Edward J. Myers


The question whether the courts have the power to issue he writ of mandamus against the chief executive of a state to compel the performance of a duty imposed upon him by law, has been answered in two irreconcilable lines of decision-the one being that the Governor is not answerable to the writ to compel the performance of his duty, be it either discretionary or ministerial in its character, the other, that he is liable to the writ to compel the performance of duties purely ministerial in nature. Mr. High, in his work on Extraordinary Legal Remedies, says: "The jurisdiction of courts by mandamus over executive officers, including Governors of states, heads of executive departments of the general government, and others of kindred nature, has given rise to questions of much difficulty, and not a little conflict of authority has resulted from the efforts of the courts to apply the general principles of the law of mandamus to such cases. And while, as to purely executive or political functions devolving upon the chief executive officer of the state, and as to duties necessarily involving the exercise of official judgment and discretion, the doctrine may be regarded as uncontroverted that mandamus will not lie, yet as to duties of a ministerial nature and involving no element of discretion, which have been imposed by law upon the Governor of a state, the authorities are exceedingly conflicting and indeed utterly irreconcilable."