specifically, the distinction between ministerial and discretionary duties must be noted. It is undisputed that a mandamus should issue only where the act to be ordered is merely ministerial, with regard to the performance of which neither judgment nor discretion is left in the officer.3 Accordingly, though the court may compel the exercise of discretion, it may not control the mode thereof.37 Thus, the problem in mandamus proceedings is to determine whether the relator seeks to obtain the performance of an undisputed duty, or to dictate the conditions precedent which shall give rise to this obligation to act, thereby controlling the exercise of the officer's discretion. If the latter is his objective, he will inevitably fail. The judgment and discretion reposed in an officer as a part of his official functions are to be exercised by him only and not by the relator through the court.38

The line of demarcation between ministerial duties and those involving the exercise of discretion, at best a vague one, is perhaps most perceptible in mandamus proceedings brought against executive officers of the government. That such proceedings are maintainable is clear, the official character of a party not exempting him from the writ, provided, of course, that the duty is merely ministerial.39 A ministerial act may be regarded as one which a public officer or agent is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own opinion concerning the propriety of the act to be performed.40 Discretion may be defined, when applied to public officials, as the power or right conferred upon them by law of acting officially, under certain circumstances, solely according to the dictates of their judgment and conscience.41

The application of these principles to cases where the duty sought to be

36 In re Morse, 18 Pick. (Mass.) 443 (1836); People v. Land Comm'rs, 149 N. Y. 26, 43 N. E. 418 (1896); Marbury v. Madison, 1 Cranch (U. S.), 137 (1803); Reg. v. Met. Police Dist., 4 B. & S. 593 (1863).

27 People v. Westchester County, 12 Barb. (N. Y.) 446 (1851); Gaines v. Thompson, 7 Wall. (U. S.) 347 (1868); but see under statute, State v. Clausen, 44 Wash. 437, 87 Pac. 498 (1906).

38 Gaines v. Thompson, supra; Decatur v. Paulding, 14 Pet. (U. S.) 497 (1840); United States v. Guthrie, 17 How. (U. S.) 284,(1854).

39 The authorities are divided as to the power of the courts to control the chief executive of the state government. See 6 L. R. A. (N. S.) 750; 32 L. R. A. (N. s.) 355; 12 HARV. L. REV. 208. But all are agreed that such immunity does not extend to the heads of executive departments. Pacheco v. Beck, 52 Cal. 3 (1877); Bonner v. State, 7 Ga. 473 (1849). Such a proceeding against a state officer is not a suit against the state within the meaning of the Eleventh Amendment. Bd. of Liquidation v. McComb, 92 U. S. 531 (1875); Internat. Postal Supply Co. v. Bruce, 194 U. S. 601, 616 (1903). See 20 HARV. L. REV. 245. However, a claim which cannot be enforced against the United States cannot be enforced circuitously by a mandamus proceeding against one of its officers. Reeside v. Walker, 11 How. (Ú. S.) 272, 290 (1850). It has been said that mandamus would not issue against the President. Mississippi . Johnson, 4 Wall. (U. S.) 475, 499 (1866). But it will issue against the heads of executive departments of the United States. Marbury v. Madison, I Cranch (U. S.), 137 (1803); Kendall v. United States, 12 Pet. (U. S.) 524 (1838); Boynton v. Blaine, 139 U. S. 306 (1890). See 23 HARV. L. REV. 633.

40 Ex parte Batesville, etc. R. Co., 39 Ark. 82, 85 (1882); Amer. Cas. Ins. Co. v. Fyler, 60 Conn. 448, 22 Atl. 494 (1891). For other definitions, see Sullivan v. Shanklin, 63 Cal. 247 (1883); Henkel v. Millard, 97 Md. 24, 54 Atl. 657 (1903); Mississippi v. Johnson, supra.

State v. Hultz, 106 Mo. 41, 16 S. W. 940 (1891). See Rio Grande County v. Lewis, 28 Colo. 378, 65 Pac. 51 (1901).

enforced involves the determination of questions of fact is not always easy. It is clear that an act may be ministerial, though the existence of the obligation to act depends upon the determination of a question of fact; 42 but where the duty requires an examination of evidence and a decision on questions of law and fact, it may be safely classified as discretionary.43 The recent Supreme Court case of United States ex rel. v. Lane et al. affords an illustration of the importance of this distinction. The duty of a public land officer to issue a land patent depends upon the performance of certain conditions precedent with respect to that land by the petitioner. Clearly, when no doubt exists as to the fact of such performance, the execution and delivery of the patent, if arbitrarily withheld, may be enforced by mandamus.4 The above case, however, states the well-settled rule that the granting of a patent where hearing, proof, and decision are required,47 and the exercise of judgment and discretion necessary,48 is not to be subjected to supervision by mandamus.49 It is not surprising, therefore, that no case has been found in which, under such circumstances, the writ will be granted to compel the issuance of a patent by the land department.

Most of the duties of an executive officer are not merely ministerial. In the administration of the various and important concerns of his office the head of an executive department of the government is continually required to exercise judgment and discretion. He must so act in expounding the laws of Congress under which he is from time to time required to proceed in his duties.50 The courts will not, therefore, interfere with these officers in the exercise of their ordinary official duties, even when these necessitate an interpretation of the law, inasmuch as the court has no appellate power for that purpose.51 The deference due a

42 Flournoy v. Jeffersonville, 17 Ind. 169 (1861); Marcum v. Ballot Comm'rs, 42 W. Va. 263, 26 Š. E. 281 (1896).

43 Cook County v. People, 78 Ill. App. 586 (1898); United States v. Edmunds, 5 Wall. (U. S.) 563 (1866).

4U. S. Sup. Ct., October Term, 1919, No. 36.

45 33 STAT. AT L. 525 (1904).

46 United States v. Hitchcock, 19 App. Cas. (D. C.) 333 (1902); State ex rel. v. Nichols, 42 La. Ann. 223, 7 So. 738 (1890). But discretionary acts will be reviewed and controlled if the discretion has been abused. State ex rel. Moody v. Barnes, 25 Fla. 298, 5 So. 722 (1899); People v. Van Cleave, 183 Ill. 330, 55 N. E. 698 (1899) (arbitrary action); Zanone v. Mound City, 103 Ill. 552 (1882); State Bd. v. People, 123 Ill. 227 (1887) (due to personal motive); Baird v. Bd. of Supervisors, 138 N. Y. 95, 33 N. E. 827 (1893) (refusal to give proper hearing); United States v. Schurz, 102 U. S. 378 (1880) (discretion wrongfully based on ground not within official discretion). See 7 L. R. A. (N. S.) 525.

47 Johnson v. Towsley, 13 Wall. (U. S.) 72 (1871); United States v. Comm'rs, 5 Wall. (U. S.) 563 (1866); Castro v. Hendricks, 23 How. (U. S.) 438 (1859).

48 West v. Hitchcock, 205 U. S. 580 (1906); In re Emblen, 161 U. S. 52, 56 (1895); Carrick v. Lamar, 116 U. S. 423 (1885).

49 Riverside Oil Co. v. Hitchcock, 190 U. S. 316 (1902); Bockfinger v. Foster, 190 U. S. 116 (1902); Johnson v. Towsley, supra; Litchfield v. Register, 9 Wall. (U. S.) 575 (1869); Cox v. United States, 9 Wall. (U. S.) 298 (1869); Gaines v. Thompson, 7 Wall. (U. S.) 347 (1868); Castro v. Hendricks, supra; The Secretary v. McGarrahan, 9 How. (U. S.) 298 (1850). But of course, after a patent has been regularly made out and recorded, its delivery may be compelled. United States v. Schurz, supra.

50 Decatur v. Paulding, 14 Pet. (U. S.) 497, 515 (1840).

51 Riverside Oil Co. v. Hitchcock, supra; Roberts v. United States, 176 U. S. 221 (1899). But performance of a duty imposed by statute will be compelled, though the officer must construe the statute to determine the nature of the duty. Roberts v. United

coördinate department of the government leads the courts to resolve every reasonable doubt in favor of freedom of executive action and to require a clear case before they will proceed to control it.

When a testator in

ERRONEOUS DESCRIPTION OF LAND IN A WILL. tends to devise a plot of land and in his will inadvertently gives it the wrong township, range, or lot number, can the lot the testator intended pass under the will? For example, if the testator owns only lot number 32 in a certain township and it plainly appears from extrinsic evidence that it was that lot that he intended to devise, but in the will the lot is designated number 31, can lot number 32 pass?1 Courts have not jurisdiction to correct mistakes in wills by reformation. So if the result is to be attained it must be by construing the words in the will so as to apply to the property the testator intended to give.3

It is always possible under the maxim Falsa demonstratio non nocet for a court to disregard portions of a description shown to be erroneous, and to apply the remaining true portion. In the cases where it is known that the testator intended to devise a piece of land other than that designated in the will, the problem of construction becomes one of the sufficiency of the description after disregarding the erroneous lot numbering. This is true no matter what theory of interpretation is adopted. The orthodox view is that expounded by Vice-Chancellor Wigram, that the object of interpretation is never what the testator meant but "what is the meaning of his words;" or, as Mr. Kales puts it, the subject matter of interpretation is always the legal act contained in the writing. Clearly this leaves the question one of the sufficiency of the words. But this is no less the case if the theory of Professor Hawkins is followed, that the sole object of interpretation is to determine the intention of the writer, for Professor Hawkins admits that in interpreting a legal document there is States, supra; United States v. Black, 128 U. S. 40, 48 (1888). Also, the court has power to grant relief to an individual aggrieved by a decision based upon a statute inapplicable to the facts in question. American School, etc. v. McAnnulty, 187 U. S. 94 (1902); Burfenning v. Chicago, St. Paul, etc. R. Co., 163 U. S. 321 (1896).

1 The problem has been presented by several recent cases. Stevenson v. Stevenson, 285 Ill. 486, 121 N. E. 202 (1918); Perkins v. O'Donald, 82 So. 401 (Fla., 1919); Wilmes v. Tiernay, 174 N. W. 271 (Ia., 1919). See RECENT CASES, infra, p. 486.

2 Newburgh v. Newburgh, 5 Mad. 364 (1820). The English courts have gone far in striking out words inserted by mistake. Morrell v. Morrell, 7 P. D. 68 (1882); Goods of Boehm, [1891] P. 247. But they will not substitute one word for another. Goods of Schott, [1901] P. 190, overruling Goods of Bushell, 13 P. D. 7 (1887). But cf. Estate of King, 53 IRISH LAW TIMES, 60 (1919), where, on facts nearly identical with those of Goods of Bushell, the same result was reached by interpretation.

3 The problem, of course, is not at all the same as that which would be presented if it were shown that the testator used "thirty-one" as a symbol or code number for "thirtytwo." See Doe, C. J., in Tilton v. American Bible Society, 60 N. H. 377, 383, “A person known to a testator as A. B. and to all others as C. D. may take a legacy given to A. B." But see Holmes, "The Theory of Legal interpretation," 12 HARV. L. Rev. 417, 419. And see 21 HARV. L. Rev. 434.

See WIGMORE, EVIDENCE, § 2476.

5 See WIGRAM, EXTRINSIC EVIDENCE IN THE INTERPRETATION OF WILLS, Introductory Observations, plac. 9 (2 American ed., 53).

See Kales, "Considerations Preliminary to the Practice of the Art of Interpreting Writings," 28 YALE L. JOUR. 33, 34.

an additional inquiry after having discovered the writer's intention to wit, has the intention been so expressed as to give it legal validity.7 If the court of construction after disregarding the erroneous lot numbering still finds in the will such attributes ascribed to the lot as "belonging to me" and "together with the improvements thereon," and these attributes fit only the lot the testator intended to devise, it seems plain that there is a sufficient expression of the testator's intent and that the lot should pass in spite of the erroneous numbering. Yet in a recent Florida case, although the will in dispute contained expressions which would seem to be equivalent to the testator's saying that he devised property belonging to himself, the court held the property not sufficiently identified. Either these expressions were not called to the attention of the court or the court did not think them worthy of consideration, for no mention is made of them in the opinion.

9

8

If the will contains no express statement that the testator is devising his own property, it is more difficult to say that the will sufficiently expresses the testator's intent. In the much-cited case of Kurtz v. Hibner,10 where the land was described only by township, range, and lot, and an element of this description was wrong, the Illinois court held that the land would not pass, and in the recent case of Stevenson v. Stevenson11 it has affirmed its position. This latter case contained a strong dissenting opinion and has resulted in considerable controversy and a proposal for legislative action.12 The only question in such a case is, did the court avail itself of all the descriptive matter in the will? We have seen that a court should look beyond the mere section numbering of the property and that an important descriptive element is any expression in the will that the property belonged to the testator.13 Mr. Kales, writing a propos of the later Illinois decision, says, "I for one would not quarrel with the court if it found regularly and prima facie in a will, a devise

7 See Hawkins, "On the Principles of Legal Interpretation," 2 JURID. SOC. PAPERS, 298, reprinted in THAYER, PRELIM. TREAT., Appendix C.

8 Patch v. White, 117 U. S. 210 (1886). The court found the land described as belonging to the testator, in the introductory word of the will: "And touching worldly estate, wherewith it has pleased Almighty God to bless me in this life, I give devise and dispose of the same in the following manner and form.

Perkins v. O'Donald, 82 So. 401 (1919). The introductory words were similar to those in Patch v. White, supra. The testatrix ". . . recites that being desirous of settling her worldly affairs and directing how the estates with which it has pleased God to bless her shall be disposed of after her death, she made, published and declared the document to be her last will, . . ." It will be noticed, however, that this is not a direct statement that the testatrix hereby gives the estates which she owns, as in Patch v. White. But it is submitted that it is sufficient indication of testatrix's intention to give property that she owned.

10 55 Ill. 514 (1870).

11 285 Ill. 486, 121 N. E. 202 (1918). In this case the testator devised "the southeast quarter of the southwest quarter of section five; also the south half of the east half of the southeast quarter of section eight. . . all in township seven, north of the base line and range six west of the fourth principal meridian situated in the county of Hancock in the State of Illinois." The testator owned no land in township seven, range six, but the section and quarter section numbering correctly described land owned by the testator in township six, range seven.

12 See 2 ILL. L. BULL. 175, 286, 293. The legislation proposed was to give courts of equity jurisdiction to correct such mistake and give effect to the actual intent of the testator." 2 ILL. L. BULL. 178.

13 Patch v. White, supra.

of land 'belonging to me,' though the words 'belonging to me' were not explicitly used." 14 But is it necessary to make this an assumption? Does it not follow from the use in the will of the words "give," "devise,” or "bequeath"? It is true that it is now possible to devise after-acquired property, yet the fact remains that in the majority of cases the testator "devises" property he owns. The court having found, from evidence dehors the will, an intent to devise property owned by the testator, it would seem that the word "devise" should be a sufficient expression of that intent to give it legal validity. It is possible, although not evident from the report, that a recent Iowa case was decided on some such theory.15 From the report it does not appear that there was any designation of the property as "belonging to me," or any description beyond that of township and section, yet the court allowed the property the testator intended to pass under the will.

If the court cannot find expressly or impliedly in the will any words which describe the land as belonging to the testator, it seems that the devise must fail. Giving the correct section, when township and range are wrong, does not alone seem a sufficient expression of the testator's intent to give a specific lot of land.16 But it is dangerous to dogmatize on a problem of construction, and the solution of such a problem must always depend largely on the facts of the particular case.

RECENT CASES

ADMIRALTY - TORTS LIMITATION OF LIABILITY. A tug with a car float in tow collided with a steamship. Both the steamship and the tug were negligent. The owner of the tug and car float seeks to limit his liability to the value of the tug. Held, that he may do so. The Begona II, 259 Fed. 219 (Dist. Ct. D. Md.).

Federal legislation limits the liability of a shipowner to the value of his interest for any damage caused by a collision occurring without his privity or knowledge. See REV. STAT., § 4283. The maritime law, however, had previously limited liability in the same way for the same reason that influenced Congress,encouragement of shipping. See Norwich & New York Transportation Co. v. Wright, 13 Wall. (U. S.) 104, 116. See also HUGHES, ADMIRALTY, 302, 303. The courts apportion the damages for a collision equally among all the ships responsible therefor, regardless of ownership. The Manhattan, 181 Fed. 229; The Eugene F. Moran, 212 U. S. 466. The rule is the same if some of the vessels are in the tow of others. The Eugene F. Moran, supra. But the second circuit has properly held that the negligence of the towing vessel should not be imputed to the tow. The Transfer No. 21, 248 Fed. 459. See also Sturgis v. Boyer, 24 How. (U. S.) 110. But the sixth and ninth circuits have reached an opposite conclusion on the ground that by being engaged in a common enterprise the two vessels are to be treated as one. The Thompson Towing & Wrecking Ass'n v. McGregor, 207 Fed. 209; Shipowners' & Merchants' Tugboat Co. v. Hammond Lumber Co., 218 Fed. 161. The fourth circuit, however, has held that a barge in tow is a separate vessel to such an extent that it must comply 14 2 ILL. L. BULL. 290.

15 Wilmes v. Tiernay, 174 N. W. 271 (1919).

16 Cf. Nussey v. Jeffery, [1914] 1 Ch. 375, "their daughter" held a sufficient expression of testator's intent to give to one particular one of five daughters, identified by extrinsic evidence.