officer, subject to his control and direction, but as the officer of the Constitution, bound to the performance of such duties only as have been assigned by that instrument and the law.

The injunction, that the Governor shall see that the laws are The duty of seeing to the faithfully executed, it is also urged, gives him the control, and execution of consequently the power of removal of the officers of the executive the laws. department. This interference is not justified by the premises. It has neither the sanction of authority nor the practice of other State executives, both of which are opposed to it. The practice of the President, as I will show, is founded upon other grounds, and his power does not extend to the removal of any officers whose offices are created by the Constitution, and whose duties are regulated by law. The manifest intention of the Constitution, and the authority cited, in the absence of all precedent and principle militating against it, would seem to be conclusive against the executive claim of power, under this provision, to direct the Secretary how he shall execute the duties assigned him by law; and if he has no power to direct him how he shall execute his duties, he certainly has no power to dismiss him for not conforming to his directions.

...

The Constitution of the United States and of this State contain State and federal the same declarations that the executive powers of the Government executives shall be vested in the respective executives; and in the Constitu- compared. tion of the first, this declaration is carried out by its other provisions. It creates no other officers in whom a portion of this power is vested or required to be vested by law. Those officers whom the President may remove are created by law, as aids and helps to him in the performance of his duties. But the declaration in our Constitution, that the executive power of the government shall be vested in the Governor, is to be understood in a much more limited sense; inasmuch as, by its other provisions, it is greatly circumscribed and narrowed down. Unlike the Constitution of the United States, ours has created other executive officers, in whom a portion of this power is required to be vested by law, not to be assigned by the Governor.

The governor not re

the work of

the secre

tary.

The Governor is, neither in fact nor in theory, personally nor sponsible for politically responsible for the official conduct of the Secretary, or any other officer. He cannot assign him the performance of a single duty or control him in the performance of those assigned by law. He does not move in the executive circle, as has been said, but in that marked out by the Constitution and by the law, separate, distinct from, and independent of, that of the Governor. He looks to the law for his authorities and duties, and not to the Governor; and to that, and to that alone, he is responsible for their performance.

The limited scope of the governor's executive

power.

Multiplica

tion of exec

utive duties.

172. The Question of Centralization in Administration

In his inaugural address of 1909, Governor Hughes, of New York, explained how the governor, charged with the faithful execution of the laws, was handicapped by the division of responsibility in the administration and by the decentralization of authority.

While the Governor represents the highest executive power in the State, there is frequently observed a popular misapprehension as to its scope. There is a wide domain of executive or administrative action over which he has no control, or slight control. There are several elected State officers, not accountable to the Governor, who exercise within their prescribed spheres most important executive powers. To the Comptroller and State Treasurer are confided administrative powers with respect to financial matters. The Attorney-General is charged with duties appropriate to the enforcement of public rights through legal machinery. The State Engineer and Surveyor has important powers with regard to the canal improvement and the only member of the Canal Board accountable to the Governor is the Superintendent of Public Works who has a limited authority. The Commissioners of the Land Office are independent of the Governor. The multiplication of executive duties incident to the vast and necessary increase in State activities has resulted in the creation of a large number of departments exercising administrative powers

of first consequence to the people. The Governor has the power of appointment, but in most cases the concurrence of the Senate is necessary. The terms of these officers are generally longer than the Governor's term. And in their creation the Legislature with few exceptions has reserved final administrative control to the Senate in making the heads of departments, to whose appointment the Senate's consent is necessary, removable only by it.

Our system is therefore widely different from that of the Federal Division of responsibility government. The President, through his Cabinet, has direct gives no recontrol of the great executive departments, and administrative sponsibility. officers though appointed with the concurrence of the Senate are responsible to the President and are removable by him. Yet it can hardly be said that there is more reason to fear centralization in the State than in the Nation. The practice of withdrawing appointive administrative officers from direct responsibility to the executive head of the State, who is directly accountable to the people, is of doubtful wisdom. A division of accountability which practically results in no real accountability to any one lessens the proper stimulus to efficiency.

tion does not endanger

liberty.

Responsibility to the people is the essential safeguard of free Centralizainstitutions. This does not mean the election of all or even of a great number of administrative officers, for undue burdens upon the electoral machinery would defeat its purpose. But it would seem to imply that distribution of administrative powers should have as its correlative the proper centralization of responsibility. . It may fairly be said to require that the executive authority, exercising the appointing power under whatever check, should be responsible for administration and should have the control upon which such responsibility must rest.

The gov

ernor and

The Governor is to "take care that the laws are faithfully executed." But with respect to this duty there are further limita- local officers. tions than those involved in his relation to appointive officers. It is part of our system of government that the laws in large measure are enforced through officers locally chosen. To the Governor in certain cases is given the right to remove local officers, but this

The way in which state officers are elected.

is only upon charges properly made and sustained after hearing. While the Governor's exercise of this jurisdiction is not subject to review, he in his province, like the highest court of the State in its province, must not act capriciously or arbitrarily, but in accordance with the rules and principles governing his authority. The Governor is as much bound to support our constitutional system of local government so far as it provides for the local choice of officers, as he is to remove officers clearly proved to be guilty of serious neglect or misconduct. The Governor has no right to use his power of removal to assert his preferences or to attempt even temporarily to impose his will upon the community which has chosen its officer. The appeal to him is the necessary check to secure responsible government and must be justified by proof of such dereliction as may be sufficient to make removal of the elected officer consistent with our fundamental principles of local self-government.

173. The Method of Selecting State Officers *

Although recent tendencies in state constitutional development would seem to indicate that the American people had settled upon popular choice as the best method of selecting the more important state officials, the question cannot be said to have been decided satisfactorily. Popular election and appointment by the governor were discussed at length in the Kentucky constitutional convention of 1890.

MR. MCHENRY. I do not believe, after the experience we. have had in Kentucky in regard to our late Treasurer, that the people care to elect a Treasurer again. I think the money is safer in the hands of an appointee of the Governor. The people of Kentucky elect a man; they never see him. Tate [a defaulting treasurer] lived in Frankfort here, and they never saw him in my county where we have five thousand voters. We voted for him nine consecutive times. The people took him upon trust, because he was nominated by the political party to which a majority of the people belonged. They believed him to be honest and elected

him because he was the nominee of their party; and yet the result was that he was a defaulter finally, and was a rascal, I presume, from the time he was first elected. I mean to say we are really not qualified to select a man for Treasurer of the State. The majority of the people do not know and cannot know of the qualifications of the man who is running for office. In my county there were not fifty men who knew Tate. He never put his foot in the county, and there were not fifty men in the county who had ever seen him. The remedy I propose is that we make the Governor of the State morally responsible for the money. I do not mean to make him legally responsible, but only morally. We have never made a mistake in electing a Governor of Kentucky. We have always elected men of high character and integrity, and if such a man is to be held morally responsible for the finances, he will see to it that the treasury is honestly managed. By this we give the Governor such power that he can turn this Treasurer out whenever he sees proper to do so. My amendment goes to that extent that he shall hold his office simply during the pleasure of the Governor, and if the Governor finds out, not absolutely or certainly, or to such an extent as would authorize an impeachment, but if the Governor understands that the Treasurer of the State is dealing in margins, or buying stocks or bonds, or investing in booms, then I take it for granted that the Governor, whose integrity and high character are involved, would change the State Treasurer.

I do not mean to say that the people elect dishonest men, but we are more apt to put a rascal in the Treasury Department, where he goes through a political convention log-rolling votes from one end of the State when he lives in another. Then, when by his shrewdness and astuteness he carries the convention, he is elected by the people. He will be elected, however dishonest he is, for the people do not know it. We have this sad experience in Kentucky and in other states, and I do say that if the gentlemen had debated this before their constituents when they were candidates for the position they now hold, I think they would have found that a majority of the people of Kentucky are in favor of the position

The voters scrutinize the minor

do not

state offices