Houston Tap & Brazoria Railway Co. v. Randolph

Roberts, J.

This is a proceeding, by mandamus, instituted in the District Court of Travis county, to compel the treasurer of the State to satisfy a warrant, to him directed by the governor and attorney-general, being two out of the three officers composing the board of school commissioners, in favor of the Houston Tap and Brazoria Railway Company, for $150,000 of the five per cent, stock, belonging to the special school fund, in the treasury of the State. The petition, being excepted to generally and specially, was dismissed by the District Court.

The main ground of dispute as exhibited in the arguments of counsel is, whether or not, the plain tiff has shown in the petition a right to the bonds as a loan. It is well settled, that to entitle a party to the extraordinary remedy of mandamus, the petition must state facts, which show, if true, that the plaintiff has- a clear right to the performance of the thing demanded, and that it is plainly the duty of the officer proceeded against, to perform such thing.

On the part of the plaintiff, it is contended, that the right is fully shown, by its being alleged that plaintiff is a legally incorporated railroad company in this state; that it made application to the board of school commissioners for the loan; that said board acted on their application, all of the members of the board being present and deliberating thereon; and that a majority of the said board decided in favor of the application, and signed and delivered the warrant to the president of the company.

On the part of the appellee, it is contended, that as all railroad companies in the state are not entitled to apply for and obtain a loan; and as the board of school commissioners is'a tribunal of special limited powers, it should have been shown, otherwise than by mere inference from the warrant, that the plaintiff belonged to the class of railroads, entitled under the law to apply for and obtain the loan.

It is not to be denied, that the legislature did not intend to grant the power to the board, to extend a loan to all railroads, indiscriminately. The act first creates the board, to draw and invest the fund. Next, it directs that it shall be loaned to legally incorporated railroad companies, in this state; that is, to railroad companies in the state, and not out of the state; and to railroad companies, and not to mere individuals. It then points out the class of railroad companies, to whom the board shall be authorized to loan the five per cent, bonds, belonging to the special school fund. They are such as had been chartered before the passage of the act of 13th August, 1856. (See section 3.) In the 15th and 16th sections of the act, certain railroad companies, whether chartered before or after the passage of the act, are excepted out of, and excluded from,.the provisions of the act; as any road entitled to receive more than sixteen sections to the mile, and branch roads, &c.

Thus, the particular class of companies, who are entitled to apply for, and obtain the loan, are clearly defined. No others are entitled to apply. The board is furnished with no particular means of information, or proof, by which to ascertain whether or not any particular company that may present itself, is one of the favored class. They must act on their own knowledge, or on such reliable information as they can get. The law seems to take it for granted, that the facts, which constitute the test of its right to apply to them, are so obvious and notorious, that no special means have been indicated, to ascertain them. “ Upon the application of any such railroad companies, to said board of commissioners, for said loan, and its representations that section fourth of this act has been complied with, (this has reference to their having completed twenty-five miles, and graded twenty-five miles more, &c.,) said board of commissioners shall appoint some competent engineer, who shall, at the expense of the company, examine the road of said company, and make a full report upon the condition of the same, under oath, and shall report all matters pertaining to the business of said company, which he may deem useful to said commissioners, in ascertaining the true condition of said road and company. And, upon being fully satisfied that any section, or sections, of said road, have been constructed and completed, as provided in the fourth section of this act, and that said section or sections are not subject to any lien whatever, other than such as may be created by this act, in favor of the State, said board shall draw a warrant, upon the treasury of the State, in the name of said company, against said special school fund, for such amount of said bonds as it may be entitled to, under the provisions of this act; which warrant shall state on account of what work it is drawn, and shall be signed by said board of commissioners, and countersigned by the governor, and delivered to the president, or duly authorized agent pf said company.” (O. & W. Dig. 373, § 5.)

Only such companies, and not every company, has a right to apply for the loan. It is not required, in the application, that it should be represented that the facts exist, which make the applicant one of the favored class of companies, by its charter being granted before the passage of the loan act, &c. That, however, must be settled by the board, in its own way, before it can entertain the application, and take the first step in the matter, by appointing an engineer. If it be not such a company, they are not bound to take this incipient step at all, for it is not intended by the act that they shall extend a loan to any other. After the report of the engineer is presented, what are- they to pass judgment upon? of what are they to be “satisfied,” to entitle such road to the loan? Not that the company is such company of the class entitled to apply; for that has been settled as a preliminary question. But that such company has done the work required, and that there is no adverse lien. These are the subjects of investigation and judgment, when a proper company has applied to them. Their judgment, on these subjects, is conclusive and final. But whether or not, a proper company has made the application, so as to call into exercise the powers delegated to the board, though it must be determined, their determination on that subject, may not be final and conclusive. If, by mistake or otherwise, they should grant a loan to a company, entitled to receive more than sixteen sections of land, or to a branch road company, it would be made to a company not entitled to receive it, by the plain letter of the statute. It would be an exercise of power, not only not granted to them, but expressly, by law, prohibited. It would simply be determining and acting on a case, not comprehended within, but excluded from, the scope of their delegated authority.

In this country, all public boards, tribunals, courts, departments of government, and even governments themselves, are the creatures of delegated and limited authority. When the authority delegated is exceeded, the act done is null and void. None of them are, therefore, the exclusive judges of the extent of their own powers. If they were, they might assume all power. Each tribunal must judge of the extent of its power, whenever it acts at all. Still, other tribunals, when its action is sought to ,be enforced, may also judge of the extent of its power, and whether or not it has been exceeded in the performance of the act. This principle lies at the foundation of our system of law and government ; and fixes a limit, and raises a barrier to usurped authority. The confusion and anarchy consequent upon a capricious, unfounded and frequent refusal of obedience to authority, on account of its supposed excessive exercise, should admonish to great caution in asserting this right of judging where authority has been exceeded. But an abandonment of the right of refusal of obedience to usurped authority, would break down all the limits, by which power is circumscribed.

The acts of courts of general jurisdiction, are presumed to be within the jurisdiction of the court, until the contrary is made to appear. The acts of tribunals of special limited powers, do not carry with them the same force of presumption. Of them, it may be said as a general rule, that their power to do the act must be made to appear by something else than the act itself. (Mills v. Martin, 19 Johns. Rep. 7; Norwood v. Cobb, 15 Texas Rep. 500; Cox v. Thomas’s Administratrix, 9 Grattan, Rep. 323; Lindsey v. Luckett, 20 Texas Rep. 516.)

This board of school commissioners being a public board of commissioners, of special limited authority, we incline to the opinion that the petition for mandamus should have stated such facts, in addition to what was alleged, as would have shown that this company belonged to the class that is entitled to apply, and capable of applying for and receiving the benefit of the loan.

The rules of pleading, as applicable to the remedy of mandamus,, require the right of the plaintiff to be stated unreservedly, fully and clearly. In England, the right is shown in the affidavit offered on the motion in support of the rule, and there it is laid down, that “ the affidavit should also anticipate and answer every possible objection or argument in fact, which it may be expected will be urged against the claim.” (1 Chit. Gen. Pr. 808.) The rule as laid down by the late Chief Justice is, that “the circumstances under which the applicant claims the right, should be positively and distinctly stated, and objections which might be anticipated should be met and answered.” (Cullem v. Latimer, 4 Texas Rep. 331; 5 Id. 480; 6 Id. 473.) The object of such strictness is, that the court shall be fully satisfied of the propriety of the exercise of this extraordinary remedy, in requiring an officer to do what, notwithstanding his official obligation, he has refused to do.

The cases in relation to certificates and grants by boards of land commissioners, and other officers, we do not deem exactly analogous. The main object of creating boards of land commissioners, was, to designate the persons entitled to land, and to give them a certificate, which should be evidence that they had been thus designated as the persons entitled. That was the very matter which the law required the board to receive evidence upon, and it prescribed the character of proof, as well as what should be proved, in order to enable them to determine that fact. Hence the certificate was held to be conclusive evidence that the person designated by it was entitled to the land.

A careful examination of the statute creating the board of school commissioners, it is believed, will establish the conclusion that the inquiry as to the particular company entitled to apply for the loan, was merely incidental, in ascertaining the proper objects for the exercise of their authority. It was the act of passing upon the extent of their power, of which they must judge in the first instance, as every tribunal must, when it acts at all, but of which they are not the sole judge, and therefore it is not conclusively established by the warrant issued by them. The warrant conclusively establishes, that the required amount of work has been done on the road, and that there is no adverse lien,—no more.

It is deemed proper to mention, that the charter of the company is not set out in the petition, and that, therefore, it does not appear to us upon what evidence, as to the plaintiff’s right, the board acted in granting the warrant.

There is another objection to this suit, a consideration of which has rendered us content with the general views here advanced upon the question, contested with no inconsiderable research and ability by the counsel for the parties. The objection referred to is, that the District Court of Travis county, has no right to issue a writ of mandamus to the treasurer of the State, requiring him, in his official capacity, to pay out the money, or other effects, of the treasury of the State.

By the Act of 1854, $2,000,000 of the five per cent, bonds of the United States, were set apart in the treasury of the State, as the special school fund. (O. & W. Dig. 60.) By the Act of 1856, the governor, comptroller and attorney-general, were constituted, ex officio, a board of school commissioners; and it was made their duty to draw said fund from the treasury, and invest it, as provided by that act. (O. & W. Dig. 372.) This fund, thus set apart, remained in the treasury of the State, as a part thereof, under the control of the treasurer, as an officer of the State, and not in his individual capacity. This fund can be drawn out for investment, only by the drafts of the board drawn on the treasury. (O. & W. Dig. 373, §§ 1, 5, 6.) The board entitled to draw it from the treasury, is constituted by adding to the comptroller, the governor and attorney-general, thus combining the three highest executive officers of the State, to unite their wisdom and integrity, in the investment of this fund. They are entrusted with it, ex offieio, and because they are the chief executive officers of the State ; and as such officers, perform their duty in this commission. The treasurer is bound to recognise their authority to draw upon this fund, as he does that of the comptroller, in ordinary cases. Ordinarily, he cannot pay out money except upon the “ warrants of the comptroller of public accounts on the treasury, which are authorized by law.” (O. & W. Dig. 410.) Under the statute for the loan of the school fund, this board is authorized to draw upon the treasury, and when the treasurer acts upon such draft, it is in his official capacity, as treasurer of the State, and not as mere servant or banker of the board. (O. & W. Dig. 374, § 6.) His action on the draft being then an official act, as treasurer of the State, the District Court of Travis county, has no right to control or direct the treasurer in relation to it.

This results necessarily from the structure of our State government. The second article of the Constitution provides, that “ the powers of the government of the State of Texas, shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit, those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of those departments, shall exercise any power, properly attached to either of the others, except in the instances herein expressly permitted.” (O. & W. Dig. 14.) Here is a direct prohibition of the blending of the departments. It contemplates that the persons employed in each department, will be wise enough, and honest enough, to discharge the duties entrusted to them, without the aid or interference of the others. And it is a full warrant for each department to disregard and repel such volunteer and unauthorized aid and interference. For, as before said, each one of these departments acts under a delegated limited authority, and if one exceed its authority, by usurping powers not belonging to it, its act is a nullity, not binding upon the other departments, and may be totally disregarded by them.

If the governor were to dictate to the judges the judgments to be pronounced, and enforce obedience, by his power over the militia, the usurpation would be startling, indeed, and too plain for discussion; not any more so in principle, however, than for the District Court of Travis county, or the Supreme Court of the State, to require, by its mandate, that the governor of the State shall sign a patent to land, or the comptroller shall audit an account, or the treasurer of the State, shall pay a draft upon the treasury.

If the legislative department exceed its authority, and assume to adjudicate the disputed rights of parties, it vests no right, and is repudiated by the judiciary, when a right is sought to be based on such act in a trial at law, or in equity. Still this is no more an assumption of undelegated power than judicial legislation.

The officers of each department áre chosen by the people, with reference to their capacity and general fitness to discharge the peculiar duties of that department. They have a right to expect, that the respective duties allotted to each department shall be performed by those they have chosen to perform them. They would be not a little surprised to find, that all the chief executive officers, the governor, and heads of departments, elected by the whole people of the State, were summoned before the District Court of Travis county, and required there to contest the propriety of any of their official acts, done within the scope of their authority, and perchance, after a tedious struggle, the facts in issue being tried and determined by a jury of twelve men, citizens of Travis county, compelled, under the penalty of attachment and imprisonment for contempt, to do an act, which they had refused to do, acting under their oath of office, and under a sense of responsibility to their constituents. If the court assumes to act, it must carry out its judgment. What is the consequence ? The governor is required to sign a patent to land. It is a mere ministerial act by writing his name; the right of the plaintiff has been made clear in the District Court; and the reasons given by the governor for his refusal, are not deemed sufficient by the district judge. The governor, under a sense of duty, and to resist aggression upon his official rights, is obstinate, and will not obey the mandate of the court,—will not write his name officially, as “ Governor of the State of Texas,” upon compulsion ; the sheriff of Travis county must enter the governor’s mansion with his posse, and take possession of the governor, and put him in jail, and keep him there, until he will write his name upon the land patent.

If some of the numerous creditors of the State, (and numerous they may be, if they are not now,) are refused payment of their demands at the treasury, they may send the comptroller and treasurer of the State, to keep company with the governor. But suppose that, actuated, by our traditional veneration for the law, and those who administer it, these high functionaries of the executive department, yield their judgment, obey the mandate, sign the patent, settle the account, pay the claim out of the treasury; who administers the government, they, or the district judge ? Who “ takes care, that the laws are faithfully executedthe governor or the district judge ? Surely not the governor, if he must obey the mandate of the court, in the performance of an official duty.

This remedy is not permissible in any case, unless the duty of the officer, to do the act required is plain, in the opinion of the court. Now, if the duty be plain, why should we not suppose, that these high executive officers, are as capable of discerning it, and as anxious to do their duty, as the district judge, or any other judge or court. They have equal if not much greater, means of ascertaining the true facts of the case; they have a legal adviser; they are selected for their judgment and discretion in such matters; their sense of duty is equal; they equally act under an oath of office; why not then consider their judgment final upon

the matter, rather than give an appeal to a co-ordinate department ? A recognition of such appeal, would render the judiciary not co-ordinate, but superior, to the executive department; contrary to the plain design of the Constitution of the State.

The act which it is sought to force the treasurer of the State to perform, in this case, is said to be purely ministerial. If it be meant by that term, that the act is required of him by law, individually, and not officially, the proposition cannot be acceded to. The act is not only official, but it requires the exercise of his judgment, as an officer. When the draft was presented, he should ascertain that it was presented by “ the president, or authorized agent of said company, so that .if he satisfied it, it should be to the right person, and a proper receipt taken therefor.” (O. & W. Dig. 374, § 6.) He should see that the warrant was “authorized by law.” (O. & W. Dig. 410, § 3.) Upon looking to the law, authorizing the warrant, several considerations might present themselves, but one certainly, he'would have to pass his judgment upon, which is, the legal sufficiency of the warrant, signed by the governor and attorney-general, and not by the comptroller. It is not contended, that the warrant would be valid, unless the comptroller had participated with the other members of the board, when the claim was acted on by them. This was matter of fact to be ascertained. So that here was presented to him, for his judgment in determining his action, an important question of law, as well as one of fact. Again, the state of the funds would have to be examined into, to ascertain whether there was sufficient to satisfy the warrant, so as not to entrench upon the one million of bonds, appropriated to that portion of the State, east of the Trinity river. And as preliminary to this inquiry, he would first have to ascertain, that this railroad was located west, and not east of the Trinity river. (O. & W. Dig. 372, § 2.) Again, he must ascertain the correct value, including premium, of the said bonds, and agree with the president, or agent of said company thereon, and determine what amount of the said bonds, will be equal in value to the amount of the warrant, $150,000. (Id.) And another question, graver than all these might have been presented to his consideration, and upon which he would have to decide-for himself, as an officer, and that would have arisen, if he had believed and been clearly satisfied that this company, in whose favor the warrant was drawn by a majority of the board, did not belong to that favored class, entitled to apply for a loan, but to that class prohibited expressly by the act, from being capable under any circumstances, of receiving it.

These, involve important considerations, calling into requisition, his financial information, his careful examination into facts, and the law, pertaining to his duty in the -matter, and furnish a clear insight to the wisdom of the Constitution in protecting an officer, specially chosen for the performance of such duties, from the interference and control of any other department, or officer thereof, whose business leads in a different direction, and who have not been chosen, with reference to their fitness for any such duties.

This is an isolated case, while the State is not in debt, and has plenty of means on hand, to meet promptly the demands against it. But suppose the case of a State under great embarrassments in its fiscal affairs, with an empty treasury, and only occasionally replenished by annual taxation. The best financial talent of the country is called into requisition, to dis-enthrall its finances. The monetary affairs of the State, must he managed somewhat like a prudent man manages his own business. Meritorious creditors must sometimes be postponed, although there be some money in the treasury. For the wheels of government must not stop. A fund must be reserved for anticipated exigencies, which cannot be dispensed with. Now, subject this financial officer of the State, to the supervision and control of a court, as to when money shall be paid out, and when not, and the consequences can be better imagined than expressed.

It should have been before remarked, that the acts creating, setting apart, and vesting this fund, treat these bonds as money in the treasury, to be paid out at their current value, (though not below par,) as gold or silver coin. Nor is it perceived that it would make any difference in principle, whether it was treated as money to be paid out, or convertible government securities, to be exchanged for the bonds of a railway company. In either event, it would be means in the treasury, under his control, as a part of the treasury of the State, and subject to be drawn from it, as money is. And whether this transaction be regarded as a payment of money, or an exchange of securities, it involves equally official action, requiring the exercise of his judgment, in reference to what is under his care, not individually, but as treasurer of the State.

An abundance of authority is to be found for the position, that the writ of mandamus cannot be granted in this case. In England, “ it is clearly settled, that the writ of mandamus cannot, in any case, be granted against the king or queen, both because there would be an incongruity in the sovereign commanding itself, and also because disobedience to the writ must be enforced by attachment. Neither will the writ lie to command the officers of the crown, as such. Thus it does not lie to command the crown, or its servants, strictly as such, being the depositories of public money, &c., either to pay over money in their possession, in liquidation of legal.and valid claims, or to deliver up goods wrongly detained.” (Tapping’s Mandamus, 161, 162.)

Mr. Tapping, in reference to lords of the treasury, says: “ that notwithstanding a legal right be shown to something, over which the lords of the treasury, as such, have control, yet a mandamus cannot properly issue to them in respect thereof.” (Id. 315.) Again he says: “ the writ does not lie to command the commissioners of customs, &c., although they act wrongfully by withholding goods, or by doing any other tortious act, for to grant a mandamus in such case, would be in effect to grant the writ against the crown, which legally cannot be.” (Tapping’s Mandamus, 164.) Thus in England, where there is not the same well defined limit of power in the different departments as in this country, the courts are not allowed to intermeddle with the official management of the fiscal concerns of the executive department.

This question has been several times before the Supreme Court of the United States. In the case of Kendall v. The United States, it was held, that the writ should issue to compel the Postmaster-General to enter a credit upon an account, according to the finding of an arbitrator, as directly required by act of congress. It was put upon the ground of its being a purely ministerial act, not requiring judgment, and not partaking in any respect, of an executive character. (12 Peters, Rep. 609.)

The same court, in later decisions, have exhibited an anxiety to hedge round even this exercise of power, so as to confine it in the most narrow limits. In the case of The United States v. Guthrie, they say, that “the power of the courts of the United States, to command the performance of any duty, by either of the principal executive departments, or such as is incumbent upon any executive officer of the government, has been strongly contested in this court; and, in so far as that power may be supposed to have been conceded, the concession has been restricted by qualifications, which would seem to limit it to acts or proceedings by the officer, not implied in the several and inherent functions or duties incident to his office; acts of a character rather extraneous, and required of the individual rather than of the functionary.” (17 How. Rep. 303, 304.)

In this case, so far from the act requiring anything of the treasurer, individually, it does not refer to him as “ treasurer,” otherwise than by saying that the board shall “ draw from the treasury,” the special school fund, &c.; and they shall “draw a warrant upon the treasury of the State,” &c., and by such mode of expression, precluding the possibility of supposing that any act was required of him as an individual rather than as a functionary. That court, it is believed, would not order money to. be paid out of the treasury, however plain the right of the claimant, nor any other official act to be done, which was not required of the individual rather than the functionary. (Brashear v. Mason, 6 How. Rep. 101; United States v. Guthrie, 17 Id. 303, 304; Decatur v. Paulding, 14 Pet. Rep. 516.)

In the case last cited, Justice Catron seems to appreciate the difficulty of recognising any right in the courts to call upon the heads of departments to answer at all in relation to any official act, and boldly takes ground against it altogether. He asks, “Is the country known that submits the administration of its finances to the courts of justice, or permits them to control the operations of the treasury ?” The fact that there is no such country known, is strong evidence of the utter impracticability of such a system.

We have an authority against this assumption of power, in the case of Auditorial Board v. Arles. This was a suit by mandamus, to compel the “auditor and comptroller of the State to receive, and allow interest on, a claim that had been previously received by them as the auditorial board; but the interest on the said claim had not been allowed.” The writ had been granted, and upon appeal, the judgment of the District Court was reversed. Justice Lipscomb, in delivering the opinion, says: “it is an admitted rule, that the State cannot be sued only by its own permission, and then in the way it has consented to be so sued. To sustain the judgment in this case would be, in effect, to sustain a suit against the State, without its consent.” (15 Texas Rep. 75.) This would apply with equal force to the present case.

It is true, we have a statute passed in 1846, which provides, that all writs of mandamus, sued out against the heads of any of the departments, or bureaux of government, shall be returnable before the District Court of the county in which the seat of government may be.” (O. & W. Dig. 108.) This statute was passed, doubtless, to obviate the difficulty, which had grown out of the practice of seeking the writ of mandamus against the commissioner of the General Land Office, in suits for land and land locations, instituted in the counties all over the state. And upon this custom, as recognised and corrected by this statute, the remedy has been sanctioned, in its application to the ministerial duties of the commissioner of the General Land Office. (Com. Land Office v. Smith, 5 Texas Rep. 478.)

This statute does not seek to confer the right to grant the writ, but rather takes for granted the existence of the power. If a statute had been passed, giving the right to the courts, to the extent of interfering with the powers of the executive officers, in managing the fiscal affairs of the State, in their executive capacity, it would have been a plain infraction of the Constitution of the State. The matters settled in Auditorial Board v. Arles, above referred to, arose, and were determined, after the passage of this act.

One other feature in this case, will be adverted to. The governor has manifested his wish, that this act should be performed, by joining with the attorney-general in signing the warrant. He is the head of the executive department of the State, and it is made his duty, by the Constitution, to “take care that the laws be faithfully executed.” _ It is evidently contemplated, that he shall give direction to the management of affairs, in all the branches of the executive department. Otherwise he has very little to do. Where he has the power of removal, he can assume authoritative control absolutely, in all of the departments. This being the case in the United States government, results in the entire unity of its executive department. The absence of that absolute power of the chief executive in this State, must occasionally produce a want of harmony in the executive administration, by the inferior officers of that department, declining to comply with the wishes, or to follow the judgment of the governor. That is an inherent difficulty in the organization of that department, and the conflicts arising out of it, cannot be adjudicated or settled by the judiciary. The fact that there is no remedy for an injury growing out of such conflict, cannot justify another department, to wit, the judiciary, in overstepping the boundary of its prescribed authority, for the purpose of furnishing a remedy. The other department, the legislative, may be able to furnish a remedy. The judiciary act on past facts. The legislature acts by devising for the future. It is the peculiar province of the legislative department, to shape future events, so as to obviate and remedy, the jars and difficulties of the past.

We are of opinion, that the court below did not err in dismissing the petition, and therefore the judgment is affirmed.

Judgment affirmed.