State ex rel. Wright v. Savage

Sullivan, C. J. This is an application to this court in the exercise of its original jurisdiction for a writ of mandamus commanding respondent, as governor of the state, to appoint fire and police commissioners for the city of Omaha. In his answer to the alternative writ respondent denies the authority of the court to coerce executive action in any case, and alleges that by reason of the judgment in State v. Moores, 55 Nebr., 480, performance of the duty enjoined by the statute (sec. 167, ch. 12a, Compthed Statutes, 1901) would be necessarily barren of practical results, A com — 695 — plete history of the litigation in which the present action had its origin will he found in some earlier opinions of this court (Moores Case, supra; State v. Kennedy, 60 Nebr., 300; Redell v. Moores, 63 Nebr., 219) to which reference is made. It is conceded that the statute directs the governor, in imperative terms, to do just what the relator has requested him to do. “Immediately on the taking effect of this act, the governor shall appoint.” This is the language of section 167; and it is therein further provided that “whenever a vacancy shall occur in any board of fire and police commissioners either by death, resignation, removal from the city or any other cause, the governor shall appoint a commissioner to fill such vacancy.” It is also conceded that this is a constitutional and valid law, but it is claimed that authority to enforce it has not been committed to the judicial branch of the government. The argument is that the three departments into which all governmental powers axe divided are co-ordinate; that each is entirely independent of the others, and that-the issuance of a mandamus against the governor, in whom is vested the supreme executive power, is justifiable only on the theory that the executive department is inferior to the judicial department and that the right of command is given to one, and the duty of obedience imposed upon the other. This argument is certainly plausible, but whether it is sound is a point upon which the adjudged cases are in irreconcilable conflict. The right of the courts to determine all judicial questions, whenever and however they may arise, is given by the constitution in explicit terms and is indisputable; but equally clear and incontestable is the right of the executive officers named in the constitution to exercise all powers properly belonging to the executive department. There is an obvious logical difficulty in maintaining that two departments of government are of equal rank, and independent of each other, if one may command and the other must obey. A member of the executive department who performs an official duty in obedience to a writ of mandamus is a — 696 — passive instrument in the hands of the court; he is not in any proper sense an actor; he executes, not his own purpose, but a purpose originating in the judicial department of the government; he is in truth nothing more than the agency through which the court exercises an executive power. Considering the matter theoretically,- and leaving practical results and past adjudications entirely out of view, it is hardly possible to escape the conclusion that the farthest limit of judicial authority in cases of this kind is to hear and determine; to give judgment establishing the relator’s right, without issuing compulsory process to the respondent, whether he be the chief magistrate or some other member of the executive department. There seems to be no good reason for holding that one member of a co-ordinate branch of the government should be exempt from judicial control and the others subject to it. The principle of exemption from mandamus is grounded upon a distinct constitutional inhibition and does not at all depend upon official rank. Constitution, art. 2, sec. 1. As was said by Chief Justice Marshall in Marbury v. Madison, 1 Cranch [U. S.], 137, “It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined.” Our own decisions make no distinction between the governor and the other officers of the executive department. Whether the writ should be granted or refused has been made in every case to depend upon the character of the act in question and not upon the office of the respondent. The argument that the judiciary in issuing a mandamus against a member of the executive branch of the government is thereby indirectly, and in violation of the constitution (art. 2, sec. 1), exercising a power properly belonging to the executive department, has never appealed convincingly to this court. In numerous cases the writ has gone against the auditor; and the right to issue it to any officer of the executive department, including the governor, is so thoroughly established by repeated — 697 — decisions that the question can be no longer regarded as open to discussion. All judicial controversies must end some time and this one seems to have run its course. It must be admitted that, according to the clear weight of authority, the chief executive can not, under any circumstances, be controlled by the writ of mandamus; but in this state, and in some other jurisdictions, a different rule prevails. The doctrine of this court is that when the law in positive terms enjoins upon the governor, or other officer of the executive department, a mere ministerial duty, leaving him no choice or discretion in regard to the •matter,—no judgment to exercise as to whether he will or will not act,—the writ of mandamus may issue, and its issuance is an appropriate exercise of judicial power. In State v. Thayer, 31 Nebr., 82, a mandamus was issued against the governor and other executive officers, constituting the state board of canvassers, commanding them to canvass the votes cast for the relator as a candidate for judge of the sixth judicial district. In that case the court considered the authorities bearing upon the right of the judiciary to issue a coercive writ against the governor of a state, and reached the conclusion that the correct rule is that laid down in Maxwell’s Pleading & Practice, page 735, in the following language: “There is a conflict in the authorities as to the right of a court to grant a mandamus against the governor of a state to compel the performance of a merely ministerial duty. That the courts have jurisdiction in such cases there seems to be no doubt. In a free government no officer is above the law, and should not be permitted to disregard it with impunity. No good reason can be given why a governor, whose duty it is to see that the laA-rs are executed, should himself be permitted to set them at defiance.'’ In State v. Elder, 31 Nebr., 169, which was an application for a mandamus to compel the speaker of the house of representatives to- open and publish the returns of a general election, the court said, in an opinion allowing the writ, that the leading cases denying the authority of the courts to mandamus — 698 — ike governor of a state had been again examined and dis approved. In State v. Boyd, 36 Nebr., 60, the court took cognizance of an application for a mandamus to compel the governor to approve a bill of the State Journal Company for blanks and stationery. In State v. Boyd, 36 Nebr., 181, this court determined on the merits an application for a mandamus to compel Governor Boyd to issue a proclamation for the election of three additional members of congress. The writ was denied, not for want of jurisdiction, but because the right to apportion representatives among the states belongs exclusively to congress. State v. Holcomb, 46 Nebr., 88, was a case in which the court tried and determined a controversy involving the relator’s right to a writ of mandamus commanding the governor to approve an official bond. It is true that in some of these cases the jurisdiction of the court was not challenged, but that circumstance is not important. In determining the cases on the merits the court necessarily decided in favor of its own jurisdiction. The authority of the courts in such cases does not, of course, depend upon the consent of the respondent. If jurisdiction exists it is given by law and does not rest upon mere official complaisance. State v. Stone, 120 Mo., 428. It seems to be conceded that the relator has a sufficient interest in the performance of the particular duty enjoined by the statute to entitle him to maintain this proceeding if the court has jurisdiction to entertain it. And it is evident that the refusal of the governor to discharge the duty of appointing fire and police commissioners for Omaha was not influenced in any degree by the character or quality of the act which the law, in imperative terms, directs, him to perform. In other words, the position taken by respondent is not defended on the ground that the appointment of commissioners would not be the performance of a ministerial duty. The defense rests upon broader ground; it is that there is no authority in the court to coerce the governor, in any ease, or under any circumstances, to exercise an executive power. Tim conclusion — 699 — to which we are compelled by our own decisions is that we have, not only jurisdiction to decide the controversy, but authority to issue the peremptory writ to enforce our decision. Whether the peremptory writ should actually issue in a case of this kind is a question of great delicacy and one which we do not here decide. Speaking of the cases in which the power of the courts to mandamus the governor is asserted, Mr. Freeman says in the note to Greenwood v. Routt, 31 Am. St. Rep. [Colo.], 284: “Whthe it must be admitted that these cases by no means constitute the majority of those bearing upon the subject, yet they seem to us to be based upon the better reasoning, and more in accord with what has been the long adopted policy of the highest judicial tribunal in the land, the supreme court of the United States.” Nothing further need, we think, be said on the question of jurisdiction. The second proposition discussed by counsel was decided in the Kennedy Case, and was, we think, decided rightly. The doctrine of res judicata is that a question once determined by a judgment on the merits is forever settled, so far as the litigants and those in privity with them are concerned. The question decided is, whthe the decision stands, a sealed and closed question; the final judgment, sentence, or decree fixing the rights of the parties ends the controversy, and is in any future litigation conclusive evidence of those rights. Counsel for relator concede the general rule as to the conclusiveness of judgments, but insist that it has no application to a case in which a sovereign state is seeking to enforce obedience to its laws. In other words, counsel contend that the state, being vested with absolute power to govern society, and having supreme authority to make and administer laws, is not bound by an adverse adjudication in a matter pertaining to its sovereignty. “If such were the rule,” said Mr. Justice Story in Gelston v. Hoyt, 3 Wheaton [U. S.], 246, 317, “it would be a perfect anomaly in the law and utterly subversive of the first principles of reciprocal justice.” The fundamental conception of a judgment is — 700 — a judicial decision binding upon all the parties to the controversy. As defined by our own statute (sec. 428, Code of Civil Procedure) it “is the final determination of the rights of the parties in an action.” By this statute the state has declared the legal effect and consequence of a judgment; it has said that, as between the parties, the judgment shall end the controversy and end it forever. The state, in the exercise of its governmental functions, is not obliged to invoke the aid of the courts in any case; but when it does so it assumes the character of an ordinary suitor, and is bound by self-imposed restraints; it claims' no advantage over its adversary, and, though one is a sovereign and the other a citizen, they stand equal before the law. This is a just principle, and in it we see no serious danger to the public weal. It was recognized and enforced in England without judicial dissent as far back as the Duchess of Kingston’s Case, 20 State Trials, 355. And in the highest court of this country it was early held, by the unanimous' opinion of the judges, that the government was conclusively bound by a decision rendered against it in its sovereign character. Gelston v. Hoyt, supra. When a state brings an action for the enforcement of its criminal or revenue laws, it acts, of course, in its governmental capacity, but it is bound, nevertheless, by an adverse decision. The question decided can not be again litigated between the same parties, either in a civil or criminal case. Coffey v. United States, 116 U. S., 436; New Orleans v. Citizens’ Bank, 167 U. S., 371. Notwithstanding what has been said by counsel for relator, we are still of opinion that Holsworth v. O’Chander, 49 Nebr., 42; O’Connell v. Chicago T. R. Co., 184 Ill., 308, and People v. Smith, 93 Cal., 490, are direct authority upon the point wa are now considering. In ea,ch of these cases the state was asserting a right on behalf of the general public; it was endeavoring as a sovereign power, to execute a public law; it was not seeking to recover or establish title to corporate property; and yet it was held to be concluded by the former adjudication, not on the untenable theory — 701 — that it was a party to the litigation only in its corporate capacity, but because the decision was, in accordance with the general rule, indisputable evidence of the rights of the litigants. McClesky v. State, 4 Tex. Civ. App., 322, is also directly in point. In that case the state was surely acting in its governmental capacity; it was seeking to prevent the usurpation of a franchise, and to oust the defendants from holding and exercising offices that liad no legal existence; it was endeavoring, as the relator in this case is, to put the administration of public affairs in the hands of the duly constituted agents of the public. The right of the state to oust the present members of the board of fire and police commissioners of the city of Omaha has been once tried and determined, and, under existing conditions, the judgment rendered is an effective bar to another suit for the same purpose. The right of the mayor’s appointees to hold the offices was the thing adjudged in State v. Moores, and it is the only thing to be adjudged in this action. The decision in the Moores Gase is not law, but for the purposes of this litigation it stands in place of the law. The governor may, of course, appoint, but in the face of a plea of res judicata we can not put his appointees in possession of the offices. The court is held in bondage by its own error. St at pro ratione voluntas is the rule of decision for this case. The writ is denied. Weit denied.