government of cities of the first class, and for the proper distribution of the powers exercised by such municipalities. Statute: Provided for the removal of public employees for political activity while in office. Held, valid. Governor submitted whole subject of city government. Legislature could have revised entire city government plan.

Denver, etc., Ry. v. Moss (Colo., 1911). Governor: To enact "any and all legislation relating to or in any wise affecting corporations, both foreign and domestic, of quasi-public character." Statute: A railroad fencing statute, providing absolute liability for killing of livestock at point where right of way not fenced. Held, invalid. Governor did not state a subject of legislation, only class to be affected, leaving subject matter to legislative determination. While act clearly within scope governor's program, that program too broad. Dissent: Governor's message interpreted proclamation as calling for legislation correcting supposed abuses by railroads and other public utilities on great variety of matters, one of which was track fencing.

The Wolfe and Duffy cases, of course, were rather liberal in construing the subject matter of those particular statutes as being within the subject suggested by the governor. While, in the Davidson case, it might at first be thought that the protection of creditors in time of war was fairly related to the governor's program, closer inspection will at once disclose that the proclamation contemplated legislation directly dealing with the prosecution of the war and the organization of the state for meeting war conditions.

The first four cases digested contain little discussion of the effect of the breadth of the governor's recommendations. It was assumed in the Wolfe case that the subject was not too indefinite. Certainly the "military and political interests of the state," "enforcement of the railroad article of the constitution," "revision of the general incorporation law,” and “government of cities of the first class," are not altogether definite subjects. Nor are they very restricted in scope. Some attempt, however, had been made either directly or indirectly in the Davidson and Wells proclamations to indicate the particular type of legislation by which the interests of the state and the railroads were to be affected. In the Denver proclamation there had been no such attempt. The legislature was to be free to enact “any and all legislation relating to or in any wise affecting" certain classes of corporations. . Yet the proclamations in the Wolfe and Duffy cases came very close to that. The subject-matter of a revision of a general

750 Colo. 282, 115 Pac. 696. See also, Nielson v. Ry. Co., 187 Fed. 393, 109 C. Č. A. 225.

incorporation law and of a law dealing with the government of cities might permit quite as extensive a legislative determination of the precise subject-matter as the sweeping language of the governor actually intended in the Denver case. Much reliance was placed, in the Denver case, upon the constitutional provision limiting legislative power at special sessions to the business specially named by the executive. That particular qualification was not before the court in the other cases. It was, however, a part of the Tennessee and Missouri constitutions, and might possibly have been a factor in the Davidson and Wells cases, if capable of the effect attributed to it in Colorado. It is notable, too, as will be seen, that the Colorado court has not been hindered by this provision from holding that the governor is powerless to restrict the scope of a subject by recommendations dealing with matters of policy and detail. The word "specially" therefore, has slight significance.

In Colorado, Pennsylvania, Tennessee, and Texas, it has frequently been held that the governor is without power to do more than state the subject for legislative consideration. That is to say, the governor's authority to restrict the subject-matter of legislation at special sessions is exhausted when he has submitted the general topic. Any detailed recommendations as to the precise manner in which this topic shall be acted upon may be ignored as unwarranted executive invasion of the province of the legislature. Otherwise, it is said, the governor could send the house and senate a drafted bill and insist upon passage of that or nothing. Instead, within the sphere suggested broadly by the executive the legislature must be free to act at will, either in whole or in part, and to use its own methods. The following are the principal cases in which this doctrine has been invoked:

In re Governor's Proclamation74 (Colo., 1894). Governor: To amend the attachment laws by striking out the 10, 11, and 13 causes of attachment, to take effect as to future contracts only. Statute: A revision of the justice of the peace act, omitting the 7, 8, and 10 causes for attachment in justice courts, and making the revision applicable to existing contracts. These causes for attachments in justice courts substantially same as 10, 11, and 13 in courts of record. Held, valid. Amendment of attachment laws the subject submitted by governor for legislative action.

People v. District Court 75(Colo., 1896). Governor: A series of specific amendments to Australian Ballot law. Statute:

7419 Colo. 333, 35 Pac. 530. 7523 Colo. 150, 46 Pac. 681.

Amended that law in respect to jurisdictin of the district court in a way not mentioned by governor. Held, valid. Governor's subject was amendment of the election law.

Baker v. Kaiser76 (C. C. A. Colo., 1903). Governor: To reduce penalties and interest on delinquent taxes to one-half of present rate. Statute: Reduced to flat rate on tract basis, much lower than amount of reduction contemplated by executive. Held, valid. Governor's subject was reduction of penalties.

Parsons v. People" (Colo., 1904). Governor To provide. necessary revenue, and to enact a state revenue law for the assessment of property for taxation, and for the levy and collection of taxes. Statute: Imposed a new state license tax of $25 on sale of liquor, in addition to local fees. Held, valid. Governor did not intend to limit legislature to direct property tax, and even if he did, not a limitation. The subject submitted was raising of revenue.

In re Likins78 (Pa., 1909). Governor: To designate uses to which money may be applied by candidates, political managers and committees, both for nominations and elections, and to require managing committees and managers of all political parties to file statements of amounts collected and spent. Statute: Required audit of the accounts of candidates, party managers and committees, upon application five voters. Held, valid. Governor's subject that of regulating expenditures in connection with political campaigns. If any attempt to restrict requirement of statement so to exclude candidates, beyond power.

Devereaux v. Brownsville (Fed. Cir. Ct. Tenn., 1887). Governor: To enable tax districts to compromise debts. Statute: Repeal of former grant of power to tax districts to pay these debts. Held, valid. Repeal power to pay debts possible means compromise of debts.

Baldwin v. State 80 (Tex., 1886). Governor: To reduce ad valorem and occupation taxes, so far as consistent with support efficient government. Statute: Imposed new tax of $750 a year on occupation of selling Illustrated Police News and Police Gazette. Held, valid. Governor submitted whole matter of taxation. Any tax law would be good. Governor not only expected legislature to reduce taxes but to provide also for the support of an efficient government. Governor could not restrict legislature to reduction existing taxes alone.

Gulf etc. Ry. v. State 81 (Tex., 1919). Governor: Enactment of

76126 Fed. 317, 61 C. C. A. 303.

7732 Colo. 221, 76 Pac. 666. See also, Pinnacle Mining Co. v. People, 58 Colo. 86, 143 Pac. 837 (1914).

78223 Pa. St. 456, 72 Atl. 858; s. c., 223 Pa. St. 468, 72 Atl. 862.

7929 Fed. 742.

8021 Tex. App. 591, 3 S. W. 109.

81212 S. W. 845.

laws forbidding procurement of liquor for or delivery to soldiers or sailors. Statute: Statewide prohibition law. Held, valid. Best method reaching governor's objective, in legislative discretion, to prevent absolutely the sale, transportation, or receipt of liquor within the state.

Ex parte Davis 82 (Tex., 1919). Governor: To prohibit sale liquor within ten miles any army camp, to prohibit procurement for or delivery to any soldier or sailor, and to prohibit sale anywhere in state except by license. Statute: Prohibited manufacturing of liquor within state. Held, valid. Subject was intoxicating liquor legislation.

The doctrine apparently originated in the Texas case of Baldwin v. State, decided in 1886. Not only, however, was the court unjustified in that case in construing the subject indicated by the governor to be that of taxation generally, instead of the reduction of existing taxes, but the statute in question was not a revenue measure. It was one of a number of similar statutes enacted in different states during that period to prevent, through oppressive taxation, the circulation of alleged indecent literature. It was a police regulation. All the case means is that the court was willing to go to any extreme to suppress these particular publications. In the Colorado case of In re Governor's Proclamation, the court conceivably might have invoked the policy of the "impairment of contracts" clause of the United States Constitution to uphold the governor's power to insist that the legislation be not retroactive. It is difficult to see, in the Federal case of Devereaux v. Brownsville, from Tennessee, how the governor attempted to restrict the manner of the exercise of legislative power to pass a law authorizing the compromise of certain old debts. And it is even more difficult to see how a repeal of power to collect funds for the payment of these debts can effect or be germane to a compromise, unless an indirect repudiation can be said to be a compromise.

This view of the governor's authority being functus officio when he has submitted the general topic for legislative consideration is not hard to understand. Executive leadership in the work of lawmaking has not developed without opposition. The idea of legislative supremacy, so rampant prior to the end of the first quarter of the last century, has had to give way to too many constitutional limitations relating to matters of form, procedure, and substance, to tolerate easily executive interference not clearly authorized. On the other hand, by means of carefully prepared administrative measures, and skilful manipulation of house and senate leaders, the strong governor 8282 Tex. Crim. App. 168, 215 S. W. 341.

83See Preston v. Finley, 72 Fed. (W. D. Tex.) 850 (1896); In re Banks, 56 Kan. 242 (1895).

may carry his program through affirmatively instead of negatively by limitations prescribed in a proclamation or message.

In the course of some seventy-five or more decisions of state and federal courts that have involved the question of legislative power at special sessions, eighteen state laws have been held unconstitutional. Conditions surrounding special sessions in the twenty-one states without constitutional provisions restricting legislative power at such sessions to the governor's program might well be examined by future constitutional conventions in the other twenty-seven states, to see if the fear of what an unrestrained legislative session might do warrants this cost in litigation and nullification. Are not the complex limitations upon form, procedure, and substance, applicable at special as well as regular sessions, enough, without adding new limitations as to substance through the governor's proclamation or messages, except, perhaps, as in Alabama and Arkansas, to force consideration of his program first?