appointive officer has made him less independent than if he were an elective?

MR. TAFT-Oh, I have no doubt it has.

MR. TANNER-To what extent?

MR. TAFT-Independent, if you want independence of that sort; but that is the kind of independence you don't want—at least, I don't want it. It is part of the executive. It is a prosecution it is carrying on. The government is enforcing the law. Why shouldn't it be under the man who is at the head and responsible for its enforcement? If you want a judge, why, make a judge; but if you want a man who is to do things and enforce the law, when the man at the head is charged with the faithful execution of the law, or with taking care that the laws are faithfully executed, why shouldn't the man who conducts the prosecution and represents the state from the executive standpoint be responsible to the man at the head of the state?

MR. STIMSON-I think the question generally asked, Mr. President, is not in respect to his prosecuting functions, but in respect to his functions as an adviser of the different departments of the State. It is argued that an elective Attorney-General is a more accurate and independent adviser of the different officers of the State whom it is his business under the law to advise.

MR. TAFT-Well, if you are going to have a lot of independent officers, who are running their own boats, paddling their own canoes, without respect to the head of the state, then, of course, you want a judicial officer to decide between them. But if you are running a government on the basis of the head man being responsible for what is done, and for the work being done in the most effective way, then what you want is a counsel. When you consult a lawyer, you don't consult a judge. You consult a man. who is with you, seeking to help you in carrying out the lawful purposes that you have. Therefore he ought to be your appointee. You select him, if you go to a counsellor to help you in matters of law. Now the chief executive is given an AttorneyGeneral to advise and represent him in all legal matters. I don't see why he shouldn't be appointed. It would be most awkward if he was not, in Washington; I can tell you that. (Laughter.) MR. TANNER-President Taft, I don't know whether this is a fair question or not, for it relates to the state government: This morning in the convention there was introduced an amend

ment which, among other things, provided that the governor should have power to modify or veto the rules, regulations, orders or decisions of all boards and commissions in the executive branch of the government. I assume that does not refer to the Public Service Commissions or quasi-judicial bodies. To what extent does the President either have or exercise that power over the rules or decisions of the commissions or executive departments where he makes the appointment?

MR. TAFT-Well, take the regulations of the Internal Revenue Department. The President never sees them. They are made up by the Commissioner of Internal Revenue, and the Secretary of the Treasury approves them. The regulations with respect to the Civil Service Bureau cannot have any effect until the President approves; but that is because they are an independent bureau. In other words, the heads of departments are generally called upon to approve all the regulations, but those regulations are all under the control of the President, and if his attention is called to some regulation that ought not to be there, and he concludes it ought not to be there, he asks the head of the department to modify it. It is not a question of what he actually does, but what he may do when the issue arises. And except with respect to the Comptroller of the Treasury, to which I referred, his will prevails. Of course, when you come to the Interstate Commerce Commission, the Interstate Commerce Commission, in my judgment, is not an executive tribunal. Of course, it makes the constitutional lawyer that regards the rule that you cannot have delegated legislative power-it gives him goose flesh to have it called what it really is, namely, it is the delegation of power by Congress to the Interstate Commerce Commission to do that which Congress is not so constituted that it may do, because it cannot sit all the time and cannot pass on a million rates. But that is what the Interstate Commerce Commission does under the rules laid down. That is not an executive commission and it is not under the control of the President, because it is exercising legislative power.

MR. TANNER-Gentlemen, are there any other questions by the Committee on Governor and Other State Officers?

MR. RHEES-Might I ask one question? What auditing function is there in the United States government which has any independence of the executive?

MR. TAFT-Practically none. The Comptroller of the Treasury is at the head of the auditors. There are appeals from the six auditors of the treasury to the Comptroller of the Treasury, who puts the final audit, and there is practically nothing independent of the executive.

MR. RHEES

Is the Comptroller of the Treasury charged with

the duty of certifying all payments from the treasury?

MR. TAFT-He is charged with the duty of countersigning every warrant, and nothing is taken out of the-no warrant is honored by the Treasurer except on his certificate.

MR. STIMSON-But by custom, Mr. President, he is treated as a very independent officer?

MR. TAFT-Oh, yes. Congress has made him, as I say, a quasijudicial tribunal with respect to claims and with respect to compliance with law, but he is appointed by the President and may be removed by the President.

MR. STIMSON-But, as a matter of fact, that has never happened within the memory of any of us?

MR. TAFT-Oh, no; I don't remember

MR. STIMSON-And he often makes very embarrassing decisions when he stops the various Cabinet officers from spending money? Spending what they would like to spend?

MR. TAFT-Yes, he does.

MR. STIMSON-I saw the other day he just stopped a very important expenditure of money in the War Department on these manœuvre camps. Nobody thinks of removing him because he does that?

MR. TAFT-No. As a general rule, the Comptroller of the Treasury is regarded as quite an independent officer, and frequently executive policy is determined by sending over to the Comptroller to learn whether such an expenditure would be lawful or not, and when he approves-Congress has clothed him. with such powers that when he approves-the executive feels safe about it. He sometimes comes into conflict with the opinion of the Attorney-General; and he does not yield to the AttorneyGeneral, and is not obliged to.

MR. RHEES Is the Comptroller of the Treasury-does he change ordinarily with the change of administration?

MR. TAFT-Yes; ordinarily he does. He did not change in my day; but, then, very few did. (Laughter.)

MR. Low-Mr. President, is the Comptroller of the Treasury. a different officer from the Comptroller of the Currency?

MR. TAFT-Yes; the Comptroller of the Currency is at the head of the Banking Department; also in the treasury, however, and part of the fiscal machinery.

MR. TANNER-Mr. President, you have described the effect that this concentrated machinery has on the efficiency of the government of the United States as compared with the efficiency of the state government. Have you any observation to make as to the effect of that same concentrated authority on the relative expense of the government?

MR. TAFT-Yes, I think it is of course, it is unwise to institute a comparison where a comparison is not possible, but I should think that a priori-you might say that the more you concentrate authority in the executive, the greater control he has over the economical expenditure of money, and, therefore, that it would be likely to save money.

MR. TANNER-Isn't that the same system followed in every big business corporation?

MR. TAFT-Yes, it is; every one.

MR. TANNER-Are there any further questions, gentlemen? (The discussion of finances, which is recorded in the June issue, followed.)

CHAPTER VII

THE GOVERNMENT

OF NEW YORK FROM THE

POINT OF VIEW OF ADMINISTRATIVE LAW

BY DR. FRANK J. GOODNOW

[Dr. Frank J. Goodnow, president of Johns Hopkins University, addressed the members of the Constitutional Convention Committee on the Governor and Other State Officers and on Finances, Revenues and Expenditures, in joint session, on June 3, 1915. The following is the record of his discussion of matters of administrative law relating to the organization of the government * :]

HON. FREDERICK C. TANNER and HON. HENRY L. STIMSON occupied the chairs of their respective committees. Mr. Stimson introduced Dr. Goodnow, referring to his study of administrative law and of his experience as the constitutional adviser of the new Republic of China. Following the discussion of financial methods, attention was directed to administration.

MR. TANNER-The Committee on Governor and Other State Officers have confined themselves up to this point to studying the executive branch of the government as it is and have not made any recommendations. The facts have been developed that the executive branch of the government to-day is made up of over one hundred and fifty departments, boards and commissions. The committee has been studying the subject of co-ordinating and placing in one group the various committees and boards. whose functions are similar and properly belong together. From your experience in administrative law, we would be very glad to have you make any suggestions, either from your knowledge of the government of this state, or by analogy with other states

* See MUNICIPAL RESEARCH, No. 62, June, 1915, on "Budget Systems," Chapter VI. "Administration and Financial Methods" (pp. 365-392) for Dr. Goodnow's discussion of Finance.