can not be vested otherwise than in the courts.22 And, while the General Assembly may confer the power of appointment upon other officers than the Governor, it cannot give to a private individual, association or corporation the power to make appointments to office, for this would be, in effect, a grant of a special franchise to such private individual, association or corporation.23 (See discussion, article 4, section 22, sub-heading, "Special privileges and immunities;' article 3, sub-heading, "Appointment of officers;" article 9, section 9, sub-heading, "Corporate authorities.")

It must be remembered, however, that not every position is an office within the meaning of this section. In the case of Bunn v People,24 which was decided prior to the adoption of the constitution of 1870, it was held that a similar provision in the constitution of 1848 did not prevent the General Assembly from appointing the commissioners who were to be charged with the duty of supervising the construction of the new state house. The basis of this decision was that the commissioners were not officers within the meaning of the constitutional provision, but were mere agents or employees, for a single and special purpose, whose powers and duties ceased upon the completion of their task. In this connection, it may be noted that section 24 of article 5 provides that an office is a public position, created by the constitution or law, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed. And it has been held that this provision of the constitution is not violated merely because the General Assembly imposes ex officio duties upon an existing officer. Thus, the General Assembly may provide that the highway commissioners of a township shall be ex officio drainage commissioners of that township.25 The mere imposition of ex officio duties does not, in the opinion of the Supreme Court, constitute the creation of a new office.

Section 11. In case of a vacancy, during the recess of the Senate, in any office which is not elective, the Governor shall make a temporary appointment until the next meeting of the Senate, when he shall nominate some person to fill such office; and any person so nominated, who is confirmed by the Senate (a majority of all the Senators elected concurring by yeas and nays), shall hold his office during the remainder of the term, and until his successor shall be appointed and qualified. No person, after being rejected by the Senate, shall be again nominated for the same office at the same session, unless at the request of the Senate, or be appointed to the same office during the recess of the General Assembly.

What is a "vacancy" within the meaning of this section? If an officer dies, or resigns, or is removed it is clear that his office thereby becomes vacant. But does a vacancy exist when there is an office which has never been filled? The only case bearing upon this question is the case of People v Forquer26 arising under the constitution of 1818. Article 3, section 8 of the constitution of 1818 reads as follows: "When any officer, the right of whose appointment is by this constitution, vested in the General Assembly, or in the Governor and senate shall, during the recess, die or his

22 Witter v Cook County Commissioners, 256 Ill. 616 (1912).

23 Lasher v People, 183 Ill. 226 (1899).

24 45 Ill. 397 (1867).

25 Kilgour v Drainage Commissioners, 111 Ill. 342 (1884); Owners of Lands v People, 113 Ill. 296 (1885).

26 1 Ill. 104 (1825).

office by any means become vacant, the Governor shall have power to fill such vacancy by granting a commission which shall expire at the end of the next session of the General Assembly." Claiming to act under this section, the acting Governor, in 1825, during a recess of the senate, appointed William Ewing, Paymaster General in the militia. This office had been created by statute in 1821 but the position had never been filled. The Supreme Court held that this appointment was not justified under the constitution, since the vacancy must arise during the recess of the senate in order to give the Governor the power to make such an appointment. Just how far this decision is applicable as a precedent in construing the present constitution is a doubtful matter, in view of the differences between the language of the constitution of 1818 and that of 1870.

One difficulty involved in construing this section of the constitution is illustrated by the following hypothetical case: Suppose the General Assembly passed an act on June 25, creating an office to be filled by appointment of the Governor with the consent of the senate. Suppose, then, the General Assembly adjourned sine die on June 26, and the act was approved by the Governor on June 27, so that it took effect on July 1. Would the Governor, have the right to assume that there was then a vacancy arising during the recess of the senate so that he might make a temporary appointment under this section of the constitution? It is common in the drafting of bills to make express provision regarding this matter. For example the Civil Administrative Code (Hurds Revised Statutes 1917, Chap. 242. sec. 12) provides that "If the senate is not in session at the time this act takes effect, the Governor shall make a temporary appointment as in case of a vacancy".

The Attorney General has held that "an office does not become yacant on the expiration of the fixed term of the incumbent of the office where under the law he holds until his successor is elected or appointed and qualified." Thus, where the term of a public administrator expired during a recess of the senate the Governor had no power immediately to appoint his successor, since the incumbent holds office until his successor is ap pointed and qualified.27

This section applies to offices which are not elective, but it may be noted that section 20 of article 5, provides for appointment in several cases to fill vacancies in elective offices.

Section 12. The Governor shall have power to remove any officer whom he may appoint, in case of incompetency, neglect of duty, or malfeasance in office; and he may declare his office vacant, and fill the same as is herein provided in other cases of vacancy.

In general. The constitution of 1818 contained no such provision as this, and it was held by the Supreme Court in the early case of Field v. Peoples that the Governor had no power of removal as an incident to his power of appointment. This section was inserted in the constitution of 1870 to insure the nullification of that decision.29 (Debates, p. 748).

Power of Governor. The power of the Governor to remove an officer under this section, for the causes specified, is absolute.30 He is not limited

27 Report Attorney General 1910, p. 172; see Report Attorney General 1900, p. 238. 28 3 Ill. 79 (1839).

29 Wilcox v People, 90 Ill. 186 (1878).

to any particular mode of removal; he may remove an officer without notice or hearing and his discretion in such a removal is not reviewable by the courts.31

In the case of Wilcox v People32 it was contended that the Governor's power of removal under this section was limited to officers whom he had appointed with the consent of the senate, but the court held that the Governor may remove any officer whom he appoints. However, the power of removal is limited to officers appointed by the Governor and has no application to elective officers, unless the General Assembly shall, by a constitutional statute, give the Governor the power to remove such elective officers. Thus, while the Governor may remove a notary public for incompetence," he may not under this section of the constitution, remove a justice of the peace or a state's attorney since the latter are elective officers.34 Indeed, it seems that a statute, giving the Governor power to remove a justice of the peace or a state's attorney would be unconstitutional, since section 30 of article 6 appears to specify the only method by which these officers may be removed. (See article 6, section 30). But, as previously noted, the section now under consideration does not preclude the General Assembly from vesting the Governor with power to remove elective officers. A statute giving the Governor power to remove a sheriff who permits a prisoner to be taken from him by the action of a mob, is constitutional.35

Section 13. The Governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses, subject to such regulations as may be provided by law relative to the manner of applying therefor.

In general. This provision vests in the Governor the exclusive power to grant reprieves, commutations and pardons and a statute granting this power to another is invalid. Thus the Supreme Court has held that an act allowing a judge, who has committed a prisoner to the House of Correction, to vacate the order of commitment, thereby discharging the prisoner, is invalid as an infringement upon the Governor's pardoning power. Similarly, where a prisoner entered a plea of guilty, but no judgment was entered upon this plea until three years later, it was held that this indefinite suspension of the punishment amounted to a reprieve which it was beyond the power of the court to grant.37

The Governor's pardoning power extends to all offenses. An offense is defined as a "transgression of law" and it follows that the pardoning power applies to misdemeanors as well as felonies.38

Convictions. But it will be noticed that the Governor has power to pardon only after conviction. Some doubt exists as to what amounts to a conviction. The Supreme Court, under the constitution of 1848, held that a sentence of the court, and not a mere finding of guilt by a jury, constituted a conviction.39 But that decision rested upon the provision of the constitu

31 Wilcox v People, 90 Ill. 186 (1878).

3290 Ill. 186 (1878).

33 Report Attorney General 1914, p. 164.

34 Report Attorney General 1914, p. 161; 1915, p. 92.

35 People v Nellis, 249 Ill. 12, (1911).

36 People v LaBuy. 285 Ill. 141 (1918): see, also, Report Attorney General 1915, p. 466; 1908, p. 56.

37 People v Allen, 155 Ill. 61 (1895); see Report Attorney General 1910, p. 299. 38 Report Attorney General 1913, p. 739; see People v LaBuy, 285 Ill. 141 (1918).

30 Faunce v People, 51 Ill. 311 (1869).

tion of 1848 requiring the Governor to report to the General Assembly the pardons granted, reporting among other things the sentence. On the other hand the Attorney General has taken the view that a plea of guilty or a finding of guilt by a jury constitutes a conviction under the present constitution. Thus, it was the opinion of the Attorney General that the present probation system (act of June 19, 1911,) violates this section of the constitution, since it gives a court power to suspend sentence after a plea of guilty or a finding of guilt by a jury, thereby infringing the Governor's pardoning power.40

41

Parole law. The Supreme Court has held that the parole law providing for the establishment of a board of pardons does not encroach upon the province of the Governor since the board of pardons has power only to investigate, and the final discharge or commutation must be made by the Governor. Indeed, the Attorney General has said that, so far from being in conflict with this section of the constitution, the parole law was passed in pursuance of the constitutional provision that the Governor may grant pardons "subject to such regulations as may be provided by law relative to the manner of applying therefor."+2

Reprieves, commutations and pardons. The Attorney General has stated that, under a grant of the pardoning power in this form the Governor may grant any form of pardon known to the common law. It may be full and absolute or partial and conditional. If the pardon be full and absolute it blots out entirely the judgment of conviction and the offense. But a conditional pardon or a commutation does not blot out the judgment of conviction. It operates merely on the punishment. So while the Governor may shorten a sentence, he has no power in the opinion of the Attorney General, to change a judgment of conviction of murder to one of manslaughter so as to make the parole law applicable.43

44

And it has been held that a pardon can not remit the court costs, since the right to such costs is vested in those who are to receive them, nor may a pardon remit an informer's right to a portion of the fine where a part of the fine is given, by statute, to an informer.

Section 14. The Governor shall be commander-in-chief of the military and naval forces of the State (except when they shall be called into the service of the United States); and may call out the same to execute the laws, suppress insurrection, and repel invasion.

In the case of City of Chicago v Chicago Ball Club the court held that this section prevents the General Assembly from giving to cities, or their governing authorities, any control whatever over the state militia. (For other provisions relating to militia, see article 12.)

10 Report Attorney General 1912, p. 109; see People v Allen, 155 Ill. 61 (1895). 41 People v Joyce, 246 Ill. 124 (1910).

42 Report Attorney General 1914, p. 440. 43 Report Attorney General 1912, p. 1134. 44 Holliday v People, 10 Ill. 215 (1848). 45 Meul v People, 198 Ill. 258 (1902).

Section 15. The Governor, and all civil officers of the State, shall be liable to impeachment for any misdemeanor in office.

The Supreme Court has said that the term "all civil officers of the state" as used in this section does not include those officers who are mentioned as county officers in article 10, section 8, viz,-the county judge, county clerk, sheriff, treasurer, coroner, clerk of the circuit court and recorder of deeds."

(For other provisions of the constitution relating to impeachment or removal of officers, see article 6, section 30; article 4, section 24; article 5, section 12)

Section 16. Every bill passed by the General Assembly shall, before it becomes a law, be presented to the Governor. If he approve, he shall sign it, and thereupon it shall become a law; but if he do not approve, he shall return it with his objections, to the House in which it shall have originated, which house shall enter the objections at large upon its journal and proceed to reconsider the bill. If then two-thirds of the members elected agree to pass the same, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered; and if approved by two-thirds of the members elected to that house, it shall become a law notwithstanding the objections of the Governor; but in all such cases the vote of each house shall be determined by yeas and nays to be entered upon the journal.

Bills making appropriations of money out of the Treasury shall specify the objects and purposes for which the same are made, and appropriate to them respectively their several amounts in distinct items and sections, and if the Governor shall not approve any one or more of the items or sections contained in any bill, but shall approve the residue thereof, it shall become a law as to the residue in like manner as if he had signed it. The Governor shall then return the bill, with his objections to the items or sections of the same not approved by him, to the house in which the bill shall have originated, which house shall enter the objections at large upon its journal, and proceed to reconsider so much of said bill as is not approved by the Governor. The same proceedings shall be had in both houses in reconsidering the same as is hereinbefore provided in case of an entire bill returned by the Governor with his objections; and if any item or section of said bill not approved by the Governor shall be passed by two-thirds of the members elected to each of the two houses of the General Assembly, it shall become part of said law notwithstanding the objections of the Governor. Any bill which shall not be returned by the Governor within ten days (Sundays excepted) after it shall have been presented to him

47 Donahue v County of Will, 100 Ill. 94 (1881).