ferent rule will inevitably tend to bring party organizations and the courts into unseemly conflicts over questions which are peculiarly within the cognizance of the former tribunals, a result which most certainly ought, if possible, to be avoided" (11). This view was afterwards upheld by the court of appeals (12). When a similar question came before the supreme court of Michigan in 1898 it refused to decide between the contending factions and ordered both names to be placed on the ballot under the party name (13). Where the statutes expressly require the courts to pass on the right to a place on the ballot, however, the courts cannot escape the responsibility, however unpleasant it may be.

§ 27. Nominating petitions. Practical convenience makes it impossible that every combination of persons calling itself a political party should receive recognition as such on the official ballot. Accordingly provision is made that unless the party received a small (usually from one to five) per cent of the votes cast at the preceding election, it must present a petition signed by a small per cent of the qualified voters to entitle it to a place on the ballot. The names on the official ballot will thus be limited to the nominations of the regular parties and to those presenting proper petitions, but as long as the voter is not prevented from inserting on the ballot the name of anyone he chooses his constitutional rights are not impaired thereby (14).

(11) In re Pollard, 25 N. Y. Supp. 385.

(12) In re Fairchild, 151 N. Y. 359.

(13)

Stephenson v. Board of Election Commissioners, 118 Mich. 396.

(14) State v. Black, 54 N. J. L. 446.

§ 28. Primary laws. The early primary laws did little more than subject primaries to much the same rules as the general elections. Thus the New York law of 1882 merely declared certain acts committed at primaries crimes, such as the false personation of a voter, intentionally voting without right, prevention of others from voting, fraudulent concealment or destruction of ballots; required that officers at such elections take the usual oath of inspectors at general elections; and provided for the challenge of voters and the administration of an oath to a person so challenged. These laws proving inadequate, many of the states have proceeded to the regulation of nominations and party control in considerable detail. One of the steps taken has been to determine who shall vote at party primaries.

§ 29. Open and closed primaries. An Oregon act of 1901 provided for a closed primary; that is, confined the voting at a party primary to party members, and prescribed as a test of party membership that the elector "voted for a majority of the candidates of such party or association at the last election, or intends to do so at the next election." The constitutionality of this provision was questioned in Ladd v. Holmes (15), but the court said that if the test were a reasonable regulation by which to ascertain party affiliation, it lay within the power of the legislature and accordingly held the law constitutional. The open primary, in which any elector is allowed to vote irrespective of party affiliations, was provided for by a California statute, but it was declared unconstitutional.

(15) 40 Ore. 167.

Speaking of it the court said: "It provides that the primary elections of all political parties shall be held at the same time. To the intending voter at such primary one ticket is given. No question may be permitted touching his political affiliations, past, present, or future. The voter takes the ticket, retires into the privacy of the booth, and there, secretly-and not in violation of any law, but in strict accordance with the law-names such delegates as he desires to the political convention of one or another of the parties, whether he is a member of that party or not, whether he ever intends to become such a member or not. The control of the party and of its affairs, the promulgation and advocacy of its principles, are taken from the hands of its honest members and turned over to the venal and corrupt of other political parties, or of none at all. Masquerading thus under the name of one of the great political parties might be a convention of men authorized by this law to represent it and place upon the general election ballot as its candidates those whom they might select-a body of men whose sole purpose might be the disruption and destruction of the party whose representatives this law declared them to be" (16).

§ 30. Direct primaries. In a large number of states there has been an attempt to remedy the evils of party government by the direct primary. An instance of advanced legislation of this kind is that of Minnesota. Places on the official ballot are given only to those nominated at a direct primary or presenting a petition signed by the requisite number of voters. At the time the voter

(16) Britton v. Board of Comrs., 129 Cal. 337.

presents himself for registration he is given a primary ballot. He is not permitted to participate in the elections of more than one party, but which it shall be is for him to determine. Provision is further made that any one who desires to be a candidate at a primary may file a statement to that effect, together with a sum of money proportionate to the importance of the office. Persons receiving the highest number of votes from the members of a particular party are entitled to a place on the official ballot at the election, which takes place within a reasonable time (17).

§ 31. Regulation of party organizations. In other states the old system of nomination by convention has not been interfered with, but the party organizations have been subjected to considerable control. In the New York act of 1898 it was provided that each party should have a general committee for each county, and that membership in this committee was to be gained only through the suffrages of the members of the party exercised at the annual primary elections on the annual primary day and at public expense. In the case of People v. Democratic Committee (18) one Coffey had been elected a member of the Democratic general committee of Kings county at a primary election held in September, 1899, and had duly qualified by paying the prescribed fees; but at a meeting of the committee held March 23, 1900, he was, by resolution, expelled for alleged disloyalty and open hostility to the Democratic party and was thereafter barred from exercising the

rights and privileges of the office. He brought mandamus to compel the committee to restore him to the rights and privileges of a committeeman, and the court allowed him the relief asked for on the ground that the object of the law had been to protect the right of the voters to have their wishes in party matters presented by their chosen representatives, that no right to expel a member was given the committee, and that accordingly he was responsible to those electing him alone.

SECTION 2. APPOINTMENT.

§ 32. Where the appointing power lies. It is an underlying principle of American law, subject, however, to many exceptions in practice, that there are three functions of government, the legislative, the executive and the judicial; and that for carrying out these functions there should be corresponding departments of government, each acting independently of the others and confining itself to its proper function. See the article on Constitutional Law, §§ 17-23, in Volume XII of this work. If this principle were carried to its logical conclusion, the legislature would confine itself to laying down general rules, the executive to applying the law, and the judiciary to settling legal controversies. As applied to appointments, the legislature would lay down general rules as to how appointments should be made, the executive would make the appointments, and the judiciary would settle litigation arising therefrom. This logical application of principle, making the power of appointment executive, except in the cases of legislative and judicial clerks and the like where the independence of the other departments demands that