Government in the United States, National, State and Local

Power over State Officers.– He generally has a certain power of oversight over the other principal state officers, but little power of control over them. There is a tendency, however, to enlarge his power in this respect.14 Several constitutions, for example, empower him to require reports from the principal officers, and in some states he is given the right to examine into the condition of the treasurer's and comptroller's offices and under certain conditions to remove the incumbent from office. In a very few states, also, the governor may remove sheriffs or mayors for negligence or abuse of power in the enforcement of the state laws.

Power of Appointment.– The governor's principal executive power consists of the right to appoint certain officers and boards, and sometimes to remove them, subject to certain restrictions. In the early days of our history, many of the state officers were chosen by the legislature, but with the growth of the democratic spirit the selection of these officials was taken from the legislature and they were made elective by the people. In a very few states the legislature still retains a considerable power of appointment. In most states, however, the governor appoints all officers not elected by the people. In a few states he appoints the judges; in half a dozen or more he appoints several of the principal state officers, such as the secretary of state and the attorney-general, and in most of them he appoints some of the important administrative officers and the members of various boards and commissions. In New York, for example, he appoints the superintendent of insurance and banking, the members of the two public service commissions, the superintendent of public works, the commissioner of agriculture, the commissioner of health, and other important officials. In some states he appoints the railroad commissioners, the trustees of public institutions, members of the state board of health, the members of various examining boards, pure food commissioners, factory inspectors, game commissioners, mining inspectors, and so on. As compared with the President of the United States, his power of appointment, however, is very small. Moreover, his power to appoint is usually limited by the condition that his nominations must be approved by the senate or the executive council where there is such a body.

Power of Removal.– The governor can usually remove the officials whom he appoints, but rarely any others. But the power of removal must exist somewhere, because it would be intolerable to have to retain in the public service men who are dishonest, incapable, or otherwise unfit. The other methods of removal provided are impeachment, removal by resolution of the legislature, and occasionally removal by the courts. Removal by impeachment takes place by the preferment of a charge by the lower house of the legislature and trial by the upper house. This method, however, is cumbersome and is rarely resorted to – never in the case of minor officials. Removal by resolution of the legislature is sometimes employed for getting rid of unfit or corrupt judges. In several states, the method of recall has been instituted, by which, on petition of 25 per cent of the voters, the officer must submit his case to the voters, and if a majority of them pronounce in favor of his recall, he must retire.

The Military Powers of the Governor.– In every state the governor is commander in chief of the military forces of the state and also of the naval forces where there are any – a power which means little in times of peace. Whenever there are riots or serious disturbances, however, this power becomes important. When the disturbance is too great to be suppressed by the local authorities, the governor may order out a portion of the militia and may, if he elects, take charge of it himself. There are few states where the governor has not at some time or another been compelled to make use of this power. Mobs sometimes break into jails and take out prisoners and lynch them; and sometimes strike riots occur in mining or manufacturing communities, in which cases the governor may be called upon to send troops to the scene of the disturbance and keep them there until quiet and order have been restored.

Power to Suspend the Writ of Habeas Corpus.– A usual part of the governor's military power is the right to suspend the writ of habeas corpus in communities where great disorders prevail, that is, to suspend the power of the courts to release prisoners charged with violations of the law, thus leaving unhampered the power of the military authorities to restrain persons they may imprison. This power, however, is one which might be grossly abused; therefore many state constitutions forbid the suspension of the writ except under extraordinary conditions, and a few, indeed, permit it to be suspended only by the legislature.

The Military Forces of the State consist usually of a number of regiments of citizen soldiers, who are organized, uniformed, and officered after the manner of the regular army of the United States, who attend an annual encampment for purposes of drill and practice, and who must always be ready to respond to the call of the governor. At the head of the state militia is an officer called the adjutant general, through whom the military orders of the government are issued and carried out. The governor also has a military staff which accompanies him on occasions of ceremony such as the inauguration of the President of the United States, grand army reviews, and the like.

The Pardoning Power.– In every state the governor is vested with the power of pardoning offenders against the laws of the state, but in most states the exercise of the power is subject to restrictions. The purpose of vesting this power in the governor is to make it possible to correct the errors of courts and juries, as where subsequent to the conviction evidence is brought to light showing that the person convicted is innocent, and has been wrongfully convicted, or where it becomes evident before the full penalty has been paid that the offender has been sufficiently punished and should be released.

In many states boards of pardon have been provided for sharing with the governor the responsibility for the exercise of this important prerogative.15 These boards are of two kinds: first, those whose powers are limited to the hearing of applications for pardons and the making of recommendations to the governor, who is not bound by their advice; and second, those whose approval is necessary for the validity of any pardon granted by him. Convictions for treason and in impeachment cases are frequently excepted from the list of cases in which the governor may grant pardons, though in the case of treason he is sometimes given the power to suspend the execution of the sentence to await the action of the legislature. In a number of states notice of an application for a pardon must be published in the community where the applicant was convicted, in order that the people of the community who have been injured by his crime may have an opportunity to protest against the granting of a pardon to him. Sometimes also the approval of the presiding judge of the court in which the criminal was convicted is necessary before a pardon may be granted. It is usual to require the governor to make a report to the legislature at each session of all pardons granted, and at the same time give the reason in each case why a pardon was issued.

Generally with the right of pardon is included the power to grant reprieves, that is, stays of execution; commutations, that is, the substitution of a lesser punishment in the place of the one imposed; and remission of fines and forfeitures. The right also usually includes the power of amnesty or the power of granting by proclamation pardons to large numbers of persons, as in the case of uprisings or insurrections against the laws and authority of the state. A pardon may be absolute or conditional; in the first case, it is granted without restriction; in the second case, it is valid only on certain conditions, as where the offender is required to lead an upright life or where he is required to leave the state. Generally the governor of the state, unlike the President of the United States, has no power to grant a pardon to an individual offender before he has been convicted.

State Boards and Commissions.– One of the remarkable political tendencies of recent years has been the multiplication of boards and commissions to aid in the government of the states. Every state now has a number of such boards, and in some of the populous commonwealths such as New York and Massachusetts there are upwards of a hundred of them. Hardly a legislative session passes that does not create one or two commissions for some purpose or other. These boards or commissions fall roughly into five classes, as follows:

First, many of these boards are of an industrial character, such as boards of agriculture, food and dairy commissions, live stock, fish, and mining commissions, and the like. In general their purpose is to promote the agricultural, mining, and industrial interests, generally, of the state, through the collection and dissemination of information concerning the best method of conducting those industries.

A second class of boards are of a more distinctly scientific and research character, such as boards of health, bureaus of labor and statistics, geological commissions, forestry boards, and the like. Although some of these, like the board of health, are charged with the execution of certain laws, the general purpose of all of them is scientific research and the collection of data.

A third class of boards are those charged primarily with the supervision of certain businesses or industries affecting the public interest, and with the enforcement of the laws relating to such businesses. Such are the railroad commissions, commissions of insurance, public utility commissions, commissions of inland fisheries, and the like. In some instances these commissions not only have power to prescribe rules for businesses affected with a public interest, but also to fix the rates which they may charge.

A fourth group of commissions or boards are those charged with examining applicants for admission to practice certain professions or trades such as medicine, dentistry, pharmacy, architecture, and plumbing. The purpose of requiring such examinations is to secure a standard of efficiency, and to protect society against quacks.

A fifth class includes those which have supervision over the public institutions of the state, educational, penal, reformatory, charitable, etc. In recent years there has been a marked tendency to consolidate boards of this class, by putting all the charitable and penal institutions under the control of a single board, or under two boards, one for charitable and the other for penal institutions. In a few states all the higher educational institutions are under one board.

Members of all these classes of boards are usually appointed by the governor, though occasionally a board is made up of members chosen by popular election.

State Administrative Reorganization.– In 1917 a more systematic organization of state administration was established in Illinois. Nine main departments were established, each under a director, in place of a large number of former offices, boards, and commissions. Similar reorganizations have since taken place in a number of other states.

The State Civil Service System.– The number of persons necessary to carry on the state government in its various branches is very large. In order to provide a method by which subordinate employees can be selected with regard to their fitness rather than with reference to their party services, New York, Massachusetts, Illinois, Wisconsin, and other states have enacted civil service laws establishing the merit system of appointment.

The recent civil service laws provide, in general, for the classification of all positions other than those filled by popular election, by executive appointment, or by legislative choice, and for appointment to these positions only after an examination of the candidates. Generally, those who pass the examination successfully are placed on an eligible list in the order of the grades which they receive, and when an office is to be filled, the appointing officer is required to make his choice from the three candidates highest on the list. For the filling of certain positions requiring technical skill, special non-competitive examinations are given and less consideration is given to academic qualifications. Certain positions are not placed under the civil service rules, and the appointing authority is allowed to make his choice without the necessity of examinations. Such are the positions of private secretary, chief clerk, and other employees who occupy a confidential relation to the heads of departments.

The chief advantage of the examination system of filling civil service positions is that it eliminates the evils of the spoils system and places the public service on a merit basis. It must be admitted, however, that the system is not perfect, because fitness for the performance of administrative duties cannot always be determined by examinations. Nevertheless, it is much better than the old method known as the "spoils system," under which appointments were made for party services; and it will in time, no doubt, be adopted in all the states.

References.– Beard, American Government and Politics, ch. xxiv. Bradford, Lessons of Popular Government, vol. ii, ch. 32. Bryce, The American Commonwealth (abridged edition), ch. xl. Dealey, Our State Constitutions, ch. v. Finley and Sanderson, The American Executive and Executive Methods, chs. iii, vi, vii, viii, ix. Hart, Actual Government, ch. viii.

Documentary and Illustrative Material.– 1. The legislative manual of the state. 2. Copies of the governor's inaugural address, messages to the legislature, veto messages, public proclamations, etc. 3. Copy of the revised statutes (chapter on the executive department). 4. Reports of the state officers to the governor.

Research Questions

1. What is the term of the governor of your state? the salary? Do you think the salary is adequate? What are the governor's qualifications? Compare the provisions of the present constitution with those of previous constitutions in regard to these matters. Is the governor eligible to succeed himself? Is it customary to reëlect the governor in your state? What, in your opinion, are the relative merits of a one-year term and a four-year term for the governor?

2. Suppose a question should arise as to who was really elected governor, what authority would determine the matter? Are there any circumstances under which the legislature may elect the governor? Is the governor of your state required to vacate his office immediately at the expiration of his term, or is he allowed to hold over until his successor has qualified?

3. Make a list of the names of the men who have held the office of governor of your state, indicating the years they served and the political parties to which they belonged. (This information can be obtained from the blue book or legislative manual or from some history of the state.)

4. Does the constitution of your state provide for a lieutenant governor? In general, what has been the type of men elected to this office?

5. Make a list (from the blue book) of the offices in your state that are filled by appointment by the governor. Do you think the appointive power of the governor ought to be enlarged? Mention some offices now filled by popular election which, in your opinion, should be filled by executive appointment.

6. May the governor of your state remove officers appointed by him? If so, under what conditions? May he remove any officers elected by the people? If he finds that the treasurer of the state has misappropriated a large amount of state money, can he remove him? May the governor of the state remove any local officers? Thus if the sheriff should allow a prisoner in his custody to be lynched by a mob or the mayor of a city should refuse to execute a state prohibition law, may the governor suspend or remove such officers for neglect of duty? If not, are there any means of punishing the negligent officer?

7. What were the principal recommendations in the message of the governor to the legislature at its last session?

8. May the governor of your state veto particular items in appropriation bills? May he sign a bill after the adjournment of the legislature? May he veto a bill upon grounds of public policy as well as upon grounds of unconstitutionality? How many bills were vetoed by the governor at the last session?

9. Is there a civil service law in your state? If so, to what offices and employments does it apply? How are appointments made under the law?

10. For what purposes and under what circumstances may the governor use the military forces in your state? Have there been any instances recently in which the militia was ordered out? What is meant by the governor's "staff"? Find out from the blue book how many regiments of the national guard there are in your state.

11. Are there any restrictions on the power of the governor to grant pardons? May he also grant reprieves and commutations? May he remit fines and forfeitures? May he grant amnesties? Is there a pardon board in your state? If so, how is it constituted and what are its powers? How many pardons have been granted by the present governor?

12. May the courts control the governor by issuing writs to compel him to do his duty or to restrain him from doing certain things? May he be arrested for wrongdoing? May he be compelled to give testimony in the courts? If not, why not? Is there any way by which an unworthy governor may be put out of office before the expiration of his term? Describe the procedure by which this is done.

CHAPTER VI

THE STATE JUDICIARY

Function of the Courts.– The legislature enacts the laws, the executive officers enforce them, the courts interpret their meaning and apply them to particular cases. The courts are also the instrumentalities through which the rights guaranteed us by the constitution and the laws are enforced. If your neighbor owes you a debt and refuses to pay, if you make a contract with some one and he refuses to perform the stipulations, if some one injures you in your person or property, in these and countless other instances you must look to the courts for protection or redress. They are the agencies for settling disputes among men, for enforcing contracts, for trying and punishing violations of the law, and for determining what our rights are when they are drawn in dispute.

Grades of Courts.– (1) Justice of the Peace.– At the bottom of the judicial system stand the courts of the justices of the peace, which have jurisdiction of civil cases involving small amounts, usually less than $150, and of petty offenses against the laws. On a level with these courts are certain municipal courts in the cities. The justice of the peace is a magistrate of ancient origin, and in reality his court is important since it is to this court that large numbers of persons resort for the settlement of their disputes. Too little attention is given to the choice of the men who fill this important office, and the result is that the court of the justice of the peace has long been and still is the weakest part of our judicial system. Generally there are several justices in every town or township. Usually they are elected by the people, though sometimes they are appointed. One of the sources of the evils connected with the system is that they are paid fees rather than salaries. This system of compensation often leads them to solicit business and sometimes to divide their fees with lawyers who bring cases to them for trial. They not only try petty civil and criminal cases, but they have the power to conduct preliminary examinations into more serious offenses in order to determine whether there is ground for holding the accused for trial. In case the justice thinks the evidence warrants the trial of the offender, he "binds" him over to await the action of the grand jury.

(2) County Courts.– Next above the court of the justice of the peace is, in some states, the county court, so called because its territorial jurisdiction embraces the entire county. This court has jurisdiction of civil cases involving large amounts and of more serious criminal cases. It also has the right to hear appeals from the justices of the peace.

(3) Circuit Courts.– Still higher in the judicial organization, in most states, are the courts whose territorial jurisdiction embraces a larger area of the state – usually a group of counties – and which are empowered to try any civil or criminal case without reference to the amount in controversy or the character of the offense. They are generally styled circuit courts, because the judge usually travels from county to county holding court in each county in the district or circuit. Sometimes, however, they are called district or superior courts, and in a few states "supreme" courts.

(4) The Supreme Court.– Finally, at the top of the judicial hierarchy is the supreme court, or court of appeals, as it is sometimes called. Unlike the other courts below, its jurisdiction embraces the whole state, and the judges are elected or appointed usually from the state at large. Unlike the other courts, moreover, instead of being held by a single judge, it is held by a bench of judges, the number ranging from three to nine in the different states. It has original jurisdiction in certain cases, but its most important function is that of hearing appeals from the decisions of the lower courts, and of deciding upon the constitutionality of the laws. In cases appealed to it from the lower courts, it has the final word of authority except where a federal question is involved, in which case an appeal may be taken to the United States Supreme Court.

Courts of a Special Character.– The justice's, circuit, and supreme courts are found in all the states, though sometimes designated by different names. In addition to these, however, we sometimes find other courts of a more or less special character.

Probate Courts.– Thus in many states there are separate probate courts for the settlement of the estates of deceased persons, for dealing with matters relating to wills and inheritances, and sometimes with matters affecting orphans and minors. They are occasionally called surrogate's or orphans' courts. In many states, however, there are no separate probate courts, the probate business being taken care of by the county court. In certain other states probate courts are separately provided only for the more populous counties.

Juvenile Courts.– Frequently in the more populous cities there are also juvenile courts for the trial of youthful offenders.

Equity Courts.– In a few states the distinction between law and equity is still maintained, and equity jurisdiction is intrusted to a distinct class of courts. Equity had its origin in the practice of the King of England in early times in granting relief to suitors who, owing to the deficiencies of the common law, could not obtain relief through the courts of law. In time all such petitions came to be addressed to an officer who stood very close to the king and who was called the chancellor. Out of this office there were ultimately evolved the chancery courts which administered justice, not according to the law, but according to a less technical body of rules called equity. Thus there came to be two bodies of rules according to which justice was administered, and two classes of courts through which it was done. The jurisdiction of equity courts included such matters as trusts, accounts, fraud, mistake or accident, and the like. Equity could also prevent wrongs, while law could only punish them.16 Thus a court of equity could command a person to do something for the benefit of an injured person, or restrain him from committing an injury, while a court of law could only award him damages after the injury had been done – a remedy often worthless or inadequate. The English system of equity, like the common law, was transplanted to America, and both are still in force here except in so far as they have been modified by legislative acts. England, however, abolished the separate system of equity courts in 1873, and left the law courts to administer equity wherever it was applicable. Likewise, in the United States, separate equity courts have been done away with in all except five states, leaving the same courts to administer both law and equity.