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authorizes the Auditor-General, if he shall discover before sale or conveyance of any lands, that on account of irregular assessments or for any other cause any of said lands ought not to be sold or conveyed, to forbear to sell, or to withhold a conveyance after sale, as the case may be. This act confers upon him judicial powers, and into the proper exercise of such powers we cannot inquire on proceedings of this nature. A mandamus will only be granted to compel the performance of a ministerial act, not dependent upon the exercise of judicial discretion, in the absence of an effectual legal remedy. Whether the deed in this case was properly withheld, therefore, is not a subject of inquiry. This court is clear: it will not intrude its processes into the jurisdiction of another department.

Upon the whole the most of administration is with discretionary powers; and that is a desirable condition of things in government. The legislature will do well to pass its laws in general form and leave the executive to work out the detail of its enforcement. The methods and forms of administration are better decided upon by the department which is charged with the enforcement of the law. As a matter of convenience, this should be the solution; since the executive department will be well versed in the difficulties that attend administration and well equipped with the means best adapted to carry a law into effect. The principle of the advantage of specialization in the conduct of any undertaking is employed in the matter of government with peculiar success. It is clear that the first separation between the legislature and the executive is upon just that basis; and if that is so, it is clear that the division should be

observed so far as that is possible. Accordingly, it seems that it will always be a proper policy for the legislature to act upon to pass a general statute upon any subject matter and to leave the determination of the application of that statute to the executive. That is, again, that in the most of administration there should be discretion.27

§ 37. Directory.

This is true, that if a statute commands, the officer must obey; but it is well in the statement of such a rule to define its terms, since not all provisions of law are of the nature of command. French v. Edwards, 13 Wall. 506 (1871), is a case in point. This was an action for the possession of a tract of land situated in California. The land had been sold in pursuance of judicial proceedings. The issue before the court was whether the sheriff in making the sale had acted in accordance with law. There was a specific provision of law governing the way in which such a sale had been made. The only question was whether that was such law as must be obeyed. If not, why not?

Mr. Justice FIELD explains: There are undoubtedly

27 GENERAL.-United States v. Commissioner, 5 Wall. 563; United States v. Seaman, 17 How. 225; Mason v. Rollins, 2 Biss. 99; Ex parte Selma R. R., 46 Ala. 423; McCreary v. Rogers, 35 Ark. 298; Freeman v. Selectmen, 34 Conn. 406; United States v. Chandler, 13 D. C. 527; Towle v. State, 3 Fla. 202; People v. Knickerbocker, 114 Ill. 539; Hightower v. Overhaulser, 65 Ia. 347; Louisiana College v. State Treasurer, 2 La. 394; Weston v. Dane, 51 Me. 461; Mayo v. County Com'rs, 141 Mass. 74; Green v. Purnell, 12 Md. 329; People v. Auditor General, 36 Mich. 271; Board of Police v. Grant, 17 Miss. 77; State v. Fletcher, 39 Mo. 388; State v. Scott, 18 Neb. 597; County Board v. State Board, 106 N. C. 83; Commonwealth v. McLaughlin, 120 Pa. St. 518.

many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such, generally, are regulations designed to secure order, system, and dispatch in proceedings and by disregard of which the rights of parties cannot be seriously affected. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated; but when the negative is prescribed, they are intended for the protection of the citizen and to prevent a sacrifice of his property, and by disregard of which his rights might be and generally would be injuriously affected; these are not directory but mandatory. They must be followed or the acts done will be invalid. The power of the of ficer in all such cases is limited by the manner and conditions prescribed for its exercise.

All comes back to the positive rule that the officer must enforce a law which commands. A case which throws a light upon this principle from another angle is United States v. Randall, 1 Sprague, 546 (1853). This was an information for a penalty filed by the District-Attorney for Massachusetts against the master of the brig Nitheroy for not making a report of the arrival of his vessel to the Deputy Collector of the port of Holmes' Hok in accordance with the customs act. The excuse of the master was that the collector had in effect waived that provision. Upon that point indeed there was not much weight placed; and yet it was necessary to dispose of it. If this were a matter of private law

between man and man the defense would be good; but this was a case of public law, between the state and the citizen.

This defense was disposed of by SPRAGUE, the District Judge, in one line, which is well worth preservation: An officer of the customs has no dispensing power, and cannot excuse a party from duties required by stat ute. This proposition, again, is so elementary that few cases are to be found which discuss it; and when found it is needless to recite them. As an officer must enforce the law, it is obvious that he cannot dispense with its enforcement. But caution, that all of the cases discussed in the section before the last which bear upon discretionary power must be taken into account in any discussion of the limitations upon the functions of the administration, since in a discretionary power the discretion may be so wide as to include the right to decide what cases the law shall be enforced, in what cases the law shall not be enforced. The general principle remains true that whenever the law lays a command upon an officer he must enforce that law. is the limitation that is always about administrationthe law.28

$ 38. Ministerial duties.

That

The second branch of the general rule of administra

28 DIRECTORY.-Postmaster General v. Trigg, 11 Pet. 172; Mason v. Fearson, 9 How. 248; Carlisle v. United States, 7 App. D. C. 517; Jacobs v. Supervisors, 100 Cal. 121; Gallup v. Smith, 59 Conn. 357; Whalin v. Macomb, 76 Ill. 49; Abney v. Clark, 87 Ia. 727; Kansas R. R. v. Reynolds, 8 Kan. 628; State v. Dubuclet, 28 La. Ann. 85; Shober v. Cochrane, 53 Md. 544; People v. Auditor General, 38 Mich. 746; Swan v. Gray, 44 Miss. 393; State v. Bishop, 42 Mo. 504; Phelps v. Hawley, 52 N. Y. 23; Springfield, etc., Co. v. Lane Co., 5 Ore. 265; Morgan v. Pickard, 86 Tenn. 208; Sights v. Yarnalls, 12 Grat. 292.

Adm. Law-10.

tive functions was that the judicial courts would interfere by their processes to direct the action of any officer of the administration in any matter where the duty of that officer was ministerial. An early instance of the exercise of this power against a high public officer was Kendall v. United States, 12 Peters, 524 (1838). One Stokes brought this mandamus against Kendall, the Postmaster-General, upon the following case: When the Postmaster-General took office he examined the contracts entered into by his predecessor, and directed that certain allowances and credits should be withdrawn. Congress thereupon passed an act for relief, by which the Solicitor of the Treasury was authorized and directed to settle and adjust the claims of the relators, to inquire into and determine the equity of such claims, to make relators such allowances thereupon as, upon full examination of the evidence, might seem right according to the principles of equity; and the Postmaster-General was thereby authorized to credit the relators with such amount when the said solicitor should communicate his views of award to PostmasterGeneral. When all had been done thereunder the Postmaster-General had refused to act altogether.

The opinion in this case was an elaborate one, as its importance deserved. In the course of the discussion Mr. Chief Justice TANEY said in part: We do not think the grant of mandamus in this case interferes in any respect whatever with the rights and duties of the executive as it 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. The theory of the constitution undoubtedly is that the pow

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