In many states the executive has the pow er to convene the legislature at a place other than its usual place of meeting, in the case of grave emergency, the existence of which must be determined by him, and in one case, that of Alabama, he has power to remove it after it has convened, but the ordinary pro vision is held to apply only to the place of assembly and not to a subsequent change ; Taylor v. Beckham, 108 Ky. 278, 56 S. W. 177, 49 L. R. A. 258, 94 Am. St. Rep. 357.
The usual provision of state constitutions authorizing the governor to adjourn the leg islature in case of disagreement between the two houses is held to vest the decision wheth er such occasion exists in the executive; In re Legislative Adjournment, 18 R. I. 824, 27 Atl. 324, '22 L. R. A. 716, where it was held that the governor might disregard a certifi cate of disagreement and examine the records of the two houses to ascertain whether one existed. In another case the power of the governor was not determined, as it was deem ed sufficient by the court that the legislature had in fact adjourned; People v. Hatch, 33 Ill. 9. See an interesting discussion of "The Executive Control of the Legislature," by James B. Barnett, 41 Am. L. Rev. 215, 884.
Congress may impose on any executive officer any duty which is not repugnant to any right which is secured and protected by the constitution ; Marbury v. Madison, 1 Cra. (U. S.) 137, 2 L. Ed. 60; Kendall v. U. S., 12 Pet. (U. S.) 524, 9 L. Ed. 1181. With respect to certain executive functions which, spring from the legislation of congress, after the oc casion is created by the passage of a law, the authority of the legislature is ended, and the uncontrolled discretion of the executive attaches and Is exercised independently of the other departments of the government. In the exercise of such powers the discretion of the subordinate officer, within his sphere, is the discretion of the president. Of this char acter are the control of the military resourc es of the government ; the pardoning power and the power of appointment, all of which are dormant until legislation has been enact ed for creating an army and navy, or defining crimes and punishments and the creation of offices. As to another class of executive pow ers which depend entirely upon the legislation of congress both for their existence and their scope, the president merely executes the law.
Within this class necessarily fall the greater number of executive functions, and they differ from the other classes in that, with respect to them, the president may be deprived of all discretion.
The power to appoint to an office is an ex ecutive function, but may be exercised by the legislature or the courts as an incident of the principal power ; that is, where nec essary to the exercise of full legislative or judicial power ; State v. Hyde, 121 Ind. 20, 22 N. E. 644.
A law providing that the governor, lieu tenant governor and attorney-general shall constitute a board to appoint members of a railroad commission is not the appointment of those officers to a new office, but merely imposing new duties upon them and is valid; Southern Pac. Co. v. Bartine, 170 Fed. 725 ; and the same was held to be the effect of a similar designation of certain executive of ficers to act as a state board of elections to appoint election officers ; Richardson' v. Young, 122 Tenn. 471, 125 S. W. 664.
Where the executive has the power and duty of appointing the fish and game com missioner, an act appropriating money for the department and providing that no part of the appropriation shall be available, so long as the present commissioner remains in of fice, is unconstitutional as an encroachment upon the appointing power of the executive ; State v. Gordon, 236 Mo. 142, 139 S. W..403.
A constitutional provision prohibiting the legislative department from exercising ex ecutive powers is violated when the legisla ture attempts to interfere with an action tak en by the executive under existing laws ; In re Opinion of the Justices, 208 Mass. 610, 94 N. E. 852.
The, authority, vested by the constitution in the legislature, to make laws, may be ex ercised, leaving, in the particular instance, to an executive• officer, or some other agency, the duty of determining questions of fact es sential to the application thereof which in volves administrative discretion ; State v. Chittenden, 127 Wis. 468, 107 N. W. 500. See LEGISLATIVE POWER; and as to powers, du ties, acts of executive officers, boards or com missions under legislative authority, see DEL EGATION.