State ex rel. Missouri, etc., Co. v. Johnston, Judge, et al

was

to him that in so doing he has usurped the functions of the courts and adjudged those statutes to be in harmony with the Constitution of the United States and of the state. We have been referred to no case and have seen none where it charged that in yielding obedience to the law the ministerial officer usurped judicial functions. But, if an officer refuses obedience to a statute on the ground that, in his opinion, it is unconstitutional, a different case is presented. We do not say that even then a writ of prohibition will go against him, because mandamus is the appropriate remedy. Even in such case, it has been held by many courts that the officer, when proceeded against by mandamus to compel him to obey the statute, could not defend his conduct of refusal by pleading the unconstitutionality of the statute.

In a mandamus proceeding against a county clerk, the Supreme Court of Illinois, addressing its words to the offending officer, said: "The law under which this additional tax was imposed had passed the Legislature under all the forms of the Constitution, and had received executive sanction, and became, by its own intrinsic force, the law to you, to every other public officer in the state, and to all the people. You assumed the responsibility of declaring the law unconstitutional, and at once determined to disregard it, to set up your own judgment as superior to the expressed will of the Legislature, asserting, in fact, an entire independence thereof. This is the first case in our judicial history in which a ministerial officer has taken upon himself the responsibility of nullifying an act of the Legislature for the better collection of the public revenue, of arresting its operation, of disobeying its behests, and placing his judgment above legislative authority expressed in the form of law. * * * To allow a ministerial officer to decide upon the validity of a law would be subversive of the great objects and purposes of government, for if one such officer may assume infallibility all other like officers may do the same, and thus an end be put to civil government, one of whose cardinal principles is subjection to the laws. Had the property owners, who were subjected to this additional tax, considered the law unconstitutional, they could in the proper courts have tested the question, and it was their undoubted right to do so. Your only duty was obedience." People v. Salomon, 54 Ill. 39, loc. cit. 45, 46.

* * *

The Supreme Court of Louisiana, in a very elaborate opinion, reviewed many authorities and decided that the defendants, the State Auditor and State Treasurer, could not, in a mandamus proceeding to compel them to warrant and pay certain claims in obedience to an act of the General Assembly, defend their refusal to do so on the ground that the act of the Legisla

State ex rel. Missouri, etc., Co. v. Johnston, Judge, et al ture was unconstitutional. State ex rel. v. Heard, 47 La. Ann. 1679, 18 South. 746, 57 L. R. A. 512. In the concluding part of the opinion in that case, the court said: "In mandamus proceedings against a public officer, involving the performance of official duty, nothing can be inquired into but the question of duty on the face of the statute and the ministerial character of the duty he is charged to perform. After careful investigation of the authorities, we feel fully confirmed in the correctness of the conclusions we arrived at in State ex rel. Nicholls v. Shakespeare [41 La. Ann. 156, 6 South. 592], and other cases, to the effect that executive officers of the state government have no authority to decline the performance of purely ministerial duties which are imposed upon them by a law, on the ground that it contravenes the Constitution. Laws are presumed to be, and must be treated and acted upon by subordinate executive functionaries as, constitutional and legal, until their unconstitutionality or illegality has been judicially established; for in a well-regulated government obedience to its laws by executive officers is absolutely essential and of paramount importance. Were it not so, the most inextricable confusion would inevitably result, and produce such collision in the administration of public affairs as to materially impede the proper and necessary operations of government.' 'It was surely never intended that an executive functionary should nullify a law by neglecting or refusing to execute it.' The result of this conclusion is that the respondents are without right to urge the unconstitutionality of the concurrent resolution which is involved."

The Supreme Court of Nebraska has held that, in a mandamus suit against a ministerial officer to compel him to perform a duty imposed on him by a statute, he may justify his refusal on the plea that the statute is unconstitutional, and that the courts will not compel a ministerial officer to obey the mandate of an unconstitutional statute. Then the court says: "But the courts themselves will enforce a statute, unless it is clearly repugnant to the Constitution, and in discharging the functions of their offices ministerial officers should, of course, exercise the greatest caution on such questions. A doubt as to the validity of a statute would not justify them in disregarding it. The peace of the community, the orderly conduct of the government, require that only in clear cases of unconstitutionality should they refuse obedience to legislative acts. They always disregard them at their peril; but when they do disregard them, and the question is presented to the court as to whether or not obedience will be compelled, the question of the validity of the act is presented, and obedience will not be compelled if the act is unconstitutional, because in that case it is no law and imposes upon no one any duty." Van Horn v. State, 46 Neb. 62, 64 N. W. 365.

State ex rel. Missouri, etc., Co. v. Johnston, Judge, et al

The Louisiana case above quoted is reported also in 47 L. R. A. 512, and in a note to that case the Nebraska case is also quoted. In a very elaborate note the editor reviews many cases, and concludes as follows: "From the above decisions it is apparent that there is no theory which will reconcile all the conflict. There is running through the decisions, however, a thread which would furnish a logical and satisfactory rule upon the question, if finally adopted. That is that statutes are generally presumed valid, and ministerial officers must treat them as such, until their invalidity is established; but that, if the nature of the office is such as to require the officer to raise the question, or if his personal interest is such as to entitle him to do so, he may contest the validity of the statute in a mandamus proceeding brought to enforce it. In other cases he must perform his duty as the statute requires, and leave those whose rights are affected by it to take steps to annul it."

We have not quoted from the above cases to show that a ministerial officer, when called into court to answer for his refusal to obey the mandate of a statute, cannot plead in justification or excuse for his refusal that the statute is unconstitutional, for no such question is in this case; but we have cited those cases to sustain the proposition that it is the duty of a ministerial officer to obey the statute without question, and in so doing he is not arrogating to himself any judicial function. There is no conflict between any of the cases on that point.

In a very recent case, Wiles v. Williams, 133 S. W. 1, not yet officially reported, which was a mandamus suit against a county treasurer to compel him to pay a certain warrant that had been issued by the clerk of the county court in payment of the salary of the plaintiff, who was the prosecuting attorney of that county, the defendant by his answer stated that the statute under which the warrant was drawn was unconstitutional, and the point was raised in this court that he had no right to plead such a defense, but this court in a very carefully considered opinion by Woodson, J., allowed the defense. It was in that opinion said that, whilst ordinarily to allow that defense was contrary to the great weight of authorities, many of which were arrayed in the opinion, yet under the peculiar facts of that case the ordinary rule would be departed from. It appeared in that case that the county court of that county had been admonished that the statute was unconstitutional, and had applied to the Attorney General for his opinion, and the Attorney General gave his opinion in writing, holding that the statute was unconstitutional, whereupon the county court gave notice thereof to the county treasurer, and made an order, and caused it to be entered on its record, ordering him not to pay the warrant, and that if he did so he would not be allowed credit for the same in his account with the county.

State ex rel. Missouri, etc., Co. v. Johnston, Judge, et al As said by the Illinois court, it is the duty of the ministerial officer to obey the statute without question, and if it impinges the rights of any one who deems it unconstitutional such an one may go into court for an injunction to prevent its threatened enforcement.

In High on Ex. Legal Remedies (6d Ed.) § 770, it is said: "And it is a principle of universal application, and one which lies at the very foundation of the law of prohibition, that the jurisdiction is strictly confined to cases where no other remedy exists, and it is always a sufficient reason for withholding the writ that the party aggrieved has another and complete remedy at law."

The case of Herndon v. Railroad, 218 U. S. 135, 30 Sup. Ct. 633, 54 L. Ed. 970, which is the case hereinabove referred to, in which it was held by the United States Supreme Court that the act of March 13, 1907, was unconstitutional, was a suit brought by the railroad company in a United States Circuit Court against Herndon, the prosecuting attorney of Clinton county, and John E. Swanger, the then Secretary of State, wherein it was alleged that the then Secretary of State had threatened to do just what the petition in the case at bar says the present Secretary of State threatens to do-that is, obey the statute-and on that statement the injunction was issued. The statute in question was aimed, not only against the removal of a cause to a federal court, but also against the bringing of a suit in a federal court, and the consequence in each case was the same. It never occurred to any one in that case to say that the then Secretary of State, by purposing to obey the statute, was assuming to exercise a judicial function, or that the statute essayed to confer judicial authority on him, or that a writ of prohibition could go against him.

[11] (b) In the case at bar there is no connection between the action that the circuit court of Newton county might have taken in reference to the petition for removal of the Scott Wilson suit to the federal court, and the action that the Secretary of State might have taken in case the removal had been ordered, as, for example, like the action of a sheriff in executing the order of a court. The court had nothing to do with the consequence that might result from its order directing a removal of the cause to the federal court; it had nothing, in that respect, to do with the Missouri statute in question; it could look only to the act of Congress; it would not in such case give any order to the Secretary of State; and, on the other hand, if because of the removal the officer had undertaken to revoke the relator's license, it would in no sense be in obedience to the order of the court, but to that of the mandate of the statute. Take the converse of the proposition. If, after the order of removal, the officer

City of St. Paul v. St. Paul City Ry. Co

refused to revoke the relator's license, could he be brought before that court on a charge of disobedience of its order?

It was a misjoinder of parties to unite the supposed cause of action against the judge with that against the Secretary of State in the same petition.

The writ of prohibition is denied. All concur.

CITY OF ST. PAUL v. ST. PAUL CITY Ry. Co.

(Supreme Court of Minnesota, May 5, 1911.)

[130 N. W. Rep. 1108.]

Street Railroads

Regulations-Requiring Sprinkling of Streets.— Under the provisions of section 61, City Charter, which is a grant of power to make all regulations which may be necessary or expedient for the preservation of health and the suppression of disease, the common council of the city of St. Paul have authority to take such reasonable measures as may be necessary to regulate the raising of dust by the operation of street cars in the city streets.

Street Railroads-Regulations-Requiring Street Car Company to Sprinkle Streets.-The common council is not limited, in reference to dust raised in the operation of appellant's cars, to the provisions of Ordinance No. 1227, which provides for the cleaning of that part of the streets occupied by its tracks.

Street Railroads-Regulations-Prevention of Raising of Dust by Street Cars. It is within the power of the common council to require the operators of street cars to take reasonable measures to protect the passengers from dust raised by the cars, without regard to the benefits which may or may not result to the residents along the streets.

Street Railroads-Regulations-Requiring Sprinkling of Streets.It is no defense to the enforcement of reasonable regulations by the use of water to prevent street cars from raising dust that there might be created a monopoly as to water, that oil would be a more efficient agent, or that the installation and maintenance of an adequate sprinkling system would be expensive.

* * *

Street Railroads Regulations-Requiring Sprinkling of Tracks.An ordinance providing "that each and every person, company or corporation, operating any street car lines within the city of St. Paul, Minnesota, shall water, their tracks so as to effectually keep the dust laid on the same while the cars are in operation: Provided, however, such watering shall not be done when the temperature is at or below the freezing point"-is not unreasonable, in that it requires the tracks to be watered during the winter season, when the temperature is above freezing point.

(Syllabus by the Court.).