$131. Upon similar principles the writ has been refused where sought to correct the action of the commissioner of patents upon matters properly falling within the scope of his official action. And where the commissioner is required by law to grant reissues of patents to assignees, it is his first duty to decide whether the applicant for the reissue is an

assignee, and having examined this question and decided adversely to the applicant, the writ will not go to compel him to make another examination, since it will not be allowed to subserve the purposes of a writ of error.1

132. The duty of executive officers of the general government in passing upon claims for the issuing of patents for public lands, necessarily involving the hearing of proofs and the rendering of a decision thereon, is regarded as a duty involving the exercise of such a degree of judgment and discretion as to remove it from the control of the courts. Mandamus, therefore, will not lie to the secretary of the interior to compel the issuing of a patent to a claimant whose application has been refused.2

§ 133. As regards duties imposed by law upon sheriffs, who are generally considered as executive officers, it is to be observed that mandamus will lie to such officers, commanding the performance of specific duties clearly enjoined upon them by virtue of their office, or by operation of law, and concerning which they are vested with no discretionary powers.3 Thus, where the duty is imposed upon a sheriff by law of choosing appraisers to appraise the value of property taken on execution, which is claimed by the judgment debtor as exempt

up his mind whether she was entitled under one only, or under both. And if he determined that she was entitled under the resolution as well as the law, he must then have again exercised his judgment in deciding whether the half-pay allowed her was to be calculated by the pay proper, or the pay and emoluments of an officer of the commodore's rank. And after all this was done, he must have inquired into the condition of the navy pension fund, and the claims upon it, in order to ascertain whether there was money enough to pay all the demands upon it; and if not money enough, how it was to be apportioned among the parties entitled. A resolution of con

gress, requiring the exercise of so much judgment and investigation, can, with no propriety, be said to command a mere ministerial act to be done by the secretary. The interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied that such a power was never intended to be given to them."

1 Commissioner of Patents 0. Whiteley, 4 Wal. 522.

'Secretary v. McGarrahan, 9 Wal.

298.

'People v. McClay, 2 Neb. 7; Fremont v. Crippen, 10 Cal. 211.

from levy under the exemption laws of the state, the duty of the sheriff being plain and imperative, it may be enforced by mandamus, there being no other adequate remedy to enforce its performance. So the writ will go to command a sheriff to execute final process of restitution in an action of forcible detainer, his duty in the premises being plain and unequivocal. And in such case, the existence of a remedy by an action upon the sheriff's bond presents no bar to the jurisdiction by mandamus, since the possession of the property in controversy is the main thing sought, and this can only be had by enforcing the writ of restitution. 3

$134. The writ has been granted to compel a sheriff to execute a conveyance of land sold on execution to one claiming to be entitled thereto as a purchasing creditor, even though the sheriff had issued a prior deed to another creditor claiming in the same capacity, and the land had thus passed into the hands of an innocent purchaser.4 But the writ will not go to compel the issuing of a deed by a sheriff of lands sold at a judicial sale, to a purchaser who refuses payment of the purchase money on the ground that he is entitled to the land as being the oldest execution creditor, there being an unsettled contest as to the priority of lien.5 Nor will the writ be granted to compel the issuing of a sheriff's deed for land sold under execution, where the proceedings are so far voidable

'People v. McClay, 2 Neb. 7. "We have no doubt," says Mr. Justice LAKE, "that mandamus is the proper remedy in this case. There is no other adequate remedy for the wrong of which the relator complains. By no other means can he compel the respondent to do that which the law specially enjoins upon him, as a duty resulting from the official position that he occupies. The relator filed an inventory of all his personal property, as required by sect. 522 of the Code of Civil Procedure, which embraces that which the respondent had levied upon, and claimed it as being ex

empt from forced sale or execution. This done, the respondent had but one course to pursue: this was to call three disinterested freeholders of the county, and have them appraise the property, and if its value, as shown by the appraisement, did not exceed five hundred dollars, release it from the execution and return it at once to the owner." Accordingly the peremptory writ was awarded.

Fremont v. Crippen, 10 Cal. 211. 3 Id.

'People v. Fleming, 4 Denio, 137. Williams v. Smith, 6 Cal. 91.

that the purchaser's right is by no means clear, as where the sheriff has sold several distinct and separate tracts in one lot and for one aggregate price, it being his duty to offer each tract for sale separately.1

VIII. LEGISLATIVE OFFICERS.

§ 135. Mandamus not granted to legislative department as to legislative functions.

136. But may be granted as to ministerial duties.

135. As regards the jurisdiction of the courts by mandamus over legislative officers, while but few cases have occurred where judicial aid has actually been invoked against the legislative department, the question would seem upon principle to present no difficulties, and to be readily solved by an application of the doctrines already established as applicable to cases where the extraordinary aid of the courts has been invoked against executive officers. And it may be asserted as a principle founded upon the clearest legal reasoning, that legislative officers, in as far as concerns their purely legislative functions, are beyond control of the courts by the writ of mandamus. The legislative department being a co-ordinate and independent branch of the government, its action within its own sphere can not be revised or controlled by mandamus from the judicial department, without a gross usurpation of power on the part of the latter. Mandamus, therefore, will not lie to compel the speaker of the house of representatives of a state legislature to transmit to the senate a bill which it is alleged has passed the house, but which the speaker has decided has not passed. The question being strictly within the legislative functions of the speaker, and the house having sustained his decision on appeal therefrom, the courts will refuse to interfere with such an exercise of official judgment

'Winters v. Heirs of Burford, 6 Cold. 328.

and discretion in a matter properly within the jurisdiction of the legislative department.1

$136. Where, however, the duty required of the legislative officer is simply of a ministerial nature, not calling for the exercise of any especial legislative functions, nor involving any degree of official discretion, there would seem to be no impropriety in interfering by mandamus upon a failure to perform the duty. Thus, the writ has been granted, upon the application of a member of the house of representatives of a state, to compel the speaker of the house to certify to the comptroller of public accounts the amount to which the member was entitled as compensation for mileage. But even in such a case the jurisdiction is asserted with a considerable degree of caution.

'Ex parte Echols, 39 Ala. 698. Say the court, BYRD, J.: **"The speaker decided that the bill had not passed by a vote of two-thirds of that branch of the legislature; and an appeal was taken from that decision to the house, and the house sustained the decision of the speaker. This was a question certainly within the jurisdiction of the speaker and house to pass upon, and is not a mere ministerial duty, but one that pertains to their legis lative functions, and is one over which the house has exclusive jurisdiction. No other department of the government can revise its action in this respect, without a usurpation of power. * * This court

will not interfere with either of the other co-ordinate departments of the government in the legitimate exercise of their jurisdiction and powers, except to enforce mere ministerial acts, required by law to be performed by some officer there

2

of; and not then, if the law leaves it discretionary with the officer or department. * * It seems to be held by all the authorities, that the writ of mandamus can only issue to some officer required by law to perform some ministerial act, or to a judicial officer to require him to take action; but not in a matter requiring judgment or discretion, to direct or control him in the exercise of either. Among all the cases and text books on this subject, none go to the length of laying down the doctrine that the speaker of the house of representatives, or of a legislative body, in a matter arising in the regular course of legislation, upon which he is called to decide, can be controlled by this or any other tribunal, except by the one over which he presides; and that having sustained his opinion and action, this court can not review it."