can use it only as directed by law. The legislature may regulate the form in which the records and accounts shall be kept and reports shall be made, and, in general, control whatever the constitution has not prescribed." Attorney General. In the case of Fergus v Russel, the Supreme Court took the view that the provision of this section that the Attorney General "shall perform such duties as may be prescribed by law" conferred upon the Attorney General all of the duties which the English Attorney General had at common law, and since the English Attorney General was the sole officer authorized to represent the British Crown, the Attorney General of the state of Illinois must conduct all of the litigation and do all of the legal business for the state. In that case the court said: "The Attorney General is the chief law officer of the state, and the only officer empowered to represent the people in any suit or proceeding in which the state is the real party in interest, except where the constitution or a constitutional statute may provide otherwise. With this exception, only, he is the sole official adviser of the executive officers and of all boards, commissions and departments of the state government, and it is his duty to conduct the law business of the state, both in and out of the courts. The appropriation to the Insurance Superintendent for legal services and for traveling expenses of attorneys and court costs in prosecutions for violations of insurance laws is unconstitutional and void." (See Constitutional Convention Bulletin No. 1, pp. 13, 16.) Auditor of Public Accounts. It has been held that the Auditor of Public Accounts is vested with certain powers of which the General Assembly may not deprive him. In the case of People v. Brady the court said: "It is not within the power of the General Assembly to deprive the Auditor of Public Accounts of the power conferred upon him by the constitution to audit claims and charges against the state created in pursuance of an appropriation made by law." But it has been held that it is within the power of the General Assembly to require that claims or charges against the state be approved by some official before they are presented to the Auditor." (See discussion article 4, section 17, subheading, “Auditor's Warrant”.) Section 2. The Treasurer shall hold his office for the term of two years, and until his successor is elected and qualified; and shall be ineligible to said office for two years next after the end of the term for which he was elected. He may be required by the Governor to give reasonable additional security, and in default of so doing his office shall be deemed vacant. Section 3. An election for Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, and Attorney General, shall be held on the Tuesday next after the first Monday of November, in the year of our Lord one thousand eight hundred and seventy-two, and every four years thereafter; for Superintendent of 4 270 Ill. 304 (1915). And see Dahnke v People, 168 Ill. 102 (1897). 5277 Ill. 124 (1917). t Public Instruction on the Tuesday next after the first Monday of November, in the year one thousand eight hundred and seventy, and every four years thereafter; and for Treasurer on the day last above mentioned, and every two years thereafter, at such places and in such manner as may be prescribed by law. Section 4. The returns of every election for the above named officers shall be sealed up and transmitted, by the returning officers, to the Secretary of State, directed to the "The Speaker of the House of Representatives," who shall, immediately after the organization of the House, and before proceeding to other business, open and publish the same in the presence of a majority of each House of the General Assembly, who shall, for that purpose, assemble in the hall of the House of Representatives. The person having the highest number of votes for either of said offices shall be declared duly elected; but if two or more have an equal, and the highest number of votes, the General Assembly shall, by joint ballot, choose one of such persons for said office. Contested elections for all of said offices shall be determined by both houses of the General Assembly, by joint ballot, in such manner as may be prescribed by law. The Attorney General has ruled that the requirements of this section as to canvass of the votes must be complied with before the officers are entitled to assume office. Thus, where both houses of the legislature were deadlocked in organizing and for that reason could not hold the joint meeting required by this section, the inauguration of the state officers was necessarily postponed until this joint meeting had been held and the votes canvassed, although it will be noticed that section 1 of this article fixes a definite date for the inauguration.' The Attorney General has also held that, while this section precludes the House of Representatives from engaging in other business prior to the joint meeting required by this section, it does not prevent the Senate from transacting other business. 8 Section 5. No person shall be eligible to the office of Governor, or Lieutenant Governor, who shall not have attained the age of thirty years, and been, for five years next preceding his election, a citizen of the United States and of this State. Neither the Governor, Lieutenant Governor, Auditor of Public Accounts, Secretary of State, Superintendent of Public Instruction nor Attorney General shall be eligible to any other office during the period for which he shall have been elected. The last sentence of this section does not prevent the General Assembly from imposing ex officio duties upon the officers named. Thus the Supreme 7 Report Attorney General 1912, p. 1237. Court has held that a statute making the Superintendent of Public Instruction ex officio trustee of a state normal school does not violate this section, since it merely prescribes additional duties for that officer and does not require him to hold any other office than that of Superintendent of Public Instruction." Section 6. The supreme executive power shall be vested in the Governor, who shall take care that the laws be faithfully executed. In general. Article 3 provides that the powers of the government shall be divided into three distinct departments, the legislative, executive, and judicial, and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to another, except as otherwise provided in the constitution. Under this provision, it is held that the investiture of the Governor with supreme executive power makes the chief executive independent of the judiciary and the courts can not, therefore, control his actions.10 (See discussion article 3, subheading, "Independence of departments".) Governor's power to execute laws. In the early case of Field v People11, the Supreme Court, in construing a similar section of the constitution of 1818, laid down the far reaching principle that the constitution is a limitation upon the power of the General Assembly, but a grant of power to the executive and judicial branches of the government. The court held that it followed from this principle that the Governor has no implied powers except such as are necessarily incidental to the execution of his express powers. And since no specific power is granted by this section, none can be implied. The Attorney General, on at least three occasions, has advised the Governor that the chief executive may exercise no power by virtue of this clause. Thus the Attorney General has said that the Governor has no power by virtue of this section to enforce the Sunday closing law or dram shop act,12 nor has the Governor power to aid the courts in the execution of their process, except by virtue of his power to use the militia in case the courts are obstructed in enforcing their process.13 Section 7. The Governor shall, at the commencement of each session, and at the close of his term of office, give to the General Assembly information, by message, of the condition of the State, and shall recommend such measures as he shall deem expedient. He shall account to the General Assembly, and accompany his message with a statement of all moneys received and paid out by him from any funds subject to his order, with vouchers, and, at the commencement of each regular session present estimates of the amount of money required to be raised by taxation for all purposes. People v Inglis, 161 Ill. 256 (1896). 10 People v Dunne, 258 Ill. 441 (1913). 11 3 Ill. 79 (1839). 13 Report Attorney General 1906, p. 54; 1915, p. 78. Section 8. The Governor may, on extraordinary occasions, convene the General Assembly, by proclamation, stating therein the purpose for which they are convened; and the General Assembly shall enter upon no business except that for which they were called together. The Attorney General has said that the Governor might issue an additional proclamation, during a special session of the General Assembly, naming additional subjects for legislative consideration. But such a message should be in the form of an independent proclamation, and not an amendment to the original proclamation.11 It is a direct violation of this section of the constitution for the General Assembly, at a special session, to pass an act upon a subject matter not mentioned in the governor's proclamation convening the special session.15 However, it was the opinion of the Attorney General that an amendment to the federal constitution might be ratified at a special session of the General Assembly, despite the fact that this purpose was not mentioned in the Governor's proclamation. This opinion was based upon the view that the provision of this section that the "General Assembly shall enter upon no business except that for which they were called together" merely prohibits that body from performing legislative acts other than those mentioned in the proclamation convening the General Assembly. In the opinion of the Attorney General the ratification of the amendment to the federal constitution was not a legislative act. But the Attorney General in the same opinion, suggests the advisability of avoiding all doubt by permitting a regular session of the General Assembly to ratify such an amendment.16 Section 9. In case of a disagreement between the two houses with respect to the time of adjournment, the Governor may, on the same being certified to him by the house first moving the adjournment, adjourn the General Assembly to such time as he thinks proper, not beyond the first day of the next regular session. The principal difficulty arising under this section is the determination of when a disagreement exists between the two houses, with respect to the time of adjournment. Mr. Elliott Anthony, in introducing this section in the constitutional convention of 1869-70 said: "The term 'disagreement' is a technical term and consists of five steps; (1) The originating house nonconcurs; (2) the amending house insists; (3) the originating house insists; (4) the amending house adheres; (5) the originating house adheres". (Debates p. 748). In this connection the case of People v Hatch" is interesting. That case arose under the constitution of 1848, which contained a provision similar to this, except that the certificate of the house first moving the adjournment was not a prerequisite to the Governor's power to act. The facts of that case were as follows: On the 6th day of June, 1863, the Senate adopted a resolution for final adjournment at 6 o'clock in the afternoon of that day. The House amended this resolution by inserting the 22nd day of June and, when the senate refused to concur in this amendment, and, before the House had taken any further action, Governor Yates, by proclamation, declared the legislature adjourned. When this matter was brought before the Supreme Court, the court scrupulously refrained from expressing an opinion as to the legality of the Governor's action. However, Justice Breese, in a separate opinion, expressed the view that it was for the General Assembly to determine whether the Governor had cause to take this action but that the subsequent actual departure of the General Assembly was an acquiescence in the Governor's action. It will be observed that all of the steps mentioned in Mr. Anthony's definition of a disagreement did not occur in this case. It seems to have been the consensus of opinion, in the convention of 1869-70 that some alteration of the section, as it stood in the constitution of 1848, was desirable to prevent a recurrence of the prorogation of 1863. (Debates p. 776-779.) There was some disagreement as to how this could best be accomplished. The expedient of requiring the certificate of the House first moving the adjournment that the disagreement actually existed was finally adopted as the most effective safeguard against arbitrary action by the Governor. In 1911, the Attorney General rendered an opinion that when the Governor had received the certificate of disagreement from the house first moving the adjournment, the Governor was the sole judge of whether or not a disagreement actually existed and his discretion was not reviewable by the courts. The Attorney General also took the view that if the Governor should adjourn the General Assembly to a specified date, he might, before that date, exercise his constitutional power to call a special session, if an emergency requiring such a session should arise.18 Section 10. The Governor shall nominate, and by and with the advice and consent of the Senate, (a majority of all the Senators elected concurring, by yeas and nays), appoint all officers whose offices are established by this Constitution, or which may be created by law, and whose appointment or election is not otherwise provided for; and no such officer shall be appointed or elected by the General Assembly. While this section deprives the General Assembly of the power to appoint to office it does not mean that all state officers whose offices are created by the constitution or by law, must be appointed by the governor.19 The General Assembly may create offices and provide that they shall be filled by the appointment of some officer other than by the Governor. Thus, the General Assembly may authorize the courts to appoint boards of election commissioners, election judges, county mine examining boards and park commissioners.20 But it has been held that the power to appoint and remove city fire marshalls can not be vested in the courts, since this power is an executive power, which the separation of the departments of the government precludes the courts from exercising.21 Likewise it has been held that the power to appoint probation officers is a judicial function and 18 Report Attorney General 1912, p. 73. 19 People v Evans, 247 Ill. 547 (1910), but see Veto Message, No. 16. 20 People v Board of Supervisors, 223 Ill. 187 (1906); People v Hoffman, 116 Ill. 587 (1886); People v Evans, 247 Ill. 547 (1910); People v Morgan, 90 Ill. 558 (1878); see People v Kipley, 171 Ill. 44 (1898). |