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But other powers or duties the executive cannot exercise or assume except by legislative authority, and the power which in its discretion it confers it may also in its discretion withhold, or

from the interference of the other branches of the government. Especially is this the case where the subject is committed to the discretion of the chief executive officer, either by the constitution or by the laws. So long as the power is vested in him, it is to be by him exercised, and no other branch of the government can control its exercise." Under the Constitution of Ohio, which forbids the exercise of any appointing power by the legislature, except as therein authorized, it was held that the legislature could not, by law, constitute certain designated persons a State board, with power to appoint commissioners of the State House, and directors of the penitentiary, and to remove such directors for cause. State v. Kennon, 7 Ohio St. 546. By the Indiana Constitution all officers whose appointment is not otherwise provided for, shall be chosen in such manner as shall be prescribed by law. The power to ordain the " manner does not give the legislature power to appoint. State v. Denny, 21 N E. Rep. 252, 274 (Ind.); Evansville v. State, id. 267. And see Davis v. State, 7 Md. 151; also cases referred to in preceding note. As to what are public officers, see State v. Stanley, 66 N. C. 59; s. c. 8 Am. Rep. 488. An appointment to office was said, in Taylor v. Commonwealth, 3 J. J. Marsh. 401, to be intrinsically an executive act. In a certain sense this is doubtless so, but it would not follow that the legislature could exercise no appointing power, or could confer none on others than the chief executive of the State. Where the constitution contains no negative words to limit the legislative authority in this regard, the legislature in enacting a law must decide for itself what are the suitable, convenient, or necessary agencies for its execution, and the authority of the executive must be limited to taking care that the law is executed by such agencies. See Baltimore v. State, 15 Md. 376.

Where the governor has power to remove an officer for neglect of duty, he is the sole judge whether the duty has been neglected. State v. Doherty, 25 La. Ann. 119; s. c. 13 Am. Rep. 131. The courts

cannot review his action if it is taken after a hearing: State v. Hawkins, 44 Ohio St. 98; but he must afford an opportunity for defence. Dullam v. Willson, 53 Mich. 392. Contra, unless the right is expressly secured to the officer. Donahue v. Will Co., 100 Ill. 94, and cases cited.

If the governor has power to appoint with the consent of Senate, and to remove, he may remove without such consent. Lane v. Com., 103 Pa. St. 481; Harman v. Harwood, 58 Md. 1. See, as to discretionary powers, ante, pp. 54, 55,

notes.

The executive, it has been decided, has power to pardon for contempt of court. State v. Sauvinet, 24 La. Ann. 119; s. c. 13 Am. Rep. 115. A general power to pardon may be exercised before as well as after conviction. Lapeyre v. United States, 17 Wall. 191; Dominick v. Bowdoin, 44 Ga. 357; Grubb v. Bullock, 44 Ga. 379. The President's power to pardon does not extend to the restoration of property which has been judicially forfeited. Knote v. United States, 10 Ct. of Cl. 397, and 95 U. S. 149; Osborn v. United States, 91 U. S. 474. The pardon may be granted by general proclamation. Carlisle v. United States, 16 Wall. 147; Lapeyre v. United States, 17 Wall. 191. The delivery of a pardon to the prison warden, makes it operative. Ex parte Powell, 73 Ala. 517. One receiving a full pardon from the President cannot afterwards be required by law to establish loyalty as a condition to the assertion of legal rights. Carlisle v. United States, 16 Wall. 147. Nor be prosecuted in a civil action for the same acts for which he is pardoned. United States v. McKee, 4 Dill. 128. Pardon removes all disabilities resulting from conviction, and may be granted after sentence executed. State v. Foley, 15 Nev. 64; s. c. 37 Am. Rep. 458; Edwards v. Com., 78 Va. 39; State v. Dodson, 16 S. C. 453. But a mere executive order to discharge from custody is not such a pardon. State v. Kirschner, 23 Mo. App. 349. It does not release from the obligation to pay costs of the prosecution. In re Boyd, 34 Kan. 570; Smith v. State, 6 Lea, 637.

confide to other hands. Whether in those cases where power is given by the constitution to the governor, the legislature have the same authority to make rules for the exercise of the power that they have to make rules to govern the proceedings in the courts, may perhaps be a question. It would seem that this must

1 "In deciding this question [as to the authority of the governor], recurrence must be had to the constitution. That furnishes the only rule by which the court can be governed. That is the charter of the governor's authority. All the powers delegated to him by or in accordance with that instrument, he is entitled to exercise, and no others. The constitution is a limitation upon the powers of the legislative department of the government, but it is to be regarded as a grant of powers to the other departments. Neither the executive nor the judiciary, therefore, can exercise any authority or power except such as is clearly granted by the constitution." Field v. People, 3 Ill. 79, 80.

2 Whether the legislature can constitutionally remit a fine, when the pardoning power is vested in the governor by the constitution, has been made a question; and the cases of Haley v. Clarke, 26 Ala. 439, and People v. Bircham, 12 Cal. 50, are opposed to each other upon the point. If the fine is payable to the State, perhaps the legislature should be considered as having the same right to discharge it that they would have to release any other debtor to the State from his obligation. In Indiana the Supreme Court cannot be invested with power to grant reprieves. Butler v. State, 97 Ind. 373. The Secretary of the Treasury may remit penalties for breach of revenue laws. The Laura, 114 U. S. 411. In Michigan a judge cannot by suspending sentence indefinitely practically pardon a prisoner. People v. Brown, 54 Mich. 15. An act allowing a prisoner to go on parol, but in legal control of prison managers and subject to recall, is valid. State v. Peters, 43 Ohio St. 629. In Morgan v. Buffington, 21 Mo. 549, it was held that the State auditor was not obliged to accept as conclusive the certificate from the Speaker of the House as to the sum due a member of the House for attendance upon it, but that he might lawfully inquire whether the amount had

been actually earned by attendance or not. The legislative rule, therefore, cannot go to the extent of compelling an executive officer to do something else than his duty, under any pretence of regulation. The power to pardon offenders is vested by the several State constitutions in the governor. It is not, however, a power which necessarily inheres in the executive. State v. Dunning, 9 Ind. 20. And several of the State constitutions have provided that it shall be exercised under such regulations as shall be prescribed by law. There are provisions more or less broad to this purport in those of Kansas, Florida, Alabama, Arkansas, Texas, Mississippi, Oregon, Indiana, Iowa, and Virginia. In State v. Dunning, 9 Ind. 20, an act of the legislature requiring the applicant for the remission of a fine or forfeiture to forward to the governor, with his application, the opinion of certain county officers as to the propriety of the remission, was sustained as an act within the power conferred by the constitution upon the legislature to prescribe regulations in these cases. And see Branham v. Lange, 16 Ind. 497. The power to reprieve is not included in the power to pardon. Ex parte Howard, 17 N. H. 545. Contra, Ex parte Fleming, 60 Miss. 910. It has been decided that to give parties who have been convicted and fined the benefit of the insolvent laws is not an exercise of the pardoning power. Er parte Scott, 19 Ohio St. 581. And where the constitution provided that "In all criminal and penal cases, except those of treason and impeachment, [the governor] shall have power to grant pardons after conviction, and remit fines and forfeitures," &c., it was held that this did not preclude the legislature from passing an act of pardon and amnesty for parties liable to prosecution, but not yet convicted. State v. Nichols, 26 Ark. 74; s. c. 7 Am. Rep. 600. An act approved by the governor vacating a conviction operates as a pardon. People v. Stewart, 1 Idaho, 546. Pardons may be made con

depend generally upon the nature of the power, and upon the question whether the constitution, in conferring it, has furnished a sufficient rule for its exercise. Where complete power to pardon is conferred upon the executive, it may be doubted if the legislature can impose restrictions under the name of rules or regulations; but where the governor is made commander-in-chief of the military forces of the State, it is obvious that his authority must be exercised under such proper rules as the legislature may prescribe, because the military forces are themselves under the control of the legislature, and military law is prescribed by that department. There would be this clear limitation upon the power of the legislature to prescribe rules for the executive department; that they must not be such as, under pretence of regulation, divest the executive of, or preclude his exercising, any of his constitutional prerogatives or powers. Those matters which the constitution specifically confides to him the legislature cannot directly or indirectly take from his control. And on the other hand the legislature cannot confer upon him judicial authority; such as the authority to set aside the registration of voters in a municipality; or clothe him with any authority, not executive in its nature, which the legislature itself, under the constitution, is restricted from exercising.2

It may be proper to say here, that the executive, in the proper discharge of his duties under the constitution, is as independent of the courts as he is of the legislature.3

ditional, and forfeited if the condition is
not observed. State v. Smith, 1 Bailey,
283; Lee v. Murphy, 22 Gratt. 789; Re
Ruhl, 5 Sawyer, 186; Kennedy's Case,
135 Mass. 48; Ex parte Marks, 64 Cal.
29. But a pardon obtained by fraud is
held conclusive, though afterward de-
clared null by the governor. Knapp v.
Thomas, 39 Ohio St. 377.

1 State. Staten, 6 Cold. 233.
2 Smith v. Norment, 5 Yerg. 271.

8 It has been a disputed question whether the writ of mandamus will lie to compel the performance of executive duties. In the following cases the power has either been expressly affirmed, or it has been exercised without being questioned. State v. Moffitt, 5 Ohio, 358; State v. Governor, 5 Ohio St. 529; Coltin v. Ellis, 7 Jones (N. C.), 545; Chamberlain v. Sibley, 4 Minn. 309; Magruder v. Gov. ernor. 25 Md. 173; Groome v. Gwinn, 43 Md. 572; Tennessee, &c. R. R. Co. v. Moore, 36 Ala. 371; Middleton v. Lowe,

30 Cal. 596; Harpending v. Haight, 39 Cal. 189; s. c. 2 Am. Rep. 432; Chumasero v. Potts, 2 Mont. 244; Martin v. Ingham, 38 Kan. 641. See Hatch v. Stoneman, 66 Cal. 632. In the following cases the power has been denied: Hawkins v. Governor, 1 Ark. 570; Low v. Towns, 8 Ga. 360; State v. Kirkwood, 14 Iowa, 162; Dennett, Petitioner, 32 Me. 510; People v. Bissell, 19 Ill. 229; Feople v. Yates, 40 Ill. 126; People v. Cullom, 100 Ill. 472; State v. Governor, 25 N. J. 331; Mauran v. Smith, 8 R. I. 192; State v. Warmoth, 22 La. Ann. 1; s. c. 2 Am. Rep. 712; Same v. Same, 24 La. Ann. 351; s. c. 13 Am. Rep. 126; People v. Governor, 29 Mich. 320; s. c. 18 Am. Rep. 89; State v. Governor, 39 Mo. 388; Vicksburg & M. R. R. Co. ". Lowry, 61 Miss. 102. Nor can he be enjoined from acting. Smith v. Myers, 109 Ind. 1; Bates v. Taylor. 87 Tenn. 319 See Lacy v. Martin, 39 Kan. 703; Kilpatrick . Smith, 77 Va 347. In Hartranft's Appeal, 85 Pa. St.

Delegating Legislative Power.

One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.1

But it is not always essential that a legislative act should be a completed statute which must in any event take effect as law, at the time it leaves the hands of the legislative department. A

433; s. c. 27 Am. Rep. 667, it was decided that the governor was not subject to the subpoena of the grand jury. In Minnesota it seems that officers of the executive department are exempt from judicial process even in the case of ministerial duties. Rice v. Austin, 19 Minn. 103; County Treasurer v. Dike, 20 Minn. 363; Western R. R. Co. v. De Graff, 27 Minn. 1; State v. Whitcomb, 28 Minn. 50.

1 "These are the bounds which the trust that is put in them by the society, and the law of God and nature, have set to the legislative power of every Commonwealth, in all forms of govern

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deputies, to be from time to time chosen by themselves.

"Fourthly. The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." Locke on Civil Government, § 142.

That legislative power cannot be delegated, see Thorne v. Cramer, 15 Barb. 112; Bradley v. Baxter, 15 Barb. 122; Barto v. Himrod, 8 N. Y. 483; People v. Stout, 23 Barb. 349; Rice v. Foster, 4 Harr. 479; Santo v. State, 2 Iowa, 165; Geebrick v. State, 5 Iowa, 491; State v. Beneke, 9 Iowa, 203; State v. Weir, 33 Iowa, 134; s. c. 11 Am. Rep. 115; People v. Collins, 3 Mich. 343; Railroad Company v. Commissioners of Clinton County, 1 Ohio St. 77; Parker v. Commonwealth, 6 Pa. St. 507; Commonwealth v. McWilliams, 11 Pa. St. 61; Maize v. State, 4 Ind. 342; Meshmeier v. State, 11 Ind. 482; State v. Parker, 26 Vt. 357; State v. Swisher, 17 Tex. 441; State v. Copeland, 3 R. I. 33; State v. Wilcox, 45 Mo. 458; Commonwealth v. Locke, 72 Pa. St. 491; Ex parte Wall, 48 Cal. 279; Willis v. Owen, 43 Tex. 41; Farnsworth Co. v. Lisbon, 62 Me. 451; Brewer Brick Co. v. Brewer, 62 Me. 62; State v. Hudson Co. Com'rs, 37 N. J. 12; Auditor r. Holland, 14 Bush, 147; State v. Simons, 32 Minn. 540.

statute may be conditional, and its taking effect may be made to depend upon some subsequent event.1 Affirmative legislation may in some cases be adopted, of which the parties interested are at liberty to avail themselves or not at their option. A private act of incorporation cannot be forced upon the corporators; they may refuse the franchise if they so choose.2 In these cases the legislative act is regarded as complete when it has passed through the constitutional formalities necessary to perfected legislation, notwithstanding its actually going into operation as law may depend upon its subsequent acceptance. We have elsewhere spoken of municipal corporations, and of the powers of legisla tion which may be and commonly are bestowed upon them, and the bestowal of which is not to be considered as trenching upon the maxim that legislative power must not be delegated, since that maxim is to be understood in the light of the immemorial practice of this country and of England, which has always recognized the propriety and policy of vesting in the municipal organizations certain powers of local regulation, in respect to which the parties immediately interested may fairly be supposed more competent to judge of their needs than any central authority. As municipal organizations are mere auxiliaries of the State government in the important business of municipal rule, the legis lature may create them at will from its own views of propriety or necessity, and without consulting the parties interested; and it also possesses the like power to abolish them, without stopping to inquire what may be the desire of the corporators on that subject.3

1 Brig Aurora v. United States, 7 Cranch, 382; Bull v. Read, 13 Gratt. 78; State v. Parker, 26 Vt. 357; Peck v. Weddell, 17 Ohio St. 271; State v. Kirkley, 29 Md. 85; Walton v. Greenwood, 60 Me. 356; Baltimore v. Clunet, 23 Md. 449. It is not a delegation of legislative power to make the repeal of a charter depend upon the failure of the corporation to make up a deficiency which is to be ascertained and determined by a tribunal provided by the repealing act. Lothrop v. Stedman, 42 Conn. 583. See Crease v. Babcock, 23 Pick. 334, 344. Nor to refer the question of extending municipal boundaries to a court where issues may be formed and disputed facts tried. Burlington v. Leebrick, 43 Iowa, 252; Wahoo v. Dickinson, 36 N. W. Rep. 813 (Neb.). It is competent to make an act take effect on condition that those apply

A

ing for it shall erect a station at a place named. State v. New Haven, &c. Co., 43 Conn. 351. Railroad Commissioners may be empowered to fix rates. Georgia R. R. &c. Co. v. Smith, 70 Ga. 694. commission may be empowered to select a site for a public building. People v. Dunn, 22 Pac. Rep. 140 (Cal.); Terr. v. Scott, 3 Dak. 357. An act taxing corporations of another State doing business within the State as its corporations are taxed in such other State is not an abandonment of legislative functions. The law is complete; its operation, contingent. Home Ins. Co. v. Swigert, 104 Ill. 653; Phoenix Ins. Co. v. Welch, 29 Kan. 672. Contra, Clark v. Mobile, 67 Ala. 217.

2 Angell and Ames on Corp. § 81.

3 City of Paterson v. Society, &c., 24 N. J. 385; Cheany v. Hooser, 9 B. Monr. 330; Berlin v. Gorham, 34 N. H. 266;

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