Where there were rival bodies each claim ing to be the legislature, it has been held that the recognition of the governor is not effective to determine between them ; Ex parte Screws, 49 Ala. 57; In re Gunn, 50 Kan. 155, 32 Pac. 470, 948, 19 L. R. A. 519 ; but under the United States constitution, the president, by virtue of the guaranty to the states against domestic violence, upon the application of the legislature, and his authority to suppress insurrection, necessari ly has the power to determine who constitute the legislature, as it was held in Luther v. Borden, 7 How. (U. S.) 1, 12 L. Ed. 581.
In the absence of constitutional authority to the contrary, the governor must approve or veto a bill as a whole ; Porter v. Hughes, 4 Ariz. 1, 32 Pac. 165, where without such authority the governor vetoed part of an ap propriation bill, but his signature affixed to it waS held to be an approval of the whole bill ; but in State v. Holder, 76 Miss. 158, 23 South. 643, the contrary was held and the action of the executive was treated as a nullity ; where, however, he is authorized to veto separate items, he may also veto a part of an item ; Coin. v. Barnett, 199 Pa. 161, 48 Atl. 976, 55 L. R. A. 882 ; but he may not veto some items before adjournment and others after it ; Pickle v. McCall, 86 Tex. 212, 24 S. W. 265. Where the governor inad vertently approved one bill believing it to be another and recalled his action, it was held valid so long as the bill was before him, but would not have been so if returned to the legislature ; People v. Hatch, 19 III. 283; Alle gany County v. Warfield, 100 Md. 516, 60 Atl. 599, 108 Am. St. Rep. 446. Where be had deposited the bill in the office of the secre tary of state with his approval endorsed on it, it had passed beyond his control, and he had no authority afterwards to veto it ; Peo ple v. McCullough, 210 I11. 488, 71 N. E. 602. The return of a bill to either house, or notifi cation of its approval, is a matter of courte sy only and not required by law ; State v. Whisner, 35 Kan. 271, 10 Pac. 852.
Whether a measure may be recalled by the legislature after having been sent to the executive is in doubt ; Wolfe v. McCaull, 76 Va. 876, where its return is said to be "a mere act of courtesy" ; and see People v. Devlin, 33 N. Y. 269, 88 Am. Dec. 377. An opinion of the attorney-general of Wisconsin holds the practice of the surrender of bills by the executive as questionable, and doubts whether, if returned, it may be changed by the legislature ; Op. Atty. Gen. Wis. Sen. Jour. (1897) 690. See also Smith v. Jen nings, 67 S. C. 324, 45 S. E. 821; In re Duf fy, 4 Brewst. (Pa.) 533; Sank v. City of Philadelphia, 8 Phila. (Pa.) 117. The re turn of a bill after veto must put it clearly in the possession of the legislature and out of the control of the executive ; Harpending v. Haight, 39 Cal. 189, 2 Am. Rep. 432 ; but
the return must be before final adjournment ; Opinion of Justices, 45 N. H. 607.
The approval or veto by the governor is held in some cases to be a legislative act ; Trustees of School District No. 1 v. County Com'rs, 1 Nev. 335; Thornburg v. Hermann, 1 Nev. 473 ; Fowler v. Peirce, 2 Cal. 165 ; State v. Deal, 24 Fla. 293, 4 South. 899, 12 Am. St. Rep. 204 ; Opinion on Governor's Com munication, 23 Fla. 298, 6 South. 925 ; Har dee v. Gibbs, 50 Miss. 802 ; State v. Fagan, 22 La. Ann. 545 ; Arnold v. McKellar, 9 S. C. 335 ; Weis v. Ashley, 59 Neb. 494, 81 N. W. 318, 80 Am. St. Rep. 704; 'contra, People v.
Bowen, 30 Barb. (N. Y.) 24; 17, S. v. Weil, 29 Ct. CI. 523. It is said by way of conclu sion, after an examination of the cases, in an article in 41 Am. L. Rev. 396, cited infra: "Usually the controversy has been entirely unnecessary to a decision of a case. Though the legislative character of the executive's action would seem to be obvious enough, in sisting on this truth has been very `unfruit ful,' since the same results could generally have been obtained without it, and when pushed to the extreme, unreasonable results are likely to follow." The power of a governor to summon the legislature in extraordinary sessions, express ed in various terms in the state constitutions, is held to leave the occasion wholly to the discretion of the executive ; Whiteman's Ex'x v. R. Co., 2 Harr. (Del.) 514, 33 Am. Dec. 411; In re Governor's Proclamation, 19 Colo. 333, 35 Pac. 530; State v. Fair, 35 Wash, 127, 76 Pac. 731, 102 Am. St. Rep. 897 ; and in one case it was held that the governor had pow er to revoke his proclamation ; People v. Parker, 3 Neb. 409, 19 Am. Rep. 634. Where the constitution authorized the governor to limit the subject-matters of legislation' at the speCial session, they must be presented in writing and a "parol request" or a mere ref erence to the subject is insufficient ; Manor Casino, v. State (Tex.) 34 S. W. 769; Jones v. Theall, 3 Nev. 233 ; but it has been decided by the United States senate that the election of it senator, which has failed at a regular session, may take place at a special session, though not named by the governor as one of the purposes ; Taft, El. Cas. 722. The gov ernor's proclamation need not be specific as to the details of particular legislation, as to which the general subject is recommended ; In re Governor's Proclamation, 19 Colo. 333, 35 Pac. 530 ; Chicago, B. & Q. R. Co. v. Wolfe, 61 Neb. 502, 86 N. W. 441; Parsons v. People, 32 Colo. 221, 76 Pac. 666.