point in this way five railroad commissioners" and, in New York, to detail certain of the trial court judges for appellate work.73 Closely associated with this power of original appointment is the power of the Governor to make ad interim appointments upon the occurrence of vacancies." This power over both elective and appointive positions is almost unlimited, very few States having provided any other means of filling vacancies. Not being subject to any check, this power has often been abused by Governors in conflict with the Senate. Thus, recently in New York, the term of an appointee expired during the session of the Legislature, but, by law, he held over until his successor qualified. The Senate refused to ratify the successor nominated by the Governor. After the adjournment of the Senate, the holdover officer resigned; but it was held that the Governor was not then empowered to make an ad interim appointment.75 76 As a self-exercised check upon himself, the Governor is often given the power of removal as well as that of appointment; but here again this power must be specifically granted; it does not inhere in the executive office nor in the appointing power. In six States, he is granted outright the power to remove for incompetency, neglect of duty, or malfeasance in office all his appointees;" in Michigan, he is given this power during the recess of the Legislature;78 and in two other States, he is allowed to suspend from office for similar causes until the convening of the next Legislature. Where this power is granted to the Governor, the courts will not review his action, it being purely an 79 72 Cal., Art. 12, Sec. 22. 73 N. Y., Art. 6, Sec. 2. 74 Digest, pp. 1190-1193. 75 People ex rel Mitchell v. Sohmer, 209 N. Y. 151, 46 L. R. A. (N. S.) 1202, and see note in L. R. A. 76 Dubuc v. Voss, 19 La. Ann. 210. 77 Colo., Art. 4, Sec. 6; N. M., Art. 5, Sec. 5; Md., Art. 2, Sec. 15; Neb., Art. 5, Sec. 12; Ill., Art. 5, Sec. 12; W. Va., Art. 7, Sec. 10. 78 Mich., Art. 9, Sec. 7. 79 Fla., Art. 4, Sec. 15; Va., Art. 5, Sec. 73. 80 81 exercise of discretionary power, except to see that he has not exceeded his jurisdiction and has adhered to the constitutional procedural provisions. And it has even been decided that a court cannot enforce a negative provision of the constitution against removal for "political reasons, which must therefore merely act as a moral check upon the executive's conscience.82 83 Next in the list of the duties of a Governor must be considered his relations to the Legislature. The constitutions usually fix the date of convening of the Legislature and the length of the session or else leave the matter of adjournment to the discretion of the assembly itself. In South Carolina, however, if either house remains without a quorum for five days, the Governor is empowered to adjourn the whole assembly, and, in most States, he is to set the time of adjournment if the two houses disagree. As to special sessions, the Governor is given authority to convene the legislature at any time for the consideration of any subject to which the session is usually confined; but the length of these sessions is fixed by law.85 These powers are entirely discretionary and are not subject to review by the courts.86 84 87 The Legislature being in session, the Governor is expected to send it messages on important subjects. This duty of the Governor, though requiring the expenditure of much valuable time on his part, need not detain us long. He is always required to send an annual message and special messages from time to time as important subjects 80 Re Guden, 171 N. Y. 529; State er rel Caldwell v. Wilson, 121 N. C., 425; State ex rel Att'y-Gen'l v. Doherty, 25 La. Ann. 119, Att'y-Gen'l v. Hawkins, 44 O. St. 115. 81 State ex rel Kinsella v. Eberhart, 116 Minn. 313, 39 L. R. A. (N. S.) 788; State ex rel Churchill v. Hay, 45 Neb. 321; State ex rel Att'yGen'l v. Johnson, 30 Fla. 433, 18 L. R. A. 410. 82 People ex rel Engley v. Martin, 19 Colo. 565, 24 L. R. A. 201. 85 Ibid., p. 946. 86 As to adjournment, In re Legislative Adjournment, 18 R. I. 824, 22 L. R. A. 716; as to special session, Re State Census, 9 Colo. 642; Farrelly v. Cole, 60 Kan. 356, 44 L. R. A 464. 87 Digest, p. 726. 88 arise. These messages are generally of little avail, for they could only depend for their force upon being the emanation of the party chief of the State, a position which is usually occupied by someone other than the executive. To aid him in making up these messages and also in some degree as a further check upon his own appointees, the Governor is authorized to require at any time a report in writing from the various administrative and executive officers of the State. This is usually in addition to their regular report. The Governor also enters into legislative procedure in his duty to approve or disapprove acts of Legislature. In considering the rights of the executive as to bills after the adjournment of the assembly, the courts were led into a discussion whether this duty was an executive or legislative act. This conflict has been pretty well decided by constitutional provisions implying that the sovereign people understood this power to be executive, but earlier cases in the absence of constitutional dicta held that the Governor here acted as part of the Legislature."0 89 Every State, with the single exception of North Carolina, requires a bill which has passed both houses of the Legislature to be immediately presented to the Governor.91 If he approves of the bill, he is to sign the bill, which then becomes a law. If the Governor disapproves, he returns the act with his objections thereto to the Legislature, generally to the house in which the act originated.92 In Washington and South Carolina, the executive is allowed to disapprove portions of the bill and approve others, and in Virginia he may propose amendments to portions before ratification. Of course, the veto can always be overridden by the Legislature. If the Governor fails to return the bill to the Legislature within a certain time, ranging from three to ten days after presentment, the act becomes a law 93 88 Digest, p. 1183. 89 See not in 37 L. R. A. 391. 90 Fowler v. Pierce, 2 Cal. 165; School Dist. No. 1 Trustees v. Ormsby Co. Comrs., 1 Nev. 335. 91 Digest, p. 847. 93 Wash., Art. 3, Sec. 12. without his signature if the Legislature is still in session." If the Legislature by its adjournment has prevented the return of the bill, the practice in the States is about evenly divided between allowing the Governor to consider the bill after the adjournment and entirely destroying the effect of the bill, no matter what action the Governor may take— although to be absolutely exact, the balance must be said to be in favor of the first group." Missouri alone has the peculiar provision of allowing the Legislature upon nonreturn ten days after presentment, to direct the bill by joint resolution to be enrolled, but the Governor's disapproval after adjournment seems still left in an anomalous position.98 An interesting question has sometimes arisen as to the power of the assembly to recall a bill which has already been presented to the Governor. It was first decided in New York that, after the Legislature has duly passed an act and referred it to the Governor, it has no power, except, perhaps, on joint resolution, to recall the bill, and his voluntary return gives the Legislature no new power to reconsider its final action." This precise exception came up in a well-considered Virginia case, which held, however, that the Legislature had absolutely no power of withdrawing and that the Governor had no right to shirk his duty of careful consideration of the bill by acceding to the request of the Legislature.100 The courts in these cases argued generally from the specific provisions in the State constitutions, but there does arise a doubt in one's mind why the Legislature may not recall before it is signed a bill which it may repeal immediately after it becomes a law. Still considering the Governor in his relation to the Legislature, by far his most important duty-and one which 96 Digest, p. 848. 97 Ibid., pp. 849-851. 98 Mo., Art. 4, Sec. 40, Art. 5, Sec. 12. 99 People v. Devlin, 33 N. Y. 269; Contra in re Recalling Bills, 9 Colo. 630 (merely an advisory opinion). 100 Wolfe v. McCaull, 76 Va. 876; in McKenzie v. Moore, 92 Ky. 216, 14 L. R. A. 251, the court took a modified contrary stand, but the facts in the case fully justified this position. is every day becoming of greater importance-is his power over appropriations. The spending of money is one of the most dangerous enterprises of a republic and this fact has been early recognized by the American people. In all States and in the United States, this power is most hedged about with checks and balances; and, in the States, since the constitutions are usually more modern than the Federal constitution, the ingenuity and inventiveness of man have devised more safeguards than the Federal appropriating power is under. It is thus that the Governor has more of a check upon the State Legislatures than the President over the Congress. In most States, in addition to his power to veto bills, the Governor is given authority to veto items in appropriation bills. 101 It is obvious that this power is much more potent than the general veto power, for it entirely eliminates the possibility of "riders," the bugbear and abomination of every President. Moreover, in elaboration of this authority to veto items, the Governor in practically every State has abrogated to. himself by a sort of constitutional convention the power to reduce items. I have found absolutely no written provision authorizing this convention and it is perhaps exercised upon the theory that the beneficiary of the appropriation will take the half loaf rather than risk losing the whole. Of course, this veto of an item is subject to the same right of the Legislature to override the veto as is the ordinary veto, but due to the fact that the general appropriation bill is usually not passed until the last days of the session, this right is rarely exercised and perhaps here is to be discovered another reason for the reduction of items. The items not disapproved become law. The modern tendency is away from the system of checks and balances and towards an entire reversal of procedure, the budget system. Instead of leaving the initiative in appropriation to the haphazard will of the Legislature and leaving to the Governor by his veto power to reconstruct 101 Digest, p. 36. |