CHAPTER VII.

CONSTITUTIONAL PROVISIONS DEFINING THE RELATIONS OF LEGISLATURE AND EXECUTIVE

In other relations it has been said that one of the prime reasons for the representative system is to make officers charged with carrying on or administering affairs of state responsible to the people for their acts; and that this, when analyzed, means: responsibility for leadership, responsibility for the fidelity and fitness of subordinates, and responsibility for efficiency in management—for the use of men and money as measured by results. It has also been said that the function of the legislature is to serve as a regularly organized constitutional means for enforcing executive responsibility. This suggests consideration of the provisions in the constitution of the state defining the regulations of the legislature and the executive.

Responsibility for Use of Executive Power Implies Leadership

Responsibility for the use of executive power inevitably implies leadership. Executive power and leadership cannot be separated. In both public and private business, those who are charged with high duties and who are made responsible for their proper discharge must be leaders or failures. On the contrary, irresponsible official leadership means autocracy. Irresponsible, unofficial leadership means domination by political "boss."

Need for Executive Leadership Understood at Time of First Constitution

At the time the first constitution was adopted there was a very definite comprehension of the need for executive leadership, though, as before pointed out, the plan for making the official leader responsible had not been developed as a matter of public law (above pp. 54-58). It was also understood that autocracy must be prevented at any cost. The wellestablished constitutional principle was therefore adopted that the administrative officer must wait on legislative authority before he could raise or spend money, before he could proceed with any undertaking. As has been shown, this principle is not inconsistent with executive leadership. But does not in itself provide for executive leadership. So far as the executive is concerned it is purely negative in its importance. It is positive only in the opportunity it gives for the enlargement of legislative power when executive leadership is not provided for.

The conclusion that the need for executive leadership was understood when the government was first established, appears from the provision. of the organic law of the state, which declares that "the executive power shall be vested in a governor," but, paradoxical as it may sound, the first

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constitution as well as every subsequent constitution failed to vest in the governor the executive power which it has declared to be his. As Governor Hughes remarked in his inaugural address of 1909, "There is a domain. of executive or administrative action over which he has no control, or slight control." In other words, the means of exercising the executive power are not given to the governor. To continue the analysis made by Governor Hughes: "There are several elected state officers not accountable to the governor, who exercise within their prescribed spheres most important executive powers * *. 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 officers are generally longer than the governor's term. And in their creation the legislature, with few exceptions, has reserved the 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." Thus the fundamental fact stands forth that the means of exercising the executive power are largely withheld from the governor in whom the power is constitutionally vested.

TWO IMPORTANT WAYS IN WHICH GOVERNOR IS RECOGNIZED AS LEADER

Nevertheless, in two important ways the governor is recognized as a responsible leader:

His Duty to Recommend Measures

All of the constitutions of this state have made it the duty of the governor to inform the legislature of the condition of the state and to recommend such matters as he shall deem worthy of consideration by that body. In the first organic law, he was instructed to recommend such matters "as appear to him to concern its [the state's] good government, welfare and prosperity." Under the present constitution he is to recommend whatever he shall "judge expedient." Obviously the duty of studying public policies and administrative methods is thus clearly laid upon the governor, with a view to his formulating positive recommendations to the legislature. By this very act the governor assumes before the public a marked responsibility, which is not discharged by a mere perfunctory address to the representative body.

His Power to Call Representatives Together in Extra Session

Further evidence of recognition of the need for executive leadership is found in provisions that give to the governor the power to call an extraordinary session of the legislature and to limit the work of such a

session to only those subjects which he may recommend for consideration. The exercise of this power by executives of great distinction and the general approval that has followed such exercise, in most cases, are evidence of popular appreciation and understanding of its significance.

LACKING IN MEANS FOR MAKING LEADERSHIP EFFECTIVE

What is lacking is the means for making leadership effective. When the principle which is recognized in private affairs as essential to leadership (viz., responsibility and effective collective action) is applied to the business of government it is evident that the one power essential to effective leadership is withheld or not made mandatory. It is not made the duty of the executive to appear personally before the legislature with projects or measures that are regarded by him to be needful. Не is not required to formulate measures nor to have them formulated and presented by a responsible body of executive advisers or cabinet. Neither the governor nor anyone responsible to him is required to appear on the floor of the legislature to submit and defend his proposals against all "opposition" or to modify them, so that, if he is not supported, he may be in a strong position in going before the people on the issue raised. This has long been the common practice in all business corporations, but it has not been fully developed as a means of making government responsible.

Right to Introduce and Defend Measures Necessary to Effective Leadership

Since the establishment of the first state constitution, however, the above principle has been firmly fixed abroad. Recognizing such a requirement of the executive as essential to leadership, as well as essential to the location and enforcement of responsibility, the King's" speech from the throne" in England is written by the cabinet and embodies the recommendations of the executive branch of the government. The French constitution provides that the executive may call extraordinary sessions and communicate by message, as in this country, and also gives to the executive power to introduce bills concurrently with the members of the legislature; and finally adds that "the ministers have entrance to both chambers and must be heard" (Article 6 of the Act of July 16, 1875). The admission of the executive to the floor of the legislature has also found widespread approval in the United States. The principle has received the endorsement of more than one president and it was approved by a committee of the federal senate a quarter of a century ago. It has been demonstrated to be sound and effective in foreign government as well as in private business enterprises.

Argument Opposed to the Principle Not Well Founded

The only argument in opposition to the principle, which carries weight with American opinion, is based on the assumption that admission of the executive to the floor would break down the accepted theory of separation of powers. This assumption has no foundation. On the contrary, it has been shown by all the experience of representative government that in those institutions in which the executive is required to meet with the representative body and submit his proposals and defend them, the principle of separation of powers has been preserved, whereas in those institutions in which no provision has been made for this, there has been a constant invasion of the administrative field by the legislative branch or the legislative field by the executive, or both.

Executive Leadership Essential to Preservation of Separation of Powers

The power to propose, explain, and defend, does not convey any power to enact; the power to question and criticize an executive officer is not an executive power, but a legitimate legislative function. The practice of admitting the executive officers to the legislature, only emphasizes the separation of powers and makes it really effective. It makes unnecessary those subterranean relations between the two branches which inevitably spring up when official lines of communication are forbidden. Under such a system the executive can really and effectively criticize the legislature and the legislature can force the executive to give an account of his conduct in office every day in the year. Without such administrative measures the constitutional inhibitions to prevent autocracy (the provisions requiring the executive to get authority from the legislature before he can proceed) gives to the legislature the power gradually to supplant the executive in the field of administration as it has done in this country.

Executive Leadership Essential to Safe Use of Veto Power

Certainly it must be admitted that such a system is not so much a violation of the separation of powers as is the authority to veto acts of the legislature; yet this is employed without any means of gaining for the people the benefits of requiring both the executive and the legislative to work in the open. Under present conditions the veto makes the governor responsible for legislation as well as for administration; and the denial of the right to the governor to formulate measures of administrative importance, to introduce and defend them, makes the legislature. responsible for administration as well as for legislation. The result is the utmost confusion, instead of separation, of powers and responsibilities, as has been claimed.

An Alternative to Invisible Government

By adding to the power to propose measures and veto enactments, the right of introducing bills and defending them before the legislature, responsibility for both administration and legislation is definitized and made enforceable through appeals to public opinion. In the absence of such a procedure, unwise administrative measures are proposed by persons not responsible to the state at large for results and enacted into law without receiving the scrutiny of any officers charged with their enforcement. The only consideration that can now be given to such measures is in committee. Those which are enacted into law are usually enacted as the result of arrangements among members who are not openly responsible to the legislature, to say nothing of the state at large, and who work often in conjunction with those wholly unofficial persons that make it a business to organize the votes of localities favored by the legislation in hand to build up a system of patronage through the appropriations, contracts, and independent administrative functionaries of the

state.

No Provision for Leadership in Matters of Economy

No provision is made for executive leadership in obtaining authority to raise and spend money. The power of the governor is negative only. The present constitution of New York vests in the governor power to veto single items of appropriation as well as whole bills. Article IV, section 9, provides that "if any bill presented to the governor contain several items of appropriation of money, he may object to one or more of such items while approving of the other portion of the bill." If the legislature is in session it may enact such items into law only by a twothirds vote. In actual practice, however, it generally happens that the legislature adjourns leaving a large number of unsigned appropriation measures in the hands of the governor.

Executive Veto to Items in Money Measures Only a Palliative

Under such circumstances the governor is held responsible for the acceptance or reduction of items as passed in measures for which he is not responsible. The power operates as a check on an irresponsible legislature. It does not cure irresponsibility; it does not supply leadership; it does put into the hands of the governor the power to punish political enemies by using the pruning knife where he will, in the plea of economy. The power is not constructive, but may be made highly destructive. It transfers from the legislative committee room to the executive chamber all the pressure that has been brought to bear in furtherance of the plans of an irresponsible "boss." It simply invites another dark room proceeding, instead of having the business of the state done in the open, in the face of the "opposition."