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The salary paid to the governor is sometimes fixed by the state constitution, but many commonwealths, following the example of the federal Constitution, leave the amount to the discretion of the legislature. About half the states pay the governor $5000 or more a year. The constitution of New York has placed his compensation at $10,000, but stipulates that the legislature shall provide "a suitable and furnished executive residence."
The formal powers enjoyed by the governor must be sought in the express terms of the constitution. The legislature possesses every power and authority not denied to it; but the governor has no such high prerogative. The customary clause that "the executive power shall be vested in a governor" bestows upon him practically no authority that is not explicitly conferred somewhere by the written instrument itself. As Professor Goodnow puts it: "Little if any power is to be regarded as vested in the governor as a result of the grant to him of executive power. . . . The state courts have not derived, as has the Supreme Court of the United States, any very large powers from such a general power or duty as the duty to see that the laws be faithfully executed. In other words, the principle of narrow construction is more commonly adopted with regard to the powers of the governor than with regard to those of the President."1
Powers of the Governor in Relation to the Administration
The state constitution generally vests the "executive power" in the governor and charges him to take care that the laws are faithfully executed. In the enforcement of the law, the governor has to deal with private persons and with the public officials. In the former instance, he acts directly in important matters, by ordering the state's attorney to proceed in the proper court against offenders; or, when there is a riot or other disorder too serious for the regular processes of the courts, he may declare martial law in the region affected and employ the militia of the state."
In the ordinary course of law enforcement the governor of the American commonwealth stands in a peculiar position. Unlike the federal administration, in which substantially all the officers are grouped in proper divisions and subdivisions under heads of
1 Principles of the Administrative Law of the United States, p. 95. Readings, p. 432. 2 Readings, p. 449.
The State Executive Department
departments selected by the President personally and removable by him at will, the state administration is not organized in a hierarchical form, but consists of a large number of officers, bureaus, commissions, and boards, some elective and some appointive, each with its appropriate duties prescribed by law. The head of a department is not a head at all in the sense in which the term is used at Washington. Compare, for example, the Secretary of the Treasury of the United States with the treasurer of New York. The former is appointed by the President, and in his department are grouped the revenue and disbursing officers, the federal banking authorities, and, in short, all the federal officers dealing with taxation, revenues, and finance. The treasurer of New York is elected by popular vote; he is custodian of the moneys paid into the treasury and he pays out on proper warrants; he is commissioner of the land office, a member of the canal board, a trustee of Union College, a member of the state board of equalization, and some other boards. The supervision of banking, insurance, excises and assessments, and taxation is in the hands of single officers or boards appointed by the governor with the consent of the senate and removable only by the consent of that body. If the treasurer does not do his duty, the governor may temporarily suspend but cannot remove him; he can only institute tedious legal proceedings against him. To control the state financial administration, the governor has not merely to watch the treasurer, he must watch all of the various independent officers and commissioners, whom he may not have chosen in the first place and whom he cannot remove at will. There is accordingly, as Governor Hughes put it, "wide domain of executive or administrative action over which he has no control or slight control.” 1
One of the primary effects of this decentralization is to prevent that harmonious coöperation among the various chief administrative officials which is so marked in the President's cabinet. Of course, it sometimes happens that all of these officials are of one political party and represent a coherent section of that party; but it also often happens that the governor is the "drawing card" on the party ticket, while obscure machine workers with no administrative capacity and sometimes with little integrity are associated with him as candidates for the minor state execu1 Readings, p. 436.
tive offices. There is at least one instance in our history of a governor's being afraid to trust the legal advice of the attorney-general of his state on account of the strong factional feeling which existed between them. This form of antagonism is often more marked when the governor represents one party and his immediate associates another.
It requires no very profound political thought to discover the inherent defects of such a disjointed administrative system, and there is some tendency in a few states to combine more lines of executive control in the hands of the governor. This tendency is not universal and persistent, however, for many of the states are continuing the older policy of making the new commissions elective and independent of the governor's authority. Nevertheless, the appointing power of the governor is on the increase, especially in the East. This is not entirely due to the conscious recognition of the relation between administrative centralization and efficiency, but is partially on account of the physical impossibility of making the entire throng of state officials elective.
Where the appointing power is vested in the governor, it is often shared by the upper house of the legislature. In New York, for example, the governor and senate appoint the superintendents of the insurance and banking departments, the excise commissioners, the members of the two public service commissions, the superintendent of public works, the commissioner of agriculture, the commissioner of health, the civil service commission, and several other important state officials. Their terms vary in length -practically all of them being longer than the governor'sand in general the governor must have the consent of the senate in order to remove them. The chief exception is the public service commission, the members of which can be removed by the governor without the consent of the senate.2
In some states, the legislature itself exercises a considerable appointing power. For example, in New Jersey, Delaware, and four other states the state treasurer is chosen by the legislature.
A slight step, however, in the direction of strengthening the governor's administrative control has been taken in many states, by vesting in him the power to make special inquiries into the
1 See below, p. 508.
2 The superintendent of public works and superintendent of prisons are removable by the governor alone, after a hearing.
working of the various executive departments. The constitution of Montana, for example, provides that "The governor may require information in writing from the officers of the executive department upon any subject relating to the duties of their respective offices, which information shall be given upon oath whenever so required; he may also require information at any time, under oath, from all officers and managers of state institutions upon any subject relating to the condition, management, and expenses of their respective offices and institutions, and may, at any time he deems it necessary, appoint a committee to investigate and report to him upon the condition of any executive office or state institution."
The constitution of Georgia makes it obligatory upon the governor to examine under oath, quarterly or even more frequently, the treasurer and comptroller-general on all matters pertaining to their respective offices and to inspect and review their books and accounts. Occasionally, but not often, the governor is given power to suspend certain state officers during a recess of the legislature. The governor of New York, for example, may temporarily suspend the treasurer whenever it shall appear to him that that officer has violated his duty in any particular; and under the Moreland act of 1908 he may order an investigation of any department. In several states, the various officers are required to make periodical reports or render opinions in writing to the governor, but these are generally perfunctory, or at best of slight significance in advancing the governor's power of control over the administration.
The governor is commander-in-chief of the armed forces of the state, and in case of an extraordinary disturbance beyond the control of the regular officers of the law he may call out the state militia to restore order. Usually in this connection he has the power of suspending the writ of habeas corpus, thus staying the processes of courts and placing the life and property involved in the disorder in the care of the military authorities. Most states declare that the writ of habeas corpus may not be suspended unless in times of rebellion and invasion when the public safety may require it. Two of the states stand with Oklahoma in providing that the writ shall never be suspended by the authorities of the state, thus leaving it always open to persons claiming that their rights are infringed by the military to appeal to judicial tribunals.
Relation to the Legislature
It is a regular practice to confer upon the governor the duty of communicating with the legislature on the state of the commonwealth and of recommending such legislative measures as he may see fit. This right, like that enjoyed by the President,' may become a powerful instrument in presenting issues to the people and in forcing the legislature to act. "It is not," said Governor Hughes, "his constitutional function to attempt, by use of patronage or by bargaining with respect to bills, to secure the passage of measures he approves. It is his prerogative to recommend and to state the reasons for his recommendation, and in common with all representative officers, it is his privilege to justify his position to the people to whom he is accountable." The governor, in his message, often sets the tasks for the legislature; and in case of the refusal of that body to accept his proposals, he may, if he is confident of popular support, take advantage of the important power of calling a special session of the legislature to consider the particular measures he has at heart.
While it is a common practice for the governor to include in his regular message to the legislature a statement of the finances of the commonwealth, nine states require him to propose the budget. "He shall," runs the Missouri constitution, "at the commencement of each regular session, present estimates of the amount of money required to be raised by taxation for all purposes." Like the report of the Treasury to Congress, this budget is usually little more than a list of suggestions to the legislature; but taken in connection with the power (which many governors have) to veto single items in appropriation bills, it may become an important instrument in the hands of a strong governor who has a decided fiscal policy."
The power of calling extraordinary sessions of the legislature is now regularly conferred by the state constitution, and often the governor is bound to submit to the legislature the proposals to be considered at such sessions. The governor may "on extraordinary occasions," the constitution of Ohio provides, "convene the general assembly by proclamation, and shall state to both houses when assembled the purpose for which they 2 Below, chap. xxxi.
1 See above, p. 199.