Henry v. State

Whiteield, O. L,

delivered the following dissenting opinion:

The first essential to a precise and accurate understanding of the exact points at issue in this cause is to have a clear comprehension of the exact case made by the bill. The substantial averments make by the bill are as follows:

“Second — The original bill was prepared and filed before the order of the board of control had been entered and upon the information that the board of control of the penitentiary had voted to make a contract with II. J. McLaurin leasing hi’s Sandy Bayou plantation, in Sharkey county, from him for the year 1906, for the purpose of working the state convicts upon the same for the benefit of the state.

“Fourth — Your orator now states that when the order of the board of control was drawn and entered upon its minutes on December 5, 1905, it was, and is, in legal effect, an order for a contract by which the said McLaurin was to pay the state $25,000 for the hire and labor of the state convicts necessary for the cultivation of said plantation for the year 1906, the number of said convicts to average seventy for the year.

“Fifth — A copy of said order is filed with this amended and supplemental bill as exhibit A, and prayed to be taken and considered as a part of this bill. This action was taken over the protest and against the vote of the governor, and was passed by the following vote of three for and two against: those voting for the order being William Williams, R. L. Bradley, and I. C. Kincannon, and those voting against being J. K. Vardaman and S. D. McNair.

“Sixth — Thereupon, on December 5, 1905, three members of the board of control — viz., E. L. Bradley, William Williams, and S. D. McNair — signed, as members of said board, a contract drawn in pursuance of said order, and the same was signed at the same time by H. J. McLaurin. Said contract provides for the working of an average of seventy of the state convicts, *80for the year 1906, on said IT. T. McLaurin’s Sandy Bayou, plantation, for the price of $25,000. H. T. McLaurin, it is provided by the contract, is to provide and maintain the mules and teams on the plantation and provide all necessary planting seed, farming implements, and wagons, and is to have all of the crop after the payment to the state of the fixed sum of $25,000 for the labor of the convicts. 'A copy of said contract is filed as exhibit B, and is prayed to be taken and considered as a'part of this amended and supplemental bill.

“Seventh — The governor of the state is advised, and accordingly submits unto your honor, that said contract, in legal operation and effect and aside from its phraseology, .is a contract leasing an average of seventy of the state convicts to If. J. Mc-Laurin for the gross sum of $25,000 for the year 1906, and out of which the state is to maintain, feed, clothe, guard, and care for said convicts. But whether it is a contract by leasing or hiring these convicts or a contract for the renting of Sandy Bayou plantation, the governor of the state is advised, believes, and charges that this action of the board in making said order, and the action of the three members of the board of control who signed said contract, is violative of the constitution and statutes of the state touching the employment and disposition of convicts of the penitentiary, and that the members of the board and the warden and H. J. McLaurin should be enjoined from executing such order and from forming said contract made in pursuance of said order; and so impressed is he with this conviction, that this action of the board is unlawful and violative alike of- the 'letter and the spirit of the constitution and statutes of the state, that he has directed this suit for and in behalf of the state to invoke a judicial decision of said question and to restrain said legal action. The governor is further advised, and now respectfully submits to your honor, that the state is entitled to' have a decree made by this honorable court for the delivery up by the defendants of said contract .and for *81a decree for the cancellation of both the said contract and the order of the board, and that pending this suit the injunction granted as aforesaid should be retained. . .

“Ninth — This leasing was seen to be an evil, and in 1894 the legislature provided for the purchase of state farms; but it provided that the convicts should carry on, in connection with the farms, industrial pursuits; and sec. 5 authorizes the board to employ such convicts as ‘could not be profitably worked on such lands and industrial pursuits connected therewith in any manner not prohibited by the constitution and to the best interests of the state.’ Pursuant to' this act, the board bought three large plantations, and in 1900 owned the Rankin farm, in Rankin county, consisting of 3,100 acres; the Oakley farm, in Hinds county, of 2,700 acres; and the Belmont farm, in Holmes county, consisting of 2,080 acres. Notwithstanding the ownership of said large places, the board, acting with a mistaken view of its powers, continued to lease certain farms on the idea that those owned by the state did not furnish enough employment for all the convicts.

“Tenth — This course being deemed an evil by the legislature, the act of 1900 was enacted, providing for the purchase of an additional farm or farms, to comprise n,ot less than 8,000 nor more than 15,000 acres. This act contemplated that the lands purchased might be uncleared, and it -was therefore provided in sec. 2 that they should ‘be occupied as soon as practicable by the board of control with as many convicts as may be necessary to occupy.and manage the same,’ and in sec. 4 it was required that the lands ‘shall be opened up for cultivation as rapidly as practicable.’ Said act did not authorize the leasing of lands, but clearly contemplated that there should be no further leasing, and as the lands were able to furnish employment at a profit for all the convicts, the further leasing was by clear implication prohibited. Section 6 of the act declared that it should not affect contracts for leasing of lands for the year *821900, thus clearly evidencing the purpose to prevent leasing after that year. The Sunflower place was then purchased, consisting of 13,899 acres.

“Eleventh — ‘Complainant states and charges that the action of the board of control in attempting to make this contract for working the Sandy Bayou place is illegal because such a contract is altogether prohibited; but if complainant be mistaken in this view, then it is illegal because all the convicts of the penitentiary can be profitably employed on the state farms. There is ample land in cultivation on said farms to give profitable employment to all the convicts in cultivating, ditching and draining them, and, if these will not, there are thousands of acres of valuable land not needed for timber, but to be opened for cultivation; and as the board is required to open said lands as 'rapidly as practicable, the board cannot legally refuse to so employ the convicts. In any view, the only condition on which the board could ever be deemed to have such power is that all the convicts cannot be profitably employed on said farms in cultivating and opening them or in industrial pursuits, as required by law. This condition does and did not exist. Complainant states further that said contract interferes with the preparation and cultivation of crops on the state lands, and will necessarily cause an illegal expenditure of the state’s finances, and interferes with the good management of the state’s farms, and is in violation of sec. 224 of the constitution, and it retards the opening up of the uncleared land on the state’s farms, and is in violation in this respect of the act of 1900.

“Twelfth — The attorney-general of the state, as a member of the board of control, favored and voted for said lease, and, in view of the provisions of law as to his duty to prosecute actions and suits for the state, he is not joined as a defendant therein.

“Thirteenth — The governor, acting under the powers given him by the constitution and laws, and specially the powers con*83ferred by Code 1892, § 2156, has directed this suit to be brought.

“Fourteenth — Since the filing of the original bill, the board of control has met, and, all being present, unanimously passed an order (filed as exhibit 0 herewith) asking the courts to speedily pass on the question of the validity of said contract, the obvious intent being that all technical questions and questions of procedure be waived and the power of the board to make the contract be speedily passed on. Complainant joins in this request.”

Exhibit A to the Amended and Supplemental Bill.

“Resolved, That the board of control work with the convicts, for the year 1906, Sandy Bayou plantation, owned by IT. J. McLaurin, and shall receive for their share of the crop and for the labor of the convicts $25,000.00 (twenty-five thousand dollars), which sum the said McLaurin guarantees to the state certain and in all events for said year; the number of convicts to be employed on same to average seventy (70), if so many may be necessary to the proper cultivation and harvesting of the crop thereon.”

Exhibit O.

"Resolved by the board of control as follows — to wit: First —That a contract has been made and entered into at this term of the board, by and between the said board of'control, acting for and on behalf of the state of Mississippi, and H. J. Mc-Laurin, which said contract is in the following words and figures — to wit:

“ ‘Jackson, Miss., Dec. 5, 1905.

“ ‘This contract, made and entered into on the date above written, by and between the state of Mississippi, acting through and by the board of control of the state penitentiary of said state, and H. J. McLaurin, witnesseth:

*84“ ‘First — That the board of control has agreed to work the plantation in Sharkey county, state of Mississippi, owned by said McLaurin and known as “Sandy Bayou,” for the year 1906.

“ ‘Second' — That said board of control shall pay to the said McLaurin, for the use of said plantation for said year, all the crops grown, raised, and gathered on the said premises for said year, after the sum of twenty-five thousand dollars ($25,000) shall have been reserved therefrom; and the said McLaurin guarantees that the said crops raised on the said premises shall amount to $25,000.00, and binds himself to the said board of control in that sum, promising to make up whatever the crops grown on the said premises may fall short of that amount.

“ ‘Third — That the said board of control shall have absolute authority over the labor employed in working the said lands, and said labor shall be under the direction of the said board of control and of the persons appointed by the board.

“ ‘Fourth — That the said McLaurin, in addition to the land leased and furnished by him, shall also furnish the necessary mules and teams for the working of said plantation, and feed for same, and shall also furnish all wagons and farming implements and planting seed.

“ ‘Fifth — The said board of control shall have said crops made, harvested, and gathered. This act executed in duplicate.

(( C_ _ _

“ ‘President of the Board of Control;

“ ‘B. L. Bradley,

“ 'Wm. Williams,

“ ‘S. D. McNair,

" 'Members of the Board of Control;

“ Tí. L McLaurin/ "

These are the averments of the bill, and the case, to put it in plain, intelligible language, made by this bill is simply this: That the board of control, acting by a majority of three to two, *85has made and completed a contract the provisions of which are in flagrant violation of the constitution of the state and of the statute law of the state. There is no question in this record of any willfulness or fraud on the part of the board of control. No such charge has been made, or argued, or hinted at. The charge is plainly and simply that the board transcended its power in making the contract. Such are the averments of the bill, such the case made by the bill. The injunction did not seek to control, or to direct, any discretion lodged in the board of control. It did not restrain the board of control from voting as they pleased. It did not in the slightest degree seek to direct them how to vote. The governor, acting as the representative of the state, properly waited until the board of control had done all it could do in the premises — to wit: make the contract. The act was completed, absolutely consummated; nothing more was left to be done. But just at that point, where the contract was perfectly made, and prior to any step' taken in execution of the contract, the governor, acting as the representative of the state, intervened by injunction, not to control any discretion in the board, as above plainly shown, not to keep them from voting, nor yet to direct them how to vote, nor to control or guide their discretion in voting or acting, but simply to prevent them and McLaurin from executing — from carrying into effect — the contract already perfectly made between the board and McLaurin. The precise and exact thing which the injunction sought to accomplish was to arrest and nullify the contract already made, as an absolutely null and void contract, on the ground that it was one entirely transcending the power of the board of control to make, either under the constitution or the statutes in force at the time of the making of the contract. In other words, to put it shortly and plainly, the object was to test the legality of this contract. To show that the board of control itself so understood the injunction, and clearly apprehended the plain fact that no discretion of theirs was sought *86to be interfered with, the board of control itself passed a resolution, a copy of which was immediately transmitted to this court, as well as to the court below, expressly calling on both courts to decide promptly the question as to the legality of this contract which is made an exhibit to the bill.

It is made perfectly clear that the contract was completely made, and that both the governor, for the state, and the board of control, on its own behalf, had requested this court to pass upon the legality of this contract. And, further, it will be noted that the prayer of the bill is that the contract be delivered up for cancellation. The letter of the governor, employing counsel, is as follows:

“December 5, 1905. Messrs. Alexander & Alexander, Jackson, Miss. — Gentlemen: I wish, in behalf of the state of Mississippi and in its name, -to have suit brought to enjoin the execution of any order of the board of control looking to leasing any farms for the coming year; and, believing that the interests of the state require it, I hereby retain your firm to assist in the case or cases to be brought for that purpose. Yours respectfully, Jas. K. Vardanian, Governor.”

A demurrer to the amended bill was filed, being the same as the demurrer to the original bill in substance, and a motion to dissolve the injunction was made. Upon hearing, the chancellor overruled the demurrer and the motion to dissolve, and retained the injunction, filing an opinion which the reporter will set out in full as part of the record in this cause. It will thus be seen that the governor in the bill, and the board of control in their written request to this court and to the chancellor, both joined in earnestly requesting this court to pass upon the one essential thing contained in this record — to wit: the legality of this contract. It will further be seen from the letter of the governor, as well as from the averments of the bill and the language of the prayer, that the injunction did not in the slightest degree seek to prevent the board from voting as they pleased *87or in making the contract, which would have been an effort to control their discretion, but simply and solely sought to restrain the execution of the contract, already completely made, on the ground that it violated the constitution and the.statute-law of the land, transcending the power of the board of control, which was a perfectly proper exercisei of the injunctive power of the court. The board of control knew perfectly well that they had not been kept from voting; that they had been permitted to vote just as they pleased; that no effort had been made by this bill to control their discretion in voting. Indeed, since the injunction was expressly limited on its face to preventing the execution of the contract — that expressly, and nothing more — and since, as shown by the resolution adopted by the board, they had already made the contract, had already acted, had already voted, had already exercised fully any discretion committed to them, how is it anything but an unthinkable proposition that an injunction, if issued after all this, after the accomplished fact, could possibly have had any effect on the making of a contract already fully made ? I have been thus precise and exact in the statement of just the effect and scope of this injunction because, the chancellor being absent from the city and the emergency pressing, I was called upon, according to the statute, to give the injunction, and I do not intend that the real ground for issuing it shall be misunderstood, and because, when once the exact scope and effect of the injunction is understood clearly, all confusion of thought growing o-ut of the legal proposition that the chancery court had no power to control or guide the discretion of the board is plainly seen to be thoroughly removed from the case. Let us put it in the form of questions and see if that does not clarify the situation.

First, can the chancery court by injunction control or direct the exercise of discretion on the part of the board of control as to whether or not it would make this contract? Most mani*88festly not. The proposition that chancery courts have no jurisdiction by injunction to control or direct discretion vested in the board of control or any like board is too plain to need the citation of a solitary authority. It is elementary learning, about which there can possibly be no dispute. But when the board of control had exercised all the discretion it had about whether it could make this contract, and had actually voted to make it, and had completely made it, so that it had exhausted its discretion as to the matter of making this contract uninterfered with by the court, then, if that contract so made is one which by its terms plainly and palpably violates the constitution of the state and the statute law of the state, cannot the chancery court, by injunction, prevent the mere execution of it, the mere carrying into effect of this void contract ? Most indisputably it can. And this, too, is a question about which there can be no possible dispute; it, too, is elementary learning. In other words, whilst the court cannot interfere with the action of the board in making the contract, cannot control its discretion in voting to make it, nevertheless, when that contract has been made, all the discretion the board has as to the making of the contract has been fully exhausted; and if that contract is violative of the constitution and law, the chancery court can enjoin the execution of that null and void contract, just as it could stop- the enforcement of any other contract violative of the law of the land. If it were otherwise, we should he confronted with the astounding proposition that a sovereign state could not restrain the execution of any contract, no matter what the contract might be, no matter how absolutely null and void, no matter how plainly and palpably violative of the law of the land — the constitution supreme over every department of the state government- — simply because, and only because, a majority of the board of control had made such contract. I certainly shall not waste time in trying to make plain the utter indefensibleness and extravagance of such pretension. Innumer*89able authorities sustain this elementary proposition, and point out clearly the distinction, everywhere obtaining, between the power of the chancery court to control or direct the discretion of an inferior board in malting’ a contract, and its power, wholly different, to enjoin and restrain the execution of an illegal contract after it has been made. I cite a few among a multitude: Davis v. Gray, 16 Wall., 203 (21 L. ed., 447); Stevens v. St. Mary’s School (Ill.), 32 N. E., 962 (18 L. R. A., 835; 36 Am. St. Rep., 438); Crampton v. Zabriskie, 101 U. S., 601 (25 L. ed., 1070); Wisconsin v. Cunningham (Wis.), 51 N. W., 724 (15 L. R. A., 561); State v. Saline County, 51 Mo., 350 (11 Am. St. Rep., 454); State v. McLaughlin, 15 Kan., 228 (22 Am. St. Rep., 264); High on Injunctions (3d ed.), p. 32.

The argument made here by the learned counsel for appellant for the exemption of the board of control from the power of the chancery court to make it conform in its contracts to the constitution and laws of the state, followed to its logical conclusion, would result in boundless confusion and utter anarchy. The board of control is dealt with, by this line of argument,, as if it were omnipotent. One would suppose that it had some divine patent of impeccability. It is as if some minor star, which had hitherto eluded all telescopic search, had suddenly been discovered, all at once, describing about us the orbit of Saturn with the splendor of Sirius, in the dazzling glory of whose beams governor, legislature, supreme court, constitution, one and all alike, “pale their ineffectual fires.” I speak, of course, not of the personnel of the board of control. I am not dealing with individuals, but with principles. Boards of control come and go; but the eternal principles which make the constitution, which set it apart as a holy thing, to be implicitly obeyed and universally revered, which place it far above the clamor and passion of the passing hour, high over every department of government — these principles, I trust, are to remain forever. The proper subordination to the constitution, *90the faithful, instant obedience due according to the different gradations in the different agencies of government to the constitution, is as essential to the very existence of republican government as the atmosphere we breathe is to the support of animal life. The spirit of the constitution is as “broad and casing as the general air.” It is the essential oil in which the machinery of government moves. “Vital in every part, it cannot, but by annihilation, die.” It is the ark of the covenant of our liberties, our property, and our lives. It is the last and sure refuge — as expounded by this court, the ultimate interpreter of the constitution — for'every citizen, great and small, within the limits of the commonwealth. So long as it is thus respected and obeyed, we shall have liberty regulated by law. When we announce the doctrine from this bench that a subordinate board of control — a mere creature of legislative enactment, made by the breath of the legislature, and by that breath liable to be at any time unmade — unknown to the constitution, can violate the fundamental law, the constitution, by a contract plainly and palpably outraging its provisions and its spirit and policy, and that such contract, unconstitutional, violative of the statute, null, and void, absolutely, cannot be set aside and abrogated by the judicial power of the state, we have established a precedent just as sure to return to plague us as the rising of the morrow’s sun is sure.

But it is said that the governor of this state has no power to even initiate litigation, where the matters are fublici juriSj too, where the interests of the entire people of this commonwealth are involved, where the constitution, the supreme law of the land, is being trampled under foot, and that, too, in a case where the attorney-general voted to make this unconstitutional contract, and, as was stated at the bar, and not denied by the attorney-general, who was present, refused to initiate the litigation. when applied to; for it was stated at the bar that the governor applied to the attorney-general to bring the suit, and *91that he stated that, in view of bis peculiar attitude in tbe matter, be would bave to decline to do so. For my part, I think tbe attorney-general is correct as a matter of propriety. He would bave occupied a strange attitude in bringing a suit as attorney-general, against bimself as a member of tbe board of control, to bave a contract which be bad bimself voted to make, and wbicb, as attorney-general, be bad advised tbe board of control was valid, set aside by tbe courts as unconstitutional. I quite agree with him tbat be acted with entire propriety, in view of tbe circumstances, in declining to bring tbe suit. But to maintain, in tbis particular situation, tbat tbe governor of tbe state, tbe supreme executive of tbe state, charged by tbe constitution, tbe paramount law of tbe land, with tbe duty of seeing tbe law faithfully executed, cannot bave a suit initiated, even for tbe state, at bis instance, and tbat the sovereign state is "absolutely incapable of bringing any suit to bave set aside a contract manifestly and palpably violating both tbe constitution and tbe laws of tbe land, is to my mind a proposition wbicb passes all understanding; to me it is simply unthinkable.

There are some preliminary statements to be made about tbis .preliminary proposition on wbicb it is proposed to turn tbis case off. It is stated, in tbe opinion of tbe chancellor, tbat it was conceded in tbe court below tbat tbe governor bad tbe power to institute tbe suit. It is certain tbat bis power was not questioned in tbe first oral argument, except in tbe closing argument for the appellants. It is also certain that so little was thought of tbe contention tbat tbe governor could not sue tbat in tbe written briefs submitted in tbis cause on tbe first argument very little attention was given to tbe power of tbe governor to sue — so little, indeed, tbat it was. found necessary, at tbe instance of one of tbe members of tbe court, to remand tbe case to tbe docket for reargument orally on tbis solitary proposition. Tbis preliminary statement as to tbis proposition is *92made, not because the court did not have full power to raise the question itself, even if counsel for the appellant had-signed a written agreement waiving the point. In other words, it is a jurisdictional point, which cannot, be waived by consent. But it is referred to for the very obvious and very pi’oper reason that, if the eminent counsel for the appellants in this case (than whom there are none more able in this commonwealth) had any real confidence in the proposition, they would most undoubtedly have insisted earnestly on it, both in oral argument and in briefs, from the outset.

Let us proceed now to the consideration of this proposition on principle and authority. In the first place, there are two classes of suits for the state which may be instituted by the governor of the state — one class embracing suits outside the state; the other class, suits within the state. Here it is to be specially noted that the majority opinion concedes, without reservation, that the governor may institute suits in the name of the state in any other state or foreign jurisdiction. But it is said this power rests exclusively on Code 1892, § 2167. Notwithstanding this solution, the court cites the cases of Texas v. White, 7 Wall., 700 (19 L. ed., 227), and State of Kentucky v. Dennison, 24 How., 66 (16 L. ed., 717).

The suit of Texas v. White Tvas a suit at the instance of the governor for the state, and -was not a suit on bond to recover any debt, but was a suit in the federal court of Texas to compel certain parties to surrender to the state of Texas bonds the possession of which had been illegally obtained. It was not a suit maintained, therefore, because the bonds were payable to the governor, and does not fall within that class of cases; in fact, the bonds were payable to the state of Texas. Now what, exactly, did the supreme court of the United States say about this suit instituted by the governor? Just this — to be found in Texas v. White, 7 Wall., 718, 719 (19 L. ed., 227): “The first inquiry to which our attention was directed by counsel arose *93upon the allegations of the answer of Chiles: (1) that no sufficient authority is shown for the prosecution of the suit in the name and on the behalf of the state of Texas, and (2) that the state, having severed her relation with a majority of the states of the union and having by her ordinance of secession attempted to throw off her allegiance to the constitution and government of the United States, has so far changed her status as to be disabled from prosecuting suits in the national courts. The first of these allegations is disproved by the evidence. A letter of authority, the authenticity of which is not disputed, has been produced in which J. W. Throckmorton, elected governor under the constitution adopted in 1866, and proceeding under an act of the state legislature relating to these bonds, expressly ratified and confirmed the action of the solicitors who filed the bill, and empowered them to prosecute this suit; and it is further proven by the affidavit of Mr. Paschal, counsel for the complainant, that he was duly appointed by Andrew J. Plamilton, while provisional governor of Texas, to represent the state of Texas in reference to the bonds in controversy, and that his appointment has been renewed by E. M. Pease, the actual governor. If Texas was a state of the union at the time of these acts, _ and these persons, or either of them, were competent to represent the state, this proof leaves no doubt upon the question of authority.” It is thus plainly shown that the supreme court of-the United States did not rest its maintenance of the right of the governor to sue on any statute of the state of Texas, and it is malapropos for the majority opinion to cite that case as supporting the view that the governor can only sue in a foreign jurisdiction by virtue of Code 1892, § 2167. On the contrary, the court rested on the distinct announcement that “if Texas was a state of the union at the time of its acts, and either J. W. Throckmorton or Andrew J. Hamilton was governor, there was no doubt as to the authority of such governor, or either of them, to sue.” The decision proceeded, in *94other words, upon the right which the governor had as governor, a right incidental to the power and authority of his office, when absolutely essential to the protection of the rights of Texas.

In Kentucky v. Dennison, 24 How., 66 (16 L. ed., 717), the suit was again brought on behalf of the state of Kentucky, in the name of the governor of the state, against the governor of Ohio, defending for the state. There, as here, the defense insisted — see p. 70 of 24 How. (16 L. ed., 717) — that the court had no- jurisdiction to maintain the suit, which was one for mandamus, and upon that proposition the court said: “As early as 1792, in the case of Georgia v. Brailsford, 2 Dall., 402 (1 L. ed., 433), the court exercised the original jurisdiction conferred by the constitution, without any further legislation by congress to regulate it than the act of 1789. And no question was then made, nor any doubt then expressed, as- to the authority of the court. . The same power was again exercised without objection in the case of Oswold v. State of Georgia, in which the court regulated the form and nature of the process against the state and directed it to be served on the governor and attorney-general. But in the case of Chisholm v. Georgia, at the February term, 1793, reported in 2 Dall., 419 (1 L. ed., 440), the authority of the court in this respect was questioned and brought to its attention in the argument of counsel; and the report shows how carefully and thoroughly the subject was considered. Each of the judges delivered a separate opinion, in which these questions, as to the jurisdiction of the court and the mode of exercising it, are elaborately examined. Mr. Chief Justice Jay, Mr. Justice Cushing, Mr. Justice Wilson, and Mr. Justice Blair decided in favor of the jurisdiction, and held that process served on the governor and attorney-general was sufficient. Mr. Justice Iredell differed, and thought that further legislation by congress was necessary to give the jurisdiction and regulate the manner in which it should be exercised. But the opinion of the majority of the court upon these points has *95been since followed. And in the case of New Jersey v. New York, in 1831, 5 Pet., 284 (8 L. ed., 172), Chief Justice Marshall, in delivering the opinion of the court, refers to the case of Ghisholm v. State of Georgia, and to the opinions then delivered and the judgment pronounced, in terms of high respect, and, after enumerating the various cases in which that decision had been acted on, reaffirms it in the following words: ‘It has been settled by our predecessors, on great deliberation, that.this court may exercise its original jurisdiction in suits against a state under the authority conferred by the constitution and existing acts of congress. The rule respecting the process, the persons on whom it is to be served, and the time of service are fixed. The course of the court, on the failure of the state to appear, after due service of process, has been also prescribed.’ And in the same case — 5 Pet., 289 (8 L. ed., 172) —he states in full the process which had been established by the court as a rule of practice in the case of Grayson v. Virginia, 3 Dall., 320 (1 L. ed., 619), and ever since followed. This rule directs ‘that when process at common law or in equity shall issue against a state, the same shall be served upon the governor, or chief executive magistrate, and the attorney-general of such state.’ It is equally well settled that a mandamus, in modern practice, is nothing more than an action at law between the parties, and is not now regarded as a prerogative writ. It undoubtedly came into use by virtue of the prerogative power of the English crown, and was subject to regulations and rules which, have long been disused. But the right to the writ and the power to issue it have ceased to depend upon any prerogative power, and it is now regarded as an ordinary process in cases to which it is applicable. It was so held by this court in the cases of Kendall v. United States, 12 Pet., 615 (9 L. ed., 1181), and Kendall v. Stokes, 3 How., 100 (11 L. ed., 506, 833). So, also, as to the process in the name of the governor in his official capacity in behalf of the state. In the case of *96Georgia v. Madrazo, 1 Pet., 110 (7 L. ed., 73), it was decided that in a case where the chief magistrate of a state is sued, not by his name as an individual, but by his style of office, and the claim made upon him is entirely in his official character, the state itself may be considered a party on the record. This was a case where the state was the defendant. The practice where it is plaintiff has been frequently adopted of suing in the name of the governor in behalf of the state, and was, indeed, the form originally used and always recognized as the suit .of the state. Thus, in the first case to- be found in our reports in which a suit was brought by a state, it was entitled and set forth in the bill as the suit of ‘The state of Georgia by Edward Tellfair, governor of the said state, complainant, v. Samuel Brailsford et al.’ And the second case, which was so early as 1793, was entitled and set forth in the pleadings as the suit of ‘His Excellency, Edward Tellfair, Esq., governor and commander in chief in and over the stale of Georgia, in behalf of the said state, complainant, v. Samuel Brailsford et al., defendants’ The cases referred to leave no question open to controversy as to the jurisdiction of the court. They show that it has been the established doctrine upon this subject ever since the act of 1789 that in all cases where original jurisdiction, is given by the constitution this court has authority to exercise it without any further act of congress to regulate its process or confer jurisdiction, and that the court may regulate and mold the process it uses in such manner as in its judgment will best promote the purposes of justice, and that it has also been settled that where the state is a party, plaintiff or defendant, the governor represents the state, and the suit may be in form a suit by him as governor in behalf of the state where the state is plaintiff, and he must be summoned or notified as the officer representing the state where the state is defendant. We may, therefore, dismiss the question of jurisdiction without further comment, as it is very clear that, if the right claimed by Kentucky can be *97enforced by judicial process, the proceeding by mandamus is the only mode in which the object can be accomplished.” Kentucky v. Dennison, 24 How., 66-110 (16 L. ed., 717).

Mark specially the latter part of this quotation, where the court says, in the case of Governor of Georgia v. Madrazo, 1 Pet., 110 (7 L. ed., 73): “It was decided that in the case where the chief magistrate of a state is sued, not by his name as an individual, but by his style of office, and the claim made upon him is entirely within his official character, the state itself may be considered a party on the record. This was a, case where the state was the defendant. The practice where it is plaintiff has been frequently adopted in suing by the governor on behalf of the state, and was, indeed, the form originally used and always recognized as the suit of the state.” And, again, the case referred to leaves no question open for controversy as to the jurisdiction of the court. They say that it has been the established doctrine upon this subject ever since the act of 1789 that in all cases where the original jurisdiction has been given by the constitution the court has authority to exercise it without any further act of congress to regulate its process or confer jurisdiction, and that the court may regulate and mold the process it uses in such manner as in its judgment will best promote the ends of justice, and that it has also been settled that where the state is a party, plaintiff or defendant, the governor represents the state, and the suit may be in form a suit by him as governor in behalf of the state where the state is plaintiff, and he must be summoned or notified as the officer representing the state where the state is defendant. In both of these cases it is perfectly obvious that the suits were brought by the governor for and on behalf of the state, and were maintained, not because of any statute of Texas or Kentucky, but because of the inherent power which the governor had, as an incident to his office as the supreme executive of the state, “to see that the laws were faithfully executed” and that the rights and interests of *98the state should be protected. It is therefore a vain attempt to explain the right of the governor of this state to sue in a foreign jurisdiction on the theory that it rests exclusively on Code 1892, § 2167.

How is it as to the power of the governor to sue on behalf of the state, in the state ? This power rests directly upon the language of the constitution that the governor “shall see that the laws are faithfully executed.” Every one of the provisions of sec. 2156 of the code is a mere effort to define what is meant by this clause of the constitution. They were wholly unnecessary, and it surely is clear that, if this attempted definition has failed to enumerate all the instances in which the governor, in the execution of his duty to see that the laws are faithfully executed, may institute a suit, such legislative omission does not abridge his constitutional power. Suppose, for example, sec. 2156 had never been passed. Will any one be so bold as to maintain that the governor could not have done .every single thing named in this section by authority of this constitutional power “to see that the laws are faithfully executed?” -And, if so, can any one fail to see that the basis of his power is constitutional, and not legislative — directly traceable to the clause we have considered, and not to the superfluous provisions of sec. 2156 ? Great stress is laid, in this connection, upon the perfectly familiar proposition, which does not need the citation of a single authority, that ordinarily the attorney-general, the law officer of the state, should bring suits for the state. Where did the attorney-general get his power to sue for the state ? There is not a statute authorizing him to bring this suit, not one. On the contrary, it is settled by a thousand decisions that the powers of the attorney-general are those he had at common law (People v. Miner, 2 Lans., N. Y., 397), and that the right of the attorney-general to bring suits where the act to be restrained is detrimental to the public interest is inherent in the nature of his office (3 Am. & Eng. Ency. Law [2d ed.], 483, with *99the authorities in the notes, where the explicit language is used that this power “exists from the nature of the office, in the absence of express constitutional and statutory powers conferred”). I emphasize this latter clause, and not an authority can be produced to the contrary of the declaration of this established text. If, therefore, the attorney-general, the mere law officer of the state, gets his power to bring suit for and on behalf of the state from the nature of his office as defined by the common law, without even a constitutional or statutory provision on the subject, what must be thought of the contention that the governor, the chief executive of the state, charged expressly by the constitution with the dirty of seeing the laws faithfully executed, does not have the right under this provision and from the nature of his office to even begin a suit to restrain the execution of a contract highly detrimental to the interests of the public and baldly subversive of the public policy of the state ? I believe I can safely afford to leave the answer to this proposition to be made by the able and splendid bar of this commonwealth. Let it be noted that all the governor claims the right to do is to simply institute the suit. He trenches on .no judicial prerogative in doing that. The decision of the case is made by the courts, and not by the governor. He simply invokes, as he has the right to do, the judgment of the court as to the legality of the contract in protection of the interests of the people of the commonwealth.

Now, what authorities are cited by the majority of the court besides those referring to suits by the governor in a foreign jurisdiction? .They are, one and all, without exception, cases which lay down the familiar proposition that ordinarily the attorney-general, as the law officer of the state, has the right to sue for the state. Some cases are referred to which deal with the right of the governor to employ additional counsel, not the right to bring suit himself. The Compton case, 38 Ark., 602, is a type of this class, which merely holds that, without an act of *100the legislature, the governor could not “so employ counsel as to give counsel a lien on the judgment recovered for the fee in the case.” That is the entire holding. Perhaps the chief authority relied upon by learned counsel for appellants to maintain the remarkable proposition that the governor has no power to initiate litigation in the name of the state, although the state’s vital interests may be concerned, is the case of State of Oregon ex rel. Taylor v. Lord (Ore.), 43 Pac., 471 (31 L. R. A., 473). Let us see what, precisely, this case was. It was a suit to enjoin William P. Taylor, II. R. Kincaid, and Phil Metschan, in their capacity as a state board of commissioners of public buildings, from carrying into effect certain acts, not of any board of control, but of the legislative assembly, providing for the construction of a branch asylum in the eastern part of the state, and away from the state capital, because of the alleged unconstitutionality of that part of the act seeking to locate such asylum away from the capital. Now the first thing to be noted about this case is that the court expressly held — 31 L. R. A., 483 (43 Pac., 481)- — that there was very serious doubt about the unconstitutionality of the legislative act in locating the branch asylum away from the capital, and the court held that because of such serious doubt of its unconstitutionality it would not assume the power to question the legality of the act. In other words, the court did not deem the act unconstitutional; for if it had serious doubt of its unconstitutionality, it was its duty to maintain this act. But as to the parties to this suit— the precise point in issue — what is the fact? The relator was W. P. Taylor, a mere private citizen, who' brought the complaint on the ground that he was a resident taxpayer. Now what, precisely, did the court decide in this much relied'on case ? Why, as to1 the relator’s position, quoting from the syllabus : “First — A private Individual cannot have public officers enjoined from using public funds unless some civil or property rights are being invaded. Second — In all cases of purely public *101concern affecting the welfare of the whole people or the state at large the action of the court can be invoked only by such execritive officers of the state as are by law intrusted with the discharge of such duties.” And, that the syllabus is correct, let us quote from the opinion: “We have here to deal with matters not political, but with matters publici juris, and with the acts of public officers touching the administration of public funds, and affecting the whole people, or the state at large. And the question comes to this: Whether the governor, the executive officer of the state, can be enjoined while in the discharge of official duties. We speak of the governor, as it is, in effect, the act of the governor which this proceeding is intended to interdict. True, the act providing for the construction of a branch asylum at Union and appropriating funds therefor has empowered the board of commissioners of public buildings of the state of Oregon, consisting of the governor, secretary of state, and treasurer, .to superintend the construction thereof; but in the absence of such a commission it would be the duty of the governor to see that the law was carried into effect. It is the duty of the governor ‘to see that all laws are faithfully executed,’ and it is now proposed to execute this law. The judicial department is called upon to prevent its execution. Is it competent for it to interpose in this proceeding and restrain the executive department of the state?” From which it appears that the court dealt with the injunction in that case as being directed against the governor as the chief magistrate of the state, and held very properly that it could not be maintained. It goes without saying that the difference between maintaining a bill of injunction against the governor, the supreme executive of the state, charged by the constitution with the duty of seeing that the laws shall be faithfully executed, and a bill of injunction against the board of control, a mere subordinate agency, with special, limited powers, is as broad as the distance from the north to the south pole. But, again, let it *102be strictly noted Lord was practically tbe sole defendant in tbe cause, and tbe complainant was a mere private citizen, W. P. Taylor; and we come now to the precise bolding of tbe court, wbicb was that, inasmuch as tbe matters involved concerned tbe whole people of tbe state, a bill on behalf of tbe people of tbe whole state could not be brought by a private citizen, but should have been brought by tbe attorney-general.

To show that tbe whole scope of tbe opinion as to tbe form in wbicb tbe action was brought was simply a decision, first, that tbe chief executive could not be enjoined, and, second, that as between a private citizen and tbe attorney-general tbe attorney-general was tbe person to bring tbe suit, where is there, in this case, tbe slightest discussion of tbe right of tbe governor to bring a suit on behalf of tbe state under circumstances such as confront us in this case ? It must be remembered that tbe attorney-general, in this case, as shown by tbe bill, voted for this lease, and that, as stated at tbe bar, be was requested by tbe governor to bring this suit, and declined to do so upon tbe ground of bis peculiar situation in tbe case. What sort of an attitude would tbe attorney-general have been in if be bad filed this bill as complainant against tbe board of control as defendant, when tbe record shows him to be voting for tbe contract and affirming its legality by bis opinion ? For it must be kept steadily in mind in this discussion that tbe opinion of tbe majority of tbe. court goes to tbe whole length of maintaining, to me, tbe extraordinary position that under no circumstances whatever that can possibly exist — not even in a case like this, where tbe attorney-general has, as stated at tbe bar, positively refused to bring suit — can tbe governor, for tbe state, in any way, in any court, initiate litigation wbicb will protect tbe state against tbe enforcement of a contract plainly and palpably violative of tbe constitution and tbe laws. It is said by the majority that this is a “hiatus” in tbe law, wbicb tbe legislature must supply. Is it possible that any more need *103be said to show tbe utterly indefensible position of tbe appellants in respect to tbis proposition? For tbe necessary result must be, if their view be sound — there can be no escape from it — that, although tbe board of control might make such a contract, that was so plainly and outrageously violative of tbe constitution of tbe state and of'the laws of tbe state that any and every person would at once so proclaim it, nevertheless tbe state would be absolutely. impotent to prevent the enforcement of such contract, provided only that tbe attorney-general refused to bring tbe suit. I say, without tbe least hesitation, that such a conclusion is utterly illogical, and is not sustained by a single authority in tbe United States, as I shall now proceed to show.

So true is it that tbe attorney-general derives bis powers, not from any statute, but from tbe inherent nature of bis office, that it was expressly decided in People v. Miner, supra, “that a grant by statute of certain powers, would not operate to deprive the attorney-general of those belonging to the office at common law, unless tbe statute either expressly or by reasonable intendment forbade tbe exercise of powers other than those expressly conferred.” And so exactly is McQuesten v. Attorney-General, 72 N. E., 965—a very recent Massachusetts ease. If tbis is true of tbe attorney-general’s powers, bow much stronger is tbe case as to tbe governor’s powers, which rest upon the constitutional provision referred to, beyond tbe reach of legislative diminution! Throckmorton’s case, 98 U. S., 70 (25 L. ed., 93), so confidently relied on, decides nothing in tbe world except (for every decision is limited by tbe facts of tbe case) that the attorney-general of the United States is the proper party to bring an action where the validity of a patent issued by tbe government is involved, and not local district attorneys charged only with tbe ordinary duties of those offices; and tbe reason for tbis decision is plainly set forth in 3 Am. & Eng. Ency. Law, at p. 477, where the authority and powers of tbe attorneys-general of tbe United States are classified. See *1046 Opinions of Attorneys-General, 333, in which, amongst other powers, it is said: “He directs and prosecutes appeals in the great questions of land titles, which involve the proprietorship of all the soil in the successive- increments of territory acquired by the United States.” Of course, where the great questions of title to the proprietorship of the soil of the United States are involved, in the construction of a patent from the government, the attorney-general, and not a mere district attorney, appearing in the usual suits incident to- his local office, is the proper person to appear. That is all, absolutely all, decided by the Throckmorton case. There is not a hint or suggestion in the Throckmorton case about the power of the governor to sue for his state.

But it would be very naturally and properly asked, Are there no decisions, have there been no adjudications, on the precise point here involved — to wit, whether the governor of a state has the right simply to institute a suit on behalf of the state where great public interests are involved, and where the attorney-general, as stated at the bar, refuses to sue? There are many such cases, some of which I shall now consider, and I affirm, without the slightest fear of contradiction, that not a single authority in the United States, either federal or state, can be produced denying this power. Are there any affirming the power? Many. In 14 Am. & Eng. Ency. Law—recognized as a standard authority everywhere — at p. 110, it is said (paragraph 2, “Litigation”): “The governor, as the special guard-i an of the state’s interests, is the proper party to initiate necessary litigation. Ilis right to do so is a part of his general power of supervision over the property and welfare of the state.” Note, supervision, not only over the property, but “over the welfare, of the state.” Again: “Where the governor brings a suit in behalf of the state in his official title, the state, and not the governor individually, is the real litigant.” Again: “The governor is the proper relator in a proceeding to compel, by *105mandamus, the secretary of state to seal and countersign a commission which the former has issued.” Again: “The governor is the proper party to perfect an appeal in behalf of the state, especially where the attorney-general is absent from the state.” Is absence from the state any greater — is it as great — a necessity for the action of the governor in bringing a suit than the positive refusal, as stated at the bar to be the case here, of the attorney-general, in the state, to institute the suit ? Every one of these propositions is supported by authority.

In Alexander v. State, 56 Ga., 478, the suit was brought by the governor for the state, and the point was made by demurrer to the declaration that the governor had no authority to> institute suit in behalf of the state. And what did the court say in response to this contention? This: “The demurrer to the plaintiff’s deelaration on tire ground that the governor had no authority to institute suit in behalf of the state was properly overruled. The contention of the plaintiff was not objected to until after the defendant had pleaded to the merits of the action, and, if good, should have been taken advantage of at the first term by plea in abatement. But we do not think the objection would have been good at any time. The governor had the power and authority to institute suit against the defendant under the general power granted by the general supervision over all property of the state, with power to make all necessary regulations for the protection thereof, if not otherwise provided for, and to engage the services of any competent person in the discharge of any duties required by the laws and essential to. the interests of the state or necessary in an emergency to preserve the property or funds of the state.” This decision then cites Code Ga. 1873, §§ 61-74. But a reading of those provisions and of the constitution of Georgia, which has, like our own, a provision that the governor shall see that the laws are faithfully executed, would show that, if the provisions of the statute had not been passed, the governor had by the constitution the same general power of super*106vision over the property, and, as stated, the “welfare, of the state.” Here is one square decision in affirmance of the power hy a unanimous court, and one of the ablest in the union.

In Governor v. Allen, 8 Hum. (Tenn.), 176, the suit was in the name of “A. V. Brown, governor of Tennessee.” There was a demurrer to* the declaration, which was sustained in the court below, and judgment, given for the defendant. The bond in the case was made payable to the governor, and, because there was no statute authorizing such bond, it was said the governor could not sue for the state. What did the court say, at p. 181 ? That “the governor of this state is the executive of it. It is one of his duties, among many others, to see that the laws of the state are executed and obeyed. This is a great and fundamental duty. Without the proper observance of it society might, and would necessarily, be greatly distracted, and the proper security of life, liberty, and property seriously endangered. For the purpose of enforcing the execution of the laws and the protection of the state from rebellion and invasion, he is the commander of the forces of the state. To- hold that there can be an interregnum in this office would he to hold to the temporary anarchy of the state, and in order to hold that there is no such interregnum we must hold that the governor as such never dies. To do this he must be the corporation sole, with succession in office. Such we think he is, and constituted -so by the organization of our state government, and not by any particular statute or statutes.” Here, again, is a second decision squarely affirming the power of the governor to sue, and resting it, not on “any particular statute or statutes,” but upon the constitutional power and duty conferred-upon him of “seeing that the laws are faithfully executed and obeyed.”

In State of Louisiana on the relation of Francis C. Mahan v. Dubuclet, 22 La. Ann., 602, the suit was a mandamus by a state tax collector against the state treasurer, and the court below directed a mandamus to issue. Afterward the attorney-gen*107eral left the state and was not made a party to the bill; the governor of the state interfered in his own name for the state, and prosecuted the appeal, and a motion was made to dismiss the appeal ori the ground that the governor of a state was without power to prosecute. The court said: “The appeal was taken by the governor of the state, who, it is alleged, is without power to prosecute this appeal. It is shown that at the time the appeal was taken the attorney-general was absent from the state. This ground is untenable, the governor being the proper representative of the state and bound to protect her interests.” In State of Louisiana on the relation of Jacob Strauss v. Dubuclet, 25 La. Ann., 161, it appeared that a judgment was rendered in favor of Jacob Strauss, and two appeals were taken, one by the attorney-general and one by special counsel appointed by the governor. A motion was made to dismiss the governor’s appeal on the grounds — first, that, an appeal having been taken by the attorney-general, no other appeal could be taken pending the first appeal, and the appeal on the part of the governor was void for want of jurisdiction; second (and let this second ground be especially noted), that no person is authorized to appeal on behalf of the state, except in cases where the attorney-general is unable or unwilling to act. This last is our precise case here — the attorney-general being, as was stated at the bar, unwilling to act. The court says: “'Where there is a doubt as to the jurisdiction of the court, we would maintain our jurisdiction in a case in which the whole people of the state are interested, and if this were necessary in order to protect them from what may be a fictitious claim upon the common treasury. But in this case we are not called upon to do so. The law, as well as the spirit of the law, gives us the required jurisdiction. First- — It does not follow that, because the state has appealed through the attorney-general, she cannot appeal through the governor as well. He clearly has the right to appeal on behalf of the state, and this right cannot be taken away from him, simply *108because another officer of the government has been before him, when he takes the appeal within the delays required by law. In this case the appeal was taken in ample time. Second — It is not legally correct to say that no person is authorized to appeal on behalf of the' state, except in cases where the attorney-general is unable or unwilling to act. The prohibition is limited to the employment of counsel other than the attorney-general by the treasurer and auditor, and does not exclude the governor from doing so.” What, now, is here decided ? That it is a complete non sequitur to say that, because the attorney-general may appeal, the governor is thereby debarred from appealing; and yet that is practically the argument for the appellants; and, second, that it is not sound law to- hold that no person is authorized to appeal on behalf of the state, except in those cases where the attorney-general is unable or unwilling to act. In other words, there may be cases in which the governor may sue or appeal on behalf of the state, even though the attorney-general is able or willing to act. There is m> need to go that far in this case, since the attorney-general has, as was stated at the bar, expressly refused to act. Here, now, are two express decisions in two different eases expressly putting the right of the governor to^ appeal on the power incident to- his office as chief executive and his duty “to see that the laws are faithfully executed.”

But the majority say that these two cases which involve that precise question are modified by a third and different case, State of Louisiana on the relation of Albert Baldwin v. Dubuclet, State Treasurer, 27 La. Ann., 29. What are the facts in this last ease ? There was a mandamus proceeding, and after decision in the court below an appeal was taken by the attorney-general, made returnable at the session of the supreme court to be held at New Orleans, on the first Monday of November, 1874. Before the return-day, on July 20, 1874, the plaintiff procured the consent of the governor for the transfer of the case *109to Monroe, La., and for trial there at an earlier term, and the governor, acting under the provisions of act No. 21] p. 61, of the acts of 1872, employed an attorney to' take charge of the defense. The attorney-general objected .to the trial of the case, except at New Orleans and at the time set for the original appeal. He denied the authority of the governor to give consent for the transfer of the case and denied his authority to appoint counsel to assist or supersede him in the management of the case. Here was a case, let it be specially noted, in which the attorney-general was present in the state, took the appeal, and was prosecuting the case — wholly unlike the case at bar in this respect. What were the provisions of the act ? It provided that the governor “has the right, in case of the absence, death, resignation, or inability to act, in any particular case, of the attorney-general or proper district attorney, or where either of them may be directly interested, to designate an attorney for such case to act in behalf of the state for the protection of the public interest.” And what was the decision of a majority of the court? Nothing in the world except that under that statute, since the attorney-general was not interested nor absent nor refusing to discharge his duties, but had taken the appeal and was faithfully prosecuting the appeal, therefore the governor could not look to that particular statute for authority to employ counsel. Thetfe is not the remotest hint in the case that, if the attorney-general had been interested or had refused to act, the governor could not have merely employed assistant counsel. The whole case plainly went on the bald fact that, since none of the conditions named in the statute — interest on the part of the attorney-general, etc. — existed, therefore the governor could not, under the statute (since the state was thoroughly represented by the attorney-general, who was faithfully prosecuting the suit), employ assistant counsel. Here'the suit is not being prosecuted by the attorney-general. He refused, as stated at the bar, to prosecute, and, as I have said, in my judgment *110properly; and here there is no statute such as existed in Louisiana. How it is possible to find any comfort for the contention of my brethren in a case whose facts are such as are the facts in this case in 27 La. Ann., it passes my ability to see. But this is not all about that case. There was a dissenting opinion in that ease, by Chief Justice Ludeling, and he held that even in that state of case, since it was made “the duty of the chief executive of the state to see that the laws were faithfully executed,” the governor had the power, even under that statute, to transfer that case and employ additional counsel. The case is of no value whatever in the solution of the point whether the governor has the power to sue, in the absence of a statute such as existed in Louisiana, and where the attorney-general, as stated at the bar 'was the case here, expressly refused to sue, and where, unless the governor has the power to protect the interests of the entire commonwealth from the enforcement of a contract violating the constitution and laws, the sovereign state of Mississippi is bound in helpless fetters and must submit to the execution of such a contract.

How, then, stands the case as to this precise point whether the governor has the power .to sue when the attorney-general, as was' stated at the bar was the ease here, refuses to act for the state? I have produced five authorities — first, the general statement of the text of the Encyclopedia of Law; second, the case from Georgia, supra; third, the case from Tennessee, supra; fourth, the case of 27 La. Ann., supra; and fifth, the case in 26 La. Ann. — all holding, without a dissenting voice, that the governor has the power to institute a suit for and on behalf of the state where the interests of the’entire people are concerned and the attorney-general is unable or, as was stated at the bar was the case here, refuses to act, by virtue expressly of the power and duty conferred upon him by the constitution, “to see that the laws are faithfully executed,” and that this power rests on. the constitution, without reference to any particular *111statute or statutes, inherent as a necessary incident to the essential nature- and character of his office as the supreme executive of the state. These cases seem hardly to have been paid “the cold respect of a passing glance” by my brethren. Observations are made about the great danger the state would be in if the power of the governor to sue should be upheld. Ho-w any danger to the state could possibly be greater than the danger which arises from an announcement of the law that, although grave and paramount public interests affecting the people of the entire commonwealth are involved in a suit brought to test the legality of a contract, and although the átto-mey-general of the state, present in the state, expressly refuses, as was stated at the bar to be the case here, to bring the suit, nevertheless the governor of the state, its chief executive, cannot even initiate a suit for the purpose of having the illegal and unconstitutional contract delivered up and canceled, passes all understanding. What possible harm could accrue from maintaining the power of the governor to sue ? Is a mere 'institution of a suit a thing big with such dire and dreadful results ? What happens after the suit is instituted? Who decides it? Does not the judicial department of the government? Does not this court, the last and highest interpreter of the laws and constitution, ultimately settle the matter, and cannot this court be trusted to decide that matter right ? If the construction of the contract is not such -as the governor has put upon it, cannot this court so declare, and decide the case against the governor, representing the state? If the construction which he maintains is correct, is it not the duty of the court to pass upon the contract, to consider it, to put at rest finally and authoritatively this much-vexed and all-important question as to the right o-f the board of control, within its authority under the constitution and the laws, to execute such a contract ? I see no danger to arise from entertaining jurisdiction and pronouncing the judgment of the law as to the legality of the contract. I see *112by the opposite construction not only a future peril menaced, but a present dire result — to wit, the denial of any remedy to the state to restrain the execution of an illegal contract. The one is fanciful. No governor could by merely instituting a spit, with the decision of which he has nothing to do, in any way affect the interests of the state injuriously. The other is a real, tangible, already-present, public calamity.

The real matter thus submitted for our decision by the bill and by the request of the board of control and of the governor— the one controlling, fundamental matter for decision — is, Was the contract thus made an illegal contract? To that question, which has been from first to last the thing around which public interest centered, I shall now address myself. Before passing to that precise point it may be well simply to note the elementary proposition that where a sovereign state is seeking to enforce its rights — •the rights of the entire people — no pecuniary interest is required to be shown. This is fully settled by Missouri v. Illinois, 180 U. S., 208 (21 Sup. Ct., 331; 45 L. ed., 497), and Debs’ case, 158 U. S., 564 (15 Sup. Ct., 900; 39 L. ed., 1092). In order to determine whether this contract violated the provisions of the constitution hereinafter noted, a preliminary statement as to the history of events leading up to the adoption of these provisions is absolutely essential. Dor some twenty years prior to the constitution of 1890 it may be said, in short, that the history of the treatment of the convicts was a history of cruelties and horrors and infamies such as, fortunately for humanity, have rarely characterized the dealings of any state with its convicts. The convicts had been hawked about over the state during these twenty years and ■worked on farms and railroads operated by lessees. In both instances, the element of private gain on the part of the lessees was the dominant and controlling factor in the 'situation. The natural result followed. The insatiable cupidity of the lessees —the auri sacra fames — blotted out all feeling of humanity, *113and the situation of the helpless convicts, condemned to punishment, presumably, for the chief purpose of reformation, rapidly became such as to excite the pity and arouse the horror and indignation of Christian men and women throughout the length and. breadth of the state. It is useless to spend time recounting these horrors, picturing this dark stain upon the fair name of the state. The matter is recent; the air is still echoing with the recital of the horrors. So great was the public indignation upon the subject that a legislative investigation of the convict system of leasing was had in 1884, which resulted in a shocking revelation of cruelties practiced. But, strangely enough, the legislature could not be brought to act. The legislature refused to make any investigation in 1886. In 1888 the legislature was compelled, by force of public opinion aroused by more recent disclosures, to make a second investigation, which resulted, as before, in a revelation of unspeakable horrors. But this investigation, like the former, was followed by legislative inaction. It was impossible to get the legislature to put into the shape of law what the people of the state demanded. And so, at last, the people, in their sovereign capacity, assembled in constitutional convention in 1890, determined not to leave this matter any longer in the hands of the legislature, which had thus signally refused to act in the face of overwhelming evidence, but to place in the constitution itself, the organic law of the land, the inhibitions meant to put an end, once and forever, to the brutalities and cruelties of the convict-leasing system. This is state history, known to all men, and which will not be challenged by any man in the least conversant with the reasons impelling the constitutional convention to take this matter out of legislative control and safeguard it forever by constitutional ordinance. What, noAv, are these constitutional provisions thus intended to-forever end the cruelties and infamies of the convict-leasing system? They are secs. 223, 224, and 225 of the constitution of 1890. The *114sirbject of these sections is “The Penitentiary and Prisons.” They are as follows:

"Article X. The Penitentiary and Prisons.

“Section 223. No penitentiary convict shall ever be leased or hired to any person or persons, or corporation, private or public or quasi public, or board, after December 31st, A.D. 1894, save as authorized in the next section, nor shall any previous lease or hiring of convicts extend beyond that date; and the legislature shall abandon the system of such leasing or hiring as much sooner than the date mentioned as may be consistent with the economic safety of the state.

“Section 224. The legislature may authorize the employment, under state supervision and the proper officers and employes of the state, of convicts on public roads or other public works, or by any levee board on any public levees, under such provisions and restrictions as it may from time to time see proper to impose; but said convicts shall not be let or hired to'any contractors under said board, nor shall the working of con•victs on public roads., or public works, or by any levee board, ever interfere with the preparation for or the cultivation of any crop which it may be intended shall be cultivated by the said convicts, nor interfere with the good management of the state farm, nor put the state to any expense.

“Section 225. The legislature may place the convicts on a state farm or farms and have them worked thereon under state supervision exclusively, in tilling the soil or manufacturing, or both, and may buy farms for that purpose. It may establish a reformatory school or schools and provide for keeping of juvenile offenders from association with hardened criminals. It may.provide for the commutations of the sentences of convicts for good behavior, and for the constant separation of the sexes, and for the separation of the white and black *115convicts as far as practicable, and for religions worship for the convicts.”

The first thing that strikes one is the imperative command that no convict should ever be leased or hired to any person or persons, or corporations, private or public or quasi public, after December 31, 1894, four years after the 'adoption of the constitution. . The second thing which arrests attention is that no previous leasing of convicts is permitted to last beyond that date, and so extremely quickened was the public conscience to the immediate necessity of putting a summary end to the leasing of convicts that the last clause of sec. 223 commanded the legislature to abandon the leasing system as much sooner than December 31, 1894, as would be consistent with the economic safety of the state. The one great thing, standing out as a mountain in the landscape, was the imperative command to the legislature to fix its eye on a positive date— December 31, 1894 — and to forever cease the leasing of convicts from 'and after that date. That was the polestar of the constitutional convention for these sections. Section 224 expressly names the only mode in which convicts could be worked after the date referred to — that is to say, on public roads, or other public works, or public levees: — in each and every instance shutting out all private gain by limiting the labor of convicts to employment on public works. And so sedulously careful were the constitution makers to shut out every form and species of hiring out the convicts for private gain that they expressly forbade the hiring of the convicts to any contractors under the levee board, and in addition thereto further stringently and strictly declared: “Nor shall the working of convicts on public roads, or public works, or by any levee board, ever interfere with the preparation for or cultivation of any crop which it may be intended shall be cultivated by the said convicts, nor interfere with the good management of the state farm.” The crops referred to here are plainly and manifestly the crops to be cultivated on the convict farm or farms pro*116videcl for in sec. 225. This section requires the legislature (for the word “may” here clearly means “must”) to place the convicts on a state farm or farms and to have them workéd thereon under state supervision exclusively. It was these state farms which the constitution had in mind when it used the language in sec. 224, “any crop which it may be intended shall be cultivated by the said convicts.” This is too plain for discussion, both from the whole Spirit and scope of the provisions and from the obvious fact that the phrase, “nor should the working of the convicts on public roads,” etc., ever “interfere with the cultivation of any crop,” etc., is directly connected with and followed by the phrase, “nor interfere with the good management of the state farm.” Any layman could see, and plainly see, that the thought was that the primary thing should be the working of the state farms, the cultivation of crops on state farms, and that,- while the convicts should be allowed to bo worked under exclusive state supervision on strictly public works, not even that method of working convicts should be permitted to interfere with the dominant, fundamental, controlling purpose to cultivate crops on state farms. No ingenuity can obscure this purpose; no technical subtlety, no sophistical refinement, can keep from the apprehension of any just-reasoning man this, the plain, palpable, inescapable meaning of the constitution in these provisions.

Let us summarize what the constitution meant, in the order of importance: First — There never should be any hiring of convicts to any private person, under any pretext whatever, after December 31, 1894. Second — All convicts should be concentrated on state farms after December 31, 1894, which farms the legislature must buy. In the interim until these farms should be bought — the interim between December 31, 1894, and the 'purchase of such farms — the convicts might be worked on strictly public works, under exclusive state super-. vision. Third — But such working-of convicts on purely public works, even, must never interfere with the primary object of *117the constitution, the cultivation of crops on state farms. That, and that alone, is the great overshadowing purpose of the constitution. It is the purpose standing out of the text of these three sections in such clear and commanding relief that no one can fail to see and understand that such is the purpose of the constitution. It was most beautifully said in argument, by one of the most accomplished gentlemen and one of the ablest lawyers in this or any other state, that, if a Switzer should be told that his country was level, he would, for answer, silently point to the snow-capped summits of the Jungfrau .and the Matterhorn. And -just so here, if one should say that the leasing of land by the penitentiary board of control was lawful, the instant and overwhelming reply would be to point to secs. 223, 221, and 225, the judicial Jungfrau and Matterhorn of this situation. Where, in these sections, can the most astute counsel find authority for leasing farms? No such phrase as “leasing farms” is anywhere in the provisions, nor was “leasing farms” in the minds of the constitution makers. The very soul of these provisions was in direct conflict with the inevitable result of leasing farms, whereunder the private lessor works state convicts for his private gain. Is it possible that one who has grasped the spirit and purpose of these provisions— the absolute shutting off forever of any means whereby private persons could work state convicts so as to make private gain out of their blood and- toil — could ever thereafter admit into his mind the conception that the same provisions authorize a leasing by private persons of their farms to the board of control for the purpose of working state convicts on such farms, with the object and result of enriching them through private gain resulting from the toil of 'the state convicts? Does not the understanding at once grasp the perfectly antipodal and utterly inharmonious purposes thus attributed to the very same sections of the constitution ? To my mind it is absolutely unthinkable that power to lease a farm can be worked, by any *118sort of refinement, out of provisions like these, in whose fiery and indignant breath all effort to make private gain out of convicts’ sweat and blood shrivels up at once. It certainly ought to be unnecessary at this time to cite authorities to show in what spirit courts will interpret constitutional provisions. There is a vast difference between provisions in a constitution and provisions in a statute, that difference being this: that a constitution is a magna, chacta of the people’s rights, the fundamental law of the land — intended, not for short periods of time, but for all time. And as a result of this vast difference it is thoroughly understood that provisions of a constitution should receive a broad, liberal, and comprehensive interpretation, and not one which sticks in the letter, but kills the spirit, of the instrument.

I shall refer to but two cases. The first is Beck v. Allen, 58 Miss., 143, in which Judge Campbell, speaking for the court, said: “Subtlety and refinement and astuteness are not admissible to explain away the expression of the sovereign will. The framers of .the constitution and the peoifie who adopted it must be understood to have intended the words employed in that sense most likely to arise from them on first reading them.” This doctrine is reaffirmed in Y. & M. V. R. Co. v. Adams, 77 Miss., 194 (24 South Rep., 200, 317; 28 South. Rep., 956). The second is the magnificent opinion of Cooper, C. J., in Ratliff v. Beale, 74 Miss., 247 (20 South. Rep., 865; 34 L. R. A., 472), where he says: “In construing the constitution we are to resort to such rules.as would aid in the construction of the statute, keeping always in view the fact that, while statutes descend into particulars and details, constitutions deal usually in generalities and furnish along broad lines the framework of government. To find the true meaning of the language of the constitution we are to look to the existing body of the law, whether common or statutory; to former constitutions, to existing evils, to the object and purposes to be ac*119complished, and to the remedies to be applied. Cooley on Const. Lim., p. 70; People v. Chautauqua, 43 N. Y., 10; End., Interp. Stat., sec. 518.” That “may” should be read “must” in this provision is clearly demonstrated in the following cases: People v. Commonwealth, 22 Barb., 404; Minor v. Bank, 1 Pet., 47 (7 L. ed., 47); Railroad Co. v. Walker, 50 Kan., 739 (32 Pac., 365); Bansemer v. Mace, 18 Ind., 27 (81 Am. Dec., 344); Blake v. Railroad, 39 N. H., 437; Rogers v. Bowen, 42 N. H., 102; Milford v. Orono, 50 Me., 529; Low v. Dunham, 61 Me., 566. Those cases show, what is elementary, that when the intention so requires the word “may” should be interpreted as mandatory, and not directory; and when there is a great constitutional scheme manifest, as here, of concentrating all convicts on state farms, within four years, or as much sooner as the economic safety of the state would permit, all parts of the section developing the scheme should be construed in aid of the enforcement of the scheme.

I conclude that there has never been any constitutional authority under which the legislature has ever had, at any time since the adoption of the constitution of 1890, any right whatever to lease any farm from any private lessor. It follows, as a matter of course, that Code 1892, § 3201, in so far as it authorizes the leasing of convict farms, is a palpable violation of the provisions of the constitution which we have been considering. This is made clearer by a consideration of the last clause, providing “that all the provisions of the law relating to the penitentiary” shall apply to a leased farm and to any farm' provided by the legislature “as a penitentiary or a part of it.” And yet how utterly incongruous it is to contend that the various provisions contained in the statute relating to the regulation of the penitentiary and to the state farms could be applied to these leased farms! The act of 1894 (Laws 1894, p. 65, ch. 75) was in execution of sec. 225 of the constitution. It looked to the purchase of as much land as *120was necessary to carry into effect the constitutional scheme. The large quantity of land to be purchased and the precautions thrown around the purchase all indicate clearly the legislative intent that the farms so purchased should constitute the penitentiary farms meant by the constitution. This act was passed February 7, 1894, and the legislature, mindful of the fact that the leasing of convicts should cease December 31st of that year, meant to provide for the immediate purchase of farms on which the convicts could be concentrated. At that time the convicts could be dealt with in three ways — kept in the penitentiary proper, then in Jackson; worked on public works; or employed in opening up and cultivating the farms so to be bought. This act was a tardy effort on the part of the legislature to put into execution the mandate of the. constitution on this subject. The act of 1900 (Laws 1900, p. 63, ch. 56) by necessary implication practically repealed Code 1892, § 3201, as well as the act of February 7, 1894, in so far as either of these acts purported to authorize the leasing of farms. Both of these acts, the act of 1894 and the act of 1900, provided, not for leasing, but for purchase, of farms; the quantity of land to be purchased indicating that the legislature had at last determined to put into effect the constitutional scheme. Section 4, p. 65, of the latter act provided that “said land when so occupied shall be cultivated by the convicts under the care and control of the board of control, and shall be opened up for cultivation as rapidly as possible.” The object was, not primarily to make money out of the convicts, but to safely keep and give them employment in opening up and cultivating farm lands. Section 6, p. 66, of this act is as follows:

“Section 6. Nothing in this act shall affect or impair any contract made by the board of control for the renting or leasing of land for the year 1900; said contract to be executed as heretofore contracted.”

It certainly is too plain for disputation that the purpose of *121this act is that there shall never be any further leasing of lands after 1900. It is a well-settled rule of law that an expressed exception contained in a saving clause excludes all others. Sutherland’s Stat. Const., sec. 328; 26 Am. & Eng. Ency. Law, 723. The argument that the purpose of this section was simply to protect existing contracts is utterly untenable, for that imputes to the legislature the absurdity of supposing that any saving clause was needed to protect rights vested under existing contracts. The plain purpose of said section was to forbid the leasing of farms after the end of the year 1900. This construction is borne out by the fact that the legislature in 1902 (Laws 1902, p. 32, ch. 36) and in 1904 (Laws 1904, p. 25, ch. 24) appropriated $200,000 for the years 1902 and 1903, and for the years 1904 and 19Ó5, “for the support and maintenance and for the equipment and improvement of the penitentiary and state farms.” Under the terms of these appropriations made by the legislatures of 1902 and 1904, it is plain that the board of control had no authority to expend a single dollar, except “for the support and maintenance, equipment and improvement, of the penitentiary and state farms;” How, then, can the board of control legally, under the contract in this case, expend any of these appropriations during the year 1906 for “clothing, feeding, and caring for the convicts and paying for guards,” as expressly required by the terms of this contract? One other observation should be' made here, quite significant and important, and that is this: That while, as stated, not a single lease made by the board of control since the constitution of 1890 is' valid and legal, this particular contract would be plainly invalidated and illegal by the operation of said act of 1900 repealing the provisions of sec. 3201 of the code attempting to authorize a lease of farms. So that this contract stands stripped, not only of any constitutional validity, but also of any statutory validity; and the board, in making it, violated not only the constitution, but the act of 1900.

*122Great stress is placed, in the argument at the bar, upon the alleged recognition of these leases of state farms by state legislatures and department officers for a series of some twelve years past. This was precisely the same argument that was made in the case of Adams v. Y. & M. V. R. Co., 77 Miss., 194 (24 South. Rep., 200, 317; 28 South. Rep., 956; 60 L. R. A., 33). Many governors were said to have acquiesced in the exemption of the railroad from paying taxes; many legislatures were said to have recognized it; all the tax collectors of the counties through which the railroad ran were alleged to have recognized the exemption; and all that could possibly bp made out of that sort of argument — to wit, that the judicial function of interpreting the validity of an exemption statute could be delegated to and exercised by governors, legislatures, tax collectors, and department officers — was most forcibly.presented. The contention was, of course, disallowed by this court, which decision was unanimously affirmed by the supreme court of the United States. It is not the function of governors, or legislatures, or tax collectors, or department officers, to construe and interpret the provisions of a constitution or a statute. That is the sole and exclusive prerogative of the judicial tribunals of the land. Interpretation and construction of constitutional and statutory provisions are things exclusively judicial in their nature. Nor is there anything in the talk about the practical construction by these department officers, or legislatures, or governors, for twelve years, or any other period of time, estopping the sovereign state in the courts of the country from having a contract declared violative of the constitution and laws. Authorities could be multiplied by the score to that effect. I content myself simply with a reference to the. following on that proposition: 26 Am. & Eng. Ency. Law, 480; State v. Brewer, 64 Ala., 287; Haehnlen v. Com., 53 Am. Dec., 502; State v. Sponaugle, 45 W. Va., 415 (32 S. E., 283; 43 L. R. A., 727); State v. City of Columbia (Tenn. Ch. App.), 52 S. W., 511; Timberlake v. Brewer, 59 Ala., 108; Long v. McDowell, 107 *123Ky., 14 (52 S. W., 812); Worth v. Stewart, 122 N. C., 258 (29 S. E., 579); Com. v. Bank, 10 Pa., 442; Com. v. Carter (Ky.), 55 S. W., 701. The very utmost that could ever be claimed for what is called the practical construction of a constitutional or statutory provision by any other than the judicial department is simply that it may have such merely persuasive force as the courts may see proper to give it in case of doubtful construction; but in cases where there is no room for construction, on any reasonable view either of the constitutional or statutory provisions, even such merely persuasive force becomes valueless. It all comes back inevitably, as a thousand times -decided, to the plain, fundamental proposition that it is the function of the courts, and their exclusive function, to construe and interpret the constitution and statutes, and that it is never th.e function of inferior bodies, or legislatures, or governors, to trench upon the exclusive province of the judiciary by assuming to themselves the judicial function of such interpretation or construction. The very principle so labored in the opinion of the majority as to, the independence of the separate departments of the government itself sternly repels the claim of any but the courts to exercise the judicial function. It certainly ought to be clear to the simplest understanding that no construction of a constitution or a statute, by executive or departmental officers who unwarrantedly assume to themselves the judicial prerogative, for however long a period indulged, can sanctify a plain and palpable violation of the fundamental law of the land.

In all that I have so far said, it will be observed that I have dealt with the contract, treating it as a lease of land. I have done so because to treat it as a lease of land is to put the matter in the strongest light possible for the appellants. But there is another view of this contract, taken by the learned chancellor in the court below, and which a fair construction of all its terms fully warrants, and that is that this contract has been *124so unfortunately phrased, if it was meant to be a lease of land, that in reality its terms show it to be nothing else than a leasing of convicts. The position of the learned chancellor, as I understand it, is that the things to be done under and in pursuance of the contract, as gathered from the essential terms, demonstrated that it was nothing more nor less than a hiring of convicts. In order that this view may be fully apprehended, the reporter will set out in full the opinion of the chancellor in this case. I only desire to say in respect to this view that I think it is fully borne out by the very clear and able opinion of the chancellor, which needs no support from me. Of course all the world knows that a leasing of convicts would -be in plain violation of the constitution. I have thus endeavored to meet, and answer fully, first, the objection that the chancery court had no jurisdiction to issue this injunction because, as alleged, it was an effort to control and direct the discretion of the board of control; and, second, that the chancery court had no jurisdiction to entertain suit because, as alleged, the governor had no power to initiate the litigation. And I have endeavored to demonstrate, and I think I have demonstrated, that the contract is an illegal contract, because it violates both the constitution and the laws, and also because, whatever may have been the intention of the framers of the contract, they have certainly so worded it — and-not only so worded it, but made its terms such — as that it is clearly not a lease of land, but a hiring of convicts, which all the world knows is unconstitutional. I must express my profound and emphatic dissent from every conclusion reached by the majority of the court in this case. I regret the decision as one deplorable from every point of view. It magnifies the board of control, and depreciates the dignity and power and authority of the office of governor, the chief executive of the state. But among other things is this decision deplorable in view of the plain, bald fact that, discussing the case on the ground that the governor has no power to *125sue and that the attorney-general, although he has refused, as stated at the bar, to file the bill, is the only proper party in this state to bring this suit, the majority of this court thus decide that the state has no remedy whatever to test the legality of this conract, but must submit to its enforcement, helpless and powerless. I emphatically decline to join in the announcement of any such doctrine. The result of the decision is bound to be that no suit can ever be instituted, where the public interests are concerned, in this state, except by the attorney-general, even where the attorney-general refuses to bring suit, -which, of course, means that the sovereign state and all.its great public interests depend absolutely upon the mere will of the attorney-general. How my brethren can indulge in such grave apprehensions as to the danger to the commonwealth from recognizing the governor’s power merely to institute a suit, and yet fail to realize the astounding situation in which they leave the state and its rights, at the mercy of the attorney-general, even though he should refuse to sue, is something extremely difficult for me to understand.