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THE GREEN BAG
and including the decision of another very recent case, that of State ex rel. Higdon v. Jelks, Governor, and to make this examina tion in the light of the discussion in State of Ohio v. Nash." The author first collects an array of author ities supporting the proposition that the writ will not lie against the Governor to compel the performance of any official duty, he being entirely removed from the control of the courts without regard to the question as to the nature of his duties, whether strictly exe cutive or political or purely ministerial. Then follows a collection of authorities from juris dictions, which, "while granting the complete independence of the Governor of the state from judicial control in the performance of his purely executive and political functions, have held as to the ministerial duties incum bent by law upon him and which the legisla ture might, with equal propriety, have required any other officer to perform, that the writ of mandamus will lie to compel the performance of such duties." "The rule, that 1he Governor of a state is not amenable to the urit of mandamus, to compel the performance of a duty, be it ministerial or discretionary in its nature, is the one which seems to be more in accord with sound legal principles. And as a basis for this conclusion, the following reasons are advanced: "First. That the rule that the writ is issuable and enforceable against the Governor CONSTITUTIONAL LAW (Mandamus) of a state, in matters purely ministerial in "Mandamus Against a Governor" is dis character, is clearly against the great weight cussed by Edward J. Myers in the June of judicial authority. Michigan Law Review (V. iii, p. 631). "Second. If the writ of mandamus were "The question whether the courts have the granted, it would prove unavailing. power to issue the writ of mandamus against "Third. The independent and distinctive the chief executive of a state to compel the features of the departments of government performance of a duty imposed upon him by forbid the interference by one with the other. law, has been answered in two irreconcilable "Fourth. The Governor's accountability to lines of decision — the one being that the the people at the polls, and his liability to Governor is not answerable to the writ to impeachment, afford adequate remedies for compel the performance of his duty, be it his failure to perform ministerial duties. either discretionary or ministerial in its char "There seems to be no doubt as to the acter, the other, that he is liable to the writ trend of judicial authority and no further to compel the performance of duties purely comment upon that point is necessary. ministerial in nature. "It is a fundamental principle of law, that "It is proposed to review here the cases the writ of mandamus will never be granted wherein the question has been decided, cov in cases where, if issued, it would prove ering the period of time from the year 1839 to unavailing. And where the object sought is
of the state to protect itself by legislation, and under it contracts which tend to defeat the ends of government or are manifestly preju dicial to the interests of the whole people may well be prohibited. Beyond this very little can be said that is satisfactory. "There has been no doubt but that the state may pass laws in preservation of the public health. The constitutional guarantees of the individual do not abridge the power of the state to do this." In this connection the author discusses elaborately, among others, the now famous case of People v. Lochner. Of this case he says: "If the Supreme Court of the United States continues to look beyond the proclaimed pur pose of a law and to judge of its constitution ality from the manifest motives for its enact ment, there will be found in a few years much waste paper in the statute laws of our several states. Nothing is better known than that a large part of the paternal legislation of recent years, relating to the ordinary callings in life, has been enacted and defended on one pretended purpose or another when the real purpose and effect of the law are in violation of the letter and spirit of the Federal Consti tution." In the main his views of this case agree with those of Professor Freund in his article in our last number.
