officially communicated to them, when, in their own judgment, the disclosure would on public grounds be inexpedient.1 While Burr's trial was progressing, President Jefferson was summoned by subpoena to appear and bring papers with him. He refused to do either.2

Neither the

The courts cannot control executive discretion. legislature nor the courts can compel or enjoin the governor to convene the legislature on extraordinary occasions.3 Nor can they control the executive in the exercise of his power to call out the militia in certain exigencies. The President is the exclusive and final judge as to whether such exigencies have arisen.4

2

1 Greenleaf on Evidence, sec. 251; 1 Wharton's Law of Evidence, sec. 600. 3 Burr's Trial, 37.

3 Whitman vs. R. R. Co., 2 Harr. 514.

Martin vs. Mott, 12 Wheat. 9. See People vs. Parker, 3 Neb. 409.

CHAPTER XX

THE POWER OF REMOVAL FOR CAUSE

THE power to remove for cause a commonwealth officer has been regarded in some jurisdictions as a judicial act, and therefore incapable of being vested by the legislature in any officer or body other than the courts." But it is almost universally regarded as an administrative power, and thus capable of being conferred by the legislature upon the executive or upon administrative officers, or upon the courts.3 The removal of an officer for neglect of duty involves the exercise of administrative discretion. The grant of power to remove an officer for a certain cause implies authority to judge of the existence of the cause, and this power when vested exclusively in the executive's discretion cannot be controlled in its exercise by any other branch of the government. To institute a judicial inquiry into the cause for which the governor removed an officer, or into the propriety of his action, would be a direct attack upon the independence of the executive and a usurpation of power subversive of the constitution.*

Although the general view is that the courts cannot review

1 See State vs. Pritchard, 36 N. J. L. 101; Dullam vs. Wilson, 53 Mich. 392. See also Page vs. Hardin, 8 B. Mon. 648; Honey vs. Graham, 39 Texas, 1.

* Donahue vs. Wells County, 100 Ill. 94; Stern vs. People, 102 Ill. 540; State vs. Hawkins, 44 Ohio St. 98.

State vs. Prince, 45 Wis. 610; Keenan vs. Perry, 24 Tex. 253; Ex parte .Wiley, 54 Ala. 226; State vs. Frazier, 48 Ga. 137; Donahue vs. County of Hill, 100 Ill. 94; Patton vs. Vaughan, 39 Ark. 211. See Ex parte Hennen, 13 Pet.. 230.

State vs. Doherty, 25 La. Ann. 119; State vs. Hawkins, 44 Ohio St. 98: State vs. Lamantia, 33 La. Ann. 446.

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the governor's action if it is taken after a hearing,' yet the party to be removed must have his common law right to be heard, and an opportunity of defence. In Illinois alone it is held that he need not have such opportunities unless the right to them is expressly secured.3

Where the governor has power to remove a public officer upon charges and notice thereof, his act is final, and cannot be reviewed by an information in the nature of a quo warranto against the person appointed in the place of the officer so removed.+

But the question whether the governor has the power in a particular case, or whether he has exercised it in a lawful manner, may become a question for the courts to decide, whenever a right in litigation depends upon such decision.5

It has been asserted that a grant to the governor of the power of removal for cause includes the power of temporary suspension by him, pending the trial of the officer for malfeasance or misfeasance in office."

As to whether the grant of a like power to an administrative officer or body would comprise the power of suspension, the decisions conflict.?

1 State vs. Hawkins, 44 Ohio St. 98.

2 Dullam vs. Wilson, 53 Mich. 392. See Mechem, Public Offices and Officers, sec. 454. People vs. Fire Com'rs, 72 N. Y. 445.

3 Donahue vs. Will Co., 100 Ill. 94. 5 Page vs. Hardin, 8 B. Mon. 648.

* State vs. Hawkins, 44 Ohio St. 98. State vs. Peterson, 52 N. W. 655.

7 The affirmative of the proposition has been maintained in Shannon vs. Ports. mouth, 54 N. H. 183; Westberg vs. City of Kansas, 64 Mo. 493; contra, State vs. Jersey City, 25 N. J. L. 536; Gregory vs. Mayor, 113 N. Y. 416. For further consideration of this subject, see Goodnow's Adm. Law, vol. 2, p. 99; Mechem's Public Office and Officers, secs. 450, 457.

PART VI

QUASI POWERS

CHAPTER XXI

THE DELEGATION OF POWER

By analogy to well-known principles of the law of agency, it has become a settled rule of our constitutional law that a power conferred on one of the departments cannot be delegated by it to any other body or authority. Thus, the governor cannot pardon a convict on condition that the people ratify his act; a judge cannot put a certain construction on the law provided the people approve it; nor can the legislature avoid responsibility for the laws it passes.1

1 People vs. Governor, 29 Mich. 320. Within the last year both political parties in Massachusetts advocated in their platforms, the adoption of the referendum and in the mean time it received in the legislature a vote almost sufficient to authorize its proposal to the people as a constitutional amendment. It was also considered by the recent constitutional conventions of New York and several other commonwealths.

If experience is to be heeded, the referendum is an unwise expedient.

The same forces that induce the people to elect legislators anxious to avoid the responsibility of enacting laws would operate to induce the people to approve the inferior laws proposed by them. Furthermore, were the legislatures to become mere proposing bodies, people would be even less interested than they are at present in the qualifications of the persons whom they elect. The proposed laws would under such circumstances probably be of such a nature as to deserve defeat. Finally, statistics show the public indifference to questions sub. mitted to the popular vote, especially when we compare the number of votes cast by the people for constitutional amendments with the number cast for the election of officers. In innumerable cases desirable constitutional amendments have failed of adoption only because of the neglect of the people to vote.

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The state having entrusted the legislature with the power of making laws, the legislature cannot delegate the trust to any other body, or even to the people themselves.1 But a statute may be conditional, and its taking effect may be made to depend upon some subsequent event. Thus the contingency upon which the operation of an act is made to depend, may be the action of the legislature of another commonwealth. A law which provides that insurance companies of other commonwealths shall pay in taxes and fines an amount equal to that imposed, by existing or even future laws of the commonwealths of their origin, upon companies of the enacting commonwealth seeking to do business there, when such amount is greater than that required for such purpose by the existing laws of such commonwealth, is not unconstitutional.3

The legislature often enacts that laws shall become effective or ineffective upon the determination by some other authority that such shall be the case. The question then arises as to whether the legislature really enacts the law, or the body whose determination was made a condition precedent to its taking effect. The proper answer would seem to depend upon the particular circumstances of each case. Thus, it is properly held that a legislative act which is complete, but of which the operative effect is dependent upon a contingency, will not necessarily be objectionable because it provides that some other body shall determine whether the contingency exists. Such body exercises no discretion, and takes no part in making any portion of the law under which it is acting. While the legislature cannot delegate its power to make a law, it can make a law delegating the power to determine some fact or

1 Geebrick vs. State, 5 Ia. 491; Bradley vs. Baxter, 15 Barb. 522; Barto vs. Himrod, 8 N. Y. 438; Cooley's Constitutional Limitations, p. 137 n; Rice vs. Foster, 4 Harr. 479; 3 Law Encycl. 698.

2 Brig Aurora vs. United States, 7 Cr. 382; Peck vs. Wedell, 17 Ohio St. 271. 3 People vs. Fire Association of Phil., 92 N. Y. 311.