How popular will is not people and would defeat the will of the real majority of the people themselves. Yet the legislature would have no choice. They would be bound in conscience and in practice, if not by the words of the ascertained. statute, bound in a manner and forced by a pressure from which there would be no escape, to obey the mandate no matter how obtained, and no man could tell in what form of law the mandate would be finally embodied. The chances are that the law under the pressure of the mandate would be the work of extremists and contrary to the wishes even of those who voted "yes' on the abstract proposition. There could be no greater travesty on popular government than a system which would permit a majority of a minority of the voters to force upon the state any law they chose. It would give an enormous opportunity to the power of money skilfully and corruptly used. It would impair the rights of the people and leave those of the individual naked and defenseless. The result would not be an expression of the popular will, but a mechanical parody of that will so gross that even its authors would gaze upon it with amazement and disgust. . . . The measure destroys representative Experience has shown us the justice of their opinions. This bill invites us to cast aside all that they did, break down every method of lawmaking which they established, and reject that government. principle which they most valued, the principle of representation. I say, reject the principle of representation, because when you impair it and take from your representatives all power and all responsibility, the principle of representation falls. No men invested with the power to make laws, but relieved of all responsibility for the laws they make, are to be trusted. We may change many things, we may abolish laws and put new ones in their place, but we can not alter the fundamental principles of our government and expect the fabric to stand. If we undermine and overthrow the bulwarks of ordered liberty and individual freedom, the citadel itself will not long survive. Any measure which breaks down free representative government, advances us proportionately on the road to executive government, to the rule of one man. This Public Opinion Bill will reduce the representative on one question after another to the level of a machine. As the representative principle sinks, the executive power rises. I believe in maintaining both and maiming neither. I am opposed to crippling and extinguishing representative government. I love freedom and hate tyranny, and anything which depresses the one and opens the road to the other will meet with resistance from me. It is for this reason that I oppose this bill. ! CHAPTER XXIV The gov ernor's in the Constitution of the state. THE STATE EXECUTIVE DEPARTMENT 171. The Legal Position of the Governor THE place of the governor in the state administrative system and his relations to the other officers in the executive department are described by Chief Justice Wilson, of Illinois, in a noteworthy decision dealing with the governor's power to remove the secretary of state: The case then resolves itself into the single question, Does the power found Governor possess the constitutional power of removing from office the Secretary of State, and appointing a successor, at will? In deciding this question, 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. As the right of the Governor to remove the Secretary must be granted by the Constitution, or it does not exist, it therefore devolves upon those who advocate the claim of the executive power to show the grant upon which it is founded; to point out the clause and section of the Constitution from which it is derived. How has this been done? Has any express grant been produced? No; it is not pretended that any express grant is to be found in the Constitution. But it is contended that the power in question is granted to the Governor by implication. That from the grant of other powers, this one of removing the Secretary from office is necessarily implied, as the means of rendering those grants available; and the following clauses of the Constitution are relied on in support of this position. . . . tion of the general power. The next grant of power relied on is, that "The executive power Interpretaof the State shall be vested in a Governor." This clause is treated by the court below as conferring numerous and ample powers upon executive the Governor. All that are usually denominated executive powers, by theoretical writers, are supposed to be included in this grant to the Governor, except such as are expressly conferred upon other departments. This, I think, I shall be able to show is a mistaken view of the subject. This clause, like the preceding ones, is a declaration of a general rule; and the same remarks are applicable to this, as a grant of power, that have been made in reference to them. It confers no specific power. What would have been its operation, if the Constitution had contained no specific enumeration of executive powers, is a very different question from that now presented, and might have admitted of a different answer. But it has been settled by the Supreme Court of the United States that an enumeration of the powers operates as a limitation and restriction of a general grant. The authority of the Governor to require information from the officers in the executive department, relative to the business of their respective offices, and the obligation of the Secretary to keep a register of his official acts, are relied upon, in connection with the injunction that the Governor shall see that the laws are faithfully executed, as implying an authority in him to dismiss the Secretary. If the right to require information from an officer implied the right to remove him, the Legislature would have the power not only to remove the Governor, but a power, concurrent with him, to remove all the officers in the executive department; for the Legislature has, under its general powers, authority to call on all of them for official information. But it is argued from the Secretary's obligation to register the official acts of the Governor, and, when required, to give him. The power to require information: of the gov ernor and other high state offi cials. The relation official information, that such an official intercourse of confidence must exist as to imply an authority in the Governor to remove the Secretary. The President may require the opinion of the heads of departments, their views, counsel, and advice, relative to the legality or policy of measures. In the exercise of this right he calls on one or more, according to the difficulty or importance of the subject; but whether the consultation is separate, or in cabinet council, it is always private and confidential, and is so regarded, not only by the officers but by the law also; for none of the officers or their clerks (who are sworn to secrecy) can be required to give testimony of transactions, or matters of a confidential character. But neither in contemplation of law, nor in fact, is there any official confidential intercourse between the Governor and the Secretary, or other officers of the executive departments. He may call upon them for information relative to matters connected with their offices. He may, for example, enquire of the Treasurer, of the Auditor, what amount of warrants are outstanding, and of the Secretary, what are the kind and number of commissions to which he has put the State seal; or whether the laws are all distributed, etc. These are all public matters, in reference to which there can be neither secrecy nor confidence and it is only in relation to such that the Governor can require information. He has no right to the opinion or advice of the Secretary, as to the legality or propriety of measures of any kind; and as all the duties of the Secretary are prescribed by law, and as it is only in relation to them that he can be required to give information, there cannot, therefore, in the nature of things, be any implication of confidence from communications relative to a public law or to matters of fact recorded for public information. The secretary an independent officer. The reasoning in favor of the Governor's authority to remove the Secretary, because of the latter's duty to register his official acts, can have no application to the Secretary of State, an officer whose office is created, and whose duty to keep a register of the acts of the Governor is prescribed by the Constitution. In the performance of this, as of other duties, he does not act as the Governor's |