The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• Publisher’s Note
• Preface to the First Edition
• Preface to the Edition of 1910
• Note to Edition of 1914
• List of Presidents
• Dates of Some Remarkable Events In the History of the North American Colonies and United States
• Area, Population, and Date of Admission of the States
• Chapter 1: Introductory
• Part I: The National Government
• Chapter 2: The Nation and the States
• Chapter 3: The Origin of the Constitution
• Chapter 4: Nature of the Federal Government
• Chapter 5: The President
• Chapter 6: Presidential Powers and Duties
• Chapter 7: Observations On the Presidency
• Chapter 8: Why Great Men Are Not Chosen Presidents
• Chapter 9: The Cabinet
• Chapter 10: The Senate
• Chapter 11: The Senate As an Executive and Judicial Body
• Chapter 12: The Senate: Its Working and Influence
• Chapter 13: The House of Representatives
• Chapter 14: The House At Work
• Chapter 15: The Committees of Congress
• Chapter 16: Congressional Legislation
• Chapter 17: Congressional Finance
• Chapter 18: The Relations of the Two Houses
• Chapter 19: General Observations On Congress
• Chapter 20: The Relations of Congress to the President 1
• Chapter 21: The Legislature and the Executive
• Chapter 22: The Federal Courts
• Chapter 23: The Courts and the Constitution
• Chapter 24: The Working of the Courts
• Chapter 25: Comparison of the American and European Systems
• Chapter 26: General Observations On the Frame of National Government
• Chapter 27: The Federal System
• Chapter 28: Working Relations of the National and the State Governments
• Chapter 29: Criticism of the Federal System
• Chapter 30: Merits of the Federal System
• Chapter 31: Growth and Development of the Constitution
• Chapter 32: The Amendment of the Constitution
• Chapter 33: The Interpretation of the Constitution
• Chapter 34: The Development of the Constitution By Usage
• Chapter 35: The Results of Constitutional Development
• Part II: The State Governments
• Chapter 36: Nature of the American State
• Chapter 37: State Constitutions
• Chapter 38: The Development of State Constitutions
• Chapter 39: Direct Legislation By the People
• Chapter 40: State Governments: the Legislature
• Chapter 41: The State Executive
• Chapter 42: The State Judiciary
• Chapter 43: State Finance
• Chapter 44: The Working of State Governments
• Chapter 45: Remedies For the Faults of State Governments
• Chapter 46: State Politics
• Chapter 47: The Territories
• Chapter 48: Local Government
• Chapter 49: Observations On Local Government
• Chapter 50: The Government of Cities
• Chapter 51: The Working of City Governments
• Chapter 52: An American View of Municipal Government In the United States
• Appendix: Note to Chapter 3: On Constitutional Conventions
• Note to Chapter 4: What the Federal Constitution Owes to the Constitutions of the Several States
• Note to Chapter 10: Extracts From the Rules of the Senate
• Note (a) to Chapter 16: Private Bills
• Note (b) to Chapter 16: The Lobby
• Note (a) to Chapter 30: Constitution of the Confederate States, 1861–65
• Note (b) to Chapter 30: The Federal Constitution of Canada
• Note to Chapter 33: The Dartmouth College Case
• Articles of Confederation, 1781–88
• Constitution of the United States
• Extracts From the Constitution of the State of Oklahoma 1

chapter 41

The State Executive

The executive department in a state consists of a governor (in all the states), a lieutenant-governor (in thirty-five), and of various minor officials. The governor, who, under the earlier constitutions of most of the original thirteen states, was chosen by the legislature, is now always elected by the people, and by the same suffrage, practically universal, as the legislature. He is elected directly, not, as under the federal Constitution, by a college of electors. His term of office is, in twenty-three states, four years; in one state (New Jersey), three years; in twenty-two states, two years; and in two states (Massachusetts and Rhode Island), one year. His salary varies from $12,000 in New York and Pennsylvania to $2,500 in Vermont and one other state. Some states limit his reeligibility; but in those which do not there seems to exist no tradition forbidding a third term of office similar to that which has prevailed in the federal government.

The earlier constitutions of the original states (except South Carolina) associated with the governor an executive council1 (called in Delaware the Privy Council), but these councils have long since disappeared, except in Massachusetts, Maine, and North Carolina, and the governor remains in solitary glory the official head and representative of the majesty of the state. His powers in the latter decades of the last century had come to be more specious than solid, but in the present century they have begun to revive. One, that of veto, is recognized as of great practical value. He is charged with the duty of seeing that the laws of the state are faithfully administered by all officials and the judgments of the courts carried out. He has, in nearly all states, the power of reprieving the pardoning offenders, but in some this does not extend to treason or to conviction on impeachment (in Vermont he cannot pardon for murder), and in some, other authorities are associated with him in the exercise of this prerogative. Some recent constitutions impose restrictions which witness to a distrust of his action; nor can it be denied that the power has sometimes been used to release offenders (e.g., against the election laws) who deserved no sympathy. The governor is also commander in chief of the armed forces of the state, can embody the militia, repel invasion, suppress insurrection. The militia are now important chiefly as the force which may be used to suppress riots, latterly not unfrequent in connection with labour disputes. Massachusetts has also created a small state police force (called the District Police), placing it at the disposal of the governor for the maintenance of order, wherever disturbed, and for the enforcement of various administrative regulations. Pennsylvania, having frequently suffered from strikes accompanied by violence in the mining regions, has also a state police. Michigan has (and Massachusetts and Rhode Island formerly had) a state police for the enforcement of their anti-liquor legislation, and New York State has one for supervising elections in New York City. Delaware has two state detectives.

He appoints some few officials, but seldom to high posts, and in many states his nominations require the approval of the state Senate. Patronage, in which the president of the United States finds one of his most desired and most disagreeable functions, is in the case of a state governor of slight value, because the state offices are not numerous, and the more important and lucrative ones are filled by the direct election of the people. Nevertheless there has lately appeared a tendency to commit to him, as a person who can be held responsible, the selection of capable men for some of the posts recently created. He has the right of requiring information from the other executive officials, and is usually bound to communicate to the legislature his views regarding the condition of the commonwealth. He may also recommend measures, but is not expected to frame and present bills, though he may practically do this by having a measure introduced which embodies his recommendations. In a few states he is directed to present estimates. He has in all the states but one (North Carolina) a veto upon bills passed by the legislature.2 This veto may be overridden in a manner already indicated (see last preceding chapter), but generally kills the measure, because if the bill is a bad one, it calls the attention of the people to the fact and frightens the legislature, whereas if the bill be an unobjectionable one, the governor’s motive for vetoing it is probably a party motive, and the requisite overriding majority can seldom be secured in favour of a bill which either party dislikes. The use of his veto is, in ordinary times, a governor’s most serious duty, and chiefly by his discharge of it is he judged.

Although much less sought after and prized than in “the days of the Fathers,” when a state governor sometimes refused to yield precedence to the president of the United States, the governorship is still, particularly in New England, and the greater states, a post of some dignity, and affords an opportunity for the display of character and talents. It was in his governorship of New York that Mr. Cleveland, for instance, commended himself to his party, and rose to be president of the United States. Similarly Mr. Hayes was put forward for the presidency in 1876 because he had been a good governor of Ohio. During the Civil War, when each governor was responsible for enrolling, equipping, officering, and sending forward troops from his state,3 and when it rested with him to repress any attempts at disorder, much depended on his energy, popularity, and loyalty. In some states men still talk of the “war governors” of those days as heroes to whom the North owed deep gratitude. And since the Pennsylvanian riots of 1877 and those which have subsequently occurred in Cincinnati and Chicago have shown that tumults may suddenly grow to serious proportions, it has in many states become important to have a man of prompt decision and fearlessness in the office which issues orders to the state militia.4

The decline already noted in the respect and confidence felt for and in the legislatures has latterly, in some states, tended to attach more influence to the office of governor, and has opened to a strong and upright man, the opportunity of making it a post of effective leadership. The people are coming to look upon the head of their commonwealth as the person responsible for giving them a firm and honest administration. When they are convinced of his rectitude, they regard him as the representative of their own best will and purpose, and have in some instances shown that they are prepared to support him against the legislature, and to require the latter to take the path he has pointed out.

The elective lieutenant-governor who, in most states, steps into the governor’s place if it becomes vacant, is usually also ex officio president of the Senate,5 as the vice-president of the United States is of the federal Senate. Otherwise he is an insignificant personage, though sometimes a member of some of the executive boards.6

The names and duties of the other officers vary from state to state. The most frequent are a secretary of state (in all states), a treasurer (in all), an attorney general, a comptroller, an auditor, a superintendent of public instruction. Now and then we find a state engineer, a surveyor, a superintendent of prisons. Some states have also various boards of commissioners, e.g., for railroads, for canals, for prisons, for the land office, for agriculture, for immigration, and (in a few states) for what are called “public utilities.” Many of these officials are (in nearly all states) elected by the people at the general state election. Sometimes, however, they, or some of them, are either chosen by the legislature, or appointed by the governor, whose nomination usually requires the confirmation of the Senate. Their salaries, which of course vary with the importance of the office and the parsimony of the state, seldom exceed $5,000 per annum and are usually smaller. So, too, the length of the term of office varies. It is often the same as that of the governor, and never exceeds four years, except that in New Jersey, a conservative state, the secretary and attorney general hold for five years; and in Tennessee the attorney general, who, oddly enough, is appointed by the supreme court of the state, holds for eight.

It has already been observed that the state officials are in no sense a ministry or cabinet to the governor. Holding independently of him, and responsible neither to him nor to the legislature, but to the people, they do not take generally his orders, and need not regard his advice.7 Each has his own department to administer, and as there is little or nothing political in the work, a general agreement in policy, such as must exist between the federal president and his ministers, is not required. Policy rests with the legislature, whose statutes, prescribing minutely the action to be taken by the officials, leave little room for executive discretion. Europeans may realize the nature of the system by imagining a municipal government in which the mayor, town clerk, health officer, and city architect are all chosen directly by the people, instead of by the common council, and in which every one of these officials is for most purposes, independent not only of the mayor, but also of the common council, except in so far as the latter has the right of granting money, and as it can act by general ordinances—that is to say, act as a legislative and not as an administrative body.8

To give a clearer idea of the staff of a state government I will take the great state of Ohio, and give the functions of the officials by whom it is administered.

The executive officials of Ohio were in 1909:

• A Governor, elected by the people for two years. His chief duties are to execute the laws, convene the legislature on extraordinary occasions, command the state forces, appoint staff officers and aides-de-camp, grant pardons and reprieves, issue commissions to state and county officers, make a variety of appointments, serve on certain boards, and remove, with the assent of the Senate, any official appointed by him and it. He is paid $10,000 a year.
• A Lieutenant-Governor, elected for two years, salary $1,500 a year, with the duty of succeeding to the governor (in case of death or disability), and of presiding in the Senate.
• A Secretary of State, elected for two years (along with the governor), salary $6,500 a year. His duties are to take charge of laws and documents of the state, gather and report statistics, distribute instructions to certain officers, and act as secretary to certain boards, to serve on the state printing and state library boards, to make an abstract of the votes for candidates at presidential and state elections.
• A State Auditor, elected for four years, salary $6,500. Duties—to keep accounts of all moneys in the state treasury, and of all appropriations and warrants, to give warrants for all payments from or into the treasury, to conduct financial communications with county authorities, and direct the attorney general to prosecute revenue claims, to serve on various financial boards, and manage various kinds of financial business.
• A State Treasurer, elected for two years, salary $6,500. Duties—to keep account of all drafts, paying the money into the treasury, and of auditor’s warrants for drafts from it, and generally to assist and check the auditor in the supervision and disbursement of state revenues, publishing monthly statements of balances.
• A State Attorney General, elected for two years, salary $6,500 a year. Duties—to appear for the state in civil and criminal cases, advise legally the governor and other state officers and the Assembly, proceed against offenders, enforce performance of charitable trusts, submit statistics of crime, sit upon various boards.
• A State Commissioner of Common Schools, elected for three years, salary $4,000 a year. Duties—to visit and advise teachers’ institutes, boards of education, and teachers, deliver lectures on educational topics, see that educational funds are legally distributed, prepare and submit annual reports on conditions of schools, appoint state board of examiners of teachers.
• Three Members of Board of Public Works, elected for four years, salary $2,900 a year. Duties—to manage and repair the public works (including canals) of the state, appoint and supervise minor officials, let contracts, present annual detailed report to the governor.
• A State Dairy and Food Commissioner, elected for two years, salary $4,000, and travelling expenses.

Besides these, the people of the state elect the judges and the clerk of the supreme court. Other officials are either elected by the people in districts, counties, or cities, or appointed by the governor or legislature.

Of the subordinate civil service of a state there is little to be said. Though it is not large, for the sphere of administrative action which remains to the state between the federal government on the one side, and the county, city, and township governments on the other, is not wide, it increases daily, owing to the eagerness of the people (especially in the West) to have state aid rendered to farmers, to miners, to stockkeepers, and generally in the material development of the country. Much is now done in the way of collecting statistics and issuing reports. These administrative bureaux are not always well manned, for state legislatures are not duly alive to the necessity of securing high competence, and some of them do little, by salaries or otherwise, to induce able men to enter their service: while the so-called “Spoils System,” which has been hitherto applied to state no less than to federal offices, too often makes places the reward for electioneering and wire-pulling. Efforts are moreover being made, and have in some states already been successful (e.g., New York), to introduce reforms similar to those begun in the federal administration, whereby certain walks of the civil service shall be kept out of politics, at least so far as to secure competent men against dismissal on party grounds. Such reforms would in no case apply to the higher officials chosen by the people, for they are always elected for short terms and on party lines. In New York, however, recent legislation has created efficient administrative boards with suitable authority, such as the Public Service Commission, which has jurisdiction over railroads and over corporations providing gas, electric light and power, telegraph and telephone service.

Every state provides for the impeachment of executive officers for grave offences.9 The state House of Representatives is the impeaching body, except in Nebraska, where the impeachment is made by joint resolution of both houses; and in all but Nebraska the state Senate sits as the tribunal, a two-thirds majority being generally required for a conviction. Impeachments are rare in practice.

There has also been in many states a power of removing officials, sometimes by the vote of the legislature, sometimes by the governor on the address of both houses, or by the governor either alone, or with the concurrence of the Senate. Such removals must of course be made in respect of some offence, or for some other sufficient cause, not from caprice or party motives; and when the case does not seem to justify immediate removal, the governor is frequently empowered to suspend the officer, pending an investigation of his conduct.

A more promptly effective method of dealing with officials to whom objection is taken has been recently introduced in some states. This is the recall. A prescribed number of voting citizens may demand that a vote shall be taken on the question whether a certain official shall or shall not continue in office for the rest of his term. If such a popular vote when taken shows a majority against the official, he is thereby dismissed.

Up to the end of 1913 seven states had adopted this plan. They were Oregon, California, Arizona, Colorado, Nevada, Idaho, Washington.

[1] Another illustration of the tendency to reproduce England. Vermont was still under the influence of colonial precedents when it framed its Constitutions of 1786 and 1793. Maine was influenced by Massachusetts. None of the newer Western states has even tried the experiment of such a council.

New York had originally two councils, a “Council of Appointment,” consisting of the governor and a senator from each of the (originally four) districts, and a “Council of Revision,” consisting of the governor, the chancellor, and the judges of the supreme court, and possessing a veto on statutes. The governor has now, since the extinction of these two councils, obtained some of the patronage which belonged to the former as well as the veto which belonged to the latter.

[2] It deserves to be remarked that neither the Constitution of the Swiss Confederation nor any cantonal constitution vests a veto in any officer. Switzerland seems in this respect more democratic than the American states, while in the amount of authority which the Swiss allow to the executive government over the citizen (as witness the case of the Salvation Army troubles in Canton Bern) they are less democratic.

[3] Commissions to officers up to the rank of colonel inclusive were usually issued by the governor of the state. The regiment, in fact, was a state product, though the regular federal army is of course raised and managed by the federal government directly.

[4] This is the place for noticing a remarkable novelty in the relations of the states and their respective executive heads to the nation and its head. In 1908 the president of the United States invited the governors of all the states to meet him and some persons of exceptional knowledge and experience in a conference at Washington for the purpose of considering a matter of high public consequence, namely the best method of conserving and turning to full account the natural resources of the country, such as forests, mines, and water power. The object was to enlist the interest of the states in the adoption of a national policy upon this great national matter, and if possible to induce them to legislate each for itself in accordance with some general principles which might also be recognized and carried out by the national government in its own sphere. The conference met in the winter of 1908 and again early in 1909. Not only did its deliberations command much attention from the people, but the scheme of bringing the states through their governors into council with the national administration in a way not provided for by, but in nowise inconsistent with the federal Constitution, appeared to set a precedent capable of being used thereafter, as a means of arousing public opinion and concentrating it upon some common aim, which it might be found difficult to attain through the action of Congress. In 1910 arrangements were made for holding conferences of governors at stated times in the future.

[5] In Rhode Island the governor presides over the Senate, an interesting survival of European arrangements.

[6] Where there is no lieutenant-governor, the president of the state Senate or the secretary of state usually succeeds if the governor dies or becomes incapable of discharging his functions.

[7] Florida, by her Constitution of 1868, art. VI, 17, and art. VIII, created a “cabinet of administrative officers,” consisting of eight officials, appointed by the governor, with the consent of the Senate, who are to hold office for the same time as the governor, and “assist the governor in the performance of his duties.” However, in her Constitution of 1886 she simply provides that “the governor shall be assisted by administrative officers,” viz., secretary of state, attorney general, comptroller, treasurer, superintendent of public instruction, and commissioner of agriculture, all elected by the people at the same time with the governor and for the same term. The council of North Carolina (Constitution of 1868) consists of five officials, who are to “advise the governor in the execution of his duty,” but they are elected directly by the people. Their position may be compared with that of the Council of India under recent English statutes towards the secretary of state for India. Massachusetts has always had an “executive council” consisting of eight persons chosen annually by the people in districts. They “advise the governor in the executive part of the government” and have the right of rejecting nominations to office made by him. Here too we find a survival, which might seem to do more harm than good, because it lessens the governor’s responsibility. However, a respected and successful recent governor told me that he found his council helpful, as its members frequently took up and dealt with particular questions on which he consulted them. They became to him almost a sort of cabinet of administrative heads.

[8] In the Swiss Confederation the Federal Council of Seven consists of persons belonging to different parties, who sometimes speak against one another in the chambers (where they have the right of speech), but this is not found to interfere with their harmonious working as an administrative body.

[9] Oregon was long an exception, but now she too permits impeachment and used it in 1909 against two officials, one of whom resigned rather than face the trial, while the other escaped because the majority for conviction fell short of two-thirds.