Henry v. State , 87 Miss. 1 ( 1905 )

Oalhoon, J.,

delivered the opinion of the court.

A question sleeps on the doorsill of this case of much graver importance to the state and her people than anything involved in the controversy. That question is whether a governor may, officially or in the name of the state, originate this litigation in our domestic tribunals, unauthorized by statute, without the serious disturbance and threatened destruction of the autonomy and coequal independent rights of three separate departments of government under the constitution and laws of this republic as organized by the people in convention and in their legislature. ■It is essential to present the history of the proceeding and then the results of a careful examination by the rules -of right reason in the light of authority.

The board of control of the state penitentiary is the creation of legislative enactment, and is composed of the three railroad commissioners and the governor and the attorney-general, five in all, and to this board the people have intrusted the management of the convicts and the affairs of the state penitentiary. The board passed the following — viz.: “Resolved, That the board of control work with the convicts for the year 1906 Sandy Bayou plantation, owned by BE. J. McLaurin, and shall receive for their share of the crop and for the labor of the convicts $25,000.00 (twenty-five thousand dollar’s), which sum the said McLaurin guarantees to the state certain and in all events for said pear; the number of convicts to be employed on same to average seventy (70), if so many be necessary to the proper cultivation and harvesting of the crop thereon.” According to it the contract was made as follows — viz.: “First — That the board of control has agreed to work the plantation in Sharkey county, state of Mississippi, owned by said McLaurin, and known as ‘Sandy Bayou,’ for the year 1906. Second — That the said board of control shall pay to the said McLaurin, for the use of said plantation for said year, all the crops grown, raised, and gathered on said premises for said year, after the sum of $25,000.00 shall have been reserved therefrom, and the said McLaurin guarantees that the said crop raised on the said premises shall amount to $25,000.00, and binds himself to the said board of control in that sum, promising to make up whatever the crops grown on the said premises may fall short of that amount. Third— That the said board of control shall have absolute authority over the labor employed in working said land, and that said labor shall be under the direction of said board and of the persons appointed by the board. Fourth — That the said McLaurin, in addition to the land leased and furnished by him, shall also furnish the necessary mules and teams for working of said plantation, and feed for same, and shall also furnish all wagons and farming-implements and planting seed. Fifth — The said board of control shall have said crops made, harvested, and gathered. This act executed.in duplicate.”

Thereupon a bill in equity was presented, beginning thus: “The state of Mississippi, acting at the instance of the governor of the state, and by its solicitors specially employed to assist in bringing and prosecuting this suit; files this bill of complaint,” etc. Accompanying this bill is a letter, addressed to the law firm appearing as solicitors to the bill, as follows: “I wish, in behalf of the state of Mississippi and .in its name, to have suit brought to enjoin the execution of any order of the board of control looking to leasing any farms for the corning year; and, believing that the interests of the state require it, I hereby retain your firm to assist in the case or cases to be brought for that purpose. Yours respectfully, (Signed) Jas. 3L Vardaman, Governor.” The bill is sworn to by “Jas. K. Vardaman, Governor of Mississippi,” and on it a fiat for injunction was granted, resulting in a writ restraining three members of the board of control, the warden of the state penitentiary, and H. J. Mc-Laurin, a party to the contract, “from making or executing a léase of the Sandy Bayou place from H. J.. McLaurin, or using or working any convicts thereon-during 1906, or from carrying out the order of the board for said leasing.” The bill avers that the board “voted to lease” the place, “over the protest and against the vote of the governor,” -by a vote of three for and two against, and that this action of the board is “violative of the constitution and statutes of this state,” states the reasons for this view, and prays for the injunction; and in the bill are these words: “The governor, acting under the powers given him by the constitution and laws, and especially the power conferred by Code 1892, § 2156, has directed this suit to be brought.”

This section 2156 of the code of 1892 is in the following-words :

“Section 2156. Powers Generally. — In addition to the powers conferred and duties imposed on the governor by the constitution and by the laws as elsewhere provided, he shall have the powers and perform the duties following — viz.: (a) He is the supreme executive officer of the state, (b) He is the commander in chief of the militia of the state, and may call out the militia to execute the laws, to suppress insurrections or riots, and to repel invasions. (c) He shall see that the laws are faithfully executed. (d) He is to supervise the official conduct of all executive and ministerial officers, (e) He is to see that all offices ar¿ filled and the duties thereof performed, or, in default thereof, ajsply such remedy as the law allows; and if the remedy be imperfect, he shall acquaint the legislature therewith at its next session, (f) He shall make appointments and fill vacancies as prescribed by law. (g) Whenever any suit or legal proceeding-is pending which affects the title of the state to any property, or which may result in any claim against the state, he may direct the attorney-general to appear on behalf of the state and protect its interest, (h) He may require the attorney-general or district attorney of any district to inquire into the affairs or management of any corporation existing- under the laws of this state or doing- business in this state under the laws thereof, (i) He may require the attorney-general to aid any district attorney in the discharge of his duties, (j) He may offer rewards, not exceeding two hundred dollars, for escaped insane persons who are dangerous, and such other rewards as are authorized by law. (k) He may require any officer or board to make special reports to him upon demand in writing. (1) He shall transact all necessary business with state officers, shall require them to be present at their respective offices ¿t all reasonable business hours, and may require information, in writing, from any such officer relating to the duties of his office, (m) When deemed advisable, upon proceedings for the arrest of fugitives from justice in this state from other states or countries, he may commission a special officer to arrest such fugitives in any part of the state.” ;

An amended bill, not sworn to, makes exhibits of the order and the pursuant contract, as hereinbefore set out, and also a further resolution of the board accepting the signed contract, and sets up that the contract was in fact a hiring of the labor of the convicts, and that it is void, .whether a leasing of the lands or the labor. The two bills were demurred to. The defendants below, appellants here, made a motion to dissolve the injunction, which was overruled, and they appeal to' this court.

The attorney-general is not made a party to the bill, either officially or in any other capacity. As stated, the governor’s right to use the name of the state in suits in her own courts is based, in the bill, on the constitution generally, and specifically on Code 1892, § 2156. This section is in part a rehearsal of the constitution, and we find nowhere in either any such power expressly granted. It surely cannot be gravely urged, since the people in solemn convention ordained the organic law; that any of the servants they there provide for and assume to instruct can exercise powers not derived from that instrument by express grant or by necessary implication from the grant.- It is undeniable that the attorney-general is the officer provided by° the people as the legal adviser of the state, and it is agreed on all hands that he has the express statutory power to sue in its name, just as district attorneys have in the matters which the legislature has committed to them. ' But it is said the governor may also sue, because of necessary implication from the constitutional and statutory provisions that he is the “chief executive,” that he is the “commander in chief of the militia to execute the laws,” etc.-, and that “he shall see that the laws are faithfully executed,” etc. In other words, the position seems to be that the attorney-general may sue by express warrant of law; but the governor is to “see that the laws are faithfully executed,” etc., and therefore the governor may sue, which sequitur is not plainly to be seen in construing powers under constitutions and statutes. If either may sue, it is interesting to examine results. May each bring a separate suit? If the attorney-general or a district attorney, in his proper sphere, sues first, may the governor appear and dismiss the suit because he is “chief executive ?”' It is idle to say the power would not probably be exercised. The people knew that powers given will be, or might be, exercised, in real or supposed emergencies, and they designed to confer power only where they have expressed the purpose or where it is necessarily implied from its expression. If the governor may sue because he is “chief executive,” is it to be his opinion or that of the chosen legal adviser which is to control in determining when suit shall be brought ? If he may sue because it is his duty to see that “the laws are faithfully executed,” may he not, in any and every county, sue, in the home courts, on his own construction of the constitutionality of any contract made by any board of supervisors to work the roads or build a bridge, and this over and against the opinion of the district attorney, who is the statutory law adviser? The affirmative could not be denied in the argument, and this carries us irresistibly to an absurdity. It is idle to say that the legislature would resent by impeachment any such use of power. This body meets only once in two years, and no impeachment would lie against an officer for doing what he was empowered to do. Neither the courts nor the legislature can attack the conscience.

Certain it is that it would not be done by the present distinguished executive. But who can speak for all who may follow him ? Great publicists all agree that populations are happiest in absolute despotisms where the despots are wise and good. The difficulty is in the tenure. The successor may be bad, and there must, therefore, be stability of rights or the opportunity of ruin and slavery. We can imagine governors who would cheerfully lend themselves, for political ends, to influential factions who wanted to annoy with no chance of incurring costs. This would be practically impossible to elected law officers, with reputation for law learning, with the oath as attorneys upon them, and the responsibility they are under to the world in the books of reports. To say the most, it would be but remotely possible. Private persons are jealously guarded against the use of their names in lawsuits where they have given no authority for the use. How much more important to a state! When men vote for a governor, they have no thought that they are voting for a law adviser. In the eighty-eight years that we have been a state, this is the first instance of a suit by a governor, unless in the early days on bonds and obligations made payable to him. This in itself is conclusive of the public and executive construction of the scope of powers, and the courts yield to such public construction from such lapse of time. The position of appellee logically forces to the conclusion that the chief executive may dismiss a prosecution for crime in any court of the state in defiance of the district attorney, elected by the people to look after their law matters. The constitution of the United States also has a clause that the president “shall take care that the laws be faithfully executed.” Yet who ever heard of a suit by that officer? In the case of United States v. Throckmorton, 98 U. S., 61 (25 L. ed. 93), the decision of the court (supreme court of the United States) is in the following words, so far as pertains to this question : “The allegation in the opening of the bill already cited implies that Mr. Van Dyke, the district attorney, is plaintiff; but if, construing it liberally, we hold that the United States is plaintiff, the statement is clear that it is brought by the district attorney, and not by the attorney-general. Leaving out of consideration all mere questions of form, there arises no presumption from the act of congress, which gives the department of justice a general supervision over the district attorneys, that the suit was brought by his direction; for the district attorneys bring innumerable suits, indictments, and proseutions, in- which the United States is plaintiff, without consulting the attorney-general, and they do this in the strict line of their duty. In the class of cases to which this belongs, however, the practice of the English" courts, and of the American courts also^ has been to require the name of the attorney-general, as indorsing the suit, before it will be entertained. The reason of this is obvious — namely: that, in so important a matter as impeaching the grants of the government under its seal, its highest law officer should be consulted, and should give the support of his name and authority to the suit. He should also have control of it in every stage, so that if, at any time during its progress, he should become convinced that the proceeding is not well founded or is oppressive, he may dismiss the bill.”

May the attorney-general dismiss the bill now before us ? It is said he cannot, because the governor is commander in chief and required to “see that the laws are faithfully executed.” In other words, the governor can do in this state what the president cannot do in the courts of the United States. If the governor can so 'act under his powers as commander in chief, and under the duty to see that the laws are faithfully executed, why may he not nullify the decrees of the courts because he thinks they do not comport with the constitution? Alexander v. Georgia, 56 Ga., 479, cited by appellee, has no pertinency, exeept that by implication it is an authority in favor of the appellants, in that the governor’s right to sue is based only on an express statute making it his duty, which statute is to be found on p; 483 of the volume, and confines the duty to particular specified property. The same may be said of the case of State v. Dubuclet, 25 La. Ann., 161, cited by appellee. On p. 162 it is shown that the governor’s right to appeal a case, already brought and lost by the attorney-general below, is sustained in these words: “The letter as well as the spirit of the law gives us the required jurisdiction.” That it was on the letter, see 27 La. Ann., 30, citing the statute. And see hereafter in this opinion. The case of Governor v. Allen, 8 Hum. (Tenn.), 176, is also produced. That merely holds that a governor may sue, as governor, on bonds made payable to his predecessor, officially; and there could be no interregnum in the office of governor. There is no need to go out of Mississippi for that; it has been so held here in the early days, when official bonds, were made payable expressly to the then governor by name. Parmilee v. McNutt, 1 Smed. & M., 179. Even there the court was unnecessarily cautious enough, on p. 184, to note that no objection was made to the right of the governor to -sue as “A. G. McNutt, governor of the state of Mississippi.” There could seem to be no question that the head of a corporation, private or political, has the right to sue on an obligation made payable directly to him or his predecessor in office. But this has no even remote bearing on the question now before us. The case of Compton v. State, 38 Ark., 601, is referred to for appellee. There it was held that the governor, while he might have properly employed additional counsel in that case under the statute law, “yet he did not, and, without authority from the legislature, could not, make such a contract with the solicitor as would give him a lien upon the fruits of the litigation” — that is,on the amount he recovered. In that case “the legislature had previously authorized the governor to take such steps as he might deem proper to recover possession of the bonds.”

It seems plain that the general words of the constitution, which always and everywhere must be construed strictly against powers, cannot carry by any sort of implication the power claimed here. We are warned against drawing such far-fetched conclusions by elementary law Writers. It is “thumb-paper” law. It is drilled into the youth of the republic. In Walker’s American Law, p. 104, we find this wise clause: “Power of General Supervision.— It is a duty enjoined upon the federal and state executives To see that the laws be faithfully executed.’ It would be dangerous, however, to treat this clause as conferring any specific power which they would not otherwise possess. It is rather to be regarded as a comprehensive description of the duty of the executive to watch with vigilance over all the public interests.” This is all that the constitution meant. No authority can be found in any of the reports of any of the states sustaining the forced and unnatural construction urged for appellee. It is not probable that one vote could be had in a constitutional convention to empower the executive to sue at discretion in the home courts. It is certain that, under the federal government and under the government of any of the several states, no instance occurs, except that at bar, where the president or any governor has contended for the power set up here, and yet all the constitutions have the same or equivalent clauses. The power has been claimed and recognized in suits in foreign jurisdictions, such as federal and other state courts, and so our legislature has wisely conferred express power upon the governor to sue in foreign jurisdictions. There can be no political complications or clash of prerogatives there, as at home; and so, in giving the power there, the legislature tacitly excluded the idea of its exercise at home.

It is not easy to understand the pertinency of the many references to federal decisions as to how states may sue and be sued in the United States courts, the service of process on them, etc. The United States constitution and laws provide for such suits, but fail to provide how they should be brought, in whose name, etc., and how process should be served on them as defendants. And so the supreme court of the United States, having the jurisdiction conferred on it, properly determined that it was not to remain |>owerless, and adopted rules to apply in such cases. Among them is this: “1. Ordered, that when process at common law or in equity shall issue against a state, the same shall be served upon the governor, or chief executive magistrate, and the attorney-general, of such state.” Grayson v. Virginia, 3 Dall., 320 (1 L. ed., 619). This was in 1796. As late as 1860, in Kentucky v. Dennison, 24 How., 66 (16 L. ed., 171), these rules are referred to as in force, and that case shows that service on the governor and attorney-general is enough to make the state a party, and that in these foreign jurisdictions the governor may sue in behalf of the state. So in Texas v. White, 7 Wall., 700 (19 L. ed.,227),in 1869, cognizance was taken of a case brought by Texas, under the sanction of the governor elected and the governor appointed by the president, in that court — a jurisdiction foreign to the state of Texas. It is clear that the governor may. sue in the name of the state in the courts of the United States, and a suit so brought would be recognized. This state has given him the express power to do so. It is also true that this state may be sued in foreign courts on process served on the governor and the attorney-general. It might be the only way to reach it, if its legislature was silent as to the mode of service upon it. In such case it could be made aware of- the suit most properly by service on its political head. But all this is far away from the internal policy of a state in reference to invoking the action of its own courts.

Under the laws of Mississippi the governor may sue in foreign jurisdictions. Code 1892, § 2167. Under other laws the revenue agent may sue in'matters pertaining to his province. May the governor sue, regardless of him ? So as to the land commissioner in matters pertaining to his functions. May the governor sue, regardless of himi ? He ought to be able to do so, under the argument of appellee, as chief executive, with the duty to see that the laws are executed. In People v. Navarre, 22 Mich., 1, the court says (p. 4) : “The state can only be recognized by the courts as a suitor in legal proceedings through the agents or representatives appointed by law to speak and act in its name.” This is reiterated in Benalleck v. People, 31 Mich., 200, and in Babcock v. Hanselman, 56 Mich., 27 (22 N. W., 99), holding the attorney-general to be the proper representative of the state in legal proceedings. So in People v. Pacheco, 29 Cal., 210, holding that the attorney general is the only person authorized. So in State v. Railroad Co., 22 Neb., 313 (35 N. W., 118). The case of Succession of D’Aquin, 9 La. Ann., 402, after hoMing the same, uses this language: “The power for appearing for another in judicial proceedings is a very grave power, and one which the law carefully scrutinizes in the case of individuals; and the importance of such a power is obviously not to be less appreciated in the case of the state. The consequence of a power to appear for another in a court of justice is the irrevocably binding force of The thing adjudged’ upon the party for whom the appearance is made; and where the interests of the state, which are the interests of all its citizens, are involved, courts of justice should not pass upon these interests unless the state is properly before it through the officers recognized as its representatives by the constitution of law.” We refer, also, to Parker v. May, 5 Cush. (Mass.), 336, in which the proceeding was begun “by Samuel D. Parker, Esq., attorney of .the commonwealth for the county of Suffolk, acting in this behalf by the requirement of the governor, pursuant to statute;” and its purpose was to enforce a trust for general charity. The court said, through Shaw, C. J., that the power to institute a suit “in order to establish and carry into effect an important branch of the public interest is understood to be a common-law power, incident to the office of attorney-general;” and further, on p. 338, this celebrated judge expressed “great doubts” whether the governor’s requirement would authorize the suit, but finally holds that,- the power being existent in the attorney-general alone, it was not vitiated by the fact that the governor directed it.

Recurring to State v. Dubuclet, 25 La. Ann., 161, to which we have referred and which was cited for appellee, we now refer to State v. Dubuclet, 27 La. Ann., 30, wherein the court says, through the same judge: “Looking to act No. 21 of the acts of 1872 (p. 61), the statute under which the governor acted in this case, we find that he has the right in case of the absence, death, resignation, or inability to act in any particular case of the attorney-general or proper district attorney, or where either of then! may be directly interested, to designate an attorney for such case to act in behalf of the state, for the protection of the public interest. Was the governor authorized under this statute to consent to the transfer of the case and the trial thereof at this term, notwithstanding the opposition of the attorney-general who tried the case in the court below ? We think not. The attorney-general is the proper officer to represent the state in all her lawsuits, and the statute in question was not intended to deprive him of the control and management of his cases. In order to protect the public interest in any particular* case where the attorney-general was-interested or was unable to act from death, resignation, -absence, or from any other cause, this statute authorizes the governor to appoint an attorney for such case. It does not authorize him to give consent for the transfer of any particular case and for the trial thereof before the return-day at a different term of court. The act gives him no personal control of the case whatever. When the condition happens upon which he has authority to supply counsel for the state, the attorney designated by him takes control of such case. The attorney designated by the governor in this ease does not consent to its trial here. But, under the statute, the governor was utterly without authority to appoint an attorney to act in this ease, because the attorney-general is not personally interested; he has not resigned, nor is he dead, or absent, or unable to attend to the duties of his office.”

On the functions of the attorney-general and their exclusive character, we refer to Commonwealth v. Burrell, 7 Pa., 39; State v. Baker, 38 Wis., 71-80. In State v. Lord, 28 Ore., 529 (43 Pac., 479; 31 L. R. A., 473), we find this: “But do we find here what may be termed an information or bill by the law officer of the state ? As such an officer is the only person competent to institute a proceeding of the nature under consideration, the information should show upon its face in no uncertain manner that he is the officer instituting and prosecuting the suit, and the sole person responsible for its inception and maintenance. The most common form of instituting like proceedings, it seems, has been in the name of of the attorney-general. Coosaw Mining Company v. South Carolina, 144 U. S., 565 (12 Sup. Ct., 689; 36 L. ed., 537). less frequently they are brought in the name of the crown, or the state, upon the relation of the attorney-general. State, ex rel., v. Hibernian Saving Association, 8 Ore., 396. And, if permissible at all to bring the suit in the name of the state alone, the complaint or information should show upon its face that the appropriate law officer brings the same for or in behalf of the state. The proceeding in either form would fix the responsibility for the maintenance thereof upon that officer, and it‘ is not believed that the mere affixing of his signature in his official capacity to a complaint of bill shown to be the bill of a private relator is sufficient to impress it with the functions and capacity of an information competent to put in motion the machinery of the courts, whereby they will take cognizance of questions pertaining to the high prerogative powers of the state, or affecting the whole people in their sovereign capacity. See State v. Saline County Court, 51 Mo., 350 (11 Am. St. Rep., 454); Bigelow v. Hartford Bridge Co., 14 Conn., 578 (36 Am. Dec., 502); State v. Anderson, 5 Kan., 115; Buck Mountain Coal Co. v. Lehigh Coal Co., 50 Pa., 100 (88 Am. Dec., 534); Iroquois County Supervisors v. Keady, 34 Ill., 296; People v. Pacheco, 29 Cal., 213; Attorney-General v. East India Company, 11 Sim., 380; Bobbett v. State, 10 Kan., 15; United States v. Throckmorton, 98 U. S., 70 (25 L. ed., 93). Having reached these conclusions, the decree of the court below will be' reversed and the complaint dismissed.”

In the case of In re Fire, etc., Commissioners, 19 Col., on p. 503 (36 Pac., 241), it is said: “In.this provision of the constitution, the phrase, To execute the laws/ contemplates the enforcement of a judicial process — that is, the enforcement of a right or fem'edy provided by the law and judicially determined and ordered to be enforced, and not an arbitrary enforcement by the executive of what he may consider the law to be.” People v. Martin, 19 Col., 573, et seq. (36 Pac., 543; 24 L. R. A., 201). That a governor cannot employ counsel without express legislative authority, see Randall v. State, 16 Wis., 362, and Cahill v. Board, 127 Mich., 487 (86 N. W., 950; 55 L. R. A., 493). The latter case, after so holding, refers to State v. Dubuclet, 25 La. Ann., 161, supra, and supposes that that case, cited here by counsel for appellee, must base its decision, that the governor could authorize an appeal in a case where the state was interested, on the constitutional clause that he should “see that the laws are faithfully executed,” and thinks this because it found no Louisiana statute. We have found it in the acts of 1872, as quoted in 27 La. Ann., supra. The case in 127 Mich. (86 N. W., 55 L. R. A.), supra, also says the decision in Alexander v. State, 56 Ga., supra, cited for appellee, was based on express statute, as it undoubtedly was. That the attorney-general, “even with the approbation of the governor,” could not employ an attorney to assist in the prosecution of a claim of the state for land, see Julian v. State, 122 Ind., 68 (23 N. E., 690), and same case, 140 Ind., 584 (39 N. E., 923). These cases require express statutes, although they have in Indiana the same constitutional provision, which, if it gave the governor the light to sue, would necessarily imply the right to employ counsel. See note 55, L. R. A., 493. The attorney-general has complete control and may dismiss a case at pleasure. People v. Tobacco Mfg. Co., 42 How. Prac., 162; Attorney-General v. Barstow, 4 Wis., 567.

In view of the authorities and of the fact that we have a written constitution undertaking to define powers, and in view of the spirit and genius of the government of these states of the American union, we utterly repudiate any suggestion of any power in the governor or any other officer over and above the constitution. We say, too, that if the power sought to be exercised here could be thought a matter of doubt even, it must be decided that it does not exist. No court has ever deviated from the position of rejecting powers claimed which are doubtful. The constitutional or statutory grant must be plain. The whole people are vitally concerned in this principle, as much so as in that very mudsill of the republic that the three departments must be kept inviolably coequal and independent- each of the other. No argument can be based on the evils which might result if tiré! attorney-general refuses to proceed. " If this be a hiatus in the law, so be it until the legislature shall see fit to act. Better the hiatus than the destruction of a great and essential principle, from which it is an easy leap to the crunching of the bones of the constitution. But there is no trouble. It is a simple matter to bring this question here right. Until it is so brought before the people, sitting as this tribunal, it should not be considered any more than if it were between individuals. N o court ever considered the merits of any cause after holding there was no right to sue. Judges do not sit as moot courts to hear academic disputation, in the decision of which their conclusions would be- mere obiter dicta, and without force. Nor must they yield and decide because the public may want a speedy decision. These walls are imperviously padded to public clamor, the howls of mobs, and the storms of political factions.

If there could be any foundation for the argument that the power to sue is inherent in the mere office of governor at common law, as in the case, possibly, of the attorney-general, which we deny, still a new order of things clearly appears in the constitution of Mississippi, which devotes many sections in article 5 to defining ■ executive powers. There is no break in the authorities that where there is an undertaking to set forth powers,' all must be presumed to be included, and that the charter only can be looked to, with its necessary implications, for the limit of authority. There can be no inherent power to sue, unless in the attorney-general; even if in him, without statute. On careful examination it will be found that not one of the cases cited by the counsel or in the dissent of the chief justice sustains, even remotely, the contention of appellee. The only thing they find looking that way is the dissenting opinion of a judge in a Louisiana case, and he cites no authority and shows no investigation of the question, but makes merely a tentative suggestion. No constitution of any of the forty-five states gives the executive the power to ignore the attorney-general, the common-law adviser, and sue at his own will in the state courts; none ever-will. No state legislature has ever done it; none ever will. There is no squint, or pretense, in this record that the attorney-general was ever applied to ajid refused to inaugurate this litigation. If there was, it would make no difference. In two or three states the legislatures have provided that the governor may sue where the attorney-general refuses his demand to sue; but there is no such statute in Mississippi, and courts are not organized to make laws, but to construe them when made. There is here what purports to be a request from certain individuals that the court decide as soon as may be, but what this has to do with the case cannot be explained. It will be an evil day when the courts cease to watch jealously to preserve the independence of the executive, and of the legislative, and of the judiciary departments, or when either becomes indifferent to the slightest encroachment of the other, as all great writers agree. We bow only to the acts of the legislature, speaking for the people, within constitutional limits. Requests do not make law. They are less than the idle winds.

There is no decree of the court below overruling the demurrer to the bill. The appeal is from a decree overruling a motion to dissolve the injunction. The attorney-general was not made a party defendant in the suit, if this could affect the matter. On the contrary, his right to sue is recognized in the bill, and he is expressly omitted as a defendant. My views, condensed as much as possible for me, are submitted with the utmost confidence to an unbiased profession, and yet it pains me to differ radically from the conclusion of the superior powers of one of my distinguished associates. Proceeding by the light before me, I should regard myself as betraying the people if I considered as a judge any case where the name of their state is used by any bne unauthorized by their constitution or by the enactments of their legislature. None but the elect may tread this holy ground. I have an opinion, of course, as a citizen — a very distinct opinion — on the merits; but I represent the people, not as a citizen, but as their officer, and should not speak officially about matters where their state is not present as a litigant in court.

Reversed, injunction dissolved, and bill dismissed.