People ex rel. Decker v. Waters

statute this proceeding is called a certiorari, the order which the section quoted authorizes is in the nature of a mandamus, and it is well settled that a mandamus will never issue except where there is a clear and specific legal right to be enforced, or a duty which can be and ought to be performed. High, Extr. Rem. § 9; People v. Supervisors of Greene, 12 Barb. 217 ; People v. Thompson, 25 Barb. 73 -76; People v. Board of Supervisors of Greene Co., 64 N. Y. 600 ; People v. Campbell, 72 N. Y. 496 ; People v. Common Council of Syracuse, 78 N. Y. 56 -61; People v. Board of Police, 107 N. Y. 235 , 13 N. E. Rep. 920 ; People v. New York Infant Asylum, 122 N. Y. 191 , 25 N. E. Rep. 241 . It will not be issued in cases of doubtful right. People v. New York Infant Asylum, supra; People v. Board of Supervisors of Greene Co., supra. How. as the statute omits to give to an applicant an absolute right to a license, and the decisions deny to the courts the right to command by order the giving to another of that to which he has no clear legal right, hence, within legal rules, by which courts must be governed, there is here no foundation for a mandatory order. But it may be said that the legislature could provide for two administrative tribunals to pass upon the same question, of which the board of excise should be the first, and the discretion of the last to be final; that the second or reviewing official should”not be governed by the legal rules governing a review of administrative boards, but should pass upon the application in the same manner as the statute authorizes boards of excise to do; that it was intended by this act that the last official to exercise the discretion permitted by the statute should be a court, or a judge thereof. Clearly, such could not have been the intention of the legislature, for it was without power to require the supreme court, or the justice thereof, to perform other than judicial duties, and it will not be presumed that it was intended to transcend its power when the language employed is capable of the other interpretation.

The legislative and judicial are co-ordinate departments of the government, of equal dignity. In the exercise of its proper functions each is alike supreme. The powers of government are apportioned by the constitution, and it does not subordinate any one of the three departments to another when performing the duties belonging to it. Hor can such a result be accomplished indirectly by burdening one department with duties not belonging to it. In 1792 congress passed an act concerning invalid pensions, directing the United States circuit court to take the evidence, and pass upon the claims, subject to revision by the secretary of war and by congress. The judges all agreed that the act was unconstitutional. Hayburn’s Case, 2 Dall. 409 . The circuit court for the district of New York, consisting of Chief Justice Jay, Justice Cushing, and Judge Duane, said:

“Neither the legislative nor the executive branches can constitutionally assign to the judiciary any duties but such as are properly judicial, and to be performed in a judicial manner.”

The circuit court for the district of Pennsylvania, consisting of Wilson and Blair, justices, and Peters, district judge, said:

“Upon tlie consideration, we have been 'unanimously of the opinion that under this act the circuit court held for the Pennsylvania district should not proceed—First, because the business directed by this act is not of a judicial nature. It forms no part of the power vested by the constitution in the courts of the United States. The circuit court must consequently have proceeded without constitutional authority.”

In Ferreira’s Case, 13 How. 40 , decided in 1851, congress, by two acts, directed the judges of the territorial court of Florida to review, examine, and adjudge all cases of claims for losses, and report his decision, if in favor of the claimants, to the secretary of the treasury, who, if satisfied that they were just and equitable, should pay the amount thereof. From an. adjudication made, an appeal was taken to the supreme court, where the appeal was dismissed for want of jurisdiction, on the ground that the decision was not the judgment of the court, but a mere award. Subsequent to the decision the attention of the court was called to the case of United States v. Todd, and a note was prepared by Chief Justice Taney, and inserted by order of the court. 13 How. 52 . In it he stated the result of Hayburn’s and Todd’s Cases to be that the power proposed to be conferred on the circuit courts of the United States by the act of 1792 was not judicial power within the meaning of the constitution, and was, therefore, unconstitutional, and could not lawfully be exercised by the courts. He concludes as follows :

“In the early days of the government the right of congress to give original jurisdiction to the supreme court in cases not enumerated in the constitution was maintained by many jurists,- and seems to have been entertained by the learned judges who decided Todd’s Case. But discussion, and more mature examination, have settled the question otherwise; and it has long been the established doctrine, and, we believe, now assented to by all who have examined the subject, that the original jurisdiction of this court is confined to the cases specified in the constitution, and that congress cannot enlarge it. In all other cases its power must be appellate.”

The constitution of the United States provides that “the judicial power shall extend to all cases in law and equity arising under this constitution.” The state constitution declares “there shall be the existing supreme court, with general jurisdiction in law and equity.” It seems to follow that the legislature cannot assign to the supreme court or the justices thereof the performance of administrative duties such as are devolved upon boards of excise, boards of health, and boards of supervisors. So it could not have been intended by the act that the courts or judges should secondarily have the same powers and perform the same duties as boards of excise have primarily. If it was so intended, the provision would be void. In. either case the result would not be different. If the views so far expressed are well founded, it follows that the proceedings must be dismissed.