The rule is recognized definitely by the United States supreme court that the discre tion of an executive officer will not be in terfered with either by mandamus or injunc tion ; U. S. v. Schurz, 102 U. S. 378, 26 L. Ed. 167; Brown v. Hitchcock, 173 U. S. 473, 19 Sup. Ct. 485, 43 L. Ed. 772 ; National Life Ins. Co. v. Ins. Co., 209 U. S. 317, 28 Sup. Ct. 541, 52 L. Ed. 808, citing Bates & G. Co. v. Payne, 194 U. S. 106, 24 Sup. Ct. 595, 48 L. Ed. 894, and Moyer v. Peabody, 212 U. S. 78, 29 Sup. Ct. 235, 53 L. Ed. 410, where it was held that the existence of insurrection empowers the governor to suppress it by the national guard and to seize and imprison those resisting, and that he is the final judge of the necessity of such action ; in such case public danger warrants the substitution of executive for judicial process and the ordi nary rights of individuals must yield to what the executive deems the necessity of a critical moment. But courts must prevent deprivation of property by unlawful action of the executive department, though reluct ant to interfere it ; Ballinger v. U. S., 216 U. S. 240, 30 Sup. Ct. 338, 54 L. Ed. 464.
An executive officer may be compelled by mandamus to perform a ministerial duty but when he has discretion it cannot be com pelled ; Hawkins v. Governor, 1 Ark. 570, 33 Am. Dec. 346, Where a mandamus to compel the governor to issue a commission was re fused. As to the power to issue mandamus to executive officers, see EXECUTIVE PowEs.
"When a decision of questions of fact is committed by Congress to the judgment and discretion of the head of a department, his decision thereon is conclusive ;" and "even upon mixed questions of law and fact, or of law alone, his action will carry with it a strong presumption of its correctness, and the courts will not ordinarily review it, though they may have the power and will occasionally exercise the right of so doing ;" Bates & G. Co. v. Payne, 194 U. S. 106, 24 Sup. Ct. 595, 48 L. Ed. 894. And the courts frequently sustain statutes which make the liberty of a citizen wholly dependent on the decision of facts by an executive officer with out appeal; U. S. v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040. The supreme court of Massachusetts has also gone very far in sustaining the action of executive offi cers or boards exercising quasi judicial au thority. The cases will be found collected with a number of federal cases in an article by Edmund M. Parker, on "Executive Judg ments and Executive Legislation" in 20 Harv. L. Rev. 116.
The distinction between judicial and polit ical questions was fully considered in Penn v. Lord Baltimore, 1 Ves. Sen. 444, and it was held by Lord Hardwicke, L. C., that while the dispute as to original boundaries between provinces was a political question to be determined by the king and council, yet where the case arose under an agree ment between the parties it was a judicial question.
In The Nabob of Carnatic v. East India Co. (1 Ves. Jr. 371) a plea that the defend
ant was invested with sovereign powers, and therefore not answerable with respect to the exercise of them in a court of justice, was overruled ; but after the case came to hear ing the bill was dismissed upon the ground that the case involved a treaty between per sons acting as independent states, and the circumstance that the defendants were sub jects merely with relation to England had nothing to do with the matter which was not .a subject of private municipal jurisdic tion; 2 id. 56.
The Cherokee nation was held to be a state but not a foreign state in the, sense of the constitution, and therefore could not maintain an action against the state of Georgia in the courts of the United States ; Cherokee Nation v. Georgia, 5 Pet. (U. S.) 1, 8 L. Ed. 25. In this case Chief Justice Mar shall said that the propriety of interposition by the court to control the state legislature "savors too much of the exercise of politi cal power to be within the province of the judicial• department." Mr. Justice Thomp son in a dissenting opinion which upheld the jurisdiction was careful to say, "I do not claim for this court the exercise of ju risdiction upon any matter properly falling under the denomination of political power." And again: "I do not claim as belonging to the judiciary the exercise of political power. That belongs to another branch of the gov ernment. The protection and enforcement of many rights secured by treaties most cer tainly do not belong to the judiciary. It is only where the rights of persons or property are involved, and when such rights can be presented under some judicial form of pro ceedings, that courts of justice can interpose relief." Cherokee Nation v. Georgia, 5 Pet. (U. S.) 51, 75, 8 L. Ed. 25. See also New York v. Connecticut, 4 Dall. (U. S.) 4, 1 L. Ed. 715.
It was very earnestly discusSed in one of the early cases concerning the boundary between two states, whether the jurisdic tion in such cases, now so well established, was included in the judicial power as under stood by the constitution of the United States, and it was held that 'although the constitution did not in terms extend the judicial power to all controversies between two or more states, yet it in terms excluded none, whatever might be their nature or object ; Rhode Island v. Massachusetts, 12 Pet. (U. S.) 657, 9 L. Ed. 1233. In this case the court recognized the distinction between political and civil controversies and held that the case in question was the latter be cause it depended first upon a fact, and sec ond upon the question whether an agreement between the states was void or valid, both of these presenting not a political but a judi cial controversy. And it was said that where there was submission by sovereigns or states of a controversy between them, from that moment` the question ceased to be a political one but comes immediately within the judicial power for determina tion by a court.