As, however, it has been deemed appropriate by some of my brethren, the court now being full, with all the regular members on the bench, to express an opinion upon the question of jurisdiction, on account of an opinion lately delivered, wherein there was "It is applicable only in these two classes of cases. It cannot a divided court and a special justice on the bench, (Bledsoe v. the be made to perform the functions of a writ of error.” Com'r v. International R. R. Co.), I deem it an opportune occasion to pre-Whiteley, 4 Wall. 534. Nor can it be used so to act as an appeal from the determination of the officer in the exercise of executive functions. 17th Howard, 225; 7 Wall. 352.

"Where a commission to a public officer (a justice of the peace in D. C.) has been made out, signed and sealed, and is withheld 3. That the commissioner of the general land office, under and from the person entitled to it (by the secretary of the United by virtue of the constitution of the state of Texas, adopted in 1869 States), it is a plain case for a mandamus, either to deliver the comand the laws of the state consistent therewith, is one of the heads | mission, or a copy of it, from the record." Marbury v. Madison, I of the executive department in the government of the state of Texas. Cranch, 268. The facts in the second case were, that Stokes et al There might be other objections raised upon a rigid examin- were mail contractors, and had their credits allowed and accounts ation of it; such as, that it is an agreed case to get a legal | adjusted in the postmaster-general's office, while W. T. Barry was opinion from the court; the proof of the facts pretermitted and not examined into by the court below; defect in the mode of proving the right of the plaintiff below to the certificate, and in his consequent

with whatever sum of money the solicitor of the treasury (to whom
the same law referred the matter, to be settled and the result re-
ported to postmaster-general), should decide should be due to them.
The report of the solicitor being made, the postmaster-general still
withheld the credit. (By the law of the United States then in
force, the account, as made out in the department, would have
been prima facie evidence as to the state of the account, in a suit
against Stokes et al. Brightley's Digest.) Suit of mandamus be-
ing brought against Kendall, the supreme court say: "He was
This was not an official act
simply required to give the credit.
any other sense than being a transaction in the department where
the books and accounts were kept, and was an official act in the
same sense that an entry in the minutes of a court, pursuant to an
order of court, is an official act." Justice Catron, in the case of
Decatur v. Paulding (14 Pet., 521), gives the following quotation
and explanation of the decision: "He was (say the court) simply
required to give the credit, and this was no more an official act than
the making of an entry by a clerk, by order of a court of justice;
it was, in every just sense, a mere ministerial act." He adds:
Had it not been placed on this narrow ground, the decision could
not have been made." Diligent search has been made through
the decisions of the Supreme Court of the United States, and this
is the first and last and the only case that has been found in which
a mandamus has been sustained in that court against any one of
the heads of the executive department of the government.

ARTICLE II.

"Division of the Powers of Government." shall be divided into three distinct departments, and each of them "Section 1. The powers of the government of the state of Texas which are legislative to one, those which are executive to another, to be confined to a separate body of magistracy, to-wit: Those and those which are judicial to another; and no person or collecof persons, being of one of these departments, shall exercise instances herein expressly permitted." any power properly attached to either of the others, except in the

The departments of government shall be distinct; that is, so separated as not to be confounded with each other. To make this doubly sure, it is also added in effect, that they shall be kept separate in person, and in action. A judge, for instance, shall not be an attorney-general; nor shall he exercise any power properly attached to the office of attorney-general; such for instance, about how to discharge his official duties, nor can he be called on as giving advice to the commissioner of the general land office or required so to do, even though the legislature should pass a law requiring him to do it. That is simply because the constitution, in plain terms, forbids it.

The division made by the constitution, in and of itself, produces co-ordinancy in the three departments, and the separate independence of each one, from any conjunction with or control by the others in their allotted sphere of The first one, Marbury v. Madison, though it seems to have or- action. If this be not so, then there is no division. If one iginated the doctrine in this country, by an opinion of transcend- department may exercise its duties according to its own judgment, ant ability, studied and artistic as an argument, was on a point not except when another department chooses to control it and make it necessary to be decided in the case, for want of jurisdiction in the perform its duties in another and different way from that dictated court, it being an original suit filed in the Supreme Court of the by its own judgment, then in that event, there has been no division United States, which that court, being an appellate court (with of the powers of government into three distinct departments, and a few express exceptions), had no jurisdiction to try and determine. section 1 in article 2 of the constitution, means nothing. The All the fact necessary to determine their right to act was the orig- duties of each of these departments, in relation to the rights of ininal petition or application for the writ alone. All of the opinion, dividuals, involve matters of law and of fact to be determined on, based upon facts outside of and beyond that, was a mere dictum and when a final determination has been reached in any departof the court, and upon that dictum the subsequent decisions were ment to which the subject-matter properly belongs, there is no based, so far as it was followed at all. The questions arising upon power in another department to order that final determination to the right of a court to award a mandamus to any of the high ex-be changed or reversed by the department first making it. If the ecutive officers of the state, bring into consideration the structure , and operations of the government far more extensively than usually attend legal investigations, and necessarily invite to us a much broader view of the subject. Those who advocate a liberal exercise of this power by the court, usually base it upon certain general propositions, announced as axiomatic truths in a government of constitution and laws, such as the following: "No man, or body of men, officer or citizen, is above the law, and all are bound to obey the law." "For every legal right, when withheld, there must be a legal remedy."

"It is the peculiar province of the courts to construe, declare and enforce the law in vindication of the legal rights of the citizen."

Without entering into a minute discussion of how far the propositions are theoretical, and with what qualifications they must be subject in the practical operations of any government, it will suffice to embrace them all in one general exposition, which is, that in every organized government there must of necessity be a finality in the determination of the rights of individuals, in whatever departments they may arise or pertain to, and some men, or set of men, must make the final determination. In a despotism, such one man is easily pointed out. In a republican state, such as ours, wherein all of the powers or government are divided into three distinct departments, there must be a final determination of each department for itself of all such matters as are assigned to it in the division. Otherwise there is no division-no binding, effective and "distinct" division of powers. The framers of our constitution were determined to have no equivocation or doubt on that subject, if it were possible to prevent it by plain words.

governor will not sign a patent, or a commission, who can order him to do it, and make him obey? If the supreme court will not decide a case, when they can and ought to do it, under the law, who can order them to do it? If the legislature will not vote an officer his salary, to which he is entitled under the organic law, who can order the legislature to do their duty, and make them do it?

Each department may have its own reasons for not acting, or,

if possible, none at all. The land locator, who failed to get his patent, the litigant demanding a decision in the supreme court, and the officer who had asked for his well-earned salary, have each found whether or not every man or set of men are bound to obey the law, whether or not there is a legal remedy for every legal right withheld, and whether or not it is the peculiar province of the courts to construe, declare and enforce the law in vindication of the rights of an injured citizen. But suppose they act according to their judgment, instead of refusing to act, and act contrary to the interest and supposed legal right of the several applicants, what remedy have they to coerce different action? That the independent, separate action and co-ordinancy of the three distinct departments in dealing with the rights of the individual, involving facts and the law relating thereto, may be further illustrated, let it be supposed that a locator applies to the land office for a patent, and presents to the commissioner a certificate, a transfer to himself and a survey. These are all facts involving law questions in determining their sufficiency. The commissioner examines his maps in connection with the survey, to fix the locality of the land and other titles in his office, if necessary, to ascertain whether the land is vacant or not; he finds the land has been previously appropriated by a Spanish or Mexican grant; he examines into the

sioner of the general land office of the United States. It is higher because it is ordained by the constitution, and not by a law that the legislature can change or repeal; and because he has a greater independence in the tenure of his office, and thereby is more independent of the control of the chief magistrate. He is elected by the qualified voters of the state, as the governor is. The fact that he is vested directly, and not mediately through the governor, with a definite portion of the powers of the executive department, can hardly be held to render him any more liable to the control of the judicial department, than if he were created by law the minister, or official servant of the governor, subject to his direction and control in the performance of the executive acts confided to him by the constitution and laws. This constitutional independence in him as a member of the executive department, constitutes a lim

facts relating to that title. He turns then to the various laws affecting the validity of the old grant. And upon full consideration of the facts and law, he determines that the owner of the old grant has a vested right of property in the land, and he, having determined that for himself, refuses the patent to the locator. Now, if the commissioner is an executive officer, not subject in that particular determination to the control of any other department, it is a finality as to the issue then presented. The locator may stand upon his certificate thus located, and contest the validity of the old grant in a suit in court, and the court may determine that he has the better title, and if so determined by the court of last resort, that will be a finality as to the issue presented; and no other department can cause it to change that final determination. If the locator, instead of applying to the land office, had applied to the legislature, submitted his facts to their consideration, and had pro-itation upon the powers of the legislature in prescribing "such cured a declaration of annulment of the old grant, and a legislative grant of the land, by metes and bounds, to himself, the owner of the old grant might institute a suit in court, and have his adjudged to the better title to the land. Thus each department may act as a check upon the others, by each acting independently in its own sphere — the check being rather negative in relation to the other departments than positive and affirmative control over them. It is thus the three, acting in separate independence, and at the same time in harmonious co-ordinancy and co-operation, that good gov-riers of the division of the powers of the government made by the ernment may be accomplished. It is deemed sufficient to quote one remark of the court in the case, Kendall v. United States, in which it is said: "The theory of the constitution undoubtedly is that the great powers of government are divided into separate departments, and so far as these powers are derived from the constitution the departments may be regarded as independent of each other. 12 Peters, 609.

The remaining question to be presented in this connection is, does the commissioner of the general land office belong to the separate body of magistracy to whom are confided the executive powers of the government of the state of Texas? The most perspicuous answer to this question is made by a quotation from the constitution and laws, with a brief reference to his official duties thereunder.

ARTICLE IV.

Executive Department.

other duties" as he may be required to perform. They must be executive, pertaining to his distinct portion of that department. His determinations, though they may, and usually do, require a consideration of both law and facts, have neither the conclusiveness of judgments nor the force of laws. Nor can the legislature impose on him duties extraneous and not pertaining properly to the business of his office. For if they could, they would thereby efface and destroy the specific designation, and break down the bar

constitution, which it is not within the power of any law to do, whatever may be or may have been its source. Marbury v. Madison, 1 Cranch; Cooley's Con. Lim. and cases cited, p. 115, 116. For the same reason a judge, as belonging to a different body of magistracy, cannot by law be required to exercise any power properly attached to the commissioner in the official discharge of his executive duties, unless it can be found to be an excepted "instance," which has been "expressly permitted" in the constitution itself. See end of Art. 11, Section 1, Constitution, 1869.

This leads us to look to the judicial department to see if an instance of exception to the distinct division of the powers of government can be found there expressly permitted.

"The judicial power of this state shall be vested in one su "Section 1. The executive department of the state shall consist preme court, in district courts, and in such inferior courts and magof a chief magistrate, who shall be styled the governor, a lieuten-istrates as may be created by this constitution or by the legislature ant governor, secretary of state, comptroller of public accounts, commissioner of the general land office, attorney-general, and superintendent of public instruction."

Section 22 after prescribing the manner of the election of the commissioner, his term of office and qualifications to be the same as those of the governor, says further: "He shall be the custodian of the archives of the land titles of the state, the register of all land titles hereafter granted, and shall perform such other duties as may be required by law."

Other sections of the same article prescribe the duties of the other heads of the executive department. Article X establishes the general land office at the seat of government, and authorizes the legislature to establish such subordinate offices as they may deem expedient.

Various laws have been passed, and are now in force, authorizing the commissioner to appoint a corps of draftsmen, translators and clerks, for the dispatch of the business of his office, and prescribing various duties relating to the perfecting and securing of land titles. It is provided also that he shall have a seal, and that "all patents for lands emanating from the government, shall be in the name and by the authority of the state, and under the | seals of the state and the general land office, and shall be signed by the governor, and countersigned by the commissioner of the general land office." I Pas. Dig. Title Land, and see Arts. 4280-1. Thus is his position as one of the heads of the executive department, secured by a higher sanction than that of the commis

under its authority."

"Section 3. The supreme court shall have appellate jurisdiction only, which, in civil causes, shall be co-extensive with the state" (and by the late amendments "in criminal causes," also.)

The supreme court, and the judges thereof, shall have power to issue the writ of habeas corpus; and, under such regulations as may be prescribed by law, may issue the writ of mandamus, and such other writs as may be necessary to enforce its own jurisdiction."

"Sec. 7. The district court shall have original jurisdiction of all criminal cases, and of all suits, complaints and pleas, whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at or amount to one hundred dollars, exclusive of interest; and the said courts, and the judges thereof, shall have power to issue the writ of habeas corpus, and all other writs necessary to enforce their own jurisdiction, and to give them a general superintendence and control over inferior tribunals."

It is to be noticed that in the above section, conferring jurisdiction upon the supreme court, there is given the power to issue the writ of mandamus, which is not expressed in the section defining the jurisdiction of the district court. The use and purpose for which the writ of mandamus was permitted to be issued by the supreme court and judges thereof, as well as the connection in which it is found, with "such other writs as may be necessary to enforce its own jurisdiction," rebuts the conclusion that it was de

signed, by the fact of naming that writ, to confer on that court and the judges thereof any transcendent power of government over and above that which had been conferred upon them as a portion of the judicial department, Had it been so intended, the exception in their favor of the exercise of a power not judicial in its character should have been indicated as "expressly permitted," as it was provided it should be in the second article of the constitution, and should not have been left to be deduced by implication and inference from the use of the word mandamus, so connected in the sentence in which it is used as to militate against any such intention. Much less could any such intention be presumed in reference to the powers conferred on the district court by the constitution in defining its jurisdiction. McIntire v. Wood, 7 Cranch, 504; Graham v. Norton, 15 Wall. 427. In other words, we find nothing here that constitutes an exception in favor of the judicial department, in the general division and distribution of the powers of the government. No other part of the constitution expressly permits any portion of the judicial department to exercise the powers confided to the heads of the executive department, or to cause them to perform their executive powers, or to receive, entertain and decide an appeal from their determinations, made in the official performance of their executive duties. It follows from these principles that the executive has no power to order the courts to render their judgments in a particular way, nor have the courts any power to order the executive to perform his official functions, done in the discharge of his executive powers and duties, in any particular way, contrary to his own determination on the law and facts involved therein. For if they can, they are in effect exercising the powers confided by the constitution to the executive, on the principle of the rule of universal application, which cannot be evaded by indirection, that what one does by or through another, he does himself; and even stronger still, what one forces another to do against his will, he does himself, and is generally alone responsible for it.

It was also provided in the same act, that "the judges of the dis trict courts, and each of them, either in vacation or in term time, shall have authority to grant, on petition to them therefor, writs of habeas corpus, mandamus, injunction, sequestration, error, and supersedeas, and all other remedial writs known to the law, returnable according to law; provided that no mandamus shall be granted on ex parte hearing, and any peremptory mandamus, granted without notice, shall be deemed void; and further provided, that all writs of mandamus sued out against the heads of any of the departments or bureaus of government, shall be returnable before the district court of the county in which the seat of government may be." 1 Pas. Dig. Arts. 1405 and 1407. These are the only laws and statutes in force in the state of Texas relating to the writ of mandamus, and which alone have been in force since they were enacted in 1846, except the common law as applicable thereto. The adoption of the common law of England, in 1840, and its continuance in operation to the present time, does not bring with it, and make of force, in this state, the English statutes, extending from 9 Anne to 6 and 7 Victoria, as late as 1843; nor the rules of practice under them in the English courts, by which the proceedings under the writ of mandamus have, to a larger extent, been assimilated to, though not made regularly in all respects, a personal action. Tapping on Mandamus, mar. p. 439 to 454. See, also, Ibid. 282, mar. p., and following, as to proceedings under, etc. Under this state of the law the question was presented to the supreme court, in 1849, of the right of the court to award the writ of mandamus against the commissioner in a case involving the full exercise of his official judgment upon the facts and law, relating to the issuing of a patent upon certificates located and surveyed upon the land. The court decided in favor of the right of the court to entertain jurisdiction of the case, as a proper one for the writ, but decided' against the issuance of a peremptory mandamus upon the merits of the case. Commissioner v. Smith, 5 Tex. R. 471. The court The views here announced may not in the main be contested, be considered now an open question. The practice of resorting The first question here presented can scarcely as to the executive duties to be performed by the chief magistrate, to this proceeding against this officer, and to enforce the perform the governor of the state. But it is denied that they apply in the ance of this particular duty, is believed to have had its origin same degree to the several heads of the executive department, almost as early as the creation of the office itself, and to have and particularly to the commissioner of the general land office. been continued without a question as to its legality down to the This is contended for on the grounds that the enumeration of present time. 2 Tex. R. 581. But the right to this remedy in a the commissioner, as one of the officers of the executive department, is merely formal, that he performs the same duties, and is of courts. By a statute of the Congress of the Republic, approved case like the present, rests upon other authority than the practice subject to the same control of the courts by the writ of mandamus, January 25, 1841 (5 Statute, 84, Sec. 9), it is enacted that, “All as he was formerly when his office was created, and his duties writs of mandamus, sued out against the heads of any of the deprescribed by the acts of the legislature and by the laws gener-partments or bureaus of the government, shall be made returnally; and that the district court, at the seat of government, under able before the district court at the seat of government." It is the constitution and laws of the state, including the English well known that the statute was adopted in consequence of a praccommon law, adopted in 184c, and now in force, except so far as it is inconsistent with our constitution and statutes, is author-eral land office, by process from the courts of remote counties, to tice then prevailing of calling upon the commissioner of the genized to issue to him a mandamus, requiring him to issue a patent, show cause against the issuing of this writ in cases like the presupon his refusal, when it shall be established in court upon a trial ent, in such distant counties. This act certainly recognizes the of the cause, that according to the facts and law applicable thereto, right to obtain the writ at the seat of government. It must, morehe ought to issue it. over be regarded as a legislative recognition of the legality of the practice, then existing, of employing this writ as a private remedy, for it was its use as such which the legislature undertook to regulate. The use of the writ as a private remedy, seems to be conformable to modern practice. A part of the same section in the act of 1841, provided that "the several judges of this republic, in issuing writs of mandamus, are hereby directed to observe the rules which govern writs of mandamus at common law, as modified by the statutes of this republic." And by this same section it was declared that the rules of practice adopted by the supreme court in 1840, authorizing a peremptory mandamus before notice, was contrary to law. See Acts 5th Congress, p. 84, and for rules, see 1 Tex. R, 852. There was then no additional statute relating to mandamus, except that defining the jurisdiction the district court, by which the judges were given the right "to grant the writs

This induces a retrospect into the state of the law and decisions in this state upon the subject of mandamus.

The constitution of 1845, as well as those subsequently adopted, contains substantially the same provisions in reference to the jurisdiction of the courts, as that of 1869 previously quoted. They contained the same division of the powers of the government into three distinct departments; vested in the governor alone the executive powers of the government, and provided for a general land office, but the commissioner was not mentioned, nor were his office or duties prescribed. By the act of the legislature, the jurisdiction of the district court was defined, by reiterating in substance the powers conferred in the constitution, to which was added, "and generally to do and perform all other acts pertaining to courts of general jurisdiction."

in that case say: