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The Secretary in his return to the petition set forth that he refused to issue the commission because he regarded the action of the Governor illegal and void. The reason was that the office was then held by one Shaw, whose commission did not expire until the next regular election, and therefore he maintained that the Governor was without any authority to supersede the said Shaw. Matters thus at a deadlock, the court undertook to de cide.
The opinion of ILSLEY is interesting reading: Di. vested of all extraneous, superfluous, and irrelevant surroundings, what is the real question to be solved? We apprehend it to be this: Is the Secretary of State a mere ministerial officer as regards the authorization by him of official acts; or is he, under the constitution and laws, vested with a discretionary and supervisory power which enables him, before executing the functions imposed upon him in this particular, to judge for himself whether such official acts as need his minisiry are constitutional or not constitutional, legal or illegal, and to affix or withhold from such acts, at his option according to his discretion, his official signature, and the impress of the great seal of the state? It seems to us that the Secretary of State is not to suspend his action to inquire why and wherefore any appointment by the Governor is made. IIis duty is plain; he is not directed, but ordered by law to perform it. When commissions from the Governor need authentication he shall affix his official signature and the public sea! of the state, for these are official acts of another which must be effectuated. Were this right of supervision, which is almost equivalent to a veto power, in the Secl'etary of State, as it is seriously contended that it is, it would indeed produce most startling consequences. The Secretary of State could paralyze at will all such constitutional action of the Governor. There is no argument why the Secretary of State should attempt to exercise discretionary powers where the law confers none on him, but on the contrary imperatively orders him to do the act required of him.
A case to the same effect well worth insertion here because of the clearness of its view is State v. Crawford, 28 Fla. 441 (1891). This case is remarkable at the ontset in its parties, since the Governor of Florida was the relator and the Secretary of State was the defendant. The Governor had appointed one Davidson United States Senator as an interim appointment, and the Secretary of State had refused to seal and countersign the commission. The Governor prayed the writ to carry into effect his executive act by a direction of the court to the Secretary to countersign the same. Here there is an unusual situation of things, the executive as executive obliged to proceed to the courts to get his acts performed—a situation possible only in a decentralized administration; for as will be shown in a later chapter, in a centralized administration there would be administrative process to compel.
The opinion of RANEY, then Chief Justice, leaves nothing to doubt: That the writ of mandamus lies to require the performance of a clear official duty involving discretion, by any one of the administrative officers of the executive department of this state is a settled proposition of the law. To hold that the mere fact of these officers belonging to the executive department of the government should exempt them from this judicial process as to a plain ministerial duty or where they are given no official discretion, would be irreconcilable antagonism to a consistent line of judgments. The writ effectually secures the performance of public official duty and the establishment of public right. It is the character of the duty, and not of the nature of the office, which must, as long as the law is regarded, always control a court in deciding whether or not it will issue a mandamus against the defendant. The duty devolved upon the Secretary in this case before us is purely ministerial; and it involves no discretion.
This legal relation enforced by the courts makes decontralized administration possible, for it imposes a certain order upon the course of action in administration without which there would be such disorder that the business of administration would come to a stop often. It is a rougher method than the administrative relation enforced by the executive, but it is tolerable. The same solution governs in what relations the departments must have each with the other. There is no central administrative control to accommodate their differences, but there is the legal control of the courts to break any deadlock which might result if such stood upon its inherent independence in its relations toward the other.
Within the departments themselves the centralized system is almost invariable. Administration in general may go on with a decentralized administration; but administration in particular is not possible with any effect except by centralized administration. There are within most of the departments in state administration centralized organizations. And in municipal government the present fashion in the charters based upon the experience of failure of the decentralized forms, is to make the administration centralized throughout, as the only hope for proper enforcement of the law.52
$ 68. Independence.
In the last paragraph examples of centralism in decentralism were seen. In the present paragraph examples of decentralism in centralism will be seen. The case supposed is that an officer in a centralized administration has a power vested in him by law, in the exercise of which he has discretion by the external law of administration. Has he, therefore, independence by the internal law governing administration? This is the issue between centralism and decentralism in a most difficult form. For the independence of the inferior officer it may be said that this duty has been vested in him by the assignment of the legislature; it is his duty, therefore the discretion must be his; it is his discretion, therefore no other officer can control in it. For the dependence of the inferior officer it may be said that every one of his duties he must perform under the direction of his superior; since he is an inferior officer, he is subordinate in whatever may be given to him to do; and as an inferior he must in all matters obey his superior. To choose between these balanced arguments will require a careful investigation.
Butterworth v. Hoe, 112 U. S. 50 (1884), is one of
52 DECENTRALIZED ADMINISTRATION.-State v. Crawford, 28 Fla. 441; Shaw v. Macon, 21 Ga. 280; State v. Welsh, 109 Ia. 19; McMaster v. Herald, 56 Kan. 231; State v. Wrotnowski, 17 La. Ann. 156; Albrecht v. Long, 27 Minn. 81; Minkler v. State, 14 Neb. 181; Peo ple v. Mace, 84 Hun, 344; Davis v. State, 35 Tex. 118; State v. McCarty, 65 Wis. 163.
the most perplexing cases in American administrative law. The facts upon which this controversy arose are shown by the record to have been as follows: In 1881, Gill, one of the relators, made application to the Commissioner of Patents, the defendant, for letters patent. An interference was declared with an unexpired patent of one Scott. The Examiner of Interferences decided in favor of Scott; Gill appealed to the Examiners-inChief, but the decision was affirmed; Gill then appealed to the Commissioner of Patents, who adjudged that the patent showed issue; and thereupon an appeal was taken by Scott to the Secretary of Interior; and at that last stage the decision was for Scott. Gill now asked for a mandamus to the Commissioner of Patents to compel him to issue the patent in pursuance with his own de. cision. The Secretary in his return based his refusal solely upon the reversal of that decision by his superior, the Secretary of Interior, whom he felt bound to obey.
In a case of such moment, it is well to examine the opinion with the care which the occasion deserves. Mr. Justice MATTHEWS said: Vandamus evidently will not lie to compel an officer to do a thing which his superior in authority has lawfully ordered him not to do. The direct and immediate question then is whether the Secretary of Interior had power by law to revise and reverse the action of the Commissioner of Patents in awarding to Gill priority of invention, and adjudging him entitled to a patent. The authority and power claimed for the Secretary of Interior are asserted and maintained upon these general grounds: that he is the bead of the department of which the Patent Office is a bureau; that the Secretary is by various statutes