thority by the constitution and destroy and overthrow the executive department.

The Court was equally in error in holding that any construction of the constitution by the Governor not in harmony with that of the Court would be a violation of the law. What right has the court under a constitution to construe the constitution for its Governor and require him to accept its will? It was further said:

"The military would be in duty bound to disregard the illegal command of the Governor, if he should order them to use physical force against the sheriff."

This was an invitation to the militia to construe the constitution and determine whether an order of its commander-in-chief was lawful, and, in effect, invited insubordination of the militia when called upon to execute the law in accordance with the judgment and will of the executive. It requires no legal acumen to see that such a principle would be destructive of republican government and it can have no support from any person who prefers orderly government to anarchy.

The direct statement that a Governor, the supreme executive, has no authority to restrain the sheriff, an inferior of his department, from doing what in his judgment is in violation of the constitution is a fallacy too patent for acceptance by any unbiased mind in the habit of considering legal questions, and it is equally clear that that was not a question within the jurisdiction of the courts of Wisconsin.

It is further said:

"As commander of the militia, he (the Governor) has no right to use the military force of the state to defy the officers of the law. The military would be in duty bound to disregard the illegal command of the Governor if he should order them to use physical force against the sheriff."

This position places the Supreme Court of Wisconsin in the strange attitude not only of assuming that the Governor could not exercise honest judgment in conflict with the views of the Court, but also arrogates to the Court the exclusive right to deter

mine what are and what are not lawful duties of the Governor under the constitution, contrary to all other authorities on that subject, and to determine for the Governor when he may or may not use the militia in protection of executive authority, although every other court that has spoken on that subject has held that when the Governor acts as commander-in-chief of the militia, his action cannot be questioned by any authority or in any place.

The language, "No man in the country. is so high that he is above the law, no officer of the law may set the law at defiance with impunity," quoted from United States v. Lee," is not in conflict with the views of Governor Small's counsel, nor the weight of authority. We have never contended that he has, nor does he claim, a personal exemption from arrest and trial for a supposed criminal offense committed either while in office or before he took office, but that to arrest him and put him upon trial while in office would be to practically, either temporarily or permanently, depose the Chief Executive, cause a suspension of executive functions and thereby inevitably encroach upon the executive department. We insist this is true, both as a matter of fact and as a principle of law. It results from the impossibility of separating the person of a Governor from the office in which he functions. So long as he holds the office it is ever with him. As President Jefferson said in the Burr case, in declining to obey a subpoena sent to him by Chief Justice John Marshall: "To comply with such calls would leave the Nation without an executive branch, whose agency, nevertheless, is understood to be so constantly necessary that it is the only branch which the Constitution requires to be always in function." It is true, as advanced by Professor Ballantine, that section 3, article 7 of the Constitution of Illinois, exempts from arrest electors during their attendance upon elec

tions and in going to and returning from the same, except for treason, felony or breach of the peace. And, it is also true that a like exemption exists in favor of senators and representatives during the sessions of the General Assembly, and in going to and returning from the same. But that does not argue that the absence of a like provision in relation to the Governor supplies a basis for the contention that he has no such exemption.

The Governor is a branch of the legislative department. It is his duty to pass upon all legislative bills and either approve or disof them. Would Professor Ballanapprove tine have us believe that the framers of our constitution thought it necessary to provide such immunity for the senators and representatives and proper to leave it in the power of the courts at will to take the Governor from the performance of much more important legislative duties than can possibly devolve upon them when he is passing upon the acts of a legislative session? Would that not be a strange inconsistency to be found in so important a document as a State Constitution? Is not the absence of a constitutional provision privileging the Governor from arrest clear demonstration that the framers of the constitution understood that he would not at any time be subject to arrest without such express exemption?

A very large number of cases have arisen in which this question has been incidentally discussed, but we are not aware that it has ever before directly arisen in any court of this country. The principle for which we contend seems to have always been conceded upon fundamental principles deduced from the nature of the office and the evident impossibility of separating the person of a chief executive from the chief executive function.

In a case where the acts of the President of the United States as Commander-in-Chief of the Army were questioned by a suit against him, quoting from Chief Justice Marshall in an earlier case, Chief Justice

Chase of the Supreme Court of the United States, aptly described a similar contention as that of Professor Ballantine as "an absurd and excessive extravagance," and said:

"It was admitted on the argument that the application now made to us is without precedent; and this is of much weight against it. Had it been supposed at the bar that this court would in any case interpose by injunction to prevent the execution of an unconstitutional act of congress, it can hardly be doubted that applications with that object would have been heretofore addressed to it. *** The fact that no such application was ever before made in any case indicates the general judgment of the profession that no such application should be entertained."

In the case of State v. Holden, in which it was sought to have a bench warrant issued for the arrest of the Governor and prosecute him for an alleged criminal act committed while acting as commander-inchief of the militia, it was said:

"The learned counsel were unable to show any precedent which would sustain application of affiant and this fact goes far in showing no such judicial power exists."

So, that there are no decided cases where this question has been directly involved argues that the courts have heretofore declined to attempt to coerce a Chief Executive rather than that no such case has arisen, or that the law is contrary to the opinion. expressed by Governor Small's counsel. Where, nevertheless, the question has arisen, it has been uniformly held that the Governor cannot be arrested or coerced by judicial process; and the exemption has been put upon the broad ground that the person of the Chief Executive and his office are so inseparable that his personal liberty cannot be restricted or his right to go where he will and do what he will impaired without also encroaching upon the executive office, and destroying its free and independent exercise by the Governor.

If arrested, the Governor might be put in jail, and if put upon trial he would be com

pelled to remain personally in court during his trial, though it might consume months. If subject to arrest and trial for an offense alleged to have been committed before he took office, he may also be arrested and put upon trial for an offense alleged to have been committed while in office-even for an alleged malfeasance or misfeasance in office or palpable omission of any duty of office," for the section of the Constitution in rela

tion to a judgment of impeachment only removes the officer impeached from office and disqualifies him to thereafter hold office, and provides:

"The party, whether convicted or acquitted, shall, nevertheless, be liable to prosecution, trial, judgment and punishment according to law."

If he can be thus prosecuted during his term of office for treason or felony, he may be put upon trial for the most insignificant misdemeanor, at the will of the most insignificant and irresponsible court. If he can be prosecuted on a criminal charge at all, he would have no right to choose the time of his arrest or trial, hence his arrest or trial might suspend or defeat performance of the most important public duties that may devolve upon a Governor. These vital facts. and fundamental principles are ignored by the doctrinaires followed by Professor Ballantine, but cannot be ignored with hope of reaching a correct conclusion.

The authorities are conclusive in support of the opinion given to Governor Small. In every case where the question of coercing or arresting a Governor has been considered, it has been held that his office is immune from interference and that he cannot be personally arrested or put in duress without an encroachment upon the functions of the Executive Department, except in Wisconsin, and, we submit, that no sound lawyer on reflection can give unbiased support to the Ekern case. The immunity from prosecution and imprisonment has always been put upon the high ground of the public welfare and the safety of the chief executive office

(9) Sec. 208 Criminal Code.

from interference by court procedure which might result in the arrest or coercion of the Governor.

Professor Burgess of Columbia University, an eminent text-writer on Constitutional Law, speaking of the immunity of the President from arrest, says:

"He is privileged from the jurisdiction of any court, magistrate or body over his person. He cannot be arrested or restrained of his personal liberty by anybody, or anything, not even for the commission of murder. He is responsible to one body only, viz: The Senate of the United States, organized as a court of impeachment under the presidency of the Chief Justice of the United States. ***

"There is no danger to the people in this principle. There would be great and constant danger in the opposite theory. Under the opposite theory, any magistrate might, at the instigation of any individual, cause interregnum or a devolution of the presidential office, thus defeating the will of the whole people in the choice of the President, and exposing the whole people to the danger of anarchy. Moreover, as I have said, the principle only suspends the liability of the President to process. Upon his descent from office he becomes immediately liable to prosecution for every crime and misdemeanor committed while in office."10

Professor James Albert Woodburn of Indiana University, in his recent work on The American Republic, quotes Professor Burgess with approval and adds:

"This exemption from process of the courts is only temporary, the right of prosecution is only suspended. Upon his retirement or removal from office, the ex-president becomes immediately liable to prosecution and punishment for every crime committed while in office."

In the case of People v. Dunne, supra, it was said:

"The duty or power committed to one branch of the government for its exercise by the constitution is not subject to interference, control or dictation by another branch;"

and approval was given to the separate opinion of Justice Breese in the Bissell case in these words:

(10) 2 Purgess Political Science and Constitutional Law, 245.

"It was said that the court had no control over Gov. Bissell to perform any duty, and that in matters of public duty the court committed him to the high tribunal of his own conscience and the public judgment."

The rule we invoke was correctly stated as long ago as the time of Lord Mansfield, not in relation to the King, but the Governor of the Island of Minorca. In Fabregas v. Mostyn,11 he said:

"No criminal prosecution lies against a Governor and no civil action lies against him because what would be the consequence. Why, if a civil action lies against him and a judgment obtained for damages, he might be taken up and put in prison on a capias, and therefore, locally during the time of his government the court in the Island cannot hold plea against him."

In State v. Holden (Governor),12 a criminal prosecution in which a bench warrant was sought for the Governor's arrest, it was said:

"The government was formed for the benefit of all the citizens of the state, and it would be of little force and efficiency if the Governor (in whom is vested the supreme executive power of the state) could be arrested, and thus virtually deposed by a warrant from the Judiciary issued upon the application of an individual citizen, for alleged excess of authority, the performance of what the Governor may consider his executive functions."

The constitutions of North Carolina and Illinois both provide that impeachment shall not exempt the officer impeached from prosecution, trial and judgment for any criminal offense committed while in office, so the rule is the same whether the charge is one of offense committed before or after the person took office.

In the case of Appeal of Hartrauft, Governor,13 it was held that the Governor could not be made subject to a decree in chancery, because it could not be enforced except by attachment, and the Governor could not be lawfully taken on attachment. The same rule was applied in Thompson v. German Valley R. Co.14 In the case of State v. Frazier, 114 Tenn. 519, it was said that if

(11) 1 Cowper 161. (12) 64 N. C. 829. (13) 82 Pa. St. 433.

appointed or named on a board it would be optional with the Governor as to whether he would serve, and discussing his independence under the Constitution, said:

"No court can coerce him. No court can

imprison him for failing to perform any act, or to obey any mandate of any court."

In the case of Rice v. Draper,15 a petition for mandamus against the Governor was applied for. The Supreme Court of Massachusetts said:

"An order under a writ of mandamus against the Governor, if he should refuse. to obey it, might present a strange spectacle of a direction by the court to the executive forces of the government to coerce and punish the chief executive officer of the state who commands and controls the

military forces that are ultimately relied up

on for the maintenance of the law. * The Governor shall answer to his own conscience, to the people who selected him, and in case of possible commission of high crimes or misdemeanors to a court of impeachment."

In the case of People v. Morton,10 the New York Court of Appeals said:

"The only way in which mandamus may be enforced is by commitment of the party who refuses its command, as for contempt. But the courts have no power to commit the Governor for a contempt. They have no power over his person. He may be impeached, but there is no other way in which he may be deprived of his executive office."1

The arrest or prosecution of the Governor of Illinois would leave the state government without an executive head. The duties of his office are all personal and can be performed by no other person as his proxy or agent. There is no constitutional provision which would devolve the office upon any one else in such case. Section 17 of article 5

only authorizes the Lieutenant Governor to exercise the office in case of the death, conviction on impeachment, failure to qualify,

resignation, absence from the state, or other disability. The other disability referred to must be personal to the Governor and under the doctrine ejusdem generis can only relate to such disability as is indicated by the words, "death," "conviction on impeachment," "failure to qualify," resignation," or "absence from the state," in either of which absence of the power to function is complete and either temporary or permanent. There is no provision under which it could be argued that the arrest and trial of the Governor upon a criminal charge, or even his conviction, would vacate his office. While conviction for embezzlement would disqualify him to hold office, he would still remain in office until divested by a court procedure or by impeachment.

These authorities are all based upon the single proposition that because of the absolute identity of the person of the Governor with his office and the physical inability to coerce, imprison or put a Governor upon trial for a supposed criminal offense without interfering with the functions of the executive department and depriving the state of the executive head, the governor is exempt from arrest during his term of office, but it is everywhere recognized that he is not above the law, but subject to it and can only be punished in accordance with it after his person is lawfully separated from the chief executive office.

As said by the Supreme Court of Missouri in the Major case:

"The Governor's duty devolves on him by law under a higher authority than the order of a court, i. e., the mandate of the constitution. The duties thus conferred are political, and his acts are entirely independent of the judiciary and for a failure to perform which he is responsible to the people alone...

Those who so loudly proclaim that the Governor should be subject to the Courts. merely attempt to subordinate the executive to the judicial departments and make the judge the supreme authority, not only over his department, but over the executive department as well.

The absurd and vicious consequences of the contrary doctrine applied under the Constitution of Illinois appear in these consid

erations:

(1) In directing process for the arrest of the Governor after he had honestly determined that to submit to the jurisdiction of the court would violate his duties and oath of office was an effort to displace the will and judgment of the Chief Executive in relation to an executive duty with the will and judgment of the court, and an endeavor to coerce the chief of the executive department, in violation of the Constitution.

(2) If arrested or tried, during arrest. or trial, the functions of the executive office will be suspended and the government of the state would be without a head.

(3) If convicted, the Governor would have the power to immediately pardon himself, as his conviction would not suspend the pardoning power which rests with him alone.

(4) The Constitution creates the Governor the supreme executive officer of the state, and in arresting him, a subordinate officer of his department, the sheriff, coerced him to imprisonment on the command of a co-ordinate branch of the government, the judiciary, thereby suspending the continuous functioning of the executive department in violation of the Constitution.18

(5) The Governor, as commander-inchief of the militia, is vested with power, not only to call out the militia at will, but to determine for himself when to do so, and what shall be done in obedience to the command of the Constitution to take care that the laws be faithfully executed and to support the constitution; and his acts in accordance with his judgment as to when and how he shall exercise that power cannot be questioned in any place or by any person, except for a willful, that is, a knowingly and purposely committed violation of the Constitution.19