140 THE EXECUTIVE GOVERNMENT [PART II 
an action would lie against a Colonial Governor for wrongful 
acts done by him. But it by no means followed that because 
a Governor was liable to an action for a wrongful act done 
by him to the prejudice of an individual, he was liable to be 
commanded by a mandamus to repair an omission to do 
a lawful act. It was settled law that a mandamus would 
not lie against an officer of the Crown to compel him to do 
an act which he ought to do as agent for the Crown, unless 
he also omitted a separate duty to the individual seeking 
the remedy. They did not think that a Governor of a state 
in the issue of a writ for the election of a senator was acting 
as agent for the Sovereign in this sense, since the duty 
imposed by the constitution was imposed by statute law 
and not by delegation from the Sovereign himself. But it 
was a duty cast upon him as head of the state, and the same 
reasons which prevented a court of law from ordering the 
Sovereign to perform a constitutional duty were applicable 
to cases where it was alleged that the constitutional head 
of a state had by his omission failed in the performance of 
3 duty imposed upon him as such head of a state. 
A further case of an attempt to obtain a mandamus 
against a Governor arose in the case of Horwitz v. Connor, 
decided by the High Court in 1908. Horwitz had been 
sentenced to a term of imprisonment with hard labour, and 
he claimed that he was entitled to his release from jail by 
virtue of s. 540 of the Victoria Crimes Act, 1890, pursuant 
to which regulations had been made by the Governor in 
Council for the remission of sentences under which a prisoner, 
on earning a certain number of marks in proportion to the 
length of his sentence, might have a portion of the sentence 
remitted. He applied for a writ of Habeas Corpus to the 
Supreme Court of Victoria, but on the return of the writ 
the full Court held that he was not entitled to be released, 
and discharged the writ. 
The Court decided that the power given to the Governor 
in Council by s. 540 of the Crimes Act, 1890, was a dis- 
cretionary power to make regulations, and to mitigate or 
' 6 C. L. R. 39.