(concurring). I am convinced that this proceeding should be dismissed, for the reason that it appears affirmatively upon the face of the application for a peremptory writ of mandamus that the court is without jurisdiction of the subject-matter.
As the founders of the republic rightfully reposed equal confidence in each department of the government,, and assigned to each the performance of specific and independent duties, so the framers of our constitution, enlightened by the experience of centuries, divided the powers of government into three separate and distinct departments, — the legislative, executive and judicial — and prescribed the official duties and functions of each. The legislative power is vested in the senate and house of representatives, the executive power in the governor, and the judicial power in the various courts created or authorized by the constitution. This fundamental conception of a republican form of government has pervaded the schoolhouses of the land and the children have been taught to demonstrate that the entire independence of the three departments of state, each from the influence and control of the other, is sbsolutely essential to the cause of civil liberty. A duty exclusively intrusted to or enjoined upon either department involves the performance of an official act by that department alone, and no other department has lawful authority or inherent power, to characterize the same as ministerial, or lay its coercive hand thereon. Therefore, for constitutional reasons, and from consideration of sound public policy and of urgent political necessity, the strongest current of judicial authority is clearly opposed to the doctrine that mandamus will lie to compel the governor of a *407state to perform an official duty. While cases to the contrary maybe found, relating to so-called “ministerial duties,’’the latest utterances of courts and text writers are to the effect that any assumption of judicial power to direct, control, or coerce, by mandamus, the official conduct of the chief executive of a state, is without color of authority, and a direct encroachment upon the vital principle which separates a government, of which every man is a sovereign, into three great departments, and expressly defines the duties, functions and powers of each.
The authority of the governor to issue officially, and under the great seal of this state, a certificate of election, as prima facie, evidence of the relator’s rights to an office, emanated from the people, and is a matter of universal public concern, which they have expressly committed to the chief executive, to the exclusion of the other two departments of state.' In no essential constitutional particular are the official functions of the governor different from the powers conferred upon the president of the United States, and the following dictum of Chief Justice Marshall in the case of Marbury v. Madison, 1 Cranch, at page 164, remains to this day unquestioned by any well-considered authority: “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. * * * There exists and can exist no power to control that discretion. The subjects are political. They respect the nation, not individual rights; and, being intrusted to the executive, the decision of the executive is conclusive.” Judge Cooley, in opposition to the view that a court has jurisdiction to issue a mandamus to the governor to require the issuance of a certificate, although it materially affected valuable property rights,, and the governor appeared as in this case, and expressed a willingness to abide by the court’s decision, uses the following language: “It has long been a maxim in this country that the legislature cannot dic*408tate to the courts what their judgments shall be, or set aside or alter such judgments after they have been rendered. If it could, constitutional liberty would cease to exist; and if the legislature could, in like manner, override executive action also, the government would become only a despotism under popular forms. * * * The apportionment of power, authority, and duty to the governor is either made by the pepple in the constitution, or by the legislature in making laws under it; and the courts, when the apportionment has been made, would be presumptious if they should assume to declare that a particular duty assigned to the governor is not essentially executive, but is of such inferior grade and. importance as properly to pertain to some inferior office, and consequently, for the purposes of their jurisdiction, the courts may treat it precisely as if an inferior officer had been required to perform it. To do this would be not only to question the wisdom of the constitution or the law, but also to assert a right to make the governor the passive instrument of the judiciary in executing its mandates within the sphere of his own duties. Were the courts to go so far, they would break away from these checks and balances of government which were meant to be checks of co-operation, and not of antagonism or mastery, and would concentrate in their own hands something, at least, of the power which the people, either directly or by the action of their representatives, decided to intrust to the other departments of the government.” Sutherland v. Governor, 29 Mich. 320. Courts cannot control the exercise of executive power, and the proposition is elementary that “jurisdiction over subject-matter must be given by law. It cannot be conferred by consent of parties.” Smith v. Myers, 109 Ind. 1, 9 N. E. 692; State v. Dike, 20 Minn. 363 (Gil. 314).
Because the governmental power of issuing a certificate of election might have been intrusted to some other officer renders the act no less a public trust, and the presumption that such function was imposed by the legislature upon the chief executive, because of his superior sense of responsibility, is en*409forced and strengthened by the fact that such a political duty is usually committed to that department of state, and never to the incumbent of the office in his personal capacity. Rice v. Austin, 19 Minn. 103 (Gil. 74); Turnpike Co. v. Brown, 8 Baxt. 490. Thus, it has been held that the judicial department is powerless to entertain an application for a writ of mandamus to compel the governor to call an election or perform any other duty imposed by law. People v. Cullom, 100 Ill. 472; People v. Bissell, 19 Ill. 229. Where the statute provided that a patent should be signed by the governor, the court refused to attempt, by mandamus, to compel the executive to perform that duty. State v. Harvey, 11 Wis. 33. The governor, being the sole judge, not only of what his official duties are, but also of the time when they should be performed, is exempt from coercion by mandamus or other judicial process. Appeal of Hartranft, 85 Pa. St. 433; Mauran v. Smith, 8 R. I. 192. There is no distinction, upon principle, in the character of the act to be performed. It will not change the result because the duty could have been imposed upon a ministerial officer, instead of the chief executive. Turnpike Co. v. Brown, supra.
The supreme court of New Jersey holds that there is vested in the judiciary no power to entertain an application for a mandamus to compel the governor to issue a certificate of election, and, in expressing the views of the court, the chief justice says: “The idea seems to be entertained that the duty of the executive becomes ministerial when no discretion is left as to the manner of its performance, and that in such case the court may interfere to compel its performance. If this be the test, it follows that, wherever the executive duty is clear, the judiciary is authorized to interfere, but in all cases of doubt or difficulty or uncertainty the responsibility of acting rests upon the executive alone. In many cases the law allows the executive no discretion. The duty must be performed in strict accordance with the law, but this court has not, therefore, power to order the duty to be performed. All executive duty is re*410quired to be executed by a higher authority than the order of this court, viz. by the mandate of the constitution. The absence of discretionary power cannot change the character of the act, or warrant the interposition of the judiciary. * * * It is obvious that the exercise of the power now invoked will have a direct and immediate tendency to bring the executive and judicial departments of the government into conflict. It cannot alter the principal that in the present case the governor assents to the application. We have Mr. Jefferson’s authority for saying that, if the supreme court had granted a mandamus in the case of Marbury v. Madison [1 Cranch 137], he should have regarded it as trenching on his appropriate sphere of duty; that he had instructed Madison not to deliver the commission; and that he was prepared as president of the United States, to maintain his own construction of the constitution, with all the powers of the government, against any control that might be attempted by the judiciary, in effecting what he regarded as the rightful powers of the executive and senate within their peculiar departments. 4 Jeff. Works, pp. 75, 317, 372.” State v. Governor, 25 N. J. Law 331. To the same effect see Hawkins v. Governor, 33 Am. Dec. 346; State v. Fletcher, 39 Mo. 388; Hovey v. State (Ind. Sup,) 27 N. E. 175; State v. Towns, 8 Ga. 360; In re Dennett, 32 Me. 508; Railroad Co. v. Lowry, 51 Miss. 102. Mr. Spelling, at page 1206 of the second volume of his recent and very excellent treatise on Extraordinary Relief, has collated the cases for and against the view here expressed, and has employed the following language: “While as before stated the views of courts in the various states radically differ, the doctrine denying the right of interference even with respect to duties usually considered as ministerial is supported by the clear weight of authority.”
Conscious of these conflicting decisions, and their tendency to engender vexatious, if not dangerous litigation, the legislature of this state has, in my opinion, established a wholesome rule, entirely consistent with the prevailing weight of author*411ity, by the enactment of Sec. 5517 of the Compiled Laws, which is as follows: “The writ of mandamus may be issued by the supreme and district courts, to any inferior tribunal, corporation, board or person, to compel the performance of an act, which the law specially enjoins, as a duty resulting from an office, trust or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.” Under the definition given by text writers and employed in most statutes, the writ of mandamus is directed to “some person, corporation, or inferior court, ” and in this state ‘ ‘to any inferior tribunal, corporation, board or person” when “such inferior tribunal, corporation, board or person” has not complied with the law in the manner and particulars specified in the foregoing provision. Obviously, the executive department of government is neither an “inferior tribunal, corporation, board or person,” and the use to which the word “inferior” has been put conveys to my mind a reasonable inference that the legislature intended to exempt from the coercive influence of mandamus the chief executive of this state. The adjective “co-ordinate” whenever and wherever used with reference to the three departments of state, implies equality in rank, importance, independence and dignity; and the word “inferior” when used to characterize a court, officer or person, imports, comparatively speaking, subordinate jurisdiction, lowliness of official position, or feebleness of mind, etc., and can never be extended by construction to include courts of superior jurisdiction, officers of higher rank, or persons of stronger intellectuality. Moreover, and independently of the statute, it seems to me that the better doctrine and safer rule of practice suggests that this court should decline to consider the subject-matter before it, and dismiss the application for the want of jurisdiction to do anything else.