a balanced plan out of chaos, the budget system, in a few words, empowers the executive from knowledge obtained from his assistants in the administration to set before the Legislature a well-rounded appropriation bill-in the complete budget correlated with a revenue scheme-and to the Legislature is relegated the power to veto and reduce items, but not to propose or increase items. This scheme, which has the approval of every political scientist and most other thinking men, has not yet been adopted by any State, though smaller governmental units have adopted it. In a few States, the Governor is specifically commanded to present to the Legislature estimates of the amount of money needed by the various departments of government102 and, in most other States, he includes some such statement in his message,103 but nowhere is the prestige given to his estimate which is necessary for even an approach toward the budget system. While speaking of money, it may be well to mention the duty placed upon the Governor in five southern States to examine either the books of or the treasury officer himself at certain specified intervals.104 In most States, this is left to an auditing officer and, moreover, it ought not to be necessary to place any check between the Governor and his treasurer; there is rather need of co-operation. Another comparatively unimportant duty of the Governor-though in emergencies it might become an important right is his ex officio membership on State boards.105 In the constitutions, he is saddled with numerous of these positions and, by statutes, his time might very well be entirely occupied attending board meetings. Much more important and often involving all the discretion which the Governor has in him is the power to pardon for all offenses except treason108 and impeachable of 102 Ibid., p. 1338. 103 Ibid., p. 726. 104 Ga., Art. 5, Sec. 1, Par. 18; Md., Art. 2, Sec. 18; Miss., Art. 5, Sec. 137; Tex., Art. 4, Sec. 24; Va., Art. 5, Sec. 74. 105 Digest, p. 729. fenses.107 This power is often vested in the Governor alone, although in many States he is aided by a board of pardons, to which he must refer for advice, approval, or recommendation, or in which he may merely be a member.108 In Connecticut only, it seems that no executive provision is made for the pardoning power, presumably it rests in the Legislature. This power, as has been said, is the acme of discretionary powers and the courts have absolutely no power to inquire into the motives of the Governor in exercising it,109 even where the personal rights of others are affected.110 Practically the same authorities exercise the right of reprieve, of remission of fines and penalties, and of commutation of sentences except that these powers extend somewhat over the crime of treason.111 The Governor in a few States is also given the power to suspend fines and forfeitures.112 Of equal importance and in time of parade of exceedingly greater splendor is the authority of the Governor as commander-in-chief of the State militia, army and navy. In normal times, except as an addition to his appointing power and a sop to his pomp on public occasions, this authority does not seem to amount to much, but in times of stress it is most extensive. Even in times of peace, however, the Governor appoints all the staff officers11s and commissions the lower officers.1 114 He also has power to disband companies and muster them out whenever he feels that it is for the good of the service; the militiamen have no contract for the term of their enlistment upon which they can sue the State.115 When the militia is acting as a Federal force, the Governor is naturally not to be com mander-in-chief,116 and some States take pity on him and provide that he "need not" or even that he "must not" command the troops in person when they are called out for active duty." I doubt whether this is a severe limitation upon his power. As commander-in-chief, the Governor may call out the militia to execute the laws, suppress insurrection, repel invasion, and to preserve the public peace.118 Much use and considerable abuse has been made of this power in recent years, especially in times of industrial conflicts, and vociferous criticism has been heaped upon some Governors for their indiscriminate use of this power. Most of the legal discussion has centered about the power of the Governor to proclaim a qualified martial or military law at the same time that he calls out the militia. The definition and limitation of this martial law is beyond the scope119 of this paper, but it is pretty well settled that the Governor has the authority, especially in the absence of the Legislature, to proclaim a "qualified martial law;'"120 but, where the State constitution provides that "no power of suspending the laws of the State shall be exercised unless by the Legislature," a proclamation of martial law is void if it is intended to have this result.121 A duty placed upon every State executive by the Federal constitution is to deliver up any "person charged in any (other) State with treason, felony, or other crime, who shall flee from justice and be found in" his State.122 This authority is usually derived only from the constitution of the United States and a State law or constitution which attempted to give a Governor greater power would con 116 Digest, p. 990. 117 Ala., Art. 5, Sec. 131; Mo., Art. 5, Sec. 7; Md., Art. 2, Sec. 8; Ky., Art. 75; Vt., Art. 2, Sec. 20. 118 Digest, p. 983. 119 See Willoughby on the Constitution, p. 1200; 14 Mich. Law Re., p. 102, 197; note in 45 L. R. A. (N. S.) 996. 120 Commonwealth ex rel Wads worth v. Shortall, 206 Pa. 165, 65 121 Johnson v. Duncan, 3 Mart. (La.) 530. 122 U. S., Art. 4, Sec. 2, Cl. 2. flict with the law of the United States and be unconstitutional,123 though merely auxiliary provisions would be valid.124 This duty placed upon the Governor, however, is not compulsory, but only a "moral duty," and the Supreme Court has no authority to order a Governor to comply with these provisions of the constitution.125 The final duty of the Governor to be considered is his duty with regard to contracts for the State. This duty is more interesting for the places where it is lacking than as general power. There is an implied authority delegated to the Governor to employ clerks and expert accountants, if necessary, in his duty to investigate any irregularity in the administration,126 and he has also in some States the duty to approve special contracts.127 But the Governor has no general authority to contract in the name of the State; and a power conferred on him as to particular contracts is a special power limited by the statute conferring it.128 This question has most often arisen through the employment of special counsel to represent the State in litigation, but it has been unanimously held that neither the Governor nor the Attorney-General has this inherent power. The relation between the special counsel and the State is purely a matter of contract which only the Legislature is empowered to authorize.129 Having no power to contract for the State, the Governor naturally cannot ratify an unauthorized contract entered into by other State agents.1 There are next to be considered certain rights and privileges of the Governor, which are derived not from any special constitutional provisions, but are inherent rather in the nature of the office. More specifically, it might be 123 Ex parte Van Vleck, 6 Ohio Dec. 636. 124 Ex parte McKean, 3 Hughes (U. S.) 23; Ex parte Ammons, 34 Ohio St. 518. 125 Kentucky v. Dennison, 24 How. 66; 16 L. ed. 717. 126 Att'y-Gen'l v. Jochim, 99 Mich. 358, 23 L. R. A. 699. 128 State v. Cobb, 64 Ala. 127; Stanton v. State, 5 S. D. 515. 129 People v. Talmage, 6 Cal. 256; Compton v. State, 38 Ark. 601; Julian v. State, 140 Ind. 581; Cahill v. Board of State Auditors, 127 Mich. 487, 55 L. R. A. 493. 130 Delafield v. Illinois, 2 Hill (N. Y.) 159. 127 Digest, p. 1111. said, that all of these rights grow out of the American doctrine of the separation of powers. Practically every State embodies this theory in its written constitution in some such words as these: "The legislative, executive and judicial powers ought to be forever separate and distinct from each other, and no person or persons exercising the functions of one shall assume or discharge the duties of any other,''131 in order, as Massachusetts adds, "that it may be a government of laws and not of men.' "132 These provisions, however, must not be taken too literally, for there are inevitably certain overlappings of the various departments.133 Thus, the courts may call upon the Governor to use the sovereign executive power of the State to enforce their process when the power of the marshal may not be sufficient for the purpose, or when the peace of the State may require it.134 Then, too, the Legislature is often called upon to grant to the Governor certain administrative powers requiring the exercise of a quasi-judicial or quasi-legislative authority. Thus, the decision of a Governor as to a tax law based on a former decision of the courts is binding on the auditor and tax assessors;135 and the Governor may be granted power to decide when certain local laws shall apply to the various counties 136 and with the council may be delegated the authority to make pilotage regulations.137 And of course, the Governor does not abrogate to himself judicial powers by investigating charges of official misconduct against State officers.138 An interesting question sometimes arises as to the personal liability of the Governor for wrongs due to his official acts. Of course, the Governor is not above the law, and, where he acts entirely without authority, he is subject to 131 Md., Dec. of Right, Art. 8 and see Digest, p. 526. 132 Mass., Pt. I, Sec. 30. 133 For a discussion of this doctrine in full see Willoughby, op. cit., p. 1259, et seq. 134 Thomas v. Mead, 36 Mo. 232. 135 State v. Buchanan, 24 W. Va. 362. 136 Ingraham v. State, 39 Ala. 247; State v. Clayton, 43 Tex. 410. 137 Martin v. Witherspoon, 135 Mass. 175. 138 McMaster v. Herald, 56 Kan. 231. |
