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Executive Power

government, injunction, re, court, title, judicial and officer


The power of the courts to enjoin exec utive officers 'rests upon the same principles as those applicable to a mandamus. It is the general rule that the official action of the executive department of the government or of the state cannot be controlled by a writ of injunction; Fleming v. Guthrie, 32 W. Va. 1, 9 S. E. 23, 3 L. R. A. 53, 25 Am. St. Rep. 792 ; Bates v. Taylor, 87 Tenn. 319, 11 S. W. 266, 3 L. R. A. 316 ; Smith v. Myers, 109 Ind. 1, 9 N. E. 692, 58 Am. Rep. 375. The execution of orders of the president for re moving intruders from government land will not be interfered with by injunction ; Guth rie v. Hall, 1 Okl. 454, 34 Pac. 380.

An injunction may be obtained to pro tect a de facto officer whose title is dis puted as well as that of one de jure, but it is not an appropriate means of determining a title to an office ; In re Sawyer, 124 U. S. 210, 8 Sup. Ct. 482, 31 L. Ed. 402. In neither of these cases, however, is there involved any question of conflict between the execu tive and judicial power, inasmuch as the lat ter legitimately extends to and includes pro= ceeding for the trial of title to office by quo soarranto, which title see.

The power of staying the execution of a death sentence pending an appeal conferred by law on a court is not the granting of a reprieve within the meaning of a constitu tional grant of executive power, but is a judicial power included in the separation of government into three independent depart ments; Parker v. State, 135 Ind. 534, 35 N. E. 179, 23 L. R. A. 859. See Butler v. State, 97 Ind. 373.

In State v. Doyle, 40 Wis. 175, 22 Am. Rep. 692, which was an application for a manda mus against the state officer seeking to re quire him to revoke the license of an insur ance company, return was made pleading an injunction of the circuit court of the United States to restrain the Secretary of State from revoking the license, and it was held that "where a suit is prosecuted in a fed eral court by a private party against a state officer who has no personal interest or lia bility in the action, but is sued in his official capacity only, to affect a right of the state only, the state is the real defendant, within the prohibition of the 11th amendment to the federal constitution. A circuit court of

the United States has therefore no jurisdic tion of a suit by a foreign corporation to re strain a state officer from revoking (as re quired by the law of the state) a license granted the plaintiff corporation to do busi ness in the state." So also the power to exclude or to expel aliens, being a power affecting international relations, is vested in the political depart ments of the government and is to be regu lated by treaty or by act of congress and to be executed by the executive authority ac cording to the regulations so established, ex cept so far as the judicial department has been authorized by treaty or by statute or is required by the paramount law of the con stitution to intervene ; Fong Yue Ting v. U. S., 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905. See ALIEN ; CHINESE.

Of all the instances of what appears to an American legal mind the confusion of powers under the English system, none is more striking than the commingling of exec utive and judicial duties found in the office of the lord chancellor.

In commenting upon the alteration in his customary position by the powers of an ad ministrative character conferred upon him by the Judicature Acts, a recent writer says, "It would appear, to the independent ob server, that the tenure, the power of appoint ments, and the administrative duties of the chancellor, though necessarily pertinent to his high office, are inconsistent with his po sition as chief judge, co-equal and co-ordi nate with the others, and that if the inten tion of the statute was to confer that posi tion upon him, it was contrary to English usage, if not unconstitutional." Inderwick, King's Peace 232.

There has been much discussion as to whether the courts, in decisions dealing with labor strikes and public commotion arising out of them, have extended their jurisdiction beyond recognized principles. In this dis cussion the phrase "government by injunc tion" has been constantly used. The cases are cited under the titles : INJUNCTION; CON