State ex rel. Burnquist v. District Court Second Judicial District

Holt, J. The district court of Ramsey county was ordered by this court to show cause why a writ of prohibition should not issue directing said district court and the several judges thereof to refrain from proceeding as for contempt against the relators, the Governor and the adjutant general of this state. The respondent, the Honorable Frederick N. Dickson, makes a return in his own behalf, and in behalf of the court and the other judges thereof, except the Honorable Haseal R. Brill who returns that he is disqualified from sitting in the case. From the petition and the return of respondent Dickson the following may be stated as the material and relevant facts: In December, 1917, and ever since William R. Carroll has had a license to vend intoxicating liquors at Blooming Prairie, a village of some 850 inhabitants in Steele county, Minnesota. It is located about 25 miles south of Owatonna, and nearly the same distance from the southern boundary of the state. No intoxicating beverages can be procured lawfully in the counties to the east, south or west of Steele county, nor in Iowa, nor in Steele county except in Owatonna and Blooming Prairie. The business of Mr. Carroll was therefore exceedingly lucrative, although the license fee in the village was $1,500 and three other licensed saloons were doing business there, until the Minnesota Commission of Public Safety, on December 5, 1917, by Order No. 17, directed the licensed liquor dealers at Blooming Prairie to refrain from dispensing liquors except at retail, to be consumed on the premises where dispensed, and only between the hours of 9 a. m. and 5 p. m. on week days. It appears that this order resulted after the commission, in the fall of 1917, had caused an investigation to be made as to the effect of the liquor traffic upon the military, civil and industrial resources of the state, and the peace and public safety of the inhabitants, and particularly the effect of the sale of intoxicating liquor in places located in the midst of large areas of “dry” territory. The liquor dealers of the village complied with the order until in June, 1918, when Carroll and two others began to dispense their •goods in open defiance thereof. The commission then issued Order No. 34, directing the president of the village to forthwith close and keep closed the places of business of the offending dealers. This last order was enforced through the sheriff of Steele county. — 13 — In that situation Carroll commenced an action against the members of the commission, the president of the village, and the sheriff of the county, to permanently enjoin them from closing or interfering with his business. On ex parte application, the respondent Dickson issued a temporary restraining order June 29, 1918, requiring the defendants in the action to refrain from closing or keeping closed Carroll’s place of business, and from interfering therewith, and from instituting any proceeding to enforce the orders of the commission until further order of the court. Upon being informed of the restraining order, the sheriff, who had kept the saloons closed, withdrew; and Carroll resumed business. Thereupon and on July first, relator Kliinow, the adjutant general of the state, in obedience to the order of the Governor, the relator Burnquist, with the aid of the military force of the state, closed Carroll’s saloon business. Carroll then obtained from Judge Dickson an order citing relators to answer for contempt, and they immediately procured this order to show cause why a writ of prohibition should not issue. The Minnesota Public Safety Commission, created by chapter 361, p. 373, Laws 1917, consists of seven members; the Governor and attorney general being ex officio members, the other five being appointed by the Governor and removable at will by him. Extensive discretionary powers are given the commission, and an appropriation of one million dollars is made to be expended as the commission deems fit in the performance of its duty. The purpose of the law is therein declared thus: “In the event of war existing between the United States and any foreign nation, such .commission shall have power to do all acts and things non-inconsistent with the Constitution or laws of the state of Minnesota or of the United States, which are necessary or proper for the public safety and for the protection of life and public property or private property of a character as in the judgment of the commission requires protection, and shall do and perform all acts and things necessary or proper so that the military, civil and industrial resources of the state may be most efficiently applied toward maintenance of the defense of the state and nation and the successful prosecution of such war, and to that end it shall have all necessary power not herein specifically enumerated, and in addition thereto the following specific powers.” (First part of sec — 14 — tion 3.) Among the specific powers conferred are those contained in subdivision 3 of section 3 : “Said commission shall have power and it shall be the duty of said commission to co-operate with the military and other officers and agents of the United States government in all matters pertaining to the duties and functions of such commission and shall aid the government of the United States in 'the prosecution of any such war and in relation to public safety so far as possible.” In the view we take of the matter for decision many propositions, exhaustively briefed and ably presented in the oral arguments, will not be reached. For instance, we are importuned to determine and define the powers of the commission to make the orders mentioned, and every question relating to its powers and what limitations, if any, there be; also, whether the Governor may be controlled by injunction or otherwise, the same as any other member of the commission. But we think it would be improper fpr this court to pass upon these matters in advance of a determination by the court below, for the issuing of the temporary restraining order, upon an ex parte application, cannot be considered an adjudication upon the validity of the orders of the commission, nor a determination upon the extent or limitation of the powers of that body, nor even upon the extent to which the Governor in respect to official duties may be controlled by the court. Furthermore, relators do not plant their right to the writ upon the validity of the orders referred to, nor even upon that of the law creating the commission; but insist that, even though the orders be void and the law unconstitutional, the Governor acted within the scope of his constitutional powers, and cannot be proceeded against as for contempt. We have therefore not been favored with the arguments that might well be advanced in support of the legality of Orders 17 and 34, and it would be manifestly inappropriate for us to consider their legal status; unless clearly made necessary to a decision upon the application for a writ. The same is more patently true with reference to defining the powers and limitations of the commission. We reach the conclusion that if it clearly appears that the acts, for the doing of which the Governor is cited for punishment by the respon — 15 — dent, were done in discharge of official duties requiring the exercise of judgment and discretion and imposed upon him as chief executive by the Constitution, he is not amenable to punishment. In that event the respondent is without jurisdiction to entertain the contempt proceedings, and the writ of prohibition should issue. The early decisions of this court, in harmony with the weight of authority, arc to the effect that the judicial department will not by mandamus or injunction coerce, direct or control the executive state officers. Rice v. Austin, 19 Minn. 74 (103) 18 Am. Rep. 330; State v. Dike, 20 Minn. 314 (363); St. Paul & Chicago Ry. Co. v. Brown, 24 Minn. 517; Western R. Co. v. DeGraff, 27 Minn. 1, 6 N. W. 341; State v. Whitcomb, 28 Minn. 50, 8 N. W. 902; State v. Braden, 40 Minn. 174, 41 N. W. 817, wherein the exception suggested in Chamberlain v. Sibley, 4 Minn. 228 (309) was disapproved. But the later cases of Hayne v. Metropolitan Trust Co. 67 Minn. 245, 69 N. W. 916; Cooke v. Iverson, 108 Minn. 388, 122 N. W. 251, 52 L.R.A. (N.S.) 415; and State v. Eberhart, 116 Minn. 313, 133 N. W. 857, 39 L.R.A. (N.S.) 788, Ann. Cas. 1913B, 785, modify somewhat the earlier statement of the law; the Hayne case holding that when private property, to which the state has no claim, is held in trust by a state officer, the court can compel him to turn it over to the proper party; the Cooke case ruling that “Where duties purely ministerial in character are conferred upon the chief executive or any member of the executive department, as defined by our Constitution, and he refuses to act, or where he assumes to act in violation of the Constitution and laws of the state, he may be compelled to act or restrained from acting;” the Eberhart case holding, on certiorari to review the action of the Governor in removing an official, that, where a statute invests the Governor with a special quasi judicial duty, his performance thereof is subject to review by the court. Each of these cases recognizes to the full the rule that courts cannot by any process control or direct a head of the executive department of the state in the discharge of any constitutional executive duty involving the exercise of judgment and discretion. No judicial opinion to the contrary has been noticed. Cases need not be here cited, but a number may be found by consulting the references in 12 E.C.L. § 10, p. 1008, and the notes to State v. Brooks, 6 L.R.A. (N.S.) 750, and Rice v. Draper, 32 L.R.A.(N.S.) 355. The authorities seem to agree that — 16 — under constitutions, similar to that of this state, where all power and authority of government are vested in three distinct, co-ordinate and independent departments — the legislative, the executive and the judicial —the judicial has not the power to control, coerce or restrain the action of the other two within the sphere allotted them by the Constitution wherein to exercise judgment and discretion. It would be unthinkable that the courts of this state should attempt to enjoin the legislature from enacting or the Governor from approving a statute, no matter how glaringly unconstitutional it might appear or how highly injurious its mere enactment might be to private interests. And it would seem just as unthinkable that the chief executive of the state should be coerced either into enforcing a statute which the courts might deem he should enforce, or be subjected to punishment for enforcing one the constitutionality of which a court may doubt, but has not passed final judgment upon. Where, in a proper action or proceeding, a statute or an order of an executive or administrative commission has been finally adjudged unconstitutional or void, we entertain no doubt that the Governor of the state will recognize such decision as binding upon him, and the courts will have no occasion to ever consider the question of contempt relative to the Governor’s actions with reference thereto. But if, in advance of such adj udication, he may not be coerced into enforcing or not enforcing, it follows that he cannot be punished for proceeding in the manner his judgment may dictate. However, we are not to be understood to hold, or to intimate, that if the Governor should attempt in good faith to execute a statute adjudged invalid by a trial court he could be subjected to punishment as for contempt. Section 4, art. 5, of the state Constitution makes the Governor commander-in-chief of the military forces and provides that he may call out such forces to execute the laws, and enjoins upon him the duty to “take care that the laws be faithfully executed.” To relator Burnquist as Governor, chapter 261, p. 373, Laws 1917, appeared a duly enacted law; the commission therein created, by orders duly adopted and promulgated, was attempting to perform the work demanded of it by the act. It was the Governor’s constitutional duty to take care that this law was faithfully executed in the manner contemplated by the legislature. To enforce these orders of the commission the Governor did — 17 — the act for the doing of Avhich the respondent noAV threatens to punish him. It seems clear to us that when the liquor dealers of Blooming Prairie disobeyed the orders of the commission, the Governor was confronted Avith the proposition whether or not the execution of chapter 261 was being defied, and, if he reached the conclusion that it was, the Constitution required him to exercise his judgment in upholding and enforcing that law by the means at his command. But it is contended that the law may be invalid and the orders of the commission for that, or for other reasons, void. The Governor is justified in acting on the presumption that the statute is legally efficient and the orders of the commission, created by such statute and given large powers, are valid. And neither this larv nor the orders referred to have up to the present time been adjudged invalid by any court upon a hearing had, but rather the contrary appears. See Judge Booth’s opinion in Cook v. Burnquist, 242 Fed. 321. The position of the President under the Federal Constitution in respect to his duty to execute the laws of Congress is precisely that of the Governor under our state Constitution in respect to the laws enacted by our legislature. The same similarity exists with reference to the three distinct department's of government, and the limits wherein the one is free to act without interference from the other. In Mississippi v. Johnson, 4 Wall: (71 U. S.) 475, 18 L. ed. 437, an unsuccessful attempt was made to enjoin the President from enforcing a law alleged to be unconstitutional and void, the court saying [p. 500]: “It will hardly be contended that Congress [courts?] can interpose, in any case, to restrain the enactment of an unconstitutional law; and yet hoAV can the right to judicial interposition to prevent such an enactment, Avheh the purpose is evident and the execution of that purpose certain, be distinguished, in principle, from the right to such interposition against the execution of such laiv by the President? The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, Avhen performed, are, in proper cases, subject to its cognizance. The impropriety of such interference will be clearly seen upon consideration of its possible consequences. Suppose the bill filed and the injunction prayed for alloAved. — 18 — If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Eeprescntatives impeach the President for such refusal ? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the Hnited States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court ? Those questions answer themselves.” But we need not go to the full extent of the reasoning in the Johnson ease, nor determine the jurisdictional power of the trial court to issue the restraining order which the Governor is charged with violating, although it is not amiss to observe that Carroll’s action is against the individuals composing the Public Safety Commission and not against the Governor as such. It has now come to the point where, as suggested in the case quoted from, there is an attempt to assume the power and jurisdiction that may lead to punishing the Governor for acts done in the discharge of an executive and political duty placed upon him by the Constitution. Ever since the time Chief Justice Marshall, in the Burr trial, had directed a subpoena duces tecum to be served upon the President, his observation has been accepted as sound law that, if the President should disobey the process because in his opinion the document called for should not for political or governmental reasons be exhibited, that official could not be punished for contempt. Thompson v. German Valley R. Co. 22 N. J. Eq. 111; Appeal of Hartranft, 85 Pa. St. 433, 27 Am. Rep. 667. And no court, so far as we have been advised, has held or intimated that the chief executive of the state or nation could be made amenable to contempt proceedings for performing the duty, imposed by the Constitution, to execute a duly enacted law. The able dissenting opinion of Chief Justice Agnew in the appeal of Hartranft, supra, acknowledges this to be the law. We also conclude that Justice Marshall in Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595, 46 L.R.A. (N.S.) 796, where he takes occasion, in his forceful and eloquent way, to — 19 — vindicate the power of the court over the executive if the latter acts contrary to law, accepts the rule above stated, for he approves the case of People v. Morton, 156 N. Y. 136, 50 N. E. 791, 41 L.R.A. 231, 66 Am. St. 547. A moment’s reflection will make clear that a contrary rule might seriously interfere with the performance of the duties required of the chief executive. Legislative enactments frequently affect private interests injuriously. These laws may be constitutionally questionable or plainly invalid. If every individual affected may, in actions, challenging their validity, ex parte obtain temporary restraining orders against their enforcement, and the Governor should nevertheless deem it .his duty to enforce the law, he could be subjected to contempt proceedings in the different courts where, per adventure, such restraining orders issued, the people might be wholly deprived of the services of the chief executive, or else his time so frittered away in court proceedings that none would be left for the discharge of his official duties, to say nothing of the unseemly clash between two departments of the government. We cannot accept the contention made that relator’s act, in closing the offending Blooming Prairie saloon, should be regarded as having been performed either as a member of the commission or, if the orders of the commission be for any reason void, as a private individual. It is plain to us that whatever relator Burnquist did in closing the saloons was in the capacity of Governor, and in the endeavor to perform the duties imposed upon him as such by the Constitution and the laws; and the character of these acts, insofar as the attempt to punish him for contempt reaches, does not change because of the possible invalidity of the law or of the orders of the commission promulgated under that law. It may well be that a different legal aspect of them should be taken by the court when determining their effect upon private interests; but with that we are not now concerned. A few words should be said regarding Cooke v. Iverson, supra, and Ex Parte Young, 209 17. S. 123, 28 Sup. Ct. 441, 52 L. ed. 714, 13 L.R.A. (N.S.) 932, 14 Ann. Cas. 764, upon authority of which it is claimed that the writ prayed for should not issue. In the former it is said: “If a member of the executive department of the state is subject to the control of the judiciary in the discharge of purely ministerial duties, it logically follows — 20 — that he is subject to such direction if he is threatening to execute an unconstitutional statute, to the irreparable injury of a party in his person or property. Rippe v. Becker, 56 Minn. 100, 57 N. W. 331, 22 L.R.A. 857. If a statute be unconstitutional it iá as if it never had been. Eights cannot be built up under it, and, if an executive officer attempts to enforce it, his act is his individual and not his official act, and lie is subject to the control of the courts as would be a private individual,” citing Cooley, Const. Lim. 250 (7th Ed. p. 259) and the Young case. The connection in which Chief Justice Start employed the language must be kept in view. The case involved a purely ministerial act imposed by statute upon the state auditor; and, although the claim to injunctive relief was based upon the alleged unconstitutionality of a statute, it did not involve punishing for contempt for enforcing an unconstitutional statute in advance of its being so adjudged, nor did it relate to a duty imposed by the Constitution. And, as to Ex parte Young, it is clear that the question before the court was not similar to the one before us; for the Federal court, in enforcing a violated restraining order against an executive state officer, is not hampered by any constitutional inhibition against interference with a co-ordinate department of government. This is well stated in Bates v. Taylor, 87 Tenn. 319, 11 S. W. 266, 3 L.R.A. 316. Since the actual closing of Carroll’s saloon was accomplished by the adjutant general with the military power of the state, and that power, by section 14, article 1, of the Constitution, is subject to the civil power, the suggestion may be made that relator Ehinow can be proceeded against. We think not. Ehinow was in duty bound to carry out the order of the Governor, his commander-in-chief. And having concluded that the Governor cannot be punished under contempt proceedings for what he caused to be done, it would seem to be a reasonable deduction that the agency which the law placed in his hands for accomplishing that act should likewise be immune. Otherwise the Governor might be indirectly coerced by the courts in matters pertaining to his constitutional duties. In taking leave of the case we wish to make clear that we have not passed upon the merits of the action instituted by Carroll, nor upon the validity of the orders of the commission therein mentioned, nor upon the propriety of issuing a restraining order therein upon ex parte — 21 — application. Our decision reaches no further than this: That, in attempting to enforce a law and the orders of a commission created by and acting under that law, the relator Burnquist was performing his constitutional duties as Governor, and when so doing he is not amenable to the judisdietion of the courts in a proceeding as for contempt. Let the writ of prohibition issue as prayed.