Peter Vivian Daniel

“ Can congress create an office and define the tenure thereof? By the constitution all the legislative power of the federal government is committed to congress, and by the last clause of the 8th section of article 1, all the residuary or discretionary power of the general government is also lodged in congress. The legislative is the only creative element in our government, and precedes in logical succession as well as in actual experience the action of the other departments, inasmuch as they only act upon that which the legislative power has brought into existence. ”

“ If the statute is imperative, there is no room for judgment as to the performance of the act which the statute requires, however much of judgment, in another sense, or of understanding may be requisite in arriving at the meaning of the law. True legal discretion is a discretion to do or not to do, according as the judgment of the officer may decide; and that discretion can never be exercised when the statute has peremptorily ordered a thing to be done. ”

“ Thus it has been ruled, that the only acts to which the power of the courts, by mandamus, extends, are such as are purely ministerial, and with regard to which nothing like judgment or discretion, in the performance of his duties, is left to the officer; but that, wherever the right of judgment or decision exists in him, it is he, and not the courts, who can regulate its exercise. ”

“ A condition of good behavior, and a tenure during good behavior, are distinct things. The condition for good behavior is necessarily implied, and adheres to every officer. The tenure during good behavior belongs only to those officers in whose commissions that tenure is expressed. ”

“ But, within what we conceive to be the correct apprehension of this cause, neither of those important topics is embraced; and although, when regularly and directly presented for consideration, the responsibility of passing upon them can no more be avoided than can the adjudication of any minor subject of judicial cognizance, yet their very importance furnishes a cogent reason why any unauthorized proceeding, in reference to them, should be cautiously avoided ”

“ No authority has been given to institute suits against the government while this proceeding, in effect, commences one, tries it, gives judgment, and awards execution without appearance or the intervention of a jury to settle facts. ”

“ That the first auditor having rejected the claim in these words: 'That Aaron Goodrich is not entitled to the salary claimed by him,' an appeal was taken by the relator to the comptroller of the treasury, by whom the decision of the first auditor was sustained, and by whom, in adjudging, it is remarked, that 'There can be only one chief justice of the supreme court in the territory ”

“ In the older cases, reference was made to the ordinance of July 13, 1787, one of the earliest acts of congress, that of August 7, 1789, having for its object to adapt the provisions of that ordinance to the constitution; and the same power of appointment and removal was thereby given to the President as had previously belonged to the United States in congress assembled. Northwest Territory, 1 Stats. at Large, 52 ”