ers of government are divided into separate departments, and so far as these powers are derived from the constitution the departments must be regarded as independent of each other; but beyond that all are subject to regulations by law touching the discharge of duties required to be performed. The executive power is vested in a President, and so far as his powers are derived from the constitution he is beyond the reach of any other department; but it by no means follows that every officer in every branch of the department is under the exclusive direction of the President. There are certain political duties imposed upon many officers of the executive department the discharge of which is under the direction of the President; but it would be an alarming doctrine that Congress cannot impose upon any executive officer any duty they may think proper. In such cases the duty and responsibility grow out of and are subject to the control of the law. Under this law the Postmaster-General is vested with no discretion or control over the decisions of the Solicitor, nor is any appeal or review of that decision provided for by the act. The terms of the submission were matters resting entirely in the discretion of Congress, and if they thought proper to vest such a power in any one, although an officer of the government, it did not rest with the Postmaster-General to control Congress or the Solicitor in that affair. To contend that the obligations imposed on the President to see the law faithfully executed subjects the Postmaster-General and the whole administration to the direction and control of the President, and implies a power to forbid their execution, would be a novel construction of the con

stitution. The act required by law was a precise, definite act, purely ministerial. It was not an official one in any other sense than being the transaction of the department where the books and accounts were kept. All discretion is shut out by the positive command of the law.

These are extreme cases in which a high officer of the administration is held in no better position before the courts than the meanest officer. It may be well to state another celebrated case of this sort, United States v. Schurz, 102 U. S. 378 (1880). This petition for mandamus alleged that the relator McBride was possessed of all the qualifications necessary to entitle him to pre-empt one hundred and sixty acres of the public lands of the United States; that he had acted in compliance with the land laws in respect to occupation of such appropriation; that his proof had been filed in the public land office and there adjudicated; that afterwards the patent had been duly countersigned and recorded; but that delivery of the deed at the local land office had been refused by special order from the Secretary of the Interior.

The opinion in this case is excellent, one of Mr. Justice MILLER'S, at his best: The constitution of the United States declares that Congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States. Under this provision the sale of the public lands was placed under the control of the Secretary of the Interior. To aid him in the performance of this duty a bureau was created, at the head of which is the Commissioner of the Gen

§ 38 eral Land Office, with many subordinates. To them, as a special tribunal, Congress confided the execution of the laws which regulate the surveying, the selling, and the general care of these lands. Congress has also enacted a system of laws by which rights to these lands may be acquired, and the title of the government conveyed to the citizen. The court has with a strong hand upheld the doctrine that so long as the legal title to these lands remained in the United States and the proceedings were yet in fieri, the courts would not interfere to control the exercise of the power thus vested in that tribunal. To that doctrine we still adhere. We are of opinion that when upon the decision of the proper office the citizen has become entitled to a patent and such a patent has been made out in that office and signed by the President, sealed with the seal of the General Land Office, countersigned by the Recorder of the Land Office, and duly recorded in the Record Book, it becomes a solemn public act of the government of the United States. But no further authority to consider the patentees' case remains in the Land Office. Their power is functus officio. There remains simply the ministerial duty to deliver the patent, a duty which can be enforced by mandamus and which will open the portals of the courts to a performance of their order.

The position of the courts as to ministerial duties is therefore square. Whenever a duty is directed by law, it will be commanded by the court. If the law is not carried out by the administration of its own motion, it will be enforced by the motion of the court. All this is in consequence of our fundamental idea of

the supremacy of law. The officer must act in accordance with law, just as every person must act in accordance with law. The officer will be forced to act in accordance with law if the law so provides, just as every person must act in accordance with legal process when forced to act, if the law so provides. It comes to this, then the distinction between discretionary powers and ministerial duties is in last analysis the question what the law is in any particular case.29

§ 39. Specific.

So far as this discussion has gone, this distinction has been insisted upon: either that the duty was ministerial, as in these latter cases, in which cases the rule was positive that a full mandamus would issue, or that the duty was discretionary, as in those former decisions, in which cases the rule was positive again that no

29 MINISTERIAL DUTIES.-Reg. v. Income Commissioners, 21 Q. B. D. 313; Marbury v. Madison, 1 Cranch 169; Kendall v. United States, 12 Pet. 524; United States v. Schurz, 102 U. S. 378; United States v. Black,. 128 U. S. 40; Smith v. Strobach, 50 Ala. 462; Ex parte Selma R. R., 46 Ala. 423; Danley v. Whiteley, 14 Ark. 687; Harpending v. Haight, 39 Cal. 189; Land Co. v. Routt, 17 Colo. 156; State v. Staub, 61 Conn. 553; State v. Gamble, 13 Fla. 9; Barksdale v. Cobb, 16 Ga. 13; People v. Kent, 160 Ill. 655; Governor v. Nelson, 6 Ind. 496; Bryan v. Cattell, 15 Ia. 538; State v. Francis, 23 Kan. 495; State v. Wrotnowski, 17 La. Ann. 156; Baker v. Johnson, 41 Me. 15; Magruder v. Swann, 25 Md. 173; Deehan v. Johnson, 141 Mass. 23; People v. State Auditors, 42 Mich. 422; Chamberlain v. Sibley, 4 Minn. 309; McCulloch v. Stone, 64 Miss. 378; State v. Lesueur, 136 Mo. 452; Humboldt Co. v. County Com'rs, 6 Nev. 30; Kimball v. Lamprey, 19 N. H. 215; State v. Vanarsdale, 42 N. J. L. 536; People v. Collins, 7 Johns. 549; Raleigh, etc., R. R. v. Jenkirs, 68 N. C. 499; State v. Auditor, 43 Oh. St. 311; Commonwealth v. Martin, 170 Pa. St. 118; Randall v. Wetherell, 2 R. I. 120; State v. County Com'rs, 28 S. C. 258; Meadows v. Nesbit, 12 Lea 486; Bledsoe v. International Ry., 40 Tex. 537; Sights v. Yarnalls, 12 Grat. 292; State v. Hastings, 15 Wis. 83.

839 mandamus would issue. Upon this statement the question arises: why may not a duty be ministerial at first and later on discretionary; and what then? Let it be supposed for an example that it is the duty of a State Auditor to allow claims against the state, but that in a particular case he refuses to pass upon a claim. Why may it not be said that it is his ministerial duty to take action in the matter, but that it is within his discretionary power to allow or disallow? Such a rule would meet many difficulties that arise in administration.

The case just supposed is People v. The Auditor, 2 Colo. 97 (1873). In this decision BELFORD, Justice, took that distinction: Where an officer is charged with the performance of a fairly ministerial duty, and he fails to perform it, a writ will issue; but where it appears that the officer, as in this case, is called upon to audit and examine claims, and in so doing is invested with judicial powers, a court, while it may compel him to take action, will never dictate what his decision shall be, and this is the exact thing which the plaintiffs in error asked. If a party were to present a claim against the territory, and the auditor should refuse to examine it, the court would issue a writ commanding him to do so. But this case is not of that character. We are asked to compel the auditor not to audit the claim, but to allow and pay it, and this, too, when he believes the same to be excessive and fraudulent. The discrim ination made in this case is a useful one; and it is often employed.

The principal rule remains, when a duty is ministerial in all respects, a court will direct its perform