State ex rel. White v. Dickerson

By the Court, Talbot, J. (after stating the facts as above): This proceeding is based upon a petition for a writ of mandate, asking that the lieutenant-governor, who, under a provision in the constitution, has been the acting governor since the death of Governor Sparks, be required to accept, on behalf of the state, 145 bonds of the State of North Carolina, which, with their unpaid interest coupons, are of the par value of $401,170, under an act of our legislature approved February 26,' 1901, entitled “An act to require the acceptance and collection of grants, devises, bequests, donations and assignments to the State of Nevada,” which reads as follows: “Section 1. That whenever any grant, devise, bequest, donation or gift or assignment of money, bonds or choses in action or of any property, real or personal, shall be made to this state, the governor is hereby directed to receive and accept the same, so that the right and title to the same shall pass to the state; and all such bonds, notes or choses in action or the proceeds thereof when collected, and all other property or thing of value, so received by the state as aforesaid, shall be reported by the governor to the legislature, to the end that the same may be covered into the public treasury, or appropriated to the state university or to the public schools, or to state charities as may hereafter be directed by law. “Sec. 2. That whenever it shall be necessary to protect or assert the right or title of the state to any property so received or derived as aforesaid,*or to collect or reduce into possession any bond, note, bill or chose in action, the attorney-general is directed to take the necessary and proper proceedings, and to bring suit in the name of the state in any court of competent jurisdiction, state or federal, and to prosecute all such suits, and is authorized to employ counsel to be associated with him in such suits and actions who, with him, shall fully rep — 554 — resent the state and shall be entitled to reasonable compensation out of the recoveries or collections in such suits and actions.” (Stats. 1901, c. 19.) As reasons for respondent’s refusal to accept the bonds, and against the issuance of a writ requiring their acceptance, numerous objections are made, as detailed in the foregoing statement of facts and issues. Among the more important of these, and illustrative of others, are the ones that the bonds were issued as the result of a conspiracy to defraud the State of North Carolina; that they were declared invalid by an act of the legislature and by a constitutional amendment in that state; that the bonds of the par value of $11,262,000, in addition to the ones of the par value of $401,170, are owned by individuals who are without remedy for the enforcement of their payment, because under the eleventh amendment to the federal constitution the persons holding them cannot maintain a suit against the State of North Carolina; that the bonds are barred by the statute of limitations of that state; that by reason of the declaration of invalidity expressed by the legislature in the constitutional amendment, the holders of the bonds are without remedy to enforce their collection, and that they are therefore without any real value, and that the acceptance of them would impose upon the state expensive litigation for their enforcement and would tend to disturb the friendly relations existing between the people of North Carolina and this state. The most of these obj ections and others raised, such as those which relate to the validity of the bonds, are grave judicial questions which might be determined in an action between the State of Nevada and the State nf North. Carolina, in which the latter would be entitled to appear and defend. These, and other serious questions, judicial in their nature, are for the courts, and not properly for the executive to determine. Whether North Carolina, acting as her own judge, and denying the holders of the bonds the right to enforce them, even in her own courts, can make such a constitutional and legislative repudiation of them, in — 555 — the nature of a declaration of a party in his own favor, as will prevent their enforcement in a disinterested tribunal such as the Supreme Court of the United States, and whether the statute of limitations would run after that state had abrogated any provision in its laws by which the holders of the bonds might bring suit and recover judgment, are not questions essential to be determined in this proceeding. The statute itself does not provide that the bonds must be of any value, but directs the governor to accept them, without specifying that he may decline to receive them if he believes they are without value or cannot be collected, or that the acceptance of them will not be for the best interests of the state. Courts may decline to consider matters which are trivial and regarding which there is no real controversy. Ordinarily the district court and the supreme court have jurisdiction where the amount is over $300, but the constitution confers upon this court the right to issue writs of mandamus without mentioning any amount as being necessary to give the court jurisdiction to grant the writ, State and federal statutes generally fix the jurisdiction of courts according to the demand or amount in controversy, which in this proceeding, incidental to a suit for recovery on the bonds, may be considered their face value, the same as in a suit directly upon them. Neither this court nor any officer is greater than the organic act under which the state and the court and officers are created. We ought not to usurp the rights of the people by amending into the constitution nor the powers of the legislature by judicially legislating into the statute a requirement that the value of the bonds must be proven before a suit can be maintained to recover upon them, when neither the constitution nor the act requires such value to be shown before this court can issue the writ of mandate. It is not necessary or usual in suing upon bonds or other negotiable instruments to allege or prove that they are of value. If it be conceded that unless they are of some value the lieutenant and acting governor is not required to accept them, being regular upon their — 556 — face and issued under a statute of North Carolina, they are presumed to be of par value; but whether of any value the holder, the same as the holder of other obligations or claims, is entitled to maintain an action to determine whether they are legally due, and if they are to judgment, even though the judgment may be valueless by reason of the inability of the defendant to pay. No proof was submitted on behalf of respondent to support the allegation in his answer that the bonds are of no value. The statement of counsel for petitioner that the bonds were of the market value of 25 per cent of the face value, which is not directly denied, does not indicate that they may not be of greater value, or par value, when owned by the state, which, differently from individuals, can maintain an action to recover upon them. The value of the bonds to the state would be dependent largely upon the result of a suit. If litigants had to allege and prove the value of bonds and negotiable instruments in advance of maintaining a suit upon them, the burdens of litigation, already too great, might be doubled or greatly increased. The determination of whether the state shall accept the bonds may be safely left where it belongs and to the people’s representatives in the senate and assembly; and, if the state does not accept them, the question of whether the State of North Carolina is legally liable to pay them is one which may be properly submitted to the Supreme Court of the United States, where it belongs. The prevention of the determination of these matters by the legislature and by the Supreme Court of the United States is not within the executive powers which the lieutenant and acting governor is authorized to exercise, nor is it the duty of this court to deprive the legislature of its right to determine whether the bonds shall be accepted, nor to prevent the questions relating to their validity, the decision of which pertains to judicial powers, from being submitted to the Supreme Court of the United States if the legislature desires that they be accepted. No reason is apparent — 557 — why this court should, in this special and preliminary proceeding, adjudicate and uphold the statutory and constitutional acts of North Carolina in repudiating the bonds, and denying to individual holders thereof the right to have the question of whether she is liable for the payment of them determined in her courts, as an excuse for nullifying the act of our own legislature. If the determination of the questions relating to the liability upon the bonds were necessary in this proceeding, as well as in a future action against North Carolina to collect them, it might appear that the principal objections made against their enforcement have alrealy been considered adversely to the contentions of respondent by the Supreme Court of the United States, in cases other than the one in which South Dakota recovered on donated bonds of North Carolina; and that in order to sustain the claim made on behalf of the lieutenant and acting governor that a judgment could not be recovered upon the bonds, we would have to undertake to reverse the opinions of the Supreme Courts of the United States and of North Carolina. In consonance with the general principle established by numerous decisions, it was held in Kneeland v. Lawrence Bros. & Co., 140 U. S. 209, 11 Sup. Ct. 786, 35 L. Ed. 492, that coupon bonds payable to bearer passed by delivery, and a bona fide purchaser of them before maturity takes them free from any equities that might have been set up by the original holders, and that the burden of proof is on the one who assails the bona fides of such purchase. It would be incumbent upon the defendant in a suit upon the bonds to plead and show that the action was barred by the statute of limitations, or this objection might be waived. In Wilcox v. Williams, 5 Nev. 213, it was said: “No party is compelled to plead the statute of limitations; no court can infer from lapse of time apparent on the face of pleadings, that the statute has run.” In Moore v. Smith, 29 S. C. 254, 7 S. E. 485, the court — 558 — stated: “Where a just demand is presented, and the statute of limitations is interposed, that is new matter, and must be established by him who relies upon it.” In consonance with numerous decisions in other jurisdictions, the Supreme Court of North Carolina has often held that the statute of limitations is an affirmative defense, and must be pleaded and established by the party who relies upon it. (Hooker v. Worthington, 134 N. C. 283, 46 S. E. 726; Bond v. Wilson, 129 N. C. 387, 40 S. E. 182; Gupton v. Hawkins, 126 N. C. 81, 35 S. E. 229; Parker v. Harden, 121 N. C. 57, 28 S. E. 20; Wood v. Barber, 90 N. C. 76; Hobbs v. Barefoot, 104 N. C. 224, 10 S. E. 170; Nunnery v. Averitt, 111 N. C. 394, 16 S. E. 683; Moore v. Garner, 101 N. C. 374, 7 S. E. 732; Graham v. O’Bryan, 120 N. C. 463, 27 S. E. 122; White v. Century Gold M. Co., 28 Utah, 331, 78 Pac. 868; Borland v. Haven (C. C.) 37 Fed 394; Pierce v. S. P. R. R. Co., 120 Cal. 156, 47 Pac. 874, 52 Pac. 302, 40 L. R. A. 350; Cann v. Cann, 40 W. Va. 138, 20 S. E. 910; Vail v. Halton, 14 Ind. 344; Lewis v. Mason, 84 Va. 731, 10 S. E. 529; Green v. Dodge, 79 Vt. 73, 64 Atl. 499; Hunter v. Hunter, 63 S. C. 78, 41 S. E. 33, 90 Am. St. Rep. 663; Barnet v. Houston, 18 Tex. Civ. App. 134, 44 S. W. 689; McDowell v. Potter, 8 Pa. 189, 49 Am. Dec 503; Kilbourne v. Sullivan Co., 137 N. Y. 170, 33 N. E. 159; Moffet v. Farwell, 222 Ill. 543, 78 N. E. 925.) It seems also to be the rule in North Carolina, in thfe Supreme Court of the United States, and everywhere, that the time within which actions may be brought may be shortened if a reasonable time thereafter is allowed for the institution of suit, but that a litigant or claimant cannot be deprived entirely of his right to bring an action by an act of the state or legislature, as this would amount to a denial of j ustice. (Wheeler v. Jackson, 137 U. S. 245, 11 Sup. Ct. 76, 34 L. Ed. 659, affirming 105 N. Y. 681; Saranac v. N. Y. Comptroller, 177 U. S. 318, 20 Sup. Ct. 642, 44 L. Ed. 786; Mitchell v. Clark, 110 U. S. 633, 4 Sup. Ct. 170, 312, 28 L. Ed. 279; Vance v. Vance, 108 U. S. 514, 2 Sup. Ct. 854, 27 L. Ed. 808; Sohn — 559 — v. Waterson, 17 Wall. 597, 21 L. Ed. 737; Terry v. Anderson, 95 U. S. 628, 24 L. Ed. 365; Culbreth v. Downing, 121 N. C. 205, 28 S. E. 294, 61 Am. St. Rep. 661; Nichols v. Norfolk R. R. Co., 120 N. C. 495, 26 S. E. 643; Wilcox v. Williams, 5 Nev. 206; People v. Turner, 117 N. Y. 227, 22 N. E. 1022, 15 Am. St. Rep. 498; Fiske v. Briggs, 6 R. I. 557; Rodebaugh v. Phila. Traction Co., 190 Pa. 358, 42 Atl. 953; King v. Belcher, 30 S. C. 381, 9 S. E 359; Boon v. Chamberlain, 82 Tex. 480, 18 S. W. 655; Smith v. Packard, 12 Wis. 371; Willard v. Harvey, 24 N. H. 344; Guiterman v. Wishon, 21 Mont. 458, 54 Pac. 566; Cranor v. School Disk, 151 Mo. 119, 52 S. W. 232; Garrett v. Beaumont, 24 Miss. 377; Billings v. Hall, 7 Cal. 1; Hart v. Bostwick, 14 Fla. 162; Central Bank v. Solomon, 20 Ga. 408; Edelstein v. Carlile, 33 Colo. 54, 78 Pac. 680; Hill v. Gregory, 64 Ark. 317, 42 S. W. 408; Bradley v. Lightcap, 201 Ill. 511, 66 N. E. 546; Macnichol v. Spence, 83 Me. 87, 21 Atl. 748; Wooster v. Bateman, 126 Iowa, 552, 102 N. W. 521; Baumeister v. Silver, 98 Md. 418, 56 Atl. 825; Krone v. Krone, 37 Mich. 308; Russell v. Lumber Co., 45 Minn. 376, 48 N. W. 3; Loring v. Alline, 9 Cush. 68.) Where it is provided that the payment of bonds is to be made in a particular way or out of a particular fund, the statute of limitations does not begin to run until the fund has been provided. (Lincoln County v. Luning, 133 U. S. 529, 10 Sup. Ct. 363, 33 L. Ed. 766; State v. Lincoln County, 23 Nev. 262; Freehill v. Chamberlain, 65 Cal. 603, 4 Pac. 646; Robertson v. Blaine Co., 96 Fed. 63, 32 C. C. A. 512, 61 U. S. App. 242, 47 L. R. A. 459.) That pursuant to an act of the legislature the courts will compel the levying of a tax for the purpose of paying a judgment recovered upon bonds has often been held. (Supervisors v. U. S., 4 Wall. 435, 18 L. Ed. 419; City of Galena v. Amy, 72 U. S. 705, 18 L. Ed. 560; City of Davenport v. U. S., 76 U. S. 409, 19 L. Ed. 704; County of Greene v. Daniel, 102 U. S. 187, 26 L. Ed. 99; Lowell v. Boston, 111 Mass. 460, 15 Am. Rep. 39; U. S. v. New Orleans, 98 U. S. 381, 25 L. Ed. 225; State v. Clay, 46 — 560 — Mo. 231; Shinbone v. Randolph, 56 Ala. 183; State v. Milwaukee, 20 Wis. 87; Stevenson v. Summit, 35 Iowa, 462; Com. v. Com. of Alleg. Co., 37 Pa. 277; Cass Co. v. Johnston, 95 U. S. 360, 24 L. Ed. 416; Pegram v. County Com., 64 N. C. 557; Dillon on Municipal Bonds, 58; Jones on R. R. Securities, sec. 300.) The objection that the acceptance of the bonds directed by the statute would tend to disturb the friendly and harmonious relations existing between the two states, and other questions relating to the wisdom or propriety of the statute, are for the legislature, and not for the executive or the courts to determine. It may be conceded that the courts could not, under any statute passed by the legislature, compel the governor to perform acts which ■would be in conflict with the powers conferred upon him by the constitution, and that he is absolute in all the prerogatives conferred upon him by that instrument. Neither the courts nor the legislature can deprive him of any authority conferred upon him by the constitution. The act in question is clear and positive in its direction that the bonds be accepted. It contains no qualification or condition that he may refuse to receive them for any reason. By its terms no discretion or judgment is vested in him. It does not relate to dr infringe any of his constitutional prerogatives. The statute merely directs him to perform a ministerial act, and the legislature could have directed equally as well that bonds as a gift to the state should be accepted by the state treasurer or other-officer or person. The constitution defines the powers of the governor, and provides clearly for the enactment of laws and the jurisdiction of courts. If it be admitted that certain powers are vested in the governor by the constitution, which neither the legislature nor the courts can control, this act in no way relates to such powers, and is not governed or limited by any provision of the constitution, unless it be section 7, article 5, which states that “he shall see that the laws are faithfully executed,” and the one giving him the right to recommend to the legislature that this or any other act — 561 — be repealed. When, an act, not in conflict with the constitution, passes both houses of the legislature, and is approved by the governor or passed over his veto, it is binding, and no person is above a law so enacted. As he cannot prevent its passage over his veto, he is powerless to set aside a statute after it has become the law. Section 4, article 6, provides that this “court shall also have power to issue writs of mandamus.” Section 3542 of the Compiled Laws, passed by the legislature under its constitutional powers, directs that the writ may be issued' to any person “to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station.” Although the opinions of the lieutenant and acting governor, coming from the highest executive officer of the state, are entitled to great respect, there is nothing under our system of government which places him upon a pedestal above the laws enacted in accordance with the provisions of the constitution by the people’s representatives in the legislature assembled. He, similarly with other public officers, is the chosen servant of the people. The members of this court, as well as the executive, are under an oath provided by the constitution itself to support its provisions. The one that “he shall see that the laws are faithfully executed” makes it even more incumbent upon him than upon ordinary citizens to yield obedience to the statute. The fact that with the best of motives, and on the highest of moral grounds, he may disagree with the will of the legislature as expressed in the statute cannot justify his failure or refusal to perform an act clearly required by its terms. Notwithstanding that we, may agree with his conclusions as to the policy or expediency of the statute, and as citizens or legislators would favor its amendment, we, as well as the lieutenant and acting governor, are bound to observe the constitution and the statutes, including the provisions for the issuance of writs of mandamus when any person refuses to perform an act “which the law especially enj oins as a duty resulting from his office or station.” He may recommend the passage of laws and — 562 — approve or veto bills after they have been passed by the senate and assembly; he may recommend the repeal of statutes which have become the law with or without the governor’s approval; but after they become the law, with or without his approval, he is as powerless to set them aside as other officers or individuals, and is, as we have seen, especially enjoined by the constitution and more obligated than ordinary citizens to have them enforced. In the exercise of the powers conferred upon him by the constitution’ which carry or imply any discretion, such as those relating to the approval or vetoing of bills or certain appointments of persons to office, his will is absolute and his action beyond the 'control of the courts. The constitution on which our government stands, and without which it would fall, nowhere exempts the governor from being required, the same as other officers, to perform ministerial acts such as are required by this statute, which in no way conflict with or pertain to his constitutional prerogatives. If the chief executive may, upon the ground that in his judgment it is not for the best interests of the state, set aside this statute, he may also for the same reason, and contrary to the constitutional requirement that he enforce the laws, ignore other statutes; and other officers and citizens, not specially enjoined by the constitution to enforce the laws, would have quite as much right as he to ignore statutes which they did not deem wise or expedient. In Ex Parte Boyce, 27 Nev. 331, 65 L. R. A. 47, adopting the language of Justice Harlan and the Supreme Court of the United States in the Kansas case, we said: ‘•So, also, if it be said that a statute like the one before us is mischievous in its tendencies, the answer is that the responsibility therefor rests upon the. legislature, not upon the courts. No evils arising from such legislation could be more far-reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and, upon grounds merely of justice or reason and wisdom, annul statutes — 563 — that had received the sanction of the people’s representatives. We are reminded by counsel that it is the solemn duty of the courts, in cases before them, to regard the constitutional rights of the citizen against merely arbitrary power. This is unquestionably true. But it is equally true — indeed, the public interests imperatively demand — that legislative enactments be recognized and enforced by the courts, as embodying the will of the people, unless they are plainly and palpably, and beyond all question, in violation of the fundamental law of the constitution. In Wallace v. City of Reno, 27 Nev. 71, 63 L. R. A. 337, 103 Am. St. Rep. 747, we held that the people, and through them the legislature, had supreme power in all matters of government, where not restricted by constitutional limitations.” These principles are applicable to .the executive, and he is as void of power as the courts to set aside statutes because he may deem them unwise or inexpedient. It may not tend to promote the best feeling for one state or neighbor or individual to acquire by gift or purchase, or otherwise, an indebtedness against another for the purpose of enforcing its collection; but to do so is not prohibited by any provision of the constitution. Individuals are daily acquiring, by gift, descent or purchase, indebtedness against others and bringing suits for the enforcement of the demands, and the courts provided by the constitution are open for the enforcement of these demands. There is nothing in the constitution which in the remotest degree inhibits one state from enforcing against another any demand, whether acquired by gift or otherwise, and the. state is as free as an individual to accept evidences of indebtedness and to collect the amount due. The claim that the bonds may not be accepted because the friendly relations existing between the two states would be destroyed is at variance with the decision of the Supreme Court of the United States in the case of South Dakota v. North Carolina. In that case repudiated bonds issued by North Carolina to aid railroads in the — 564 — years 1847,1855, and 1866 were donated to South Dakota under a statute similar to ours. Suit was brought upon them, and judgment obtained by South Dakota against North Carolina in the Supreme Court of the United States in the year 1903. (192 U. S. 287, 24 Sup. Ct. 269, 48 L. Ed. 448.) Contrary to the contention made here, the supreme court held that South Dakota could recover notwithstanding the bonds had been donated to that state by holders who were seeking to collect other similar bonds, and that these holders were not necessary parties to the suit. Whether the State of North Carolina is legally liable for the payment of these bonds is not a question which can be properly determined in this proceeding. The fact that their market value is far in excess of the amount necessary to give this court jurisdiction, that grave doubt exists as to whether they may be enforced against North Carolina, and that the legislature has provided for their acceptance, is sufficient for the purposes of this action. If the State of North Carolina does not legally owe them, that will be a defense to be established in a suit if one is brought by this state against North Carolina. If the State of North Carolina legally owes the amount due upon them, there is nothing in the constitution which prevents this state from recovering if it accepts the bonds. If, on the other hand, the State of North Carolina does not legally owe the amount of the bonds, she would not have to pay them at the end of the suit. It can hardly be said that in passing our statute in question the legislature did not understand that it was for the purpose of accepting state bonds and enforcing their collection by litigation when the language of the act so plainly indicates that it was drawn for this purpose. Unless by future action the legislature deems, as a matter of policy or propriety, that it is better to amend the act or provide that the bonds shall not be accepted or enforced, it is the duty of the chief executive under the statute to accept them for the state. In one view the court is in the same position as the executive. It is the duty of the governor to enforce the law as he finds it, — 565 — and for the court to declare the law as it finds it, regardless of whether as citizens or legislators they would favor the repeal of the statute. The cases are not uniform as to when or the circumstances under which mandamus will issue to control the action of the governor. That the writ will issue to compel the chief executive to perform a ministerial act is in accordance with the best authorities, and has been the law of this state for more than forty years, and since the issuance of the mandate of this court under a decision written by Chief Justice Beatty directing Governor Biasdel to sign and issue a patent for land. (State ex rel. Wall v. Blasdel, 4 Nev. 241.) It was said in the opinion that “if the law as passed is valid it must be enforced.” There was further recognition of the right to have the writ of mandate issue against the chief executive, when the conditions warrant, in the case of Lieutenant-Governor Laughton v. Governor Adams, 19 Nev. 370. In the case of Waterman we discharged the petitioner from arrest under an executive order issued by the-governor of this state upon the requisition of the governor of Iowa because the indictment did not state facts constituting a crime. (29 Nev. 288, 11 L. R. A. (N. S.) 424.) In the case of Gray v. State, 72 Ind. 568, the court held that the writ of mandate will lie against the governor to enforce the performance of a ministerial duty not resting in his discretion, and that a ministerial act is one which a person performs under a given state of facts and in a prescribed manner in obedience to legal authority, without regard to his own judgment upon the propriety of the act being done. In Middleton v. Low, 30 Cal. 597, it was held that when a ministerial duty is specially devolved upon the governor by law, which the legislature might have, conferred upon any other state officer, the governor may be compelled to perform the same. In Harpending v. Haight, 39 Cal. 189, 2 Am. Rep. 432, a writ was issued commanding the governor to cause to — 566 — be authenticated as a statute a bill in his possession which had passed both houses of the legislature. In State v. Salmon P. Chase, 5 Ohio St. 528, it was held that although the governor, in the exercise of the supreme executive power of the state, may, from the nature of his authority, have a discretion which cannot be controlled by the courts, yet in regard to a ministerial act which might have devolved upon any other officer of the state, and affecting any specific private right, he may be made amenable to the compulsory mandate of the court by mandamus. In Chumasere v. Potts, 2 Mont. 243, a writ was issued commanding the governor, with other officers, to canvass the vote. In Magruder v. Swan, 25 Md. 175, it was held that the governor, like other officers, in the discharge of mere ministerial duties, is subject to the writ of mandamus, which cannot be denied to a suitor without acknowledging an authority higher than the law. In State v. Martin, Governor, 38 Kan. 641, 17 Pac. 162, it was held that where purely ministerial duties are by statute imposed upon the governor, and these duties are only such as might be devolved upon any other officer or agent, their performance may be compelled by mandamus or injunction. The court said: “In the case of Marbury v. Madison, 1 Cranch. 163, 2 L. Ed. 60, Chief Justice Marshall uses the following language: ‘The very essence of civil liberty consists in the right of every individual to claim the protection of the laws, whenever he receives an inj ury. One of the first duties of government is to afford that, protection.’ And further on in the same case, page 166 (1 Cranch. 2 L. Ed. 60), after stating that the courts cannot control executive discretion, the great chief justice uses the following language: ‘But when the legislature proceeds to impose on that officer (the secretary of state of the United States) other duties; when he is directed peremptorily to perform certain acts; when the rights of the individuals are dependent on the performance of — 567 — those acts, he is, so far, the officer of the law; is amenable to the laws for his conduct, and, cannot at his discretion sport away the vested rights of others.’ In the case of Tenn. R. Co. v. Moore, 36 Ala. 382, the following language is used: ‘All this is but the result of the just and wholesome principle that no public functionary, whatever his official rank, is above the law, or will be permitted to violate its express command with impunity. While, therefore, it is true that, in regard to many of the duties which belong to his office the governor has, from the very nature of the authority, a discretion which the courts cannot control, yet, in reference to mere ministerial duties imposed upon him by statute, which might have been devolved upon another officer if the legislature had seen fit, and on the performance of which some specific private right depends, he may be made amenable to the compulsory process of the proper court by mandamus.’ * * * Of course we should always presume- that the governor intends to do his duty, but he may be mistaken as to the law, or he may not be sufficiently advised as to the facts upon which the applicant for relief founds his right thereto, and there is no way prescribed by law by which issues can be made up and tried before the governor as issues are made up and tried before the courts. The courts are created for the express purpose of trying controversies, while the other departments and ministerial officers are not. It is also claimed that if the courts may control the ministerial acts of the governor, and may also determine which are ministerial acts and which are not, then that the courts may determine everything, and obtain complete control over the entire executive department, including the governor. It must be remembered, however, that all controversies must be determined somewhere, and that the courts are the only tribunals created by the constitution and the laws for the special purpose of construing the constitution and the laws, and of determining controversies between parties, and the power to determine whether a given power is a truly ministerial power, or not, and whether an — 568 — applicant for relief in any particular case has a right to such relief under the law creating such power, or not, comes particularly within the province of the courts. And a determination in such a case is purely judicial, and is one of the things for which courts were created, and they could not refuse their aid in such cases without so far wholly abandoning their duties and abdicating their jurisdiction.” The United States Supreme Court, speaking through Chief Justice Marshall, in the case of Osborn v. United States Bank, 22 U. S. 866, 6 L. Ed. 204, said: “Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.” In State v. Cummings, 36 Mo. 263, 278, it is said: “It is not for the judiciary to inquire whether laws violate the general principles of liberty or natural justice, or whether they are wise or expedient or not. They can only declare whether they are repugnant to constituí tional provisions and limitations. It would be a violation of well-established and safe principles for courts to resort to any other test. There is no higher law by which we can be governed. An attempt by judicial construction to obstruct a law, or a failure to enforce it, would be monstrous usurpation. We cannot make or repeal a law; we are not intrusted with any such power. If it is wrong, unjust, or oppressive, an appeal must be made to the people in their political capacity at the polls to apply the remedy. We will not attempt to exercise judicial legislation. We can scarcely conceive of anything that would be a compensation for introducing into — 569 — our j urisprudence such a pernicious doctrine. The most odious and dangerous of all laws would be those depending upon the discretion of judges.” The petitioner has filed a special reply brief, citing extracts from numerous authorities holding that the courts have discretion as to the issuing of the writ of mandate in aid of private rights, but no such discretion when it is invoked in matters of public right. Among these authorities are: Tapping on Mandamus, 54, 56, 287, 288; 2 Dillon on Municipal Corporations, sec. 695; New Haven Co. v. State, 44 Conn. 376; State v. Doyle, 40 Wis. 220; Spelling on Inj unctions and Extraordinary Remedies, sec. 22; Savannah Canal Co. v. Shuman, 91 Ga. 402, 17 S. E. 937, 44 Am. St. Rep. 43; 19 Am. & Eng. Ency. Law, 753. If the court has any discretion in a case like this one, it ought not to exercise it by denying the writ, which would result in a judicial repeal, the usurpation of the powers of the legislature, and a dangerous precedent. If the plain terms of this act may be thus set aside, no statute would be certain, no litigant or counsel would be sure of the law until finally announced according to the varying moods of the court, and no person would be secure in his rights. In Russia, the czar at pleasure sets aside the acts of the duma, passed by the people’s delegates. The highest officers in this government, as well as kings and emperors in the leading constitutional monarchies of the world, are without power to set aside the laws of the country. The Young Turks deposed a sultan for his failure to observe the requirements of the constitution. For the purpose of giving soundness and stability to our laws, the people have wisely provided in the organic act of the state that bills, whether for proposed statutes or repeals, must pass both branches of the legislature, and have given the governor the power to veto or approve before they become effective. If this and other statutes, when their language and meaning are clear, could be set aside or ignored at the discretion or changing will of succeeding governors or courts, the laws might become nearly as uncertain and — 570 — unstable as the clouds that float above our mountain peaks. It cannot be implied that the governor has power to set aside the laws when he is specially enjoined by the constitution to enforce them. For us to hold contrary to the plain meaning, that the constitutional provision that the governor shall faithfully execute the laws allows him to set them aside at will, would be a misconception, sarcasm, and travesty upon the organic act upon which the state stands. If the members of the legislature agree with the views of the lieutenant and acting governor, they, and not he nor the courts, have the power to repeal or amend the law for the reasons he advances. We cannot assume that the new executive, who will take office on the first of the year, will fail to follow .the law as construed by the court, or refuse to obey the statute if it is not repealed or amended, or if the requirement of the act remain unabrogated. The writ will issue as demanded in the petition; but in order to give the legislature, which is about to convene, and which is the only branch of our government having power to change a statute, an opportunity to consider the objections which have been made to the acceptance of the bonds, and to repeal or amend the act if it desires, the service and execution of the order will be stayed until the close of the sixty-day, session of that body and the further order of the court.