the board are but the agents who perform its duties. While the board is proceeded against in its corporate capacity, the individual members are punished in their natural capacities for failure to do what the law requires of them as the representatives of the corporation. We think, therefore, that the peremptory writ was properly directed to the board in its corporate capacity. In this way the power of the writ is retained until the thing is done which is commanded, and it may at all times be enforced, through those who are for the time being charged with the obligation of acting for the corporation. If in the course of the proceedings it appears that a part of the members have done all they could to obey the writ, the court will take care that only those who are actually guilty of disobedience are made to suffer for the wrong that is done. Those who are members of the board at the time when the board is required to act will be the parties to whom the court will look for the performance of what is demanded. As the corporation cannot die or retire from the office it holds, the writ cannot abate as it did in Boutwell's Case. The decisions in the state courts in which this practice is sustained are numerous. Maddox v. Graham, 2 Metc. (Ky.) 56; State ex rel. Soutter v. City of Madison, 15 Wis. 30; Pegram v. Commissioners of Cleaveland County, 65 N. C. 114; People v. Collins, 19 Wend. (N. Y.) 56. * * * 30 SECTION 52.-REFUSAL TO OBEY MANDAMUS 17186 AMY v. SUPERVISORS. (Supreme Court of the United States, 1870. 11 Wall. 136, 20 L. Ed. 101.) Amy having obtained a judgment for money against Des Moines County, Iowa, in the Circuit Court for the District of Iowa, and not 'being paid, procured from the same court a mandamus against Burk'holder and several others, the supervisors of the county, to compel the levy of a tax. The mandamus not being obeyed, he sued them. 'personally. They set up certain defenses, to which he demurred. The court overruled the demurrer, and he brought the case here. * SWAYNE, J.31 ** The rule is well settled that where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct. There is an unbroken current of authorities to this effect. A mistake 30 See, also, City of Ottawa v. People, 48 Ill. 233 (1868). as to his duty and honest intentions will not excuse the offender. The question of the rule by which the measure of damages is to be ascertained is not before us, and we do not feel called upon to express any opinion upon the subject. The defenses set up in the answer of the defendants are clearly bad. The demurrer should have been sustained. * * * 32 SECTION 53.-PROVINCE OF THE WRIT OF MANDAMUS KM.96 HASSEL'S CASE. (Court of King's Bench, 1719. 1 Str. 211.) Fazakerley moved for a mandamus to be directed to the justices of peace of the county of Chester, commanding them to make a rate to reimburse one Hassel the money he had expended as surveyor of the highways. And it was granted. 19.87 JOHN GILES' CASE. (Court of King's Bench, 1731. 2 Str. 881.) Mr. Reeve moved for a mandamus to the justices of the city of Worcester, to grant a license to Giles to keep an alehouse, insisting that, it being within a city, St. Geo. II, c. 28, did not extend to it. Strange, contra, insisted that it was discretionary in the justices, and cited Stephens v. Watson, 1 Salk. 45, that no appeal lies from the denial of a license,33 and if the owner be committed, the want of a license can only come in question, and not the reason why it was denied. Et PER CURIAM. There never was an instance of such a mandamus, and therefore we will not grant it. 32 Disobedience to the writ of mandamus constitutes contempt of court, and is punishable by fine and imprisonment. Cye. "Mandamus," p. 499. welier auth 33 "It was said by Mr. Nares in the case of Rex. v. Young and Pitts, Esq., Fru. 654 B. R. 20th April, 1758, that the sole reason why the justices of the peace refused the license in this case was because Giles had signed a petition to erect a workhouse, and though the refusal was so ill founded, yet the mandamus was denied. MSS. See, also, the report of that case. 1 Burr, 556. (Note by Reporter.) FR.ADM.LAW-28 KING v. BISHOP OF LITCHFIELD. (Court of King's Bench, 1734. 7 Mod. 217.) Mandamus to Bishop to license a person elected usher to a grammar school. Lord HARDWICKE, Chief Justice.34 If the bishop here. acts judicially, a mandamus lies not to compel him to grant a license, but only to determine the one way or the other; as we often grant them to give sentence, generally, without directing them what sentence to give, so to give judgment in inferior courts; but if he acts ministerially, and it appears to us that the person applying for a mandamus is qualified for the office he prays to be admitted to, then a mandamus goes requiring his admission. I should doubt whether he acts in a judicial capacity in this place. S. 1213, 1268, 12 70. Maus où act isminist even us seas of rept To compel me to pay award of & made under authy to Congr. by a solicitor to decide on claws of the relations us Pedalicitor had fouens Relator cutitled to a cesta Sum. Pmy declined a credit have the full amt Held perempt, writ will issue. v. * * * 35 KENDALL UNITED STATES ex rel. STOKES. (Supreme Court of United States, 1838. 12 Pet. 524, 9 L. Ed. 1181.) Error to the Circuit Court of the District of Columbia. The Circuit Court had ordered a peremptory mandamus, to be directed against the Postmaster General, to be issued. The Postmaster General prosecuted this writ of error. THOMPSON, Justice, delivered the opinion of the court.36 This case comes up on a writ of error from the Circuit Court of the United States for the District of Columbia, sitting for the county of Washington. This case was brought before the court below by petition setting out certain contracts made between the relators and the late Postmaster General, upon which they claimed certain credits and allowances upon their contracts for the transportation of the mail; that credits and allowances were duly made by the late Postmaster General; that the present Postmaster General, when he came into of fice, re-examined the contracts entered into with his predecessor, and the allowances made by him, and the credits and payments which had been made, and directed that the allowances and credits should be withdrawn, and the relators recharged with divers payments they had received; that the relators presented a memorial to Congress on the subject, receive, upon which a law was passed on the 21st of July, 1836, for their relief, by which the Solicitor of the Treasury was authorized and directed to settle and adjust the claims of the relators for extra services performed by them, to inquire into and determine the equity 34 Only a portion of the opinion by Lord Hardwicke is printed. 35 See Rex v. Askew, 4 Burr. 2189 (1768); Rex v. Archbishop of Canterbury, 15 East, 142 (1812). 36 Only a portion of this case is here printed. of such claims, and to make the relators such allowances there for as, upon full examination of all the evidence, may seem right, according to the principles of equity; and that the Postmaster General be and he is hereby directed to credit the relators with whatever sum or sums of money, if any, the Solicitor shall so decide to be due to them, for and on account of any such service or contract. And the petition further sets out that the Solicitor, Virgil Maxey, assumed upon himself the performance of the duty and authority created and conferred upon him by the law, and did make out and communicate his decision. and award to the Postmaster General, by which award and decision the relators were allowed $161,563.89; that the Postmaster General, on being notified of the award, only so far obeyed and carried into execution the act of Congress as to direct, and cause to be carried to the credit of the relators, the sum of $122,102.46; but that he has and still does refuse and neglect to credit the relators with the residue of the sum so awarded by the solicitor, amounting to $39,462.43. And the petition prayed the court, to award a mandamus, directed to the Postmaster General, commanding him fully to comply with, obey and execute the said act of Congress, by crediting the relators with the full and entire sum awarded in their favor by the Solicitor of the Treasury. Such proceedings were afterwards had in the case that a peremptory mandamus was ordered, commanding the said Amos. Kendall, Postmaster General, forthwith to credit the relators with the full amount awarded and decided by the Solicitor of the Treasury to be due to the relators. The questions arising upon this case may be considered under two general inquiries: (1) Does the record present a proper case for a mandamus? And if so, then (2) had the Circuit Court of this District jurisdiction of the case, and authority to issue the writ? Under the first head of inquiry, it has been considered by the coun- not centrally Pr against him to enforce the performance of an official duty. And the in exerciseoflus proceeding has been treated as an infringement upon the executive discrets but of department of the government, which has led to a very extended a ministerial dut range of argument on the independence and duties of that department, but which, according to the view taken by the court of the case, is entirely misapplied. We do not think the proceedings in this case interfere, in any respect whatever, with the rights or duties of the executive; or that it involves any conflict of powers between the executive and judicial departments of the government. The mandamus does not seek to direct or control the Postmaster General in the discharge of any official duty, partaking in any respect of an executive character, but to enforce the performance of a mere ministerial act, which neither he nor the President had any authority to deny or control. sel on the part of the Postmaster General that this is a proceeding We shall not, therefore, enter into any particular examination of the line to be drawn between the powers of the executive and judi cial departments of the government. The theory of the Constitution undoubtedly is that the great powers of the government are divided into separate departments; and so far as these powers are derived from the Constitution, the departments may be regarded as independent of each other. But, beyond that, all are subject to regulations by law touching the discharge of the duties required to be performed. The executive power is vested in a President; and so far as his powers are derived from the Constitution, he is beyond the reach of any other department, except in the mode prescribed by the Constitution through the impeaching power. But it by no means follows that every officer in every branch of that department is under the exclusive direction of the President. Such a principle, we apprehend, is not and certainly cannot be claimed by the President. There are certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution; and in such cases the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character. Under this law, the Postmaster General is vested with no discretion or control over the decisions of the Solicitor; nor is any appeal or review of that decision provided for by the act. The terms of the submission was a matter resting entirely in the discretion of Congress; and if they thought proper to vest such a power in any one, and especially as the arbitrator was an officer of the government, it did not rest with the Postmaster General to control Congress, or the Solicitor, in that affair. *** * * * It was urged at the bar that the Postmaster General was alone subject to the direction and control of the President, with respect to the execution of the duty imposed upon him by this law; and this right of the President is claimed as growing out of the obligation imposed upon him by the Constitution to take care that the laws be faithfully executed. This is a doctrine that cannot receive the sanction of this court. It would be vesting in the President a dispensing power, which has no countenance for its support in any part of the Constitution, and is asserting a principle which, if carried out in its results to all cases falling within it, would be clothing the President with a power entirely to control the legislation of Congress, and paralyze the administration of justice.37 To contend that the obligation imposed on the President to see the laws faithfully executed implies a power to forbid their execution 37 See Bayard v. United States ex rel. White, 127 U. S. 246, 8 Sup. Ct. 1223, 32 L. Ed. 116 (1888), last paragraph. |