The appointive and removal power of the governor of Illinois

Front matter

FERNHOLZ

Bd row

THE APPOINTIVE AND REMOVAL POWER OF THE GOVERNOR OF ILLINOIS

Preface

The subject of this paper was selected for the purpose of showing the historical growth of the governor's appointive and removal power under the three different state constitutions and legislative enactments thereunder, with judicial interpretations.

The treatise has teen divided into five chapters. Chapter I treats of the governor's appointive and removal power in general under the different state constitutions. Chapter II deals with the appointive and removal power of the governor of Illinois during the operating of the first constitution, and Chapters III and IV do likewise during the operation of the second and third constitutions respectively. Chapter V is a summary of the governor's appointive and removal power since the organization of the state government (1818) down to the present time (1914, with suggestions for reform to promote economy and efficiency in state administration.

Whenever the year is given at the bottom of a page as a reference it refers to the session laws of that year, and the number after it refers to the page.

The information to write this thesis was obtained from the sources indicated in the Bibliography found at the end of this discourse.

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Table Of Contents

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I. INTRODUCTION 1

II. THE APPOINTIVE AND REMOVAL POWER OF THE GOVERNOR DURING THE OPERATION OF THE FIRST CONSTITUTION: 1818-1848 18

Chapter I Introduction

The office of Governor is one of high honor, great responsibility, influence, and power. In fact it is the highest office within the gift of the people of a state. Except as to the President of the United States, the electors exercise more discretion in his election than in that of any other official. He is looked upon as the vanguard of public opinion. He is regarded as the spokesman of the policies of his party. He is at the head of the state government and so is supposed to take the initiative to promote reform and efficiency in state administration, and to secure such results his appointive and removal power is an important weapon.

As this chapter will deal primarily with the governor's appointive and removal power under the present constitutions of the different states, and as some comparisons will be made between the appointive and removal power of the Governor of Illinois and the governors of some of the other states, it is necessary to quote in portion only,- for they are quoted in full in Chapter IV,- the provisions of the Illinois constitution that relate to the appointive and removal power of the governor, and the first that deals with this matter is, in substance, as follows:

Section 10, Article V. The governor shall appoint with the consent of the senate all officers whose offices are established by the constitution or by law and whose appointments are not otherwise provided for, and no such officer shall be appointed

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by the general aeeemTDly.

Nebraska-^ and West Virginia have copied this section, and many other states have a similar provision in their constitutions, but some of them do not have the concluding clause which prohibits the legislature from appointing officers. The states that have similar provisions are Louisiana^, Montana*, Idaho^, Colorado^, New Mexico''', New Jersey^, Vermont^, North Carolina^^, and Utah^l; but the latter state constitution refers to state and district officers, while the North Carolina constitution refers to offices created by the constitution only.

Section 28, Article VI, says that all justices of the peace of the City of Chicago shall be appointed by the governor with the senate, but only upon the recommendation of a majority of the judges of the circuit, superior and county courts of that city, etc.

Many other state constitutions specially designate some of the officials the governor may appoint; for example: a bank examiner in Louisiana^^, Oklahoma and Wyoming^^; a state examiner for other state officials in Arizona and Montana ; a mine inspector in Arizona^''' and New Mexico-^^; a geologist in

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Arkansas^ and Wyoming^; a state librarian in Maryland^ and Minnesota^; a secretary of state in Delaware^, Maryland^, New Jersey''',

Texas^ and Pennsylvania^; an attorney general in New Jersey^^, New

Hsunpshire^l, Pennsylvania^^; in Florida prosecuting attorneys and state's attorneyl4; in New Jersey prosecutors of the common pleas ;143' in Massachusetts a solicitor generally- in New York a superintendent of public workif^in Delaware a commissioner of agriculture^^; in Maryland a commissioner of the land office^*^, in Vermont a secretary of civil aind military affairs^®; in Georgia his own secretaries^®; in Virginia superintendents and surgeons for penal institutions^; in South Carolina a superintendent for the insane asylum^^ and in New Jersey a prison keeper^^, and clerks of the various courts.

A few of the constitutions also authorize the governor to appoint some boards or commissions. In Minnesota he can appoint a highway commission^*^; in Virginia a corporation oommission^^; in Ohio a commission to assist the Supreme Court in its work^^; in Virginia a commission of agriculture and immigration^^; in Kentucky^''' and Louisiana's commissioners to revise the states, and prepare a criminal code.

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With respect to charitable and penal institutions he can also appoint: in South Dakota^ and Louisiana^ a board of charities and correction; in Washington^, New Mexico^, New York^, Virginia^, boards to supervise the different charitable and penal institutions; in South Carolina"'', Idaho^, Kansas^, Ohio^^, boards for the charitable institutions; in California^-^ boards for the penal institutions.

Some constitutions provide that the governor shall appoint some of the supervising educational officers. In South Dakota^^ he can appoint a board to control the university, agricultural college, normal schools and other state educational institutions^''; in Wyoming^^ and Missouri^^ boards to have charge of their universities; in Montanal^^ New Mexico^''', Arizona"'"® ajid Washington^^ an educational board; in Aabama trustees for the agricultural and mechanics college^^; in Ohio^^ and Pennsylvania^^ a state superintendent,

A number of constitutions authorize the governor to appoint some or all of the judges; for example, he can appoint: in Massachusetts23, New Hampshire^^, New Jersey^^ and Delaware^^ all judicial officers; in Connecticut^''' and Louisiana^® the aiperior

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part 2, cl. 2 court judges; in Mississippi^ and New York^ inferior judges; in Maryland*^, Minnesota^, justice of the peace; in South Caidina^, magistrates; in Massachusetts^, Texas?, Maine®, Alabama^ and Oklahoma, notaries public.

As for the governor's removal power the constitution of Illinois makes the following provision: Section 13, Article V. The governor shall have power to remove any officer whom he may appoint, in case of incompetency, etc., and appoint another to fill the vacancy.

Nebraska-^^ and West Virginia^-'- have ^ same clause in their verbatim constitutions, while the constitutions of New Mexico^^, Colorado^^, and Michigan^^ contain similar provisions, but in the latter state elective officers are included and the governor must exercise his power when the legislature is not in session. In Maine^^, if no tenure is fixed the officer holds at the pleasure of the governor; in North Carolina^^, if there are no contrary provisions, the officer holds until another is appointed by the governor or elected; in Delaware^''' he can remove any officer convicted of misbehavior or any infamous crime; Maryland*^*^ he can remove the secretary of state, and in New York^^ the superintendent of public works; in Mississippi^^, South Carolina^^, Louisiana^^,

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10 » 13 " 5 31 " 32 " 4 f and Maryland^ he can suspend defaulting treasurers* On an address of two-thirds of the members of the legislature, he can remove any officer in Delaware^ and any executive judicial officer in South Carolina^. In Arkansas by the same method, he can remove the auditor, treasurer, secretary of state, attorney general, and prosecuting attorneysf In Maine with the concurrence of the council and the legislature he can remove any officer^; in Pennsylvania some appointive officers, and with two-thirds of the senators any elective officer except the lieutenant governor, judges and legislators^; and in Florida any officer with the concurrence of the senators''', and in South Carolina any member of the boards of the charitable and penal institutions. 8

Some states provide for the removal of judges by impeachment or by a concurrent resolution requiring a two-thirds or a three-fourths vote of the legislature. In a number of states the governor can remove them on an address, or by a concurrent resolution of two-thirds of the legislature. By one or the other of these processes the governor can remove the superior judges in California^, Connecticut^^, Maryland-^-'-, Massachusetts^^, Missouri^'^, Oregon^**, Pennsylvania^^, Texas^®, and Arkansas-^^.

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With respect to filling vacanciee, Section 11, Article V, of the Illinois constitution says that if a vacancy occurs during the recess of the senate in any office which is not elective the governor shall make temporary appointments, etc.

Nebraska^ and West Virginia^ have copied this section almost word for word, and some other states have practically the saune provision; among these are Louisiana^, Montana*, and Utah^,

A clause in the Nevada constitution relating to the filling of vacancies has been copied or imitated in so many other states so it is here quoted: Section 8, Article V. When any office shall, from any cause, become vacant, and no mode is provided by the constitution and laws for filling such vacancy, the governor shall have the power to fill such vacancy by granting a commission which shall expire at the next election and qualification of the person elected to such office. The states that have wholly orin substance copied this article are: Arkansas^, California''', Florida^, Georgia^, Mississippi^^, Missouri^^, Arizona^^, South Dakota^*^, Wyoming^"*, Texas^^, Oklahoma^^; while Vermont^''' and Rhode Island^® have, in a line, something like it.

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With respect to filling vaoanoies in state offices. Section SO, Article V, of the Illinois constitution says that if the office of auditor, treasurer, secretary of state, attorney general, or superintendent of public instruction shall become vacant the governor shall fill the same by appointment, etc.

The same section is found in the constitutionsof West Virginia^and Nebraska^ only that the latter state has added a commissioner of public lands; and so far as naming the same officials, like sections are found in the Colorado*^, Utah^ and Kansas^ constitutions. With respect to the appointive power only and designating the offices^ similar provisions are in the constitutions of North Carolina^, Louisiana''', Rhode Island^, Ohio^, MassachusettJ and Minnesota^^. In the latter he can also appoint any other state or district officer provided, of course, there is a vacancy.

Other vacancy appointments that the governor is authorized to make by constitutions are: in Pennsylvania^^ an auditor general, and a treasurer; in Maryland a comptroller^^ and attorney general^^; in Ohio^^ and Kansas^^ trustees of penal institutions; in South Carolina trustees of charitable and penal institutions^'''; in Arizona members of the corporation commissi on^^; in Michigan members of the board of regents^^.

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The governor can also make an appointment if a "vacancy occurs in any state office" in Michigan^, Indiana^, New Mexico^, Oregon^, Delaware^ and Kentucky^. In the last two states he can also appoint offices of a local character, provided the vacancy does not exceed a certain period of time.

With respect to vacancies in the courts. Section 33, Article VI, of the constitution of Illinois, among other things, provides that if a vacancy occurs in the office of a judge the governor may fill it provided the unexpired terra does not exceed one year. The constitutions of South Carolina''' and West Virginia® contain similar provisions but in the latter state the unexpired term may be as long as two years.

A great majority of the state constitutions authorize the governor if a vacancy occurs in some or all of the state courts to make an appointment.

Nearly all these appointments are made for the unexpired term or until the next annual or general election takes place. The states that contain such constitutional provisions are: Arkansas? Arizona^9 Alabama^} California^? Colorado^? Connecticut^* Delaware^S^ Georgia^S^ Indiana^''', Kansas^S, LouisianalQ, Minnesota^^

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Miesiesippi ^, Montana 2, Michigan 2, Nebraska ^, New Mexico ^, North Dakota^, New York*^, Oklahoma®, Oregon^, Ohio^^, Penneylvanii} Rhode leland^S^ South Dakota^^^ Texas^^^ Utah^^^ Washington^^, Wi80onsinl7, WyominglS^

A few state constitutions provide that if when appointments are vested in the legislature and a vacancy occurs during the recess of that body the governor may make a temporary appointment; among these states are: Indiana^^, Oregon^^, and Tennessee^^.

As to military affairs nearly all constitutions say that the governor shall be commander-in-chief of the military and naval forces of the state. Some constitutions provide that the governor shall appoint his staff officers; others that he shall appoint all general or comraiseioned officers; some designate the officials that he may appoint, and few say that the officials shall be appointed as the law may provide.

In briefly reviewing and summarizing up this chapter it is found that the first clause (Sec. 10, Art. 5) quoted from the Illinois constitution, provides that when an office is created and no provision is made for filling it the governor may make

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1« an appointment, about a dozen other states have a similar provision in their constitutions, but when an office is created a method for filling it is usually always provided, and so this section gives the governor very little appointive power.

The constitution of Illinois (Sec. 28, Art. VI) says, among other things, that all justices of the peace of Chicago shall be appointed by the governor on the recommendation of the judges of the courts of that city, but outside of this section the constitution is absolutely silent as to giving the governor any appointive power with respect to any designated office except in case of vacancy appointments, while a great majority of the states' constitutions authorize the governor to appoint at least one state official and in some states he can appoint two or three.

In a few states he can appoint all of the judges, and in about one fourth of them some minor court judges.

In some states he can also appoint boards, and commissions to supervise charitable, penal, educational institutions, and for other purposes, so the extent of the governor's power with respect to original appointments, the majority of the states are ahead of Illinois.

As for filling vacancies the Illinois constitution, (Sec. 11, Art. V) authorizes the governor, during the recess of the senate to make a temporary appointment to any office which is not elective. About a half dozen other states have a similar provision in their constitutions. The section quoted from the Nevada constitution authorizes the governor to fill a vacancy in any office at any time if no other mode is provided. T^is clause gives the governor a greater vacancy appointive power than the Illinois clause, for the latter limits the governor to appoint only during a recess of the senate and to an office which is not elective, but of course it does not say "if no other mode is provided" but it undoubtedly means that. The Nevada clause has been copied or imitated by about a dozen states.

The Illinois constitution (Sec. 30, Art. V) also names the important state offices and authorizes the governor to fill vacancies in them, About a dozen states have a similar constitutional provision, several constitutions name a few of the state offices and coramieeions in which the governor can fill vacancies. A few constitutions provide that the governor can make an appointment "if a vacancy occurs in any state office".

With respect to vacancies in the courts, the Illinois constitution (Sec. 32, Art. VI) says that, among other things, the governor can make an appointment only when the unexpired term does not exceed one year. Only a very few other states limit the governor to this extent. The great majority of the state constitutions authorize the governor to make an appointment if a vacancy occurs in the courts, at least the superior courts, for the unexpired term or until the next annual or general election.

The Illinois constitution (Sec. 13, Art. V) authorizes the governor to remove any officer he may appoint for incompetency, etc. Only about a half dozen other states give him such an extensive removal power. The Michigan State constitution authorizes him to remove for gross neglect of duty, etc, any appointive or elective state officer, except judges and legislators, but he has this power only during the recess of the legislature, and he must report his causes of removal to the next meeting of the legislature. So it can not be said that the governor's power of removal under the Michigan constitution is any greater than under the Illinois constitution.

Nothing has been said thus far as to the governor's appointees being confirmed by the senate, but practically all constitutions provide that this must be done, unless they are vacancy appointments and often these must later be confirmed. In some of the older states like Massachusetts, New Hampshire, and Maine there is a council that advises the governor and confirms his appointments, but it appears that in New Hampsire the powers of the governor and the council are coextensive, that is, either one can make a nomination and the other confirm it.

This survey shows that the governor's appointive power under the constitutions of the various states is rather limited, nor is there any evidence in the constitutions recently adopted that there is a tendency to increase the governor's power in that direction. Some of the constitutions adopted the latter part of the eighteenth century gave the governor a more extensive appointive power than any added during the last or even the present century. Among these are the constitutions of New Hampshire of 1792, and of Massachusetts of 1780. The latter with some amendments is still in force, but the former was so fully amended in 1902 that the present constitution of that state may be said

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I r to run from that date. In both states the governor's appointive power is more limited today than a century ago. In Vermont the constitution of 1793 is still in force but under that constitution the governor's appointive power is rather limited. The Maine constitution of 1830, and the New Jersey constitution of 1844, are still in force and under both the governor's appointive power is rather extensive compared to many other constitutions.

Beginning with the early part of the last century there was a tendency to decrease the governor's appointive power and this grew until about 1850 when a reaction set in?" The democratic spirit to make all officers elective received a great impetus about 1830 when a wave of Jacksonian democracy swept over the country, but when this had subsided, people began to have more faith in the governor's appointments?

So far there are only about a half dozen states that give the governor a removal power coextensive with his appointive power, nor is there evidence in recent constitutions to increase that power. Of the eight constitutions adopted since the opening of the present century only one - New Mexico - gives the governor a removal power coextensive with his appointive power. The clause in the Michigan constitution of 1909, which authorizes the governor to remove any officers for cause, is an imitation of an amendment of 1862, to the constitution of 1850, and thus was probably the first state constitution to give the governor an extensive removal power.

By the constitution giving the governor a removal power

iThe State Governor, by J. A. Fairlie, pp. 15-19. ^lowa Applied History Series, No. 6, p. 15.

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I coextensive with hie appointive power means more than is at first apparent for it authorizes him not only to remove all of his appointments under the constitution but under the statutes as well, whether an office has been created in the past or will be created in the future.

Even though the governor's appointive power under the various constitutions is very limited, and his removal power even more so, except in a few states. This is by no means the total extent of his powers in that line, for it has been greatly extended by law to offices created by statutes^.

Now as to the nature of the appointive and removal powers, Madison said they are executive and so belong to the president unless the constitution provides otherwise, and congress in 1789 conferred upon the president the sole power to remove his appointees in the execution department. This was the settled doctrine until the tenure of office act of 1867 which provided that the president must have the concurrence of the senate to remove any of his appintees; but this act caused so much friction that it was modified in 1873, and repeated in 1887, and so the old doctrine was reestablished.^

The great majority of the state courts, however, do not agree with the federal view as to the nature of this power. They say it is not inherently executive and that the governor has only such appointive and removal powers as the constitution gives him. Some courts say that the removal power ie executive, others that

^Am. Pol. Sci. Rev. VIII, pp. 631-629. ^Atlantic Monthly, V. 85, pp. 731-32

Mich. Law Review, pp. 195-305 it is judicial, and again others that it is quasi judicial. Courts take different views on this matter and, of course, much depends upon for what causes, and by what methods an officer can be removed. Nor do the courts agree as to what is an executive or a judicial function.^ But it appears that it is now pretty generally held that if the governor may remove an officer in a summary manner whether by giving notice of charges or without notice, it is an executive action, and it is said to be judicial in its nature when he must prefer charges, give notice and a hearing, and pass judgment accordingly.

But whatever its nature may be the courts are becoming more liberal in construing removal provisions both constitutional and statutory, and so extending the governor*© removal power by judicial interpretation. This is especially true in authorizing the governor to make summary dismissal under removal provisions which in their nature appear to authorize removals only by a judicial process.

In concluding this chapter it must be remembered that it deals with the appointive and removal power of the governor only under the constitutioncof the different states, and when a constitution creates an office, designates the mode of appointment, fixes the tenure and prescribes the method and cause of removal, that is exclusive and not subject to legislative control, and the only way to make changes in the constitution is by amendments or

^Michigan Law Review, V. 3, pp. 390-301 ibid,, V. 3, pp. 341-351 ty the adoption of a new one, and this is generally so difficult that it is a slow and cumbersome process. For this reason a constitution or a part of it may often, for a long time, be an obstacle to promote progress, reform and efficiency in a state government.

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All state constitutions^of needless length and the longer they are the greater an obstacle they may be. It seems they are made so long to protect the people in their rights and to guard against arbitrary legislation; but as the recall is coming into vogue, that weapon would be ample to protect the people against unjist governmental action. A constitution of a few pages giving the fundamentals of a state government would be ample, and the creation of department heads under the executive, the creation of inferior courts, and other organs of the government which are constitutional in their nature, could be provided by what the French call organic laws passed by the ordinary legislative body and so could be easly changed. The minor affairs of government could be dealt with by ordinary legislation.

To adopt or change a constitution, or a constitutional law as the French call it, ought to require a two-thirds vote of all the legislators, the approval of the governor, and a concurrence of a majority of the people. An organic law ought to be enactable by the same process, but not require the approval of the people; while the enactment of an ordinary law ought to be by the usual method.

The following is a list of the latest constitutions but nearly all of them have been more or less amended since their adoption:

Alabama

Nebraska

Arizona

Nevada

Arkansas

New Hampshire

California

New Jersey

Colorado

New Mexico

Connecticut

New York

Delaware

North Carolina

Florida

North Dakota

Georgia

Ohio

Idaho

Oklahoma

Illinois

Oregon

Indiana

Pennsylvania

Iowa

Rhode Island

Kansas

South Carolina

Kentucky

South Dakota

Louisiana

Tennessee

Maine

Texas

Maryland

Utah

Massachusetts

Vermont

Michigan

Virginia

Minnesota

Washington

Mississippi

West Virginia

Missouri

Wisconsin

Montana

Wyoming