as executive in their nature. In some commonwealths the legislature is given the power of appointing some of the important commonwealth officers. In New Jersey, the legislature, for example, appoints the treasurer and comptroller, in Delaware and Maryland the treasurer, in New Hampshire, Maine and Virginia, the treasurer and secretary, in Tennessee the comptroller, and in Maine the attorney-general.' The senate confirms the governor's appointment of the attorney-general and the secretary of state in New Jersey, of the superintendent of public works and prisons in New York, of the secretary of state and the attorney-general in Pennsylvania, and of the secretary of state in West Virginia, Kentucky, and Texas. The constitutions of New Hampshire, Pennsylvania, Ohio, Indiana, Wisconsin, Kentucky, Nebraska, West Virginia, Kansas, Tennessee, Missouri, California, Oregon, Nevada, and Florida provide that officers whose appointment is not provided for by the constitution shall be appointed or elected in the manner prescribed by the legislature. In Rhode Island, Ohio, Wisconsin, Kansas, Virginia, West Virginia, North Carolina, California, Nevada, Illinois, New York, and Louisiana, the legislature is empowered to remove certain officers; and in Connecticut, Maryland, Delaware, Kentucky, Missouri, Texas, Oregon, South Carolina, Mississippi, Louisiana, New Hampshire, Massachusetts, Pennsylvania and Michigan, both houses of the legislature may address the governor to exercise his power of removal.3 In West Virginia, Minnesota, Missouri, Nevada, Colorado, South Carolina, Texas, North Dakota, South Dakota, Wyoming, Washington, and Montana, the legislature may provide for the removal of inferior officers for malfeasance or misfeasance of their duties.4

Texas, Alabama, Louisiana, Tennessee, Indiana, Arkansas,

1 Stimson's Am. Statute Law, sec. 202. 2 lbid., sec. 202. 3 Ibid., sec. 265. Ibid., secs. 210, 265, 268; Const. of North Dakota, sec. 197; South Dakota, art. 16, sec. 4; Wyoming. art. 3, sec. 19; Washington, art. 5, sec. 3; Montana, art. 5, sec. 18.

Mississippi, and Oregon permit their courts to remove certain officers, as the attorney-general.'

In Massachusetts, Maine, New Hampshire, Rhode Island, Colorado, and South Dakota, the judges of the supreme court are required, upon solemn occasions, upon the request of either house of the legislature, or of the governor and council, to give their opinions upon important questions of law and in Florida they are required, upon the request of the governor, to give their opinions on any questions affecting his executive powers and duties.2

The opinions given in accordance with such constitutional requirements are generally held to be merely advisory, and not binding upon the courts in subsequent cases.3

The courts have declared that they will not construe and give their opinion on provisions which do not affect a pending act, and which do not affect purely public rights.5 In Massachusetts, the justices will not give an opinion on the proper construction of an existing act which the legislature may amend, and in Colorado they will not answer questions covered by pending litigation."

In Florida, the justices refused to render an opinion upon request of the governor, as to what character of a bill the legislature is denied the power to pass under a certain provision of the constitution, and which, when submitted to the governor, it will be his duty for that reason to disapprove, on the ground that such an opinion would not affect his executive but only his legislative powers and duties.8

In Missouri it has been said that while under provisions like the foregoing the governor may determine for himself

1 Stimson's Am. Statute Law, sec. 267.

2 Cooley's Const. Limitations, p. 53 n; Const. of South Dakota, art. 5, sec. 13 * See Thayer, Memoranda on the Legal Effect of Opinions given by Judges. In re Senate Resolutions, 21 Pac. Rep. 470. 5 Ibid., 21 Pac. Rep. 478.

Op. of Justices, 21 N. E. Rep. 439.

In re Irrigation Resolution, 9 Col. 620.

8 Op. of Justices, 23 Fla. 297.

whether the occasion is such as to authorize him to call on the judges for their opinion, they must decide for themselves whether the occasion is such as to warrant the governor in making the call.1

In Delaware, the chancellor and judges, though not required by any constitutional provision to do so, gave, as a matter of courtesy, in response to a joint resolution of the general assembly, written opinions as to the power of that body to change the basis of the representation of the several counties in it.2

In Vermont there is a statute which provides that the governor may require an opinion on questions connected with the discharge of his duties, and in Kentucky an opinion has been given by the judges to the chief executive, without even the requirement of a statute, on the power of the governor to fill a vacancy in the supreme court.3

When President Washington, in 1793, requested the opinion of the judges of the United States supreme court upon the construction of the treaty of 1778 with France, they declined to give such an opinion.

1 Op. of Judges, 49 Mo. 216. The provision in the Missouri constitution of 1865 requiring the judges to give opinions in such cases was omitted from the constitution of 1875.

2 Opinions of the Chancellor and Judges, Dover, 1883.

3 Op. of Judges, 79 Ky. 621.

5 Marshall's Life of Washington, ch. 66, pp. 433-441.

CHAPTER VI

THE SEPARATION AND BALANCE OF POWERS IN THE TERRI

TORIES OF THE UNITED STATES

THE territories of the United States present an interesting form of local self-government. Their government is created by Congress acting pursuant to the Constitution, which provides: "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territories or other property belonging to the United States."

From this provision of the Constitution it follows that the political rights of the people of the territories are franchises which they hold as privileges in the legislative discretion of the Congress of the United States. The form of government to be established therein depends exclusively on Congressional discretion. Having the power to erect territorial government, Congress may confer on it such powers, legislative, executive and judicial, as it deems best. It may confer upon it general legislative powers, subject only to the laws and the Constitution of the United States.

The power of Congress is such that it may not only abrogate laws of the territorial legislatures, but may itself legislate directly for the local government. It may make a void act of the territorial legislature valid, and a valid act void. In other words it has full and complete authority over the people of the territories, and all of the departments of the territorial governments. It may do for the territories what the people under the constitutions may do for the commonwealths.3

1 Art. iv, sec. 3.

2 Murphy vs. Ramsey, 114 U. S. 15, 45.

3 National Bank vs. Yankton, 101 U. S. 129. See Burgess, Pol. Sc. and Const. Law, vol. 2, p. 159.

179]

47

The relation of the territories to Congress very much resembles the former relation of the colonies to the British Parliament, the organic laws of the territories resembling the charters of the colonies. The organic laws of the territories take the place of the constitutions as the fundamental law of their local governments.1

Their organic laws have been construed in very much the same manner as corresponding clauses in the commonwealth constitutions have been. Thus it has been held that the legislative power conferred upon a territorial legislature by an organic act cannot be delegated; that powers conferred upon the governor by such acts cannot be limited or restricted by the legislatures;3 that territorial legislatures have only such powers as Congress bestows upon them.4

Although Congress might have governed the territories. directly without the intervention of a local government, it has in most cases delegated the administrative power of governing the territories to local authorities created by it. By statute a government has been established for each of the territories, excepting Alaska and the Indian Territory, consisting of a legislative, executive and judicial department, with powers analogous to those vested in the governmental departments of the central and commonwealth governments of the United States.

Thus Congress has provided that the executive power of each territory shall be vested in a governor,5 the legislative power in a governor and a legislative assembly consisting of a council and a house of representatives, and the judicial power, in all territories except Arizona, in a Supreme Court, District Court, Probate Court and Justices of the Peace. The judicial power in Arizona is vested in a Supreme Court and such

1 National Bank vs. Yankton, 101 U. S. 129.

2 Winter vs. Hughes, 3 Utah, 443.

4 Treadwell vs. Schnauber, I Dak. 236.

6 Ibid., sec. 1846.

316 Op. of Att'y-Gen❜l, 27.

U. S. Rev. St., sec. 1841.

1 Ibid., sec. 1907.