Low us. Towns, Governor, &c.

not incompetent, merely on the ground of their liability to action."

It never was held that a naked trust would exclude one from being a witness. Willis on Trustees, 227, and cases cited. If he were a party to the record, in a Court of Law, the rule would be otherwise; but in Equity, he might even then be examined as a witness, by leave of the Court, which is granted in such cases, as a matter of course. Marr vs. Ward, 2 Atk. Rep. 228.

Here Brantley, as trustee, was no party to this suit. He is not responsible for cost, nor the result, nor the expense of carrying it on. He is neither the real nor the nominal party. There is nothing then to disqualify him, and we are of opinion that his testimony was rightfully received.

No. 61. THE State of Georgia, ex rel. JOHN H. Low, plaintiff in error, vs. GEORGE W. TOWNS, Governor, &c. of the State of Georgia, defendant.

[1.] Where two individuals claim the right to the office of Clerk of the Court of Ordinary, and one of them obtains a commission from the Governor, it is competent for the Judiciary to go behind the commission, and to inquire into the validity of the election, and decide the rights of the contesting parties, notwithstanding the Governor may have issued a commission to one of them, from the evidence before him.

[2.] The issuing a commission by the Governor to such Clerk, is merely a ministerial act, required by law, and not a duty enjoined by the Constitution, and is, therefore, only prima facie evidence of title to the office, and

not conclusive.

[3.] However clear it may be, as a general legal proposition, that when a mere ministerial act is required to be performed, by law, on the part of an executive officer, and individual rights depend on the performance of that act, that the proper tribunals of the country have jurisdiction to compel its performance; yet, for political reasons alone, the Chief Magistrate of the State cannot be compelled, by mandamus, to perform such ministerial act. [4.] When the relator, applying for a mandamus nisi against the Governor, to issue to him a commission as Clerk of the Court of Ordinary, had failed to

Low vs. Towns, Governor, &c.

establish his title to the office, by the judgment of a Court of competent jurisdiction: Held, that the Court had no jurisdiction, according to the relator's own showing, to award the mandamus nisi against the Governor.

Application for a mandamus absolute. Decided by Judge JOHNSON, 22d March, 1850.

This was an application for a mandamus to compel the Governor to issue a commission to the relator, John H. Low, as Clerk of the Court of Ordinary of Henry County. The petition for a mandamus nisi set forth the following facts:

On the second Monday in January, 1847, John H. Low was elected Clerk of the Court of Ordinary of Henry County, and was duly commissioned and qualified. On the first Monday in January, 1849, Peter Z, Ward and four others were elected Justices of the Inferior Court of Henry County. On the second -Monday in January, 1849, before the Justices elect were commissioned and qualified, Columbus W. Smith and two others, being a majority of the Justices of the old Court, re-elected Low Clerk for the next ensuing two years, and transmitted the certificate of his election to the Governor, as required by law. Garry Grice, one of the old Court, without any authority from the Governor, on the same day proceeded to swear in two members of the new Court. After the election of Low-but on the same day-the new Court, without Clerk, Sheriff or record, proceeded to and elected one James Pyron Clerk of the Court of Ordinary for the next two years, and fraudulently transmitted a certificate of his election to the Governor, who soon thereafter issued a commission to James Pyron. At the April. Term, 1849, of Henry Superior Court, an information, in the nature of a writ of quo warranto, upon the relation of John H. Low, issued against James Pyron, to inquire as to the authority by which he exercised the said office; and after hearing his return thereto, a judgment of ouster was granted, removing Pyron from the said office, which judgment was unreversed and unappealed from. After this judgment, Low again applied to the Governor for a commission, who refused to issue a commission to him. In consequence of which refusal, the new Court again appointed Pyron Clerk, which appointment was recognized by the Governor. The petition farther stated, that the judgment of ouster had VOL. VIII. 46.

Low es. Towns, Governor, &c.

been officially communicated to the Governor, and he requested and required to commission Low, which he had refused to do.

On this petition, Judge Johnson, on the 18th December, 1849,granted a mandamus nisi, requiring the Governor to show cause, on the fourth Monday in February, 1850, why he should not issue a commission to the petitioner..

In response, Gov. Towns, “ to manifest his respect for the judicial department of the State Government," and "without thereby, in any degree, acknowledging the jurisdiction of the Court over him, as the Executive, by mandamus, or waiving by his response, any power or right conferred to him by the people, under the State Constitution," "submitted the following considerations and reasons why the Court should not take farther cognizance of the case made upon the relation of John H. Low :

1st. Because, as Governor of the State, deriving his powers from the Constitution thereof, he has been made a co-ordinate, separate, distinct and independent department of the Government; and as the Executive Magistrate, filling said department, he is not subject, in the discharge of any duty, or the exercise of any power within the range of his department, to the mandate of the Judiciary, but is amenable, alone, for a failure, or omission, or refusal to execute an Act of the Legislature, to the people of Georgia.

*2d. Because, by no just interpretation of the Constitution of Georgia, can a separate, distinct, co-ordinate and co-equal officer be made a subordinate and ministerial officer; obliged, under the penalty of contempt, to obey the mandate or order of his coequal and co-ordinate, in any manner, whatever, concerning his executive duties; and because, the Judiciary, having no such paramount power by the Constitution over the Executive, it can derive no right from the Legislature, so as to change or alter the distribution of powers and duties, as prescribed in the Constitu tion."

A third ground was taken in the response, denying that any judicial decision, establishing relator's right had been communicated to respondent, which was waived on the hearing.

The Court refused a mandamus absolute, on the ground that a writ of mandamus will not lie from the Superior Court against the Governor of the State of Georgia, to compel the performance

Low vs. Towns, Governor, &c.

of an act which, as Governor, he is required by law to perform, and which he refuses to perform.

To this decision Low, by his counsel, excepted, and alleges the same to be erroneous.

DOYAL & NOLAN and R. V. HARDEMAN, for plaintiff in error, cited

Constitution of the State, art. 3, §7. Bonner vs. The State ex rel. Pitts, 7 Ga. Rep. 473. Kendall vs. The United States, 12 Peters, 610.

1. L. HARRIS and A. H. KENAN, for defendant in error.

Points made and authorities cited by IVERSON L. HARRIS, for defendant in error

The writ of mandamus will not, in any case, lie to the Executive, but can be directed only to heads of departments, upon whom the Legislature have imposed ministerial duties not in conflict with their political duties to the Executive: Marbury vs. Madison, 1 Cranch's Rep. 137. Case of Kendall, 12 Peters' R. 610. The maxim, that for every wrong there is a remedy, cannot, upon proper examination, be found to furnish the fountain of the power claimed. For its just interpretation, see Broom's Legal Maxims, pp. 43, 44, 80.

The other maxim, that a private inconvenience must be per mitted to go unredressed, rather than a public inconvenience be created by the attempt to furnish a remedy, controls the first. Broom's Legal Maxims, p. 77.

That the writ of mandamus, in England, is an executive and not a judicial writ; though issuing out of the Queen's Bench it al ways runs in her name. 3 Black. Com. 110. Bacon's Abridg. title Mandamus. Ex parte Crane, 5 Peters' Reps. 190.

In Georgia, the power to issue this writ is conferred on the Superior Courts, by the Constitution; yet the character of it is not in substance changed, nor has it acquired, by the constitu tional delegation, any new force or larger extent of jurisdiction than it had in England. It goes in cases where it is necessary to carry out their judicial powers against precisely the same inferior

Low us. Towns, Governor, &c.

officers and judicatories embraced within its compulsive range in England. §7, art. 3, Constitution of Georgia.

. Mandamus being an executive writ, would have belonged to the Superior Court, as an incident to its general jurisdiction, without the express grant of it by the Constitution. Adopting Statute, 1784, Prince's Dig. 570.

A change in the forms of writs, made necessary by the change of our form of Government, is only authorized by our Adopting Statute, so far as to mould them to suit similar departments and offices in this Government. Pursuing the spirit of that Act, and the analogies of law, the mandamus should always run in the name of "the Governor of Georgia." Adopting Statute, 1784, Pr. 570.

Mandamus will not lie against the Executive of Georgia. Hammond rs. Whitaker, decided by Judge Strong, in 1822. William B. Johnson vs. Compton, Surveyor General, decided by Judge Merriwether, 1849.

It will not lie to compel the Governor to issue a commission. 2 vol. of Supplement to U. S. Digest, p. 384—citing Hawkins vs. Governor, Pike's Reps. 570.

The executive, legislative and judiciary departments of govern-, ment, declared to be separate, distinct, independent. Co-ordination and equality are fairly implied from that declaration. §1, art. 1, Constitution of Georgia.

~ The distribution of powers, and the limitations and restrictions as to the exercise of others, preclude the idea, that the paramount, supreme power asserted, is consonant with our form of Government. §1, art. 1, Con. State of Georgia.

All the powers of the Government, consisting of three classés, having been, by the Constitution, apportioned among the departments, it is insisted, that it is not within the competency of the Legislature to add to or abridge those conferred; nor can it, by a law imposing any duty, degrade the Executive from the equality given him by the Constitution. §1, art. 1, Cons. Ga. Marbury vs. Madison, 1 Cranch, 137.

The Judges of the Superior Courts having equal judicial pow ers by the Constitution, it follows that one of them cannot be compelled, in a civil suit, tó obey any writ issued. by another, whether that writ be mandamus or attachment. See §1, art. 3, Cons. of Ga.