45

46

of the governor to approve and sign a bill presented to him within ten days previous to the adjournment of the legislature does not cease with the adjournment, but he may sign the bill after the adjournment, and it thereupon becomes a law. Unless the constitution so provides, it is not incumbent upon the governor to return to either house of the legislature any bill or act after it has received his approval and signature; if he reports to either house his approval of the bill, it is a matter of courtesy only. Subsequent approval of an act by the governor does not dispense with requisites which must exist in order to confer authority on the legislature, to pass the act.** If the governor does not approve the bill, he is to return it, with his objections, to the house in which it originated. This return is usually and properly made by an executive messenger. If the governor, having announced his intention of vetoing a bill, delivers it to the member who introduced it, on his representation that it was recalled by the house for reconsideration, and the member hands it to private interested parties, it does not become a law under the constitutional provision that if the governor shall not return a bill within ten days it shall be a law in like manner as if he had signed it. If the constitution gives the governor power merely to return the bill with his objections (that is, to veto the bill as a bill), he must treat it as a whole. He cannot disapprove of one item in an appropriation bill and approve all the rest. If he attempts to do this, the bill will be considered as approved as a whole, and every part of it will become law."9 When the veto power is given to the governor, it is checked by a provision that bills vetoed by him may be passed over his veto by a prescribed majority of the members of both houses. It is held that a bill, after being so passed over the veto, need not be again signed

45 People v. Bowen, 21 N. Y. 517; Solomon v. Commissioners, 41 Ga. 157; State v. Board of Sup'rs of Coahoma Co., 64 Miss. 358, 1 South. 501. Compare Hardee v. Gibbs, 50 Miss. 802; Fowler v. Peirce, 2 Cal. 165.

46 State v. Whisner, 35 Kan. 271, 10 Pac. 852.

47 Manor Casino v. State (Tex. Civ. App.) 34 S. W. 769.

48 McKenzie v. Moore, 92 Ky. 216, 17 S. W. 483.

49 Porter v. Hughes (Ariz.) 32 Pac. 165. But in Texas, and perhaps some other states, the constitution provides that the governor may object to one or more items of an appropriation bill and approve the rest. See Pickle v. McCall, 86 Tex. 212, 24 S. W. 265.

by the presiding officers of the two houses; such passage makes it ipso facto a law.50

Executive Construction of Laws.

51

The executive is bound to give effect to the laws which regulate. his duties, and in so doing he must necessarily put a construction upon them. But a mere ministerial officer cannot be allowed to decide upon the validity of a law, and thus exempt himself from responsibility for disobedience to the command of a peremptory mandamus, his disobedience to the law being the cause of his inability to obey the command of the court.52

State Governors under the Federal Constitution.

The constitutional functions of the governor of a state are regulated to some extent by the constitution of the United States, and chiefly in relation to matters concerning the intercourse of the states with each other, and to the representation of the state in congress. Thus, by the fourth article of the constitution, a person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. Again, the United States is bound to protect each state against domestic violence, when application for federal aid is made by the legislature. But when the legislature cannot be convened, the executive of the state may call for such assistance. All executive officers of the several states are required to be bound by oath or affirmation to support the constitution of the United States. When vacancies happen in the representation of any state in congress, the executive authority thereof shall issue writs of election. to fill such vacancies. And if vacancies happen in the senate, by resignation or otherwise, during the recess of the legislature of the state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.

50 City of Evansville v. State, 118 Ind. 426, 21 N. E. 267.

51 U. S. v. Lytle, 5 McLean, 9, Fed. Cas. No. 15,652; State v. Hallock, 16 Nev. 373.

52 People v. Salomon, 54 Ill. 39.

126. The judicial power of each state is vested in a system of courts, comprising, generally, three classes

(a) A court of last resort, possessing supreme appellate jurisdiction.

(b) A number of courts of equal and co-ordinate authority, each within its territorial limits, possessing general original jurisdiction, civil and criminal.

(c) Inferior courts, held by justices of the peace or police magistrates, possessing jurisdiction of minor civil causes and petty criminal offenses.

The system of courts, in respect to its details, varies very greatly in the different states, but in its main features there is a marked similarity of plan. The general design is to establish one court of last resort, which shall have final appellate jurisdiction over all the rest, and a series of inferior courts, territorially distributed through.. out the state, possessing general original jurisdiction, civil and criminal, together with certain courts of greatly restricted powers, and usually proceeding without a jury, which are intended for the trial. and determination of minor causes. The court of last resort is sometimes called the "supreme" court, sometimes the "court of appeals," sometimes the "court of errors and appeals," and there are some other variations of these names. This court, as a rule, is vested with very narrow original jurisdiction, but with the ultimate

appellate jurisdiction, both in civil and criminal causes. It also has power to issue various prerogative writs, or other extraordinary remedies, such as the writs of habeas corpus, certiorari, mandamus, injunction, quo warranto, and writs of error.

High original jurisdiction is vested in a series of courts, which are called "superior courts," "circuit courts," "district courts," "general terms of the supreme court," or "courts of common pleas." These courts possess general original jurisdiction of all suits, actions, and judicial proceedings. In some states, they are also vested with jurisdiction in equity; in others, there is a separate system of chancery courts. Criminal jurisdiction is vested also in these courts, though in some states they are designated by other names when sitting on the criminal side, such as courts of "oyer and terminer," courts of "quarter sessions," or courts of "general jail delivery." Courts of this class also possess appellate jurisdiction, in some states, from the inferior courts, such as justices of the peace, probate courts, or municipal courts.

Another series of courts is vested with the jurisdiction of the probate of wills, the granting of letters testamentary, and the settlement of the estates of decedents, and generally of the appointment of guardians for minors and the settlement of their accounts. These courts are variously called "probate courts," "surrogates' courts," "orphans' courts," or "courts of ordinary."

Justices of the peace are found in all the states, and they are privileged to hold courts for the determination of civil cases of minor importance, their jurisdiction being usually limited to cases in which the amount involved does not exceed a certain small sum, or where the title to real estate does not come into controversy. They are also conservators of the peace, and possess the powers of committing magistrates, and also, in some states, final jurisdiction over minor offenses and breaches of the peace.

In many of the states, there are established courts in the larger cities, called "municipal courts," which are invested with a minor civil jurisdiction similar to that of justices of the peace, usually limited to a small sum, and sometimes concurrent, up to that limit, with the jurisdiction of the circuit or district courts. They usually possess jurisdiction in criminal cases, extending to the final trial of minor offenses, such as violations of municipal ordinances or

breaches of the peace, which are not triable by jury, and jurisdiction in graver cases to make a preliminary investigation and hold the offender to bail. In some states, they also have appellate jurisdiction over the justices of the peace.

The "police courts" found in some of the states are very similar to the municipal courts just mentioned, except that, as a general rule, they have no civil jurisdiction, being confined to the trial of petty criminal offenses and the preliminary inquiry into felonies and high misdemeanors.

The foregoing general view makes no mention of various courts which are peculiar to one or a few of the states. The state judiciary systems, as already observed, are marked by great diversities in the details. And the limits of the present work do not admit of a review of the powers of such courts as the "corporation courts," "hustings courts," "mayor's courts," "parish courts," "prerogative courts," "recorders' courts," and others, existing only in a few of the states.1

CONSTITUTIONAL COURTS.

127. Such courts as are provided for in the constitution of the state can neither be abolished nor changed by the legislature. And whatever jurisdiction is intrusted to them by the constitution is beyond the reach of the legislature; it can neither be added to, diminished, nor modified. the manner of its exercise may be regulated by statute.

The judicial department being an independent and co-ordinate branch of the state government, the constitutions do not leave the judicial power to be prescribed and regulated at the discretion of the legislature, but declare, with a greater or less degree of minuteness, in what courts it shall be vested, and place their powers and functions, with more or less precision, beyond the reach of the legislative will. When the constitution of the state provides that the judicial power of the state shall be vested in certain enumerated courts, they are thereby constituted an independent branch of the government, and placed without the limits of legislative interfer

1 For more detailed information the reader may consult Stim. Am. St. Law, §§ 550-559.