
    The People, on the relation of Wm L. D. Ewing, v. George Forquer, Secretary of State.
    On a motion for a Mandamus.
    
    The governor can not make an appointment in the recess of the general assembly, unless the vacancy occurred since the adjournment of that body. 
    
    The secretary of state is not obliged to countersign and seal a commission which the governor has no power by law to issue, and he may rightfully refuse to do it. The court will not grant a mandamus to a person to do an act where it is doubtful whether he has the right by law to do such act or not.
    Where a person is in office by color of right and exercising the duties thereof, a quo warranto is the proper remedy foy another person claiming the same office, and not a mandamus. 
      
    
    The governor has no right to fill an office though created by law, during the recess of the general assembly, where there never has been an incumbent. The word “vacancy” as used is contradistinguished from “ filled ” or “ occupied.”
    When the return upon a rule to show cause why a mandamus should not issue, contradicts the facts set out in the affidavit upon which the rule is granted, it seems that this court has no power to ascertain the real facts, as the legislature have provided no mode by which they are to be tried and determined.
    
      
       The subject of appointments to and removal from office by the governor, is very folly discussed in the case of Field v. The People, 2 Scam., 79.
    
    
      
       This rule is very generally adhered to, if not universally. See People v. Fletcher, 2 Scam., 487. Wilmans v. Bank of Illinois, 1 Gilm., 671. Clark v. The People, 15 Ill., 217. Akin v. Matteson, 17 Ill., 167.
      Where the parties have commenced proceedings in another tribunal, to obtain an adjudication of the question, the Supreme Court will not (except in extraordinary cases) interfere by mandamus. The People, v. Warfield, 20 Ill., 159.
      A writ of mandamus should show that the relator has no other remedy. It is only granted in extraordinary cases, where, without it, there would be a failure of justice. If the party has sought, or may seek, other means of redress, this writ should be ’denied. School Inspectors, &c. v. The People, 20 Ill., 525.
      A mandamus is not the proper remedy to try the question of the location of a public highway, as between the public and the landholders over whose land it is to be laid out. The court has a discretion in granting or refusing it. The People v. Curyea et al., 16 Ill., 547.
      Where a circuit judge refuses to sign a bill of exceptions, the proper remedy is by mandamus. The People v. Pearson, 2 Scam., 189. Weatherford v. Wilson, id. 256.
      A mandamus confers no new authority, but only issues to compel a party to act where it was his duty to act without it. The People v. Gilmer, 5 Gilm., 249.
      See also the following cases: The People v. Pearson, 1 Scam., 460. Same v. Rockwell, 2 Scam., 3. Same v. Cloud, id., 362. Same v. Pearson, 3 Scam., 271. Same v. Scates, id., 351. Maxcy v. Clabaugh, 1 Gilm., 29. County of Pike v. The State, 11 Ill., 203. Insane Hospital v. Higgins, 15 Ill., 185. The People v. Kilduff, id. 501.
    
   Opinion of the Court by

Justice Lockwood.

A rule was granted by this court requiring the secretary of state to show cause why a mandamus should not be awarded against him, requiring him to countersign and seal a commission appointing Wm. L. D. Ewing, paymaster-general of this state. This rule was granted on an affidavit made by Adolphus F. Hubbard, which affidavit states in substance that said Hubbard received a letter from Edward Coles, then, being governor of this state, that he intended to be absent from the state for a period of time, and that in consequence of «such absence, the duties of governor would devolve on the said Hubbard, he being the lieutenant governor of the state. The affidavit further states, that Coles absented himself from the state, and that he, the lieutenant governor, entered on the duties of governor. The affidavit further says, that on the second of November, 1825, he, the said Hubbard, did appoint the said Ewing paymaster general, said office being then vacant, by filling up and subscribing his name to a commision for that purpose. That on the said second November, said Hubbard still being the acting governor, did in the office of secretary of state, present to the said Forquer, he being secretary of state, said commission, and requested Mm to countersign and affix the seal of state to the same, which the said secretary of state failed and refused to do. The letter referred to in the affidavit, and a commission appointing said Ewing paymaster-general until the end of the next session of the general assembly, were annexed to the affidavit. To the rule granted as above-mentioned, the secretary showed for cause why a mandamus ought not to be awarded against him, the following reasons, to wit: because Edward Coles was, on the day of presenting of said commission, and had been from the 31st of October, 1825, and has ever since remained in the administration of the office of governor of the state of Illinois. He states as a further reason why the mandamus should not be awarded, “ that it does not appear from the records of his office, that said office of paymaster had ever been filled by any previous appointment.” The secretary then admits that the lieutenant governor entered on the discharge of the duties of the office of governor, and continued in the discharge thereof, until the 31st of October, 1825, on which day he alleges, “ that said Edward Coles reentered upon the discharge of the duties of said office of governor, and has remained therein ever since.” Upon the affidavit and accompanying documents, and the reasons, in writing as above given by the secretary of state, it has been contended by the counsel for the relator, that a mandamus ought to be granted. The facts stated by the secretary of state were not disputed but conceded to be true.

The questions supposed to grow out of this application have been elaborately argued, and the discussion has occupied several days, yet it is expected that this court will, in less time than was employed in the argument of the case, make up and deliver an opinion, which in its consequences may determine the question, whether Edward Coles or A. F. Hubbard is, according to the constitution, the governor of this state. A question of such immense importance, whether we regard the interest and dignity of the persons interested in the result, or the right of the people to have the government administered by the person to whom they have delegated so important a trust, would seem to require that the court ought to have more time for deliberation and examination, than the remainder of the present term. As, however, a decision has been anxiously pressed upon the court, they have determined to give to the subject all the investigation which the shortness of the time, and the almost total absence of law books and other sources of information, will permit. If the court, laboring under such great disadvantages, together with the unprecedented nature and novelty of the case, should err in the conclusions to which they shall arrive, they have no doubt that the error will meet, in the bosoms of the intelligent and the honest, with a ready and satisfactory apology. In the great case of Marbury and Madison, secretary of state for the United States, in the supreme court of the United States, (a tribunal filled with as enlightened and as able jurists as ever graced the judgment-seat in this or any other nation,) the questions which, in some respects, are similar to those in this case, were pending before that court for two years. Yet the opinion delivered in that case, although conspicuous for its luminous displays of deep research and constitutional learning, has not given universal satisfaction. Can it then be reasonably expected, that this court, without any pretension to the great and distinguished talents of the judges of that court, and destitute of even the ordinary means of forming an opinion, will be able to arrive at a determination that will be universally satisfactory ? But to come to the case before the court. It was contended on the argument, that governor Coles, by absenting himself from this state, had abdicated and forfeited the office of governor, and could not, on his return into the state, resume its functions. But before the court can enter into this question, it will be necessary for-them to inquire, 1. Whether the relator has a right to have the commission countersigned and sealed ? And, 2. If he has such right, do the laws of this state afford him the remedy he asks ? It appears from the answer filed by the secretary of state, that the office of paymaster-general had never been filled. This office was created by the fourth section nf the act passed 8th February, 1821, amending the militia act. A question of much importance here arises, whether the incumbent in the office of governor can make an appointment in the recess of the general assembly, when the vacancy did not occur since the adjournment of that body ? The answer to this question is only to be found in the true construction of the 8tli section of the 4tli article of our constitution, which reads as follows : “ When any officer, the right of whose appointment is, by this constitution, vested in the general assembly, or in the governor and senate, shall, during the recess, die, or his office by any means become vacant, the governor shall have power to fill such vacancy, by granting a commission which shall expire at the end of the next session of the general assembly.” If any doubt existed as to the meaning of this section, reference might be had to the practice of the government, had such practice been acquiesced in. Only one case, however, is within the knowledge of the court, and in that case, the governor determined that he had not the power to make the appointment, although it was a case that loudly called for its exercise, if. the power existed. This solitary precedent, however, can not be considered as settling the question. The words, however, of this section, appear so clear, and so devoid of ambiguity, that it seems a useless waste of time to look further than to the clause itself, for its true meaning. It only authorizes the governor to fill the vacancy when it shall occur during the recess of the general assembly, whether that vacancy be occasioned by death, or any other means. The vacancy must happen during the recess. Can it then for a moment be pretended, that the contingency had happened, which authorized the appointment of the relator ? It appears to me, that it would require a total perversion of the language used, to contend that it had. But as this question is one of vital importance to the correct and wholesome administration of this government, I liav.e examined the constitution of the United States, and the construction that has prevailed on this subject. By the 2d section of the second article, “The president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions, which shall expire at the end of their next session.” In an able work recently published on constitutional law, I find the construction that has been given to this clause of the constitution of the United States, which so strikingly resembles our own, and I trust I shall be excused for malting a long-extract from the work. In pages 373-4, of Sergeant’s Constitutional Law, the subject is noticed as follows:

“In the year 1814,president Madison granted commissions to ministers to negotiate a treaty of Ghent, in the recess of the senate. The principle acted on in this case, however, was not acquiesced in, but protested against, by the senate at their succeeding session. And on a subsequent occasion, April 20, 1822, during the pendency of the bill for an appropriation to defray the expenses of missions to the South American States, it seemed distinctly understood to be the sense of the senate, that it is only in offices that become vacant during the recess, that the president is authorized to exercise the right of appointing to office, and-that in original vacancies, where there has not been an incumbent of the office, such a power, under the constitution, does not attach to the executive. An amendment that had been proposed, providing that the president should not appoint any minister to the South American States, but with the advice and consent of the senate, was therefore withdrawn as unnecessary. And in a report of a committee of the senate, made on the 25th April, 1822, it is declared, that the words £ all vacancies that may happen during the recess of the senate,’ mean vacancies occurring from death, resignation, promotion, or removal. The word £ happen ’ has reference to some casualty not provided for by law. If the senate be in session when offices are created by law, which were not before filled, and nominations be not then made to them by the president, the president can not appoint after the adjournment of the senate, because, in such case, the vacancy does not happen during the recess. In many instances where offices are created by law, special power is given to the president to fill them in the recess of the senate. And in no instance has the president filled such vacancies without special authority by law.”

Here, then, we find a practical exposition of the constitution of the United States, adhered to for a series of years, and the concluding fact stated in the extract, speaks much on this subject. There can be but little doubt, that since the organization of the general government, many cases must have arisen where the public interests would have been promoted by the exercise of this power; yet the president has carefully abstained from stretching his authority, even for useful purposes, to cases not authorized by the constitution. In the appointment of the relator, it can not even be pretended, that any state necessity existed for filling the vacancy. The office had been vacant since 1821, and yet, I am not aware that any complaint had ever been made. I therefore come to the conclusion, that the lieutenant-governor, admitting him fully clothed with all the functions of governor, had not the constitutional power to fill the vacancy in the office of paymaster-general. This conclusion would seem to settle the question whether the mandamus ought to be awarded or not. But the counsel for the relator contended on the argument, that whether the lieutenant-governoyhad the constitutional right or not, to make the appointment, still the secretary was compelled to countersign the commission and affix the seal. Can this proposition be sustained V By the 4th section of the act defining the duties of secretary of state, it is enacted, “That all commissions required by law to be issued by the governor, shall be countersigned by the secretary of state.” In this section, is to be found the duties of the secretary. Had the legislature intended to require the secretary to countersign every commission that the governor should present to him, whether authorized by the law, or the constitution, its phraseology would have been, that the secretary should countersign every commission presented to him by the governor. The secretary is, however, only required to countersign those commissions “ required to be issued by law.” Must he not, then, look into the law to see if the commission is required by law ? Would he be required to sign a commission for an office that does not exist ?

The secretary of state is a constitutional officer as well as the governor, and his duties are pointed out by law. I think he may refuse to sanction an unconstitutional or illegal act. Should I, however, be wrong in this opinion, still the court might well doubt the propriety of granting a mandamus. If the lieutenant governor had not the power to make the appointment, what benefit would the remor derive from possessing the commission, although duly signed and sealed ? Would it confer the office on him ? I think not. But if any doubt rests on this subject, the court ought not to grant the mandamus. I refer to the following authorities on the subject. “ The court will not grant a mandamus to a person to do any act whatever where it is doubtful whether he has by law a right to do such act or not, for such would be to render the process of the court nugatory, as if the person had no rights he might so return it.” Esp. N. P., page 665. The court will not grant a madamus to a person commanding him to do any thing which he is not under a legal necessity of doing ; that is, if the law has left a discretion in him the court will not control it.” Ibid., 668.

But another and still more important question arises, from the reasons shown by the secretary, why the mandamus should not be granted. He informs the court that on the day of presenting the commission, and before and ever since, Edward Coles is, and has been in the administration of the office of governor of this state, and contends that he has no right to recognize any other person as governor. On the other hand, the counsel for the relator contended that Edward Coles having absented himself from the state had no right to resume the functions of the office, and that he was to be regarded as an usurper.

Here then is distinctly presented to the court the question whether Edward Coles or A. E. Hubbard has the right to administer the government.

It was conceded on the argument, and such no doubt would be the effect, if the mandamus should be granted, that Coles would be completely stripped of the executive functions. For if a mandamus can be awarded in this case, it could to every officer of the government who should refuse to recognize Hubbard as governor ; and Coles, without being before the court, or entitled to be heard on the subject, would be deposed from the highest station in the government; a station, too, conferred on him by the suffrages of the people. Does not the mere statement of the consequences that will flow from such a decision, imperiously call on- the mind, to reflect, to ponder well the subject before so great and decisive a measure is resorted to ? Nay, does not the bare statement of the consequences that will result to a person not before the court, admonish them that they have no power to award the mandamus ? It was urged by the counsel for the relator, that the secretary liad boldly marched up to the real question, to wit: who is the governor by the constitution ? and it was intimated that it was also the du1^ of the court to decide this question. It is a sufficient answer to this intimation that the secretary can not, by his own act, bring into discussion the rights of others, unless they necessarily arise in the case. His consent can not give this court any right to decide questions not properly before them. When such a question comes directly and properly before them, it is to be presumed they will not shrink from the performance of their duty, let the consequences be what they may. But does the question, who is the constitutional governor, necessarily arise ? It is a principle of common justice, common law and common sense, that no person shall be condemned without being heard. That no person can be deprived by courts of justice of even a dollar’s worth of property without first having been summoned to show cause against it. It must be kept in mind that when this court is called upon to decide who is governor, that the question is no longer between the relator and the secretary of state, but between Hubbard and Coles, neither of whom are strictly parties to this controversy; consequently, neither of them ought to be affected by the decision of this case. In this point of view, the remedy sought in this case is entirely misconceived. Hubbard should have filed an information in nature of a quo warranto against Coles, then the question would come up directly and not collaterally before the court, and the controversy might be tried by a jury, should there be an issue of fact. Whether an information in nature of a quo warranto, would lie, to try such a question, the court aré not now called upon to decide. One of the counsel for the relator, very emphatically called this a political question. If the counsel was right, the legislature would seem to be the proper forum for its discussion. But when the question arises in this court it will be time enough to decide it. “ Sufficient unto the day is the evil thereof.” I am however of opinion, if Hubbard has any legal remedy to try his right to fill the executive chair, that it is only by an information in the nature of a quo warranto. On this subject the court are, fortunately, not entirely without the aid of authority. In the case of The People v. The Mayor, Aldermen, &c., of the city of New York, 3 Johns. Cas., 79, the court says : “ Where the office is already filled by a person who has been admitted and sworn, and is in by color of right, a mandamus is never issued to admit another person, because the corporation, being a third party, may admit or not at pleasure, and the right of the party in office may he injured without his having an opportunity to make a defense. The proper remedy in the first instance is by an information in the nature of a quo warranto, by which the rights of the parties may be tried.”

In the above case the relators swore that they had been duly elected to the offices to which they asked to be admitted. But it appeared from the case that other persons were executing the duties. This case, it is conceived, is directly applicable, and points out the remedy that ought to have been pursued by Hubbard. Again, in the case of Rex v. Bankes, 3 Burr., 1412, which was an application for a mandamus, the court of king’s bench held “ That the mayor de facto must be made a party to the rule to show cause.” In 4 Bac. Ab., 515, title mandamus (E) the law is thus laid down: “But though the court of king’s bench be entrusted with this jurisdiction of issuing out mandamuses, yet they are not obliged to do so in all cases wherein it may seem proper, but herein may exercise a discretionary power, as well in refusing as granting such writ, as where the end of it is merely a private right, where the granting it would be attended with manifest hardships and difficulties,” &c. Is it not apparent that manifest hardship and difficulty would ensue, if this writ should be granted ? Would it not have the effect to depose and eject from the office of governor, a person who now fills it, and to which he had been duly elected by the people, and regularly qualified and inducted into office ? And without his having had an opportunity to show cause why so great a degradation should be meted out to him ? and would not a great constitutional question be decided, although brought before the court collaterally, and without all the light that might be shed on the subject ? and would not a great principle of natural justice be violated ? Iam clearly of opinion that the mandamus ought not to be awarded.

Separate opinion of Justice Smith. The affidavit of Adolphus P. Hubbard, on which this application is based, sets forth, that Edward Coles, on the 18th day of July, 1825, being then governor of the state of Illinois, absented himself from the said state, having first signified his intention so to do, by a letter bearing date the 22d June, 1825, and which letter is in the words following:

Sir :—You will recollect that I made known to you last winter, and again repeated the subject, when I saw you in May, that I should have occasion to go to the Eastward about the middle of July. The object of this letter is to notify you that after the 18th of July, 1 shall be absent, and that the duties of the executive will devolve, in pursuance of the constitution, on you, as the lieutenant governor of the state, du/ring my absence, which I expect will not be longer than about three months. I am, very respectfully,

Edward Coles.

A. P. Hubbard, Esq. lieutenant governor ) of the state of Illinois, Shawneetown.” j

The affidavit further recites, that in consequence of the absence from the state, of said Coles, and by virtue of the 18tli section of the third article of the constitution of the state of Illinois, the duties of the office of governor of said state, did devolve upon the deponent, he then being the lieutenant governor of said state, and that therefore, he did enter upon and assume the administration of the government of said state, and did do and perform all the duties and requisitions of the said office of governor; and that on the 2d day of November, next after the said 18th of July, 1825, the deponent, still being and continuing the acting governor of said state, and in the performance and discharge of the duties thereof. And further, that the office of paymaster-general of the militia of said state being then vacant, did appoint William L. D. Ewing to the said office of paymaster-general ; and did fill up and subscribe with his own proper hand, a commission of that date, as an evidence of said appointment to the said office, and to complete the said appointment on the 2d November, 1825, the deponent still being the acting governor of said state and in the discharge of the duties thereof, did, in the office of secretary of said state, present to George Forquer, Esq., then and there being such secretary, and the keeper of the seal of said state, the said commission, and requested him to affix the seal thereto, and countersign the same, as such secretary; and that the said secretary did then, and still refuses to do said acts; upon this* deposition,-with the letter and paper purporting to be the commission, and an affidavit of the' service of a notice of the intended application for a rule to show cause, being filed, a rule was granted, requiring the said Forquer to show cause why a mandamus should not issue against him, and for cause he returns the following, as facts: 1. The commission was signed by A. F. Hubbard, as acting governor, on or about the 5th of November, 1825, and on the same day presented to him, as secretary of state by said Hubbard, who required him, as such secretary, to countersign and affix the seal of said state, which he refused to do: 2. Because, on the 5th of November, 1825, Edward Coles was then, and had been, from the 31st of October, 1825, and has ever since remained, in the administration of the office of governor of said state of Illinois: 3. That it does not appear from the record of the office of said secretary of state, that the said office of paymaster general has ever been filled by any previous appointment thereto, since the creation of the office: 4. Because, although the said Coles did inform the said Hubbard, that after the 18th day of July, 1825,' he would be absent from the state, and that the duties of the office of governor would devolve upon him, said Hubbard, as the lieutenant governor, until the return of him, the said Coles, to the state, and that, although the said Hubbard did enter upon the duties of said office, and remained in the discharge thereof, until the 31 st day of October, 1825, yet the said Coles did, on the said 31st October, 1825, re-enter upon and discharge the duties appertaining to the office of governor, and has ever since remained therein.”

In describing the state of the case, I have adhered almost literally to the language used in the affidavit, and the answer to the rule, to prevent the least possible misconception. On the state of facts here presented, it is urged that it is the duty of this court to award a mandamus, to compel the secretary to affix the seal of the state to the paper purporting to be a commission. Before entering into an examination of the question presented, it may not be improper to remark, that it is closely connected with other questions of no ordinary import, delicate in their nature, and involving in their examination, points of deep and serious consideration. Questions, which, if it becomes the duty of this court to decide, might affect the official acts and conduct of the highest officer known to the constitution of this state. Questions, which, from their very nature, would require a decision on the relative rights subsisting between the people and the executive. Before this court, then, will assume a jurisdiction of such great extent, and reaching to cases of such magnitude, it will look seriously to the source from whence it derives its power, and be satisfied beyond a doubt, that it not only possesses that power, but that it is required, in the present case, for the purposes of justice, and a due administration of the law, to exércise it.

The occasion must not be one of an equivocal character ; and the right of the party claiming the interference of this court to restore him to, or yield to him such rights, through the exercise of its powers, must be clear and certain, absolute and positive, perfect and complete; and he must have no other remedy by which he can obtain it. Such are the uniform decisions which have invariably governed courts of justice in granting writs of mcmdamus.

The ability with which the case has been argued before the court, the novelty of the questions presented, and the importance attached to them, connected with many difficulties in the points made, require an exposition of the principles which govern my decision in this case.

The following questions are then to be considered :

1. Whether the applicant has a legal right to the office of paymaster-general, and if so, can he require the commission to be countersigned and sealed by the secretary of state ?

2. If he has a perfect legal right, and that right has been violated, do our laws afford him a remedy by mcmdamus, and is this court bound to award it ? I shall consider the questions in the order they are stated.

1. Has the applicant a legal right to the office of paymaster general, and if so, is the secretary bound to seal and countersign the commission ?

This question involves in its consideration, independent of the latter member of it, two points of importance, “ to wit: ” 1. Was he appointed to the office by a power acting at the time within the legitimate scope of its authority: 2. Has such appointment been made by a power competent to exercise the right of appointment at the time of making it ?

The authority under which he claims his right is derived from an act entitled “ An act amending an act entitled an act organizing the militia of this state,” approved February 8th, 1821. The fourth section of this act declares “ that there shall be an adjutant-general, a quarter-master general, and a paymaster-general, to be appointed by the commander-in-chief.” It appears from the affidavit, as will be seen in the case as stated, that Adolphus F. Hubbard, on the second day of November, 1825, claiming to have been in the due and legal exercise of the office of governor, did appoint the said Ewing to the said office, and make out a commission, and require the secretary to countersign and seal it, which he refused to do. This leads to the inquiry propounded by the first question, viz: Was he appointed to the office by a power acting at the time within the legitimate scope of its authority ? ”

The twenty-second section of the third article of the constitution declares that “ the governor shall nominate, and by and with the advice and consent of the senate, appoint all officers whose offices are established by this constitution, or shall be established by law, and whose appointments are not herein otherwise provided for.” Has this appointment been made agreeably to the provision of the constitution ? If it has not, the office being one established by law, unless it can be shown to have been made under some other provision of the constitution justifying it, was altogether unauthorized, and consequently the applicant would have no legal right to the commission. It is however urged that the appointment is fully justified under the eighth section of the third article of the constitution, which is as follows : “ When any officer, the right of whose appointment is by this constitution, vested in the general assembly, or in the governor and senate shall, during the recess, die, or his office by any means become vacant, the governor shall have power to fill such vacancy by granting a commission which shall expire at the end of the next session of the general assembly.” Under this section it is contended the appointment was made, and was authorized.

To have authorized the appointment under this section of the constitution, it seems to me to be very clear that one of the contingencies named in the section must have happened after the office had been filled. There must be a vacancy created by the death of the incumbent, or his office must have become vacant by other means.

The word “ vacancy ” is here used as contradistinguished from <<s filled” or “ occupied.” It does not imply, as it is here used, an original vacancy. But it must be considered that it is alone, the office of some person who has already filled the office and shall die, or whose office shall by other means become vacant which is to be filled during the recess. If we ask the question, what office is here said shall be filled ? is it not plain that the answer must be, it is the office of him who, during the recess of the legislature shall die, or by any other means become vacant, if the right to such appointment is by the constitution vested in the general assembly, or in the governor and senate. Can the right then to fill an office where there never wus an incumbent, attach ? Surely not. There has, however, been decisions on a similar provision of the constitution of the United States, which is by no means as plain and explicit as ours, and we are not left to ingenious speculations, and to abstruse philological discriminations. We have practical illustrations of the rule, and the evident justice and propriety of it is, I think, not now to be questioned.

The third member of the second section of the second article of the constitution of the United States declares that “ the president shall have power to fill up ail vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session.” Under this article the president commissioned ministers to negotiate the treaty of Ghent during the recess of the senate. The senate, however, so far from acquiescing in the' correctness of the principle, protested against it at their succeeding session. The sense of the senate was again expressed to the same effect on the 20th of April, 1822, when a bill was before that body making an appropriation to defray the expense of missions to the South American States; and it was then distinctly understood to be their opinion that it is only in offices which become vacant during the recess, that the president is authorized to exercise the right of appointing to office, and that in original vacancies where there has not been an incumbent of the office, such power does not attach to the executive ; and on that occasion an amendment which had been proposed, providing that the president should not appoint any minister to the South American states, but with the advice and consent of the senate, was therefore withdrawn as unnecessary. Again, in a report of a committee of the senate of the 25th of the same month, 1822, it was distinctly declared that the words “ all vacancies that may happen during the recess of the senate,” mean vacancies occasioned from deaths, resignations, promotion or removal.” It was asserted that if the senate were in session when offices are created by law which were not before filled, and nominations be not then made to them by the president, the president could not appoint after the adjournment of the senate, because such vacancy does not happen during the recess. The report may be found in Niles’ Register, 29th August, 1822.

Can there then be a doubt that the executive has neither the power nor right to make a recess appointment where the vacancy is an original one ? Or rather, where there has never been an incumbent of the office; and would it not be an assumption of power not delegated by the constitution nor. warranted by law ?

If this be true, then, whatever may be the fact as it regards the person making the appointment, the applicant in the present case has not shown a clear legal right to the office. But it is said that this court has no power to inquire whether the appointing officer had the right or not, nor whether he kept within the pale of the constitution when he did the act. That having determined it to be an appointment which he might make, this court is precluded from looking to the exercise of the power undpr which it is done, and must consider it as legally and constitutionally done. Cases which it is said are analogous, have been put and relied on with apparent earnestness and confidence. I think that in those cases a distinction, which is an apparent and important one, was not noticed. The distinction is between the power given to do an act within the judgment and discretion of the person to whom the power is absolutely confined, and the limitation of the power to do it in a particular manner, and at a particular time. The question in the case before the court is, not whether the officer has discreetly exercised his appointing power, but whether he possessed such a power, or rather, whether there was not a total absence of such a power, it never having been conferred on him by the constitution.

The question may be readily solved, if it be borne in mind that unless there was a vacancy created by one of the contingencies named in the eighth section of the third article of the' constitution, the executive of this state, be he whom he may, had no power to make the appointment. That it was not such a case, has been, I think, already satisfactorily shown. But can it, with a shadow of reason, be said that this court shall not bo permitted to judge, whether the person making the appointment, had a constitutional or legal right so to do, when it is called upon to cause by its mandate, an act to be done which it is declared is necessary to give effect and validity to the act of that very person; or is it to be the humble and blind instrument by which error is to be sanctified, and meekly lend its authority to prostrate that instrument which it is bound by the most solemn obligation which can bind man to man and his Creator, to support and preserve.

As to the remaining branch of the question, if the appointment was void, because not constitutionally made, whatever might have been the secretary’s duties, he can not be called on now to affix the seal of state to a void commission, which disposes of that part of the question proposed. The second point under the first division of the question, is now to be considered.

Has such appointment been made by a power competent to exercise the right of appointment, at the time of making it ? In the examination which might be given to it, the construction of the eighteenth section of the third article of the constitution of this state, is to be considered.

That declares, that “ In case of an impeachment of the governor, his removal from office, death, refusal to qualify, resignation or absence from the state, the lieutenant governor shall exercise all the power and authority appertaining to the office of governor, until the time pointed out by this constitution for the election of governor shall arrive, unless the general assembly shall provide by law for the election of a governor to fill such vacancy.”

On the argument, the question, so far as it regarded the construction of this section of the constitution, was declared to be a political one, and it was said that it was really a question between the people, and one who having laid down his office, could not, under the constitution, reenter upon it. If this be the true state of that part of the case, and it be in fact, purely a political question between the people and their executive, this court, I am constrained to say, can not interfere and decide it. This court was not created for such a purpose, nor can its jurisdiction ever be properly extended to it. I know of no principles nor precedent which could justify this court in settling such a controversy. Its jurisdiction is confined to judicial questions arising under the laws and constitution of this state.

But whether this be a political question or not, it will not be necessary now to decide. If the appointment was not made conformably to the provisions of the constitution, (and I am clearly of opinion that it was not,) or, it should appear that a question of magnitude, and one directly affecting the rights of third persons who are not made parties to the proceedings, are in a collateral way to be decided, this court will not give a decision, which in its result is to produce such consequences. The question to be decided under this view of the second point considered, if it were decided, is no less an one than this, whether the executive of this state, did, on or after the 18th of July, 1825, absent himself from the state, and whether lie has by any act of his, declared that absence to be of such a character, that the duties of the executive did constitutionally devolve upon the lieutenant governor, and whether, in pursuance thereof, the lieutenant governor did enter upon such duties, and having so entered, for what period of time, he shall, under the constitution, remain in the exercise thereof.

If I felt it to be the duty of this court, in the present case, to decide a question of so much moment, and it was placed before the court in an attitude unsurrounded by the embarrassments, which at present seem to cover it, I should as a member thereof, feel no great hesitation in arriving at what I should deem a correct conclusion ; and no consideration of consequences which might result from such a decision, if it were correct, would impede me for a moment from pronouncing what I really believe to be the right and the law which governed the case. The considerations as to its results, would not weigh with mo, and however unfortunate it might be, that an occasion had arisen in which a question of so much moment had to be decided, affecting the right of individuals claiming to exercise the highest office in the gift of a free people, and whatever might be its results, as to the one or the other, it could form no just reason for avoiding the responsibility of a decision. But when it is perceived that great and highly important interests of persons who are not parties to the proceedings, would be affected by the decision, and that too where the decision of the real question before the court does not render it necessary, I ought surely to pause before I should give an opinion which might have the least tendency to prejudge the rights of those individuals. If the real question thus asked to be decided, in a collateral manner, did not involve a question of the highest consideration, and which it may be supposed, the people have by their constitution, provided another forum to settle, there might be some reason for pressing on this court a decision on that point. But when it is recollected that these means exist, and that all the parties interested would have an ample opportunity to assert their respective rights, it is thought that a question involving no less a decision, than who is the governor of this state, is one of that character, that this court can hot, (if it ever could,) in the shape in which it is presented, determine.

Let us examine, however, what are the additional difficulties in this case. The return states two important facts: 1. That Edward Coles did return to this state, on the 31st day of October last, and did thereupon enter upon and discharge the duties of the office of governor of this state: 2. That from that time to the present, he has continued in the discharge of the duties thereof. The commission is dated on the second of November, 1825, when the appointment is said to have been made by the lieutenant governor, and he also swears that at this time he was the acting governor of the state.

The return contradicts this fact and states that Coles was then in the exercise of the duties of the office of governor. If this return had been demurred to, or an issue been made upon the affidavit and return, as made, how would the court have proceeded ? There is no statute of this state regulating the mode of proceedings upon a mandamus—what course could then have been pursued ?

Here is an evident embarrassment of much consideration, and would seem to require legislative interposition, as to the mode of proceeding, such as has been provided in other states.

The statutes of Great Britain are thought not to be in force here, respecting such proceedings. If the court had been compelled to decide on all the facts set out in the affidavit, and in the return, to which ought they to give credit ? or which should they reject ? But there are still other difficulties. A decision might affect the acts of the lieutenant governor, while exercising the duties of governor, if he has not exercised the executive duties by virtue of the provisions of the constitution ; and are those acts to be affected, and their validity determined in this collateral way ? This brings me to the consideration of the second point. “ If he ■ has a perfect legal right, and that right has been violated, do our laws afford him a remedy?” If the right had been established as a perfect legal right, and it has been violated, our laws must afford a remedy. But in the case of a mcmdamus, there are cases where this may have been shown, yet the court will not grant the writ. It is certainly a sound legal principle, that cases may arise where the court will not grant a mandamus, when the granting thereof will, in a collateral manner, decide questions of importance between persons who are not parties to the proceedings, and have had no notice and opportunity to interpose their defense; or where it will be attended with manifest hardships and difficulties. And it has been further decided in the court of king’s bench, that courts are not bound to grant writs of mandamus, in all cases where it may seem proper ; but may exercise a discretionary power as well in granting, as refusing, as where the end of it is merely a private right. See Bacon’s abridgement, 515. Courts will not grant a mandamus to a person to do any act, where it is doubtful whether he ought to do it. The real question then, is, on this part of the case, that although it were certain the party applying had a legal right, and that it has been violated, and that the law would afford him a remedy, and which remedy is conceded to be a mandamus, whether it is not such a case as would be attended with manifest difficulties and great hardships, but also involving in a collateral manner the right of these parties who have no opportunity of defending their interests. It certainly would; and I am moreover satisfied, that there are insuperable difficulties which could not be remedied, arising out of the facts set forth in the affidavit and return, which would not be properly disposed of, as there is no mode by which this court could ascertain the real facts in the case, provided by the laws of this state ; and I very much doubt whether the court would be authorized to prescribe one itself, which must comprise the impanneling of a jury.

Hopkins, T. Reynolds, Blackwell and Eddy, for relator.

Forquer, for secretary of state.

Upon the whole case, and from the best consideration I have been enabled to bestow upon it, during the limited time afforded for making up an opinion, I have come to the following conclusions:

' That the applicant had not a perfect legal right to the commission, on the ground that it was an original vacancy, and could not be filled in the recess, by the governor, by an appointment to expire at the end of the next session of the general assembly, and that the secretary, on that ground alone, was justified in withholding his signature and the seal of state. That it is a case attended with great difficulties, both as to the rights to be ascertained and decided, that it involves in a collateral manner the right of both the real parties in the controversy who are not before the court, and whose rights to the executive power could alone be determined, if at all, in this court, by a writ of quo wcurranto, and that on the state of facts presented, no mode has been provided by which this court could assume a data to arrive at a correct conclusion.

And as it, therefore, does not become necessary to give an express opinion on the other points stated in the case, I do not do it. I am therefore of the opinion—the rule must be discharged. Rule discharged. 
      
      
         The leading case in this country in relation to mandamus, is the case of Marbury v. Madison, when secretary of state under President Jefferson, reported in 1 Cranch, 137. There it is decided that,
      
        To render a mandamus a proper remedy, the officer to whom it is directed must be one to whom, on legal principles, such writ may be directed; and the person applying for it must be without any other and specific remedy.
      A mandamus to the secretary of state is a proper remedy to enforce the delivery of a commission or a copy of it from the record, to an officer who has been regularly appointed, and whose commission has been received from the president by the secretary of state for the use of such officer.
     