dissenting from the order denying a rehearing.
The return to the alternative writ signed by the Governor, the Attorney General and the State Treasurer, in effect avers that the assessment of the railroad property referred to was not .made by the State Comptroller under section 6, Chapter 8584, Acts of 1921, as alleged in the alternative writ, for the reason that said section 6 of Chapter 8584 violates section 16, Art. 3 of the Constitution of Florida, and is therefore void; and it is averred that the assessment was made as required by section 747 Revised General Statutes, 1920, by the State Comptroller,, the Attorney General and the State Treasurer, and that section 7, Chapter 8584, which the writ seeks to enforce, is inoperative because it is applicable only to assessments made pursuant to section 6, Chapter 8584 that respondents consider to be violative of the constitution, leaving section 747 Revised General Statutes the controlling law on the subject. The respondents have not adjudged the statutory provisions to be unconstitutional, but since they consider them unconstitutional, they have acted accordingly and submit the matter to the court for decision.
The court refuses to determine the question presented as to the constitutionality of the statutory provision, and orders a peremptory writ to compel a performance of the function prescribed by section 7, Chapter 8584, upon the theory that it is a mere ministerial duty to be performed *620by .ministerial officers who have no right to question the constitutionality, of the statutory provisions referred to, though such provisions purport to prescribe duties for said officers that are here sought to be enforced to effectuate the main purpose of the enactment.
Under the express provisions of the constitution the Governor, the Attorney General and the State Treasurer are not ministerial officers, but are executive officers. Secs. 1, 6, 12, 17, 20, 22, 24, 27, 28, Art. IV Constitution of Florida; Article II Constitution of Florida.
“A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority without • regard to the exercise of his own judgment upon the propriety of the act being done. ’ ’ American Casualty Insurance & Security Co. v. Fyler, 60 Conn. 448, 22 Atl. Rep. 494, 25 Am. St. Rep. 337; Galey v. Board of Com’rs of Montgomery County, 174 Ind. 181, 91 N. E. Rep. 593; 29 Mich. 320.
Tire-powers and duties purported to be conferred upon the Governor, the Attorney General and the State Treasurer by section 7, Chapter 8584, as'to assessments of railroad property are similar to those stated in section 5 of the act to finally decide matters of valuation in equalizing tax assessments “between counties” as to other property in the several 'counties of the State.
Manifestly the duties referred to in Section 7 are not ministerial in their nature, but are governmental, executive or administrative functions involving power and discretional vast importance to the State and to all tax payers of the State as well as to the relator. See Secs. 1, 2 and .3, Art. IX; Sec 16, Art. XVI, of the Florida Constitution. In the execution of their statutory duties and powers, *621executive officers are bound to take notice of the mandates of the constitution, which their oaths of office require them to “support, protect and defend.” Sec. 2, Art. XVI; Sec. 16, Art. Ill, State Constitution; Marbury v. Madison, 1 Cranch 137, text 180; State ex rel. v. Barnes, 25. Fla. 75.
If executive officers regard a statutory provision prescribing their duties as violative of the constitution, it is their sworn duty to give effect to the constitution. State ex rel. Russell v. Barnes, 25 Fla. 75, 86; Marbury v. Madison, 1 Cranch (U. S.) 137; Bates v. Taylor, 87 Tenn. 319, 11 S. W. Rep. 266, 3 L. R. A. 316.
When the constitutionality of an enactment is duly determined. by the courts, it becomes the duty of all officers to give it due effect. 18 R. C. L. 108. But until it is so determined, executive officers interpret the constitutional and statutory enactments under the advice of the Attorney General in so far as their powers and duties are thereby affected. See Secs. 6 and 22, Art. IV; 12 C. J. 698. An invalid provision in a statute should not be enforced. 70 Fla. 340. A decision as to whether. Sections 6 and 7, Chapter 8584, are constitutionally operative is obviously essential to a proper disposition of this ease. The question is squarely presented by executive officers of the State whose duties are affected by the sections, and a decision is requested by both parties in the interest of orderly governmental procedure of vast importance to the public. The courts “have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat. 264, text 404.
If the courts will not determine the constitutionality of a statutory provision when the question is presented by the governor and other executive officers in proceedings brought against _ such officers to enforce the enactment, *622those officials are left to determine the matter for themselves as it affects their duties, until a judicial determination can be obtained. Courts should not attempt to compel the Governor and other State Executive officers to perform an act that may violate their oaths of office.
Certainly in such a case there is not a clear legal duty to perform and a clear legal right to require performance that may be enforced by mandamus against the Governor, the Attorney General and the Treasurer of the State.
The oaths of office of the executive officers of the State are as binding as are the oaths of office taken by the members of the judiciary.
The pleadings show that by concurring in the valuation put upon the railroad property by the Comptroller, the Attorney General and State Treasurer have already reviewed and approved the assessment in controversy; and the courts have no power to compel the Governor to exercise his judgment in the premises.
“The courts have no power to control the action of the Governor in the discharge of any duty pertaining to his office under the laws of the State. The person of the Governor is subject to the process of the courts only in reference to private acts, and acts not pertaining to executive functions imposed by the Constitution or laws.” State of Florida ex rel. Bisbee, Jr. v. Drew, Governor, 17 Fla. 67.
“The Governor of the State of Florida cannot be-commanded by the courts to perform any act which may be required of him by a law of the State relating to the executive «office, or any duty which he may be required to perform of a political nature, even' though private rights may '.be involved.” State of Florida ex rel. Bisbee, Jr. v. Drew, Governor, 17 Fla. 67, text pages 83 and 84; 12 R. C. L. *623p 1008, sec. 10; 18! R. C. L. 196; 23 L. R. A. 194; 45 L. R. A. (N. S.) 500; 3 L. R. A. 316; 11 L. R. R. 763; 4 L. R. A. 231.
The voluntary appearance of the Governor does not authorize the issuance of a peremptory writ of mandamus to compel him to perform a public governmental act-involving executive or administrative power and discretion, even if the writ may in this case properly be issued against the Attorney General and the State Treasurer. State ex rel. Robb v. Stone, 120 Mo. 428, 25 S. W. Rep. 376, 23 L. R. A. 194, text 198; 18 R. C. L. 198 et seq. and notes; 29 Mich. 320.
In this case a peremptory writ is ordered to be issued to command the Governor, Attorney General and State Treasurer to perform an administrative function of a highly discretionary nature, when the court refuses to determine the validity of the statutory provision upon which the writ is predicated, though by the pleadings in. the case the Governor, Attorney General and State Treasurer on their official responsibility aver the enactment to.be violative of a specified provision of the State constitution, to which constitution judicial as well as executive; officers of the State are subject, all having taken an oattn to obey it. The writ in effect will command the Chief' Executive of the State and two officers of the executive department of the State to execute an enactment whether it be valid or void. No authority for the exercise of this power by the courts is adduced.
West, J., concurs.