Another increase of the administrative power of the president was due to his power of removal, which was not expressed in the constitution, but it was held by a majority vote in the first congress to be a part of the executive power ; 1 Lloyd's Debates 351, 366, 450, 480-600; 2 id. 1-12; 5 Marsh. Life of Washington, ch. 3, 196; and this construc tion of the constitution was judicially ap proved; U. S. v. Avery, Deady 204, Fed. Cas. No. 14,481; and was undoubtedly the recog nized practice of the government until the passage of the Tenure of Office Acts of 1867 9 ; U. S. R. S. § 1767 to 1769; which were re pealed in 1887. See 2 ,Sto. Const. § 1537 43 ; Paper of W. A. Dunning on the Impeach ment and Trial of President Johnson ; 4 Pa pers Am. Hist. Assoc. 491; 1 Kent 310; Porn. Coast. L. § 647-657. To the power of re moval thus recognized. has been attributed the evolution of "the president's power of di rection and supervision over the entire na tional administration" and "the recognition of the possession by the president of the ad ministrative power" ; 1 Goodnow, Comp. Adm. L. 66, Whatever theories may be form ed of the conception of the office in the minds of the framers of the constitution, and however the result may have been brought about, it cannot be doubted that the executive head of the federal government is now in fact the depositary of the complete executive power, as it is understood to com prehend both political and administrative power. He is authorized to appoint certain officers in the executive departments, the dis charge of whose duties is under his direc tion; Marbury v. Madison, 1 Cra. (U. S.) 165, 2 L. Ed. 60; Kendall v. U. S., 12 Pet. (U, S.) 524, 9 L. Ed. 1181; U. S. v. Kendall, 5 Cra. C. C. 163, Fed. Cas. No. 15,517. This is considered by the writer last cited to be a great enlargement of the American concep tion ; and this view seems to be well support ed by the considerations already suggested. It is true that at the time of the adoption of the constitution the powers conferred upon the president were considered by many to be so great as to endanger the stability of the Union, and it is considered by one of the ablest authorities on constitutional law that no one of the three great departments "has been more shorn of its just powers, or crip pled in the exercise of them, than the presi dency ; " Miller, Const. U. S, 20, 95. But the context shows' that this has reference sole ly to the encroachments on the appointing power by the extra-legal participation of members of congress therein—an evil much mitigated by the extension of the civil serV ice system to the greater number of offices which were formerly not subject to its oper ation.
The administrative power of the president includes not only the control of the person nel of the public service but also the vast number of powers brought into action in the course of the administration of the govern ment growing out of powers vested in the president by his duty under the constitution to see that the laws are faithfully executed. These duties, aside from this specific enumer ation in the constitution as already stated, are those imposed upon the president by act of congress, and may be either of a special or general character, as the promulgation of regulations for the control of " particular branches of the public service, such as con sular regulations and the civil service rules; but in most cases such executive regulations proceed from the heads of departments and not from the president directly, although they are in law presumed to proceed from him; Wilcox v. Jackson, 13 Pet. (U. S.) 498,
513, 10 L. Ed. 264; U. S. v. Eliason, 16 Pet. (U. S.) 291, 10 L. Ed. 968; The Confiscation Cases, 20 Wall. (U. S.) 92, 109, 22 L. Ed. 320 ; U. S. v. Farden, 99 U. S. 10, 19, 25 L. Ed. 267; Wolsey v. Chapman, 101 U. S. 755, 25 L. Ed. 915. Executive acts, as to the manner of doing which there is no provision of law, may be done through the head of the proper department whose acts are the acts of the president in contemplation of law ; Jones v. U. S., 137 U. S. 202, 217, 11 Sup. Ct.' 80, 34 L. Ed. 691. The president may act in special cases by directions to his subordinate officers, either directly or through the head of a department, or by his decision on ap peal from either of them, though, as a rule, he is not considered to be authorized to en tertain such appeals except as to the juris diction of the officer appealed from ; 15 Op. Atty. Gen, 94, 100, reviewing opinions on this question; In other cases the appeal does not go beyond the head of the department ; 4 515; 9 id. 462; 10 id. 526.
Nearly if not all the state constitutions contain provisions similar to that of the United States making it the duty of the chief executive to see that the laws are faithfully executed. This provision has been drawn into construction by the supreme court of Mississippi. The governor believed that a contract made by a state board of which the attorney-general was a member was contrary to the constitution, and, hav ing ineffectually endeavored to induce the attorney-general to act in the matter, brought suit himself in the name of the state and the court dismissed the bill, the majority opinion being that no warrant could be found in the constitution or laws of the state for the ac tion of the governor ; Henry v. State, 87 Miss. 1, 39 South. 856. See note on this case; 1 The Law 806. In that state the right of the governor to sue in a foreign state is given by statute; Rev. Code (1892) § 2167.
A governor, being under the constitutional injunction to see that the laws are executed, appears to have no right to execute them himself ; Shields v. Bennett, 8 W. Va. 74; In re Fire & Excise Com'rs, 19 Colo. 482, 36 Pac. 234 ; Cahill v. Board, 127 Mich. 487, 86 IS. W. 950, 55 L. R. A. 493. As to his right to employ counsel for the state, see 55 L. R. A. 493, n. There are state statutes authoriz ing the governor to employ other counsel in certain cases, where the attorney-general is under a disability ; State v. Dubuclet, 25 La. Ann. 161; Orton v. State, 12 Wis. 509. .A governor has also been permitted to bring action on bonds payable to him for the use of the state; Governor v. Allen, 8 Humph. (Tenn.) 176. See note on this subject; 19 Harv. L. Rev. 524.
In' most if not all of the states, the gov ernor has a veto power, and in such case an act of the legislature is not valid unless pre sented to him for approval, the opportunity for his action being essential to the validity of the law ; Wartman v. City of Philadelphia, 33 Pa. 202 ; Burritt v. Com'rs of State Con tracts, 120 Ill. 322, 11 N. E. 180; State v. Newark, 25 N. J. L. 399. In some cases not only a bill but an order or resolution must be presented to the executive, but in most cases adjournment is excepted; Trammell v. Bradley, 37 Ark. 374.