmaster-General to give the credit or not to give it, and therefore the issue was not made, and that question remains still undecided up to the present day by any direct decision of the Supreme Court of the United States. The first opinion (in Marbury v. Madison) does not name the act to be enforced by the court, but says it is not an executive act. The second opinion (in Kendall v. United States) styles the act to be enforced by the court a ministerial act. A case where the question is again fully discussed (United States v. Guthrie, 17 Howard) in the opinion, the acts that can be enforced are described to be “acts rather extraneous, and required rather of the individual than of the functionary.” In the late case of United States v. Boutwell, 17 Wallace, 609, it is held to be an act so attaching to the person, and not to the office, that upon the resignation of the officer against whom the writ issued the suit abates and is dismissed. See also Secretary of the Interior v. McGarrahan, 9 Wallace, 313; *688Reese v. City of Waterton (not reported), October Term, 1873.
The origin and source of this distinction as to ministerial acts and other acts of an executive official character, as specially applied to the heads of the executive department and derivable from the principles of the common law, have been sought for in vain.
It may, however, be deduced from these cases in the Supreme Court of the United States that an executive official act of one of the heads of the executive department is an act performed by him in the exercise of the executive powers of the government confided to him by the Constitution and laws.
What is called a ministerial act of one of such officers, in contradistinction to an executive official act, is a personal act devolved by law on him as an individual and not as an officer, by reason of his being the person who happens to hold that office at the time the act is required of him.
It is said in those leading decisions that this ministerial act is one which the President has no authority to forbid to be done, and which the law imposes directly upon the officer and which makes him ‘‘ the officer of the law.” (Marbury v. Madison, 1 Cranch, 277.) The act, according to this, is an act of an executive officer, which is still not an executive act, but is an act of an executive officer — that is, an act of an officer of the law.
“An officer of the law” is a designation unknown to our Constitution. In a large sense all of our officers are officers of the law, and are bound to obey it. But that does not in the least degree indicate who it is, or what tribunal it is, that is to bind them, to order them, to coerce them to obey the laws. That at last depends necessarily upon what department of the government they belong to in our constitutional division of the powers of government.
*689Authorities from other States have not been cited or discussed, because they are conflicting, and their decisions have often been made with divided courts like those in the Supreme Court of the United States; farther, because they are all streams from the same fountain, to-wit, the decisions of the Supreme Court of the United States.
Now it would seem to be very obvious that this act that is denominated a ministerial act, which has called into requisition all the powers of speech of the most learned jurists of the last half century to convey a remotely definite idea of it, whatever may be its character, bears not the least resemblance to the executive functions of the Commissioner of the General Land office, necessarily performed by him in such a case as the one now before us, involving at every step questions of law and of fact necessary to the performance of the final act on his part in issuing the patent. I have not stopped to notice his association with the Governor in the performance of this act, which seems to be an additional ground of objection according to the authorities cited in similar cases in the Supreme Court of the United States.
As to what should be our determination should a case arise where the act required to be done bore any reasonable analogy to what is called a ministerial act, then it will require a- serious consideration of how far the weight of authority will control the rigid principle depending upon the constitutional division of the powers of our State government.
If this writ is to be used as a remedy for the assertion of private rights in this State, as to the heads of the executive department, it should be regulated by provisions in the Constitution, and also by statutes, as it is in England.
I have no hesitation in giving it as my own opinion now that the court should on such issue be governed by and follow the logical deduction to be plainly drawn *690from the division of the powers of government between the distinct departments in the Constitution of the State.
Bach department should be made to rely upon its own wisdom and judgment in the exercise of all the powers confided to it by the Constitution, independent of the control of the others, pending the performance of its official functions, and should be solely responsible for its own action, and that thereby the final separate independent action of each would operate as a check upon the excess of power that might be assumed by the others.
The judicial department is not that power to which has been confided the high trust, by any such interference in the official conduct of the others, to regulate the harmonious action in the machinery of our State government.
Such regulating power is only found, and in a republican government should only be found, in the direct representatives of the people of Texas — in the Senate and House of Representatives of the Legislature, by the action of two-thirds of whom, through the power of “address and impeachment,” the Governor and other heads of the executive department, and the judges of the courts and other officers, may be removed whenever their conduct may make it necessary, in order to prevent jarring conflicts, and to secure a good government for the protection of the rights and liberties of the people of the State.
The authority for the exercise of this power, assumed by the courts to control the conduct of the heads of the executive department, in the isolated and exceptional instance of what is called a ministerial act, however it may have since been extended in many of the States, from a difference of opinion as to what constitutes such an act, is founded on and traceable to the dictum contained in the opinion of the Supreme Court of the United States in 1803, in the case of Marbury v. Madison. It was delivered by Chief Justice Marshall, who is universally regarded, it is believed, as the greatest lawyer America *691lias produced. And that was emphatically a lawyer's opinion.
Why, it may be asked, should the courts continue to follow in the train of a line of decisions that originated in a useless dictum that seeks to make such an infinitesimal exception to a broad general rule, and thereby break down a general principle by a breach that opens the door of intrusion and gives to the intruder the right to determine the extent of his power to intrude through the breach he has himself assumed to make; making an exception the exact limits and boundaries of which the ablest jurists have never been able to convey a definite idea with anything like consistency and uniformity, which is liable at any time to produce internal conflict and confusion, and which has almost continually been adopted with dissent and dissatisfaction?
The circumstances and remarkable juncture of public affairs under which that dictum appeared in the opinion thrust themselves into the estimate of its weight as authority, as no practicable purpose can be found in the opinion itself for so labored an argument to prove what was not necessary to decide the case. As to all that part of the opinion not relating to the appellate jurisdiction of the court (which was the real matter in issue), it is a most ingenious argument, made gratuitously in a judicial decision under the sanction of the highest judicial tribunal of the country, thereby attempting to give to it the sancity of the judicial ermine — unassailable from habitual and traditional respect — to stand in a high place as a perpetual memorial of the assumed outrageous abuse of official authority in the alleged deprivation of a private right of a citizen by the executive department of the government of the United States, then in power.
Mr. Madison, then Secretary of State under President Jefferson, who stood pre-eminent amongst the great men who framed the Constitution, and who maybe supposed to *692have understood its meaning, and to have desired its preservation equally with any one else, treated this effort on the part of the court to interfere with his official conduct with — silence (not to use a stronger term), in not answering to it. Still he was not attached for contempt for not making a return to the writ or otherwise making an answer in court; but instead of that, as it appears from the report of the case, some of the clerks of the secretary’s office were picked up and brought into the court, from whom, it may be presumed, the' facts were established upon which the argument in that part of the opinion was founded. It was surely not necessary to ascertain any fact whatever except the application itself of the relator, Marbury, to ascertain that it was an original suit and not an appeal, upon which fact alone the decision of the case was based and judgment rendered. And I borrow from him the reason why such an opinion so delivered should not be followed as a precedent, which is contained in the same opinion; that .this is, or at least should be made to be, what he says it has been termed, “a government of laws and not of men;” and I will presume to add that it is high time that the judicial idolatry for a name, however great and deserving, by which a dictum of any court has been made the law of the land should begin to cease in this country.
I will close this opinion in the words of Sir William Blackstone, equally eminent for his great learning and for his profound knowledge of the science of law and of government, as fully expressing my own mature convictions as applicable to this and to all such cases, which is that " nothing is more to he avoided in a free constitution than uniting the provinces of a judge and a minister of State.”