honorably discharged from the army and navy need attain only an average of sixty-five and are given preference. The method of procedure is for the appointing officer to request the commission to certify to him the names of those eligible for the position, whereupon the commission certifies the three names at the head of the list unless they have been already certified three times to the same department or office. The person appointed is on probation for six months, when if satisfactory, his appointment becomes absolute (17).

§ 19. Same: Remedies thereunder. What remedies an applicant for a position in the Federal government would have in case his name were not certified by the civil service commission, or in the case of a veteran if it were not given preference, or what rights a person appointed contrary to the civil service rules would have as to salary, etc., has not received much attention at the hands of the United States courts but the decisions of the state courts on civil service legislation are numerous. Thus, in New York it has been held that the courts have a right to determine whether the exemption of certain classes from examination is within the constitutional provision that fitness for appointment shall be ascertained by examination where practicable (18), that an officer appointed in violation of the civil service law could not recover the salary attached to the position (19), and that a veteran may by mandamus compel a civil service commission to give his name the preference on the registration list required

(17) See Goodnow, Admin. Law of U. S., 264-281.
(18) Hale v. Worstell, 185 N. Y. 247.
(19) People v. Roberts, 148 N. Y. 360.

by law (20). It has been held unconstitutional, however, to give veterans a preference without undergoing any of the tests required of others (21), or to deprive the appointing officer of all power of selection by limiting his choice to the highest on the list when his power of appointment is constitutional and not statutory (§ 34, below).

(20) People v. Civil Service Board, 5 App. Div. 164.

(21) Brown v. Russell, 166 Mass. 14.

CHAPTER II.

SELECTION, INSTALLATION AND TENURE OF OFFICERS.

SECTION 1. ELECTION.

§ 20. Registration. The right of suffrage is one of those fundamental rights dealt with in most constitutions so that comparatively little power is left with the legislatures with regard to it. Purity of election laws are within their proper province, but great care must be exercised in drafting these in order not to violate constitutional rights. Thus in the case of Attorney General v. Common Council (1) the Michigan statute required that boards of registration sit on the four days commencing with the first Monday of October and the fourth Monday of October, and that no ballots should be received by the inspectors under any pretense whatever unless the person offering to vote had been registered. The court pointed out that in October, 1888, the fourth Monday had been the 22d, while the general election day had been November 6, leaving fourteen full days between the last day of registration and election, whereas the constitutional requirement for residence in the township or ward was only ten days. Furthermore there was no provision for the registration of persons sick or absent on the day of registration. The court said: "The object of a registry law, or

(1) 78 Mich. 545.

of any law to preserve the purity of the ballot-box and to guard against the abuses of the elective franchise, is not to prevent any qualified elector from voting, or unnecessarily to hinder or impair his privilege. It is for the purpose of preventing fraudulent voting. In order to prevent fraud at the ballot-box, it is proper and legal that all needful rules and regulations be made to that end, but it is not necessary that such rules and regulations shall be so unreasonable and restrictive as to exclude a larger number of legal voters from exercising their franchise." Accordingly the law was declared unconstitutional. Similar decisions have been made in other states where the effect of requiring a prior registration has been to exclude voters otherwise qualified, but there is also authority of weight on the other side.

§ 21. Secret ballot. At the present time some form of the Australian ballot is in use in almost every state of the Union, in Canada, England and even on the Continent. Its cardinal features are two: "First, an arrangement for polling by which compulsory secrecy of voting is secured; second, an official ballot containing the names of all candidates, printed and distributed under state or municipal authority" (2). Its great object has been the securing of secrecy in voting, the avoidance of coercion and bribery, and thus the free expression of the voter's will. Opportunity must be given to vote for names not on the official ballot, but this must not be taken advantage of to make distinguishing marks which shall render the ballot capable of identification. Thus in a Connecticut

(2) Wigmore, Australian Ballot System (2nd ed.), p. 50.

case (3) it was held that the fact that fourteen ballots had pasters written in ink in the same hand, but with a different name on each paster, pasted over the name of a certain candidate, was a suspicious circumstance, justifying, in the absence of explanation, the rejection of the ballots as if designed for the purpose of identification. Most of the cases where the courts have rejected the ballots because of distinguishing marks have been cases where there was something irregular in the cross marked opposite the name of the candidate. Sometimes this is made on the wrong side of the candidate's name, sometimes just outside the square, and sometimes in some form other than the cross generally prescribed. The folding of the ballots in an unusual and striking manner also invalidates the ballot.

§ 22. Limited voting. The desirability of the representation of the minority has led to various schemes to bring it about. One of these, that of limited voting, was before the supreme court of Pennsylvania in Commonwealth v. Reeder (4). A statute of that state, in providing for the election of seven judges of the superior court, had declared that no elector might vote at any election for more than six of them; and it was claimed, in accordance with a previous Ohio decision, that this violated the constitutional provision that a duly qualified elector should "be entitled to vote at all elections," but the court said that no sound reason had been urged in the argument why they should enlarge the scope of these words by prac

(3) State v. Walsh, 62 Conn. 260.

(4) 171 Pa. St. 505.