TAILIEUCHUNG - Gale Encyclopedia Of American Law 3Rd Edition Volume 12 P18

Gale Encyclopedia of American Law Volume 12 P18 fully illuminates today's leading cases, major statutes, legal terms and concepts, notable persons involved with the law, important documents and more. Legal issues are fully discussed in easy-to-understand language, including such high-profile topics as the Americans with Disabilities Act, capital punishment, domestic violence, gay and lesbian rights, physician-assisted suicide and thousands more. | MILESTONES IN THE LAW MARBURY V. MADISON 157 There is therefore much reason to believe that this mode of trying the legal right of the complainant was deemed by the head of a department and by the highest law officer of the United States the most proper which could be selected for the purpose. When the subject was brought before the court the decision was not that a mandamus would not lie to the head of a department directing him to perform an act enjoined by law in the performance of which an individual had a vested interest but that a mandamus ought not to issue in that case-the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right. The judgment in that case is understood to have decided the merits of all claims of that description and the persons on the report of the commissioners found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional in order to place themselves on the pension list. The doctrine therefore now advanced is by no means a novel one. It is true that the mandamus now moved for is not for the performance of an act expressly enjoined by statute. It is to deliver a commission on which subject the acts of Congress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has to that commission a vested legal right of which the executive cannot deprive him. He has been appointed to an office from which he is not removable at the will of the executive and being so appointed he has a right to the commission which the secretary has received from the president for his use. The act of congress does not indeed order the secretary of state to send it to him but it is placed in his hands for the person entitled to it and cannot be more lawfully withheld by him than by any other person. It was at first doubted whether the action of detinue was not a specific legal remedy for the .

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