dicial, and ministerial. Political offices are such as are not immediately connected with the administration of justice, or with the execution of the mandates of a superior, as the president, or head of a department. Judicial offices are those which relate to the administration of justice, and which must be exercised by the persons appointed for that purpose, and not by deputies. Ministerial offices are those which give the officer no power to judge of the matter to be done, and which require him to obey some superior."

The revised statutes of New York make the same classification as Judge Cooley in the article quoted above.

8. Method of filling offices. In the absence of constitutional restrictions, the legislature may provide any method it wishes for filling offices. Whether the officer shall be chosen by an election or by appointment is a matter of expediency of which the legislature is, in the absence of constitutional provisions, the judge. Though there is a strong tendency in this country toward selecting public officers by popular election and the constitutions have in many cases required it, where such provisions do not exist the legislature may provide for election or appointment by any of the coördinate branches of the government or even by private associations such as legal or medical societies, and In re Bulger1 the Supreme Court of California sustained a statute conferring upon the board of fire underwriters authority to appoint the city fire commissioners. It is usual to leave to the coördinate branches of the government

19 45 Cal. 553.

the power to appoint their subordinate officers, and, in the absence of constitutional provisions, this right may be conferred by statute even though it violates the theory of separation of powers. In the case of In re Janitor of Supreme Court20 it was held that the courts might appoint their own subordinates and that it was doubtful if the legislature could deprive them of this right.

In this case a janitor of the court had been removed by the superintendent of public property. The court says: "It is a power inherent in every court of record and especially courts of last resort, to appoint such assistants; and the court itself is to judge of the necessity. This principle is well settled and familiar and a power so essential to the conducting of judicial business, that it may be looked upon as very doubtful whether the court can be deprived of it. As a power judicial, and not executive or legislative, in its nature, and one lodged in a coördinate branch of the government separate and independent in its sphere of action from the other branches, it seems to be under the protection of the Constitution, and therefore a power which cannot be taken from the court, and given to either the legislative or executive departments, or to any officer of either of those departments."

9. Nominations. It is not unusual for the suggestion of names and the final choice of public officers to be made by different individuals or even by different branches of the government. The power of the Senate to reject nominations made by the

20 35 Wis. 410.

President is an instance. In the case of popular elections the nomination is usually made by the party organizations, but here also there is a strong tendency toward popularization. The direct primary which gives the individual voter a direct voice in making nominations, as well as in elections, is supplanting the convention system in many states, and while its working is not entirely satisfactory it will, in those states where it is once adopted, be very difficult to get back to the convention system. Men are as a rule very loath to give up political power and rarely do so except under compulsion. But in this case it is difficult to see how the voter once in possession of the right to vote in primaries could be coerced into surrendering his right. Where the right is provided for in the Constitution it would be practically impossible to take it away and where it is provided for by statute it would be almost equally difficult to repeal it in states where the referendum prevails. Given human nature as it is, an extension of the system of primary elections is far more probable than the abolition of it.

10.

Effect of nominations.-The usual effect of a nomination by a party acting through the medium of a convention or primary is to give the nominee the right to have his name appear on the ballot at the election under the caption of his party as its regular candidate for the office. But if there are irregularities in the convention or primary, either because of a split in the convention or doubtful eligibility of those taking part in the primary or other causes, the remedy of the one claiming the regular nomination

is not clear. Whether the decision of the party organization acting through its committees is final, or whether the courts may, by mandamus, order his name placed upon the ballot as the regular candidate of his party and entitled to the exclusive use of the party caption, is a matter upon which the courts are not entirely agreed. Neither is it agreed whether or not the legislature may confer such power upon the courts. The New York courts have exercised the power under a statute of this sort and in that state the constitutionality of the statute does not seem to have been raised.21 But in the case of Stephenson v. Board of Election Commissioners, 22 a leading case, the court refused to grant a mandamus to one claiming the nomination under the certification of the regular officers of a convention, which had split and made two nominations, and ordered that the names of both nominees appear on the ballot. The court thus refuses to take the responsibility of deciding upon the regularity of election of delegates and proceedings of the convention, but places it upon the voters.

In justifying this position it argues that "the voters must protect themselves against fraud upon their convention or misconduct of its delegates, officers, and candidates, and when a considerable faction of the convention leaves the meeting, and nominates a ticket, claiming to be the representative of the party, it is not the province of the courts to determine upon technical grounds that it is not,

21 In re Fairchild, 151 N. Y. 359.

22 118 Mich. 396.

.

and that its action is void, and deny it a place on the ballot, thereby defeating the purification of methods within the party, or to say which faction was right and which wrong. It is a right of the voter to repudiate wrong and corruption and fraud, if it exists, and to prevent or unearth and defeat corruption, and he should not be hampered by technical rules. If in this case this convention was unable to conclude its business in harmony, and the delegates divided and made two nominations, they should not be denied the privilege of going to the polls with both. Each nominee is here contending that he represents the only pure Republicanism of the district and is the lawful nominee of the true party.

"The electors must decide between them. In such case we know of no way of determining which of these names ought of right to go upon the Republican ticket. If it were left to the voters, there would doubtless be an honest difference of opinion upon the rights of the question. The same may be true of the boards. They may not know what they should do and we cannot tell them further than to say that, under the admitted facts and precedents, both are entitled to places upon the ballot."

11. Who may vote for public officers.-If, then, contested nominations must be settled by the voters it becomes necessary to determine who may vote at elections for choosing public officers, because the qualifications of voters at such elections are not necessarily the same as at other elections. In the United States the people acting through their constitutional conventions have the right to say who shall possess