Weeks vs. Gamble-Opinion of Court. refusal of the Comptroller to draw his warrant, would have awarded a peremptory mandamus. Otherwise, the Comptroller's action is final, and neither the Legislature nor the courts can control him. He can refuse to pay any admitted indebtedness of the State, and its payment could never be enforced. There being no appropriation for this particular service, the State, through the Legislature, had not consented to the claim, and without such consent, any action of the court enforcing its payment by the officer would have been equivalent to sustaining an action by the party against the State, and giving a judgment against the State. It is well established that this cannot be done even where the State places herself in the attitude of a plaintiff and upon a plea of set-off a balance is found in favor of the defendant. (11 How., 272.) Where, however, the State consents to the claim as in this case, by action of the Legislature, the party has a right to the assistance of the court, which may compel the performance of a ministerial act necessary to satisfy the claim and to accomplish the purpose of the law. The Supreme Court of the United States, speaking of this subject, (12 Pet., 611,) says: "The United States could not of course be sued, or the claims in any way enforced against the United States, without their consent obtained through an act of Congress." If the consent by the Legislature was to pay a claim which the Constitution prohibited, that would be an argument against our granting the writ, but no question of this kind is raised here. To make the cases analagous we should have had legislation admitting the claim of the sheriff, in the event he was a sheriff. Had this been the case, and the Comptroller had denied that the party was de jure sheriff, and placed his refusal upon this ground, the cases would have been analagous. The question would then have been whether the courts were not the proper tribunals to determine whether the party was not sheriff, and in the event he was, whether they could not compel the Comptroller to draw his warrant for a certain sum admitted by the Weeks vs. Gamble-Opinion of Court. Legislature to be due. In the absence of legislation or of constitutional provisions of this character, it is not denied that the Comptroller's action in reference to a claim is final. This is an exercise of judgment and discretion which properly appertains to him, and we cannot control it, but where the Legislature has acted, he has no such discretion. If he refuses to pay the claim, the party must go to the Legisla ture. It may be remarked that the extract made in the case in 3 Fla. by Chief Justice Douglas from the opinion of Mr. Justice Catron,in the case of Decatur vs. Paulding, does not represent the views of the Supreme Court of the United States. In that case, Mr. Justice Catron dissented from the opinion of the court, and there as elsewhere he maintained that the courts could not by mandamus compel an officer to perform a ministerial act, because if it had jurisdiction to determine what constituted a ministerial act as distinguished from an executive duty, there was no obstacle to its making all executive duties ministerial acts, having the power to define them. Nor do we think that the remark there made by Mr. Justice Catron in reference to the case of Kendall is correct. The court do not in the case of Kendall say that public money could not be reached by mandamus. Mr. Justice Thompson, speaking for the court, says in the case of Kendall, that in the event a balance was found in favor of Stokes, "it could not have been drawn out of the Treasury without further legislative provision"-which is far from saying that if such legislative appropriation had been made, and the auditing officer had refused to pay, that a court could not compel the issuing of the warrant and thus reach public money through a mandamus. Our conclusion is that a peremptory mandamus must issue. HART, J. In the matter of the application of Edmund C. Weeks for mandamus to the Comptroller for his salar yas Lieutenant Weeks vs. Gamble-Opinion of Court. Governor, the Comptroller answers, in substance, that Weeks is not such officer, and that the Governor had no authority to grant the commission; that another man claimed salary for the same office, and that the Senate, at the recent session of the Legislature, refused to recognize Mr. Weeks as its presiding officer. Here is a conflict by a subordinate officer of the executive department against the action of its head, the Governor, who granted this commission. This application for mandamus is not, in my judgment, the proper legal proceeding provided in the system of government for ascertaining by what authority the holder of the commission claims the office. In this way, the Comptroller by refusing to act upon the quarterly requisitions by the officers for their salaries, might claim authority independent of the head of the department to which he belongs, or even of any other department, to decide and determine such questions. There is no such authority vested in that officer. If any person desires to have such questions legally decided, the regularly established mode of doing so is always open to him. An attempt to procure the decision of such questions by setting them up outside of his department, and collaterally, tends to involve legal proceedings-correct legal remedies-in confusion and uncertainty, to the detriment of consistency in the administration of the law. When the Hon. Davis S. Walker was Governor, he appointed a Comptroller. A committee of one branch of the Legislature was sent to inquire of him by what authority the appointee claimed the office. This was not the method provided by law for testing the matter, and the Governor correctly enough answered that he claimed it by authority of a commission which he had granted to him. The committee reported, and the matter ended there. If the appointee was not legally appointed; if the Governor exceeded his authority, and violated the law in making the appointment, there was a mode provided by law for S. C. R. Vol. XIII.-3. Weeks vs. Gamble-Opinion of Court. having it enquired into, and the claimant ousted. If questions of this kind are allowed to be tested in the manner attempted in this case, insubordination and confusion might follow, to the great embarrassment of government. A decision tending to oblige the Governor to obtain the opinion of the Comptroller upon the legality or illegality of an appointment by his commission before he could make it to be useful, could not be in harmony with the system of government established by the Constitution. All the official acts of the Governor should be considered legal, respected and obeyed, until decided by the constitutional tribunal to be illegal. The answer, that another man claimed salary for the same office, and that the Senate refused to allow Mr. Weeks to preside over it, sets up matter that might perhaps embarrass the minds of some Comptrollers; but this is not the tribunal for that officer to bring his doubts to in this manner for solution, since he cannot thus do so without conflict with and wholly ignoring the Governor of the State, the head of the department to which he belongs, and who is responsible for the faithful execution of the laws. In my judgment, therefore, the enquiry into the legal authority of the Governor to grant the commission exhibited, and into the legality of the action of the Senate, and of Mr. Gleason's application for salary, ought not to be made in this case. That the reasons given by the Comptroller for his refusal to act upon the applicant's claim for salary, are in their nature collateral to the proper issue, irrelevant and insufficient; and that the peremptory writ should issue. The State vs. Johnson-Opinion of Court. THE STATE OF FLORIDA VS. JAMES W. JOHNSON, ATTACHMENT FOR CONTEMPT. Article VI, Section 5, provides that issue writs of mandamus, certiorari, The Constitution of this State, (1868,) "The Court shall have power to prohibition, quo warranto, habeas corpus, and also all writs necessary or proper to the complete exercise of its appellate jurisdiction. 1. Each of the Justices shall have power to issue writs of habeas corpus to any part of the State," &c.: Held, That this is a general grant of power to use certain writs in the exercise of its jurisdiction, and that it is competent for the Legislature to prescribe the manner of obtaining and issuing process, and to provide that such process may be issued out of the Supreme Court in vacation as well as in term time; and the provisions of the Constitution do not repeal or invalidate acts of preceding Legislatures, authorizing Justices and Judges to allow supersedeas, writs of errors, and other process, and prescribing the effect of such process. 2. A supersedeas granted upon an appeal from an order allowing a preliminary injunction and appointing a receiver pendente lite, suspends the operation of the order and prohibits the further action of the receiver in carrying out the mandate of the order from which the appeal is taken. 3. When an appeal is taken and a supersedeas allowed from an order appointing a receiver, pendente lite, the power of the Court .making the order and its officers is suspended in reference to the order appealed from, and the order remains inoperative pending the appeal. Any action or proceeding by any person under such order, in disregard and defiance of the force and effect of the supersedeas, after notice thereof or after service of a writ of supersedeas, is a contempt of the authority and jurisdiction of the appellate Court. A statement of the case is contained in the opinion of the court. Justice WESTCOTT, being disqualified, did not sit in this case. S. J. Douglas, Papy & Peeler, for the State. RANDALL, C. J., delivered the opinion of the court. On the 11th day of August, 1869, James M. Baker and Wilkinson Call filed their bill in chancery in the Circuit |