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vided for its authoritative expression. Such a method is suggested in the recall. The highly centralized administrative authority, which mod.175.
The Recall. ern ideas of efficiency demand, suggests the necessity of addi. tional means of popular control, lest the necessary increase of power in the hands of one man may carry with it the temptation to abuse that power. In this connection, also, the proposal that the people may summarily discharge officials before the end of the terms for which they were elected or appointed, is very pertinent. Eleven states,3 indeed, have adopted constitutional clauses providing for the recall of public officials generally, elective officials, or non-judicial officials. All of these states save two have also provisions for the initiative and referendum.
As in case of the initiative and referendum, a movement for the recall of an official starts with a petition calling for an election to determine whether a majority of the voters taking part desire the official's removal. The number of signatures necessary to complete a petition varies from ten to twenty-five per cent. of the qualified electors.
The recall of an official involves, of course, the choice of a successor. Sometimes the incumbent in office and the proposed successors simply run against each other and the former is re, called if he fails to receive the greatest number of votes. Again, the incumbent and proposed successors may be voted upon separately, though at the same election, with the requirement that the elector must vote upon the recall as well as concerning the choice of a successor. Furthermore, the recall may be voted upon separately and if it succeeds a successor is chosen at another election, or the legally designated successor takes office.3
3Ariz., Ark., Cal., Colo., Ida., Kan., La., Mich., Nev., Ore., Wash.
be. .. Ida.. VI, 6. The recall is provided for in many municipal charters without constitutional authorization. As early as 1893 it was contained in the charter of Los Angeles. The earliest state-wide recall was provided for in the Ore. amendment of 1908.
"Kan., La. Supra, ch. 11.
Pe. ., Ariz.
e. 9., Cal., XXIII, 1.
The recall is best considered simply as an instrument of democracy-a means potential but seldom to be used, through which the people may secure control of their governing agents.*
The object of the present chapter has been to outline the leading constitutional provisions concerning the governor and other state administrative officials, to present the administrative problem that confronts American states and mention a few of the things that have been and may be done toward its solution. The constitutional powers and duties conferred upon administrative officials have been shown to be varied but seldom extensive and supplementary statutes have added to the number of officials and to the functions of those already created in a piecemeal fashion not calculated to produce efficiency on the part of the administration considered as a whole. Centralization of appointing and removing power, whereby responsibility may be made definite, and competitive examinations for the selection of minor officials have been mentioned as prerequisites of efficient administration. The recall has been suggested as a method of holding the appointing officials strictly accountable to the people.
TENNESSEE NOTE.—In the governor, elected biennially and ineligible for more than six years in any term of eight, is vested the supreme executive power of the state and the mandate to take care that the laws be faithfully executed. He must be thirty years of age and must have been a citizen of the state seven years. He is given the power to veto acts and joint resolutions, to grant pardons, to require information from executive officers upon any subject relating to their duties, to convene the legislature in extraordinary session and determine the business which it shall consider at such session. He is commander in chief of the militia but cannot call it into service without the consent of the legislature. He is given the duties of issuing writs of election to fill vacancies in the legislature, of appointing special judges of the supreme court when regular judges are disqualified, of making temporary appointments of other officers, of keeping the great seal and signing all grants and commissions and of giving information and making recommendations to the legislature.”
Needless to say the recall may be made an effective deterrent to the building up of political machines.
SIII, 1, 2, 4, 10.
The other constitutional state administrative officers are the secretary of state, comptroller and treasurer, elected by joint vote of the houses of the legislature, the attorney general, chosen by the judges of the supreme court, and the adjutant general, appointed by the governor, and other militia officers. The governor and other constitutional officers, except officers of the militia, are liable to impeachment.
The statutory administrative officers, boards and heads of departments are variously appointed, by the legislature, governor, governor with consent of the senate and by other officers. They are, in the order given by the Tennessee Dirctory,' as follows: (1) the three state revenue agents; (2) the commissioner of insurance; (3) the commissioner of fire prevention ; (4) the commissioner of agriculture; (5) the superintendent of public instruction ; (6) the state board of health; (7) commissioner of food and drugs; (8) the chief mine inspector ; (9) the shop and factory inspector; (10) the railroad commission; (11) the state geologist; (12) the two ex officio state boards of equalization ; (13) the state librarian; (14) the clerk of the department of archives ; (15) the state land commissioner ; (16) the superintendent of the capitol; (17) the Tennessee board of control; (18) the state board of education (the governor, superintendent of public instruction and nine citizens) ; (19) the ex officio text-book commission ; (20) the superintendent of banks; (21) the state board of pension examiners; (22) the warden of the department of game, fish and forestry; (23) the chairman of the state department of highways; (24) the ex officio state printing commission ; (25) the trustees of the Tennessee state fair (the commissioner of agriculture, chairman) ; (26) the state auditor : (27) the state board of law examiners; (28) the ex officio state funding board ; (29) the state board of pharmacy; (30) the state board of embalmers; (31) the state board of election commissioners; (32) the state board of dental examiners and (33) the secretary of the state board of charities. The superintendents of the hospitals for the insane and some other state institutions, all of whom are under the supervision of the board of control, are listed in the directory which is believed by the secretary of state's office to be complete. It omits, at least, the trustees of the University of Tennessee and the state coal oil inspectors. Whether the arrangement adopted by the directory is meant to be typical of the character of the state's administrative organization can only be surmised."
III, 17; VII, 3 ; VI, 5; district prosecutors are attorneys for the state, VI, 5. 2VIII, 1, 2.
3V, 4. Judges and attorneys general are removable also by concurrent vote of two-thirds of each house of the legislature (VI, 6).
*Published by Secy. of State.
There is no general requirement for civil service examinations. The recall for municipal officers is provided for in a few city charters (e. I.. Knoxville. Private Acts of 1911. ch. 498. sec. 22, subsec. 4 ; Jackson, Private Acts of 1915. ch. 168, sec. 28), and by means of the so-called Ouster Law (Acts of 1915, ch. 11; see Const., V, 5) certain oficials may be removed by court procedure. See Some Recent Uses of the Recall, by Mr. J. Stuart Fitzpatrick, to be in National Municipal Review, July, 1916.
THE INTERPRETATION OF THE LAW.1
177. Nature and
The application of general law to particular cases frequently
involves grave difficulties. No matter how inclusive a statute Function of may be nor how detailed its provisions, there are likely to
arise instances to which its application or the manner of its application is doubtful. No matter how simple and restricted a statute may appear, similar doubts concerning its applicabil. ity may arise. Furthermore, voluminous as is the body of statute law, it makes no attempt to cover all of the contingencies over which disputes commonly arise. Upon the customs of the people, founded upon the common idea of what is just, the deci. sion of most cases must depend. What is the meaning of a statute or constitutional clause and what is the custom of the people governing a given state of affairs is not always easy to determine. Its determination, however, often affects public and private rights and interests of the very highest importance.
Consequently, from the very dawn of civilized government there has been recognized a governmental department, second to none in importance, whose sole function has been to decide what written laws mean and what actually are the popular customs, about, through its decisions, to be invested with the authority of law. Fundamentally the courts are part of the administrative branch of the government. Their function is not to formulate policies but to aid in the execution of policies already formed. Though they sometimes base their decisions upon what they call “public policy,” they consider the policy interpreted, not determined, by themselves. Every administrative officer to some extent must interpret laws, otherwise he could never put them into operation. For the courts is reserved the interpretation of laws concerning which there is considerable difference of opinion. Trial of civil cases usually occurs on complaint of
General References: Baldwin, S. E., The American Judiciary; Haines, C. G., The American Doctrine of Judicial Supremacy; McLaughlin, A. C.. The Courts. the Constitution and Parties; Ransom, Wm. L., Majority Rule and the Judiciary, Storey, Moorfield, The Reform of Judicial Procedure.
individuals whose private rights are affected. Sometimes, however, the judges of the courts must give advisory opinions to governmental officials relative to the meaning of constitution or statute.
Varied and often lengthy provisions upon the subject of the courts and the judges who compose them are found in all of the state constitutions. The organization of the state courts of last resort, the courts, which finally determine what the law is in a particular case, together with some mention of inferior courts and of a few of the problems which have arisen in connection with the judiciary, forms the subject of the present chapter.
General provisions for the establishment of a highest court m 178, are found in all of the constitutions. Though variously named, 3 Court. it is known in the great majority of the states as the Supreme Court. The judges of the highest court are, in eleven states, appointed,—(1) by the governor,5 (2) by the governor and senate,& legislature' or council,and (3) by joint vote of the two houses of the legislature.' In thirty-seven states they are elected by the voters usually by the state at large, but in a few instances by separate districts. In a few instances, too, they are elected by the voters of the state, but must reside in different portions of the state.?
In number supreme judges vary from threes to eight.* While only a few states leave the number entirely to the legislature,5
2e. 9., Ind., VII, 1 ; Tenn., VI. 1. N. Y. (VI). Mass. (Pt. I, XXIX; Pt. II. ch. II, sec. I, XIII; ch. III, I and II, etc.) and N. H. (Pt. II, 92. Pt. II, 72-81) mention and regulate their higbest courts, thus taking for granted their existence. 3N. Y., Ky., Md.,--Court of Appeals. Me., Mass., N, H.,-Supreme Judicial
N. J.,Court of Errors and Appeals. Va., W. Va.,--Supreme Court of Appeals. Conn.,-Supreme Court of Errors.
438 states ; e. 9., Ind., Tenn. 5Miss., VI, 145.
Del., IV, 3; N. J., VII, sec. II, 1.
"On nomination of governor appointed by legislature in manner prescribed by law. Conn., Amend. XXVI.
Me., V, Pt. I, 8; Mass., Pt. II, ch. II, sec. I, 9; N. H., II, 45, 46 "R. I., X, 4; S. C., V, 2 ; Vt., II, 42; Va., VI, 91.
1111., VI, 5, 6; La., 87 ; Md., IV, 4; Wis., VII, 4,—"as now provided by law"i. e., from districts.
2e. 9., Ind., VIII, 3; Tenn., VI, 2.
31d., Miss., Nev., Tex., Wyo., also in other states with provision that number may be increased (or, in la. and Ariz. diminished) by legislature, unconditionally or upon a certain event.
Md. be. g., Mass.