ity. The wise policy of the constitution gives him a choice of tribunals. In the former he may hope to escape the local influences, which sometimes disturb the even flow of justice. And in the regular course of procedure, if the matter be large enough, he may have access to this tribunal as the final arbiter of his rights. Upon the grounds of the jurisprudence of both the United States and of Texas, we hold this bill well brought as regards the defendants." That is, the Governor and Commissioner of the General Land Office of Texas. 16th Wall., p. 221, 222. That suit was brought in the Circuit Court of the United States for the Western District of Texas, since the adoption of the constitution of 1869, and was decided in the Supreme Court of the United States, at the December term, 1872, upon the authority of the cases cited therein of Texas decisions, to-wit: Ward v. Townsend, 2 Tex. R 581; Cohen v. Smith, 2 Id. 51; Commissioner G. L. O. v. Smith, 5 Tex. R. 471; McLelland v. Shaw, 15 Tex. R. 319; Stewart v. Crosby, Id. 547; H. & G. N. R. R. Co. v. Keuchler, 36 Tex. R. 382 Every one of these Texas cases (except the last, which simply follows the others), is based upon the principle announced in the case of Commissioners v. Smith, as before shown, and, as it is believed, cannot be placed upon any other principle than that the commissioner was a ministerial officer, and was not then regarded or treated by the courts of Texas, in passing upon his acts, as one of the heads of the executive department of the state of Texas. It might be appropriate, in reference to the case now before us, to see in what light the Commissioner of the General Land Office of the United States is regarded by the Supreme Court of the United States. " the law and to the facts; that a mandamus, sustained, would be the act of the court in guiding and directing his judgment or discretion, in the ordinary exercise of his official duties; and that it would be, in effect, entertaining and passing upon an appeal in a regular trial de novo from his determinations, as much so, indeed, as an ordinary appeal or certiorari from a justice's court to a district court. Decatur v. Paulding, 14 Peters, 515. A mandamus cannot be made to perform the functions of a writ of error, nor be made to subserve the purpose of deciding a legal question merely as devised and obviously intended in this case. Com'r. of Patents v. Whiteley, 4 Wall. 534, 523. Tapping on Mandamus, p. 68. "When the duty is not strictly ministerial, but involves discretion and judgment, like the general doings of a head of a department, as was the respondent here, and as was the case here, no mandamus lies." Reeside v. Walker, 11 Howard R. 290. A third and still later case may be referred to, which, if possible, more strongly enforces the doctrine that the commissioner of the general land office cannot be required by mandamus to issue a patent to land. It is the case of the secretary (of the interior) v. McGarrahan (9 Wall, 312-314) in which it is held that: “Though mandamus may sometimes lie against an executive officer to compel him to perform a mere ministerial act required of him by law, yet such an officer, to whom public duties are confided by law, is not subject to the control of the courts in the exercise of the judgment and discretion which the law reposes in him as part of his official functions." After referring to the case of Kendall v. The United States (12 Peters, 608), in which it had been decided that a writ of mandamus could be issued to enforce the perform. ance of a purely ministerial act by one of the heads of the executive department, the opinion proceeds to say: "Subsequent decisions of this court have affirmed the same principle. But in all of the subsequent cases the principle is strictly limited to the enforcement of mere ministerial acts, not involving the necessity of taking proofs, and it has never been extended to cases where controverted matters were to be judicially heard and decided by the officer to whom the writ is required to be addressed. For authority for these priniciples there is cited Decatur v. Paulding, 14 Peters, 497; Brashear v. Mason, 6 Howard, 99; Gains v. Thompson, 7 Wall. 353; Reeside v. Walker, 11 Howard, 289; U. S. v. Seaman, 17 Howard, 230; U. S. v. Guthrie, 17 Howard, 304; Com'r of Patents v. Whitley, 4 Wall. ; U. S. v. Com'r, 5 Wall. 563. To apply the principle established by such an unbroken line of authorities to the case then under consideration, the opinion proceeds: "Patents for land are required to be signed by the President in person, or in his name by a secretary under his direction, and they are to be countersigned by the recorder of the general land office." 4 Stat. at Large, 663, 5 Id. 417. See also the statute of Texas pre It was decided by the Supreme Court of the United States, that a writ of mandamus would not issue to the commissioner of the general land office in a case involving the exercise of judgment upon a complication of facts, or to use the language of the court, which 'calls for the exercise of the judicial functions of the officer," and it is added, in reference to whether a writ would lie against him at all, we have found no case in which this power has been exercised." 5 Wall. R. 565. U. S. v. Com'r. The case of Gains v. Thompson was an injunction against the secretary of the interior and commissioner of the general land office to restrain them from cancelling an entry under which lands were claimed. In denying the right to the injunction, which was regarded as being analagous in principle to mandamus, as was done in the case of Davis v. Gray, above quoted, the court say: "A ministerial duty, the performance of which may in proper cases be required of the head of a department by judicial process, is one in which nothing is left to discretion." "The action of the officers of the land department, with which we are asked to interfere in this case, is clearly not of this character. The validity of plaintiff's entry, which is involved in their discretion, is a question which re-viously quoted, requiring patents to land to be signed by the govquires the careful consideration and construction of more than one act of Congress." "It is far from being a ministerial act under any definition given by this court." 7 Wall. R. 353. The same opinion, quoting and applying to that case, with approbation, a part of the opinion of Ch. Jus. Taney in the case of Decatur v. Paulding (14 Peters, 497) says: "The court could not entertain an appeal from the decision of one of the secretaries, nor revise his judgment in any case, where the law authorized him to exercise judgment or discretion. Nor can it, by mandamus, act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care." The interference of the courts with the performance of the ordinary duties of the executive departments would be productive of nothing but mischief, and we are quite satisfied that such a power was never intended to be given to them. 7 Wall. p. 352. What is here said may be applied with equal or greater force to the case before us, that a careful consideration and construction of more than one law has to be made by the commissioner; that it requires judgment and discretion, both as to ernor, and countersigned by the commissioner of the general land office. Such patents cannot be issued and delivered to any party without the signature of the President, and no proceeding to compel either the commissioner of the general land office, or the secretary of the interior to issue such patent, can be sustained while that provision of law remains unrepealed." The Secretary v. McGarrahan, 9 Wall. 314 (citing U. S. v. Land Com. 5 Wall. 563). No subsequent decision of the Supreme Court of the United States has changed or varied this ruling, and therefore it would be useless to attempt to add any other authority to the overwhelming weight already piled up, perhaps superfluously. These decisions of the Supreme Court of the United States, positively deciding the right of the courts to coerce the issuing of a patent by mandamus to an executive officer, were made long after all of the decisions of the Supreme Court of Texas (except that of H. & G. N. R. R. Co. v. Keuchler, in 36 Texas R.) in relation to the rights of the courts to issue a mandamus against the commissioner of the general land office to issue a patent for lands, hav ing all been rendered since 1866. It might be well to notice that the very authorities cited in the Texas decisions to warrant the mandamus against our commissioner of general land office, are the same as those cited by the Supreme Court of the United States to warrant their refusal of it against their commissioner; and still our decisions are cited by that court to warrant the writ, even against the governor, when such a ruling had never been made by our court as to the governor, or the heads of departments, but only against the commissioner treated as a ministerial officer. Now, in view of these decisions, can it be said with any propriety, that, in law, or by any mode of constitutional construction of he powers of government, the commissioner of the general land office of the United States, whose of fice is created, and whose duties are prescribed, by acts of Congress, occupies a different and higher position in the executive department of the general government, than that occupied by the commissioner of the general land office of the state of Texas, towards the executive department of the state of Texas since the adoption of the constitution of 1869, in which he is expressly named as one of the executive officers? Is he still to be treated by the courts as a mere ministerial officer, all of whose official functions, of the highest and most complex character, can be controlled by the courts of this state? He is as independent in his position as the governor is, and has a separate line of duty as plainly marked out. His department is equally important with He has the highest title to office that it is possible to confer in this country, by a designation in one of the three departments in the constitution, and by an election by the qualified voters of the whole state. Authorities might be cited to show the any others. ment. ginia, 1851; Kentucky, 1850; Ohio, 1851; Indiana, 1851; Florida, I Kent view of other courts as to the necessary effect of an officer deriving his authority by designation from the constitution. One only as a sample: The People v. The Canal Board, 13 Barbour, N. Y. R. 438. But why call in aid to confirm that which the constitution itself positively affirms? So far from this change being made without a purpose by the framers of the constitution, it is in accordance with the settled tendency, that has been growing and inWith the evils of such a system of divided executive department, creasing its manifestations in public acts for the last half century, we have nothing to do as a court. Some of them were alluded to to lessen the direct power and influence of the chief executive, by long since in a decision of this court, delivered by me: The State securing the independence of the heads of departments. All v. The Southern Pacific R. R. Co. 24 T. R Bishop, whose philopublic history attests the fact, that constitutions, laws and decis-sophic explorations into and expositions of the science of the law ions of courts, and the construction of all of them, are progressive, has placed the bench and bar under many obligations, has sugas public events arouse to action great minds, in impressing and gested some appropriate rules by which to determine the weight infusing their views into them. Two such events did occur, forty of authority. "I. Whatever may be the language of the judges, the decision, as a precedent in the strict sense binding in future years ago or over, in the public history of this country, which excited a universal interest and great conflict of opinion as to cases, extends no further than the facts involved in the case as ap2. It is not binding as to any matter to what were, and what should be, the relations between the different pearing in the record. departments of republican government. It was an undeveloped which the mind of the court did not advert, even though within the issue, which had been long forming that then blazed forth. One record. 3. It is not binding as to any point not necessary to be of them resulted in fixing strongly in public sentiment the doctrine, passed upon in order to decide the cause. that the courts have a controling power, to a certain scarcely de- given by the judges in passing upon the questions necessarily finable extent, over the executive department or some of its offi- involved in the cause, and strictly within the record, these are in a cers; and that the decisions of the courts of last resort constitute the qualified sense to be regarded as the law of the case, but they are law-binding on the other departments. This has borne all along not absolutely so." Bishop's First Book of the Law, 394. many fruits in most, if not all of the states, and lately some very bitter fruits in a few of them. See "Durell case" in Louisiana, and cases in Arkansas and Texas, not yet reported, wherein civil war was the result in two, and nearly reached in the third state. The other event referred to was made the means of exciting a serious apprehension of danger, from uniting "the sword and the purse" in the hands of the chief executive; which resulted in the effort to secure the independence of the different departments, as far as practicable, from the direct control of, and discretionary removal by, the chief executive. This has continually manifested itself ever since in the constitutions of many of the states, whose constitutions have been formed or amended since that time, by naming the several heads of departments with the chief exccutive. See constitutions: New York, 1846; Maryland, 1851; Vir 4. As to the reasons These rules may deserve consideration in reference to what follows, without being repeated, as well as to that which has already been exhibited in this opinion. Under the state of the law, and of the constitutions, and the material change of the constitution in reference to the commissioner's position in the executive department, as have now been brought to view, together with the former decisions of this court in relation thereto, the conclusion, it seems to me, is inevitable, that he stands in that department as the equal of the governor, and of the other high executive officers, and independent of them in his own sphere of action; and that if the statute of this state did authorize the courts to pass upon and revise all of his official conduct, treating him as only a ministerial officer when those decisions were made, the constitution has lifted him from that inferior sta tion, and that now his official acts requiring judgment and discre tion can no more be directed and controlled by the courts than those of the other heads of the executive department. as shown by their decisions, is directed to the decisions of the Supreme Court of the United States as the source of light on that subject, and when they are examined it is found that whatever power the courts have to draw such a distinction between the several acts of an executive officer, and to compel the performance of those adjudged to be ministerial, is derived from the principles of the common law, as applied to our system of government, through the power of the courts to issue the writ of mandamus. There are other considerations rising above the mere critical construction, of words in laws and constitutions and pertaining to the history and intrinsic nature of the thing itself, that fixes, beyond the possibility of a doubt, that the issuing of a patent to land is a high official function, done exclusively in the exercise of the executive department of the government. In past time, when the sovereign was the owner of the vacant domain, his grant was an absolute investure of title, as in case of William Penn and Lord Baltimore. When republican governments were formed in America, the unappropriated vacant lands belonged to the people of the states, as bodies politic, and afterwards much of it to the government of the United States. Universally, at least without any known exception, such lands have been granted, under provisions of the constitutions and laws, devised for the purpose, through the executive head of the government, state or federal, aided by such officers as might be asso-ing for contempt of court. Tapping, 472-490; 1 Chitty's Gen. ciated with, or placed under him, in the executive department. It is proposed now to see if, in importing the common law across the Atlantic, this high prerogative writ of the King or Queen of England, "one of the flowers of the crown," has, in the distribution of the powers of government, been placed by the framers of our constitutions in the judicial department in its full proportions and vigor, as it existed at common law in the Court of King's Bench in England. For we have not adopted the English statutes regulating it, as a remedy somewhat analagous to an ordinary action at law, requiring a judgment, and allowing a writ of error; all of which did not exist at common law, any more than in a proceed Prac., 791. The powers of government in England have been distributed by immemorial custom and precedent, mutual adjustment and adaptation, without any written constitution defining the distribution. For the present purpose it is sufficient to say that parliament enacts the laws, and the king executes them through the agencies, from time to time, used for that purpose. The power of the king to execute is commensurate with the power of parliament to enact laws. There is no limitation in the extent of the power to Again, there is such a thing in legal science, as well as in natural philosophy, as that of fixing the position and class of an object in a system, by the nature, qualities and attributes of the thing itself. By such a process of examination, there is no escape from the conclusion that the act of issuing a patent is the exercise of an executive function. The instrument upon its face bears the indelible impress of an executive agency, acting for the body politic organized-the state. Like most executive acts, it only imports, in legal effect, prima facie right, which may be en-execute, but only in the means to be used, which have by degrees quired into, not having the conclusive force of a law passed, or a judgment rendered. It neither concludes the state nor individuals, when issued under a defect of right, and to the prejudice of prior vested rights. Smith v. Power, 2 Texas R. 72; Tapping on Mandamus, 440. fallen into particular agencies, and regulated forms. In early times much of this was done directly by orders of the king and his council, some of which are still extant, signed "per Regem et Cons." But he used this means of suspending laws, as well as of executing them, and as it grew into disfavor, the cabinet or ministers of state, the courts of chancery, and of king's bench enlarged their powers so as to accomplish the same objects in a manner better regulated, and with more justice to the subject. Through these three channels, the executive power of the government was exercised, except so far as it was entrusted to inferior tribunals, all of whom were in some way under the control and direction of these high agencies. The Court of the King's Bench, where the king was supposed to preside, as doubtless he did in exercise of merely judicial functions, but by the use of the writ of mandamus (which is the language of royalty itself), could cause duty required of them by law. It is said to be founded on magna charta, wherein the king had pledged himself that there should be no failure or refusal of justice and right. It was used as "a supplementary means of substantial justice in every case where there is no specific legal remedy for a legal right." Tapping, 62. That is, it filled up the vacuum whenever there was a deficiency in the execution of the laws on account of a right not coming un If the judgment had been rendered in favor of Wright, and the patent had issued under it, it would not have vested in Wright any higher title by virtue of the judgment, than if it had issued without the mandamus. The state is no party to the suit, nor are other individuals who may have an interest. It is a matter simply between Wright and the commissioner. The commissioner does not own the land, and a judgment against him for Wright, recovers nothing but a writ-a writ to force an executive officer to perform an executive act, in the usual course of his official business. Tapping, speaking of the effect of such a judgment in a similar matter, says: "It neither gives a right nor concludes one; it" any person, corporation or court of judicature" to perform any confers no title per se, but merely a legal capacity to assert one," etc, 440. If Keuchler dies or gets out of office before the writ is executed, the judgment is dead also. U. S. v Boutwell, 17 Wall. 609. See Id. v. McGarrahan, 9 Wall. 313. It has more the attributes and qualities of an investigation for contempt of court, than a personal action at law to recover a private right withheld by an officer. The issuing of a patent may be shown not to be a ministerial act, by presenting as nearly as practical what has been re-der the regular forms of procedure in some of the courts of law garded as a ministerial act by the Supreme Court of the United States, by which the difference may be plainly seen. It now, therefrom, remains to be seen whether or not the laws of this state do, or may impose a duty upon one of the heads of the executive department to perform any act which may be properly denomin-channel than a resort to the king's bench, and avoid the necesated ministerial in its character, in contradistinction to an ordinary official executive duty, and which the courts, being of another department of the government, can force him to perform against his will, through the proceeding of mandamus, or any other process from the courts; and if so, is it possible that the issuing of a patent by the commissioner of the general land office, in a case like the present one of Keuchler v. Wright, can possibly be such an act? or equity. There could be no need of issuing the writ to the ministers of state, or to those officers under their direct control and direction, and it was not done, because the king could have the laws executed in those executive departments through another sary confusion consequent upon such an attempt. It does not lie against the king, because obedience must be enforced by attachment." Neither will it lie to command the officers of the crown, as such (Tapping, 161), nor against lords of the treasury (Ib. 315), nor commissioners of customs (Ib., 164), nor against superior courts (Ib., 161). "A peremptory mandamus is not a judicial writ, founded on a record, but a mandatory writ, which the Court of B. R. issues when it is satisfied of the prosecutor's right." The legal mind, not only in this state but in all of the states, Tapping, 437. In its exercise there, the question of whether or " not the act is ministerial is not always the test of the grant of it. "Thus the court will not grant the writ where a matter is left to the discretion of an individual or body of men, which discretion has been exercised, and no ground appears that it has been done wrongfully." 'When a discretion is given, by it is understood a sound discreiton, for the Court of B. R, has power to, and will redress things otherwise done." It must be a public duty, the performance of which is enforced, for when it is private, other remedies are adequate. Id. 64-5. It was not for the want of power that the writ was not issued in many cases where it was refused, being discretionary, and not a writ of right, because of a respect for other tribunals, or because it would produce conflict and confusion in the execution of the law. Still it is evident that the power was and still is exercised over a great many subjects that might not readily be considered strictly judicial, and it was exercised by virtue of the guardianship and control of the crown over all public institutions, tribunals, offices, corporate bodies and corporations within the kingdom, as a royal prerogative, never yet surrendered. What would be thought in this country of a writ of mandamus issued by the district court, to compel a railroad company to proceed in making its road; or to the trustees of a graveyard to admit a citizen to be buried in a public burial ground; or the judge of the Travis County District Court, taking a personal view of a steam-plaining shop in the city of Austin, and upon his own disgust at the noise, smoke and handling of plank on the side-walk, should issue a writ of mandamus to abate or suppress it, as a public nuisance? Yet such are the extraordinary powers that the court of king's bench can and does exercise by authority of the common law in England. Tapping, 293, 108, 220. vided for his aid by laws of Congress, in the exercise of their of ficial functions in the execution of the laws, even to the extent of removing some of them to carry out his construction, of them. His judgment and discretion have been the finality—the final determination, of last resort, in reference to the rights of individuals arising in and pertaining to that department, without the interference or aid of the courts in ordering and directing as to the manner in which they should be disposed of by any of the heads of the executive department, with one solitary exception, if that can be regarded as an exception, which was in the mandamus case of Kendall v. The United States, 12 Peters, 524. In that case, as well as in the case of Marbury v. Madison, where the writ did not issue only for the want of jurisdiction, such interference and control by the court of the official functions of the heads of the executive department, in the exercise of the powers confided to them by the constitution and laws, was expressly and most earnestly disclaimed. Chief Justice Marshall says: "With respect to the officer to whom it would be directed, it is not wonderful that in such a case as this the assertion by an individual of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should at first view be considered by some as an attempt to intrude into the cabinet and to intermeddle with the prerogatives of the executive. "It is scarcely necessary for the court to disclaim all pretentions to such a jurisdiction. An extravagance so absurd and excessive, could not have been entertained for a moment." Marbury v. Madison, I Cranch, 279. cretion." Speaking of the secretary of state, he says in this connection: "This officer, by that act (meaning act of Congress), is to conform exactly to the will of the President. He is the mere organ by which that will is communicated. The act of such an officer, as an officer, can never be examinable by courts." Ibid. 277. The opinion proceeds to argue that the commission had been completed by signing and sealing, after which no further official act was necessary; the right was vested, the paper was the evidence of his right, the delivery of it was a personal act. Again, in the same case, it is said: "By the constitution of the The matters to which special attention is invited are, that this United States the President is invested with certain important pogreat power of the Court of King's Bench was largely execu- litical powers, in the exercise of which he is to use his own discretive in its character, and as claimed with apparent pride by some cretion, and is accountable only to his country, in his political of the judges, was exercised by that court in virtue of the king's character, and to his own conscience. To aid him in the performprerogative, to execute the laws in cases not falling within their ance of those duties, he is authorized to appoint certain officers, judicial functions, and yet they did not issue the writ to the king's who act by his authority and in conformity with his orders. In ministers or to their subordinate officers. The powers of gov- such cases their acts are his acts; and whatever opinion may be ernment were not divided as here, into three distinct bodies of entertained of the manner in which executive discretion may be magistracy, but as to the persons exercising power there was a pe-used, still there exists, and can exist, no power to control that disculiar admixture in the exercise of their powers. The fact that the House of Peers constituted the High Court of Appeals, and not the king himself, tended to establish an independent judiciary, as far as practicable, consistent with its appointment by the crown, which having been long fostered by the greatest talents of the country, suggested the idea which was incorporated in American constitutions, in the creature of a separate and independent department styled the judicial department, to be co-ordinate with the legislative and executive departments. In doing so, the question may now be asked, to which dspartment was this extra-judicial portion of this high prerogative power of the Court of King's Bench confided? Although there seems not to have been any ex press separation and re-appropriation of that power as exercised by the Court of King's Bench, the failure to do which has continually produced, and still produces, perplexity and uncertainty in adjudications in relation to them. Still, it is surely safe to say that that portion of the power of the crown which was entirely executive in its character, that was exercised by his ministers of state, was given certainly and exclusively to the chief executive, and to such officers as might be associated with him in the executive department of the government. If this be correct, the conclusion would inevitably follow that our courts, to whom have been confided only judicial powers, cannot compel the heads of the executive department to perform any of their executive functions. The practice of the government of the United States for over three-fourths of a century, is the highest authority that could be adduced in favor of that position. During all that time, the President, made by the constitution the chief executive of the govern ment, has controlled the heads of the executive departments pro To enforce that act the writ would lie. But how does the learned chief justice show that the secretary of state was a person to whom the writ could be directed? He could not do that from the common law of England, upon which the general right to the writ, as a remedy, was based. No precedent in England or America was cited for it, nor, as it is believed, could it have been cited. He informs us himself as to this, which may here be seen. He says: "The act to establish the judicial courts of the United States authorizes the Supreme Court of the United States to issue the writ of mandamus in cases warranted by the principles and usages of law, to any courts appointed or persons holding office under the authority of the United States. The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the description," etc., p. 281. The only point really decided in that case was, that that very law was unconstitutional, on account of its attempt to confer original jurisdiction on the supreme court. The case of Kendall v. U. S. came up on appeal about thirty made with divided courts, like those in the Supreme Court of the United States; further, because they are all streams from the same fountain, to wit: the decisions of the Supreme Court of the United States. Now it would seem to be very obvious that this act, that is denominated a ministerial act, that has called into requisition all the powers of speech of the most learned jurists of the last half century to convey a remotely definite idea of it, whatever may be its character, bears not the least resemblance to the executive functions of the commissioner of the general land office, necessarily five years afterwards, and in its decision, this matter of basing the right to issue the writ, on this unconstitutional statute, does not seem to have been noticed at all. In the case of Kendall v. the U. S., where the writ was issued to compel an allowance of a "credit," the court say: "We do not think the proceedings in this case interfere in any respect whatever with the rights or duties of the executive, or that it involves any conflict of powers between the executive and judicial departments of the government. The mandamus does not seek to direct or control the postmaster-general in the discharge of any official duty, partaking in any respect of an executive character, but to enforce the per-performed by him in such a case as the one now before us, involvformance of a ministerial act, which, neither he nor the president had any authority to deny or control." But suppose that the president had assumed the authority to order the postmaster-general not to enter the "credit," and the court had ordered (mandamus) him to enter the "credit?" Which ought he to have obeyed, the president or the court? It is unfortunate that that question is not directly presented and solved in the opinions in either of the two cases. President Van Buren, though applied to in that case, would not "commit" himself by ordering the postmaster-general to give the credit or not to give it, and therefore the issue was not made, and that question remains still undecided up to the present day by any direct decision of the Supreme Court of the United States. The first opinion (in Marbury v. Madison) does not name the act to be enforced by the court, but says it is not an executive act. The second opinion (in Kendall v. U. S.) styles the act to be enforced by the court a ministerial act. A case where the question is again fully discussed is United States v. Guthrie, 17 Howard. In the opinion, the acts that can be enforced are described to be acts "rather extraneous, and required rather of the individual than of the functionary." In the case of the United States v. Boutwell, 17 Wall. 609, it is held to be an act so attaching to the person, and not to the office, that upon the resignation of the officer against whom the writ issued the suit abates and is dismissed. See also Sec. v. McGarrahan, 9 Wall. 313. Reese v. City of Watertown, I CENTRAL LAW JOUR. 161. The origin and source of this distinction as to ministerial acts, and other acts of an executive official character, as specially applied to the heads of the executive department, derivable from the principles of the common law, have been sought for in vain. It may, however, be deduced from those cases in the Supreme Court of the United States, that an executive official act of one of the heads of the executive department, is an act performed by him in the exercise of the executive powers of government confided to him by the constitution and laws. What is called a ministerial act of one of such officers, in con tradistinction to an executive official act, is a personal act devolved by law on him as an individual, and not as an officer, by reason of his being the person who happens to hold that office at the time the act is required of him. It is said in those leading decisions, that this ministerial act is one which the President has no authority to forbid to be done, and which the law imposes directly upon the officer, and which makes him "the officer of the law." Marbury v. Madison, I Cranch, 277. The act, according to this, is an act of an executive officer, which is still not an executive act, but is an act of an executive officer, that is, an act of an officer of the law. "An officer of the law" is a designation unknown to our constitution. In a large sense, all of our officers are officers of the law, and are bound to obey it. But that does not in the least degree indicate who it is, or what tribunal it is, that is to bind them, to order them, to coerce them to obey the laws. That, at last, depends necessarily upon what department of the government they belong to in our constitutional division of the powers of government. Authorities from other states have not been cited or discussed, because they are conflicting, and their decisions have often been ing at every step questions of law and of fact necessary to the performance of the final act on his part in issuing the patent. I have not stopped to notice his association with the governor in the performance of this act, which seems to be an additional ground of objection, according to the authorities cited in similar cases in the Supreme Court of the United States. As to what should be our determination should a case arise when the act required to be done bore any reasonable analogy to what is called a ministerial act, then it will require a serious consideration of how far the weight of authority will control the rigid principle depending upon the constitutional division of the powers of our state government. If this writ is to be used as a remedy for the assertion of private rights in this state as to the heads of the executive department, it should be regulated by provisions in the constitution, and also by statutes, as it is in England. I have no hesitation in giving it as my own opinion now, that the court should on such issues be governed by, and follow the logical deduction to be plainly drawn from the division of the powers of government between the distinct departments in the constitution of the state. Each department should be made to rely upon its own wisdom and judgment in the exercise of all the powers confided to it by the constitution, independent of the control of the others, pending the performance of its official functions, and should be solely responsible for its own action, and that thereby the final separate independent action of each would operate as a check upon the excess of power that might be assumed by others. The judicial department is not that power to which has been confided the high trust, by any such interference in the official conduct of the others, to regulate the harmonious action in the machinery of our state government. Such regulating power is only found, and in a republican goverment should only be found, in the direct representatives of the people of Texas, in the senate and the house of representatives of the legislature, by the action of two-thirds of whom, through the power of "address," and "impeachment," the governor and the other heads of the executive department, and the judges of the courts, and other officers whenever their conduct may make it necessary, in order to prevent jarring conflicts, and to secure a good government, for the protection of the rights and liberties of the people of the state. The authority for the exercise of this power, assumed by the courts, to control the conduct of the heads of the executive department in the isolated and exceptional instance of what is called a ministerial act, however it may have since been extended in many of the states from a difference of opinion as to what constitutes such an act, is founded on, and traceable to the dictum contained in the opinion of the Supreme Court of the United States in 1803, in the case of Marbury v. Madison. It was delivered by Chief Justice Marshall, who is universally regarded, as it is believed, as the greatest lawyer America has produced. And that was emphatically a lawyer's opinion. Why, may it be asked, should the court continue to follow in the train of a line of decisions that originated in a useless dictum, that seeks to make such an infinitesimal exception to a broad, |