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Proceedings and Debates of the 1967 Constitutional Convention
Volume 104, Volume 1, Debates 1468   View pdf image (33K)
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thereby would make it consistent with

The question that I would have is wheth-
er 4.19 could be held to be wholly con-
sistent with 4.18 unless those words are

The second question that I would have
deals with the use of the term executive
orders in lines 40 and 41 of 4.19, which
might also be considered by the Committee
during its recess meeting. Is it not correct
that an executive order is an action by a
governor or president taken pursuant to
either his inherent power as executive pur-
suant to a statutory power which is not
subject to subsequent review, but what the
Committee, it seems to me, is getting at, is
a reorganization plan which I take it to be
somewhat different from an executive

THE CHAIRMAN: I take it the Com-
mittee will consider those suggestions. Dele-
gate Gleason.

I frankly do not share this confusion.

I do think perhaps that there was a word
left out or a word too many put in, but
as I see section 4.18, I think what the
Committee is referring to is the original
organization of the executive branch within
twenty principal departments or less. That
can only be done one way by a regularly
enacted law. When you get over to 4.19, al-
though the language seems to be just the
same, the Committee is referring to the
concurrent powers of reorganization and
that can be done in one of two ways.

Now I agree with Delegate Case that I
think if in 4.18 they had the word "orig-
inal" or something like that, it would clar-
ify the situation. I think that is all that is

THE CHAIRMAN: Delegate Sickles.

DELEGATE SICKLES: I just want to
concur in the recommendation of the Presi-
dent. I am not sure that we are really
going very far ahead. But I think the point
made by Delegate Gleason is as significant
as any. If the interpretation were that the
legislature had to in effect take the first
bite out of the apple, then it would not be
wise to take the protective language out.
I think we ought to go back to Committee
and look it over.

THE CHAIRMAN: Delegate Adkins.

DELEGATE ADKINS: I suppose any
further comment is not in order if we are
going to take it back to the Committee.

I do think perhaps a word maybe by way
of clarification along the lines Delegate
Gleason suggested might not be amiss. I
think the situation in my own mind is kept
more clear if we look at the titles of the
two sections.

I realize that the titles are not an in-
tegral part of the law, but at least they
indicate the way that the Committee was
authorized. Section 4.18 relates to the or-
ganization of the executive department.
My understanding was that the basic com-
promise that Delegate Morgan referred to
was that the original organization of
twenty principal departments would be by
act of General Assembly, that is, by law,
which thereby required, in the opinion of
some of the members of the Committee the
temporary provision which started all this
discussion. I will not comment on that at
this point.

Section 4.19, as its title indicates, is in-
tended to relate to the reorganization of
the executive branch after it has once been
organized under 4.18 and again as Dele-
gate Gleason suggests, there are two ways
in which it can be reorganized, the powers
would be concurrent either in the General
Assembly by normal statutory procedures
or in the executive subject to veto by Gen-
eral Assembly — in the general orders. If
we keep that structure in mind, maybe
some of the questions would not be so tense
as they otherwise would be.

Referring to the question Delegate Case
raises, the use of the term "by law", it
seems to me is kept somewhat in perspec-
tive if we realize that there is a distinct
difference in the language here, or at least
there is intended to be a difference between
the creation of new functions and the as-
signment or allocation of existing func-
tions. The language clearly intends, whether
it does or not is a matter of faith, but I
think it is clear that the matter intends to
give to the General Assembly the creation
of new powers and duties reserving to the
executive the power to reassign and reallo-
cate powers and functions and duties but
not to create such new functions.

The last point I will make and then I
will quit is reference to this term "by law."

There are on the books certain statutes
which now assign, not create, but assign
the execution of certain imposed duties to
certain specified organizations within the
State, such as one directing the commis-
sioner of motor vehicles to provide for
licensing of vehicles. This is a matter of
statutory law. It is the opinion of the


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Proceedings and Debates of the 1967 Constitutional Convention
Volume 104, Volume 1, Debates 1468   View pdf image (33K)
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