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for a given people a certain system works well, it has justified itself for that people, however miserably it may have failed when tried by other people.

22. Appointment to office. Since the method of selecting public officers by appointment is now and will continue to be a matter of more than academic importance, it is necessary that the law governing it be considered. This law is to be found partly in our constitutions and partly in our statutes. The Constitution of the United States confers upon the President a very large power of appointment. In Art. II, § 2, we find this provision: "He shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but Congress may, by law, vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." The state constitutions usually grant to the governor a much more limited power of appointment; indeed, unless it is specifically conferred he has no power of appointment, as he may not exercise it as a residuary power, for as decided by the Supreme Court of Illinois, in Field v. The People," the legislature is the sole possessor of residuary powers-the governor having merely such powers as are delegated to him.

23. Nature of the power to appoint. While the power to appoint to office is primarily an executive

42 3 Ill. 79.

function, it is exercised to a limited extent by the legislative and the judicial branches of the government. The Constitution of the United States provides in Art. I, §2, Clause 5: "The House of Representatives shall choose their speaker and other officers." These other officers may, of course, be chosen by appointment as well as by election. When by appointment the speaker exercises the appointing power. Section 3, Clause 5, says: "The Senate shall choose their other officers, and also a President pro tempore (for the time) in the absence of the Vice-President, or when he shall exercise the office of President of the United States." Though the Constitution does not contain a similar provision with regard to the courts, they are given the power by statute. Both the supreme and inferior courts appoint their clerks and bailiffs, but not their marshals. The rule as to appointment of clerks and bailiffs by the judges is pretty generally, if not universally, followed in the state courts. This limited exercise of an executive function by the legislature and courts is not a sufficient infraction of the principle of separation of powers to cause any considerable demoralization in the system of government, and furthermore it is a matter of practical convenience to judges to be able to select for themselves the men with whom they will have to work, and between whom and them the relations are more or less of a personal and confidential nature.

24. Exercise of power compulsory.-Though the choosing between two or more persons eligible to appointment is a discretionary function, where the

power to appoint exists, the exercise of it is ministerial and may be compelled by mandamus. For, while it is necessary, in order that the power of appointment may be something more than a mere name, that the one exercising it shall have some power of choice between candidates, it is also necessary that the public service shall not be allowed to suffer merely because one having the power of appointment is, for any reason, disinclined to perform his duty.

The necessity of allowing some discretion to the appointing power is well stated by the Court of Appeals of New York, in the case of People ex rel. Balcom v. Mosher et al.48 This is a case in which the constitutionality of the civil service law requiring the appointment of the applicant standing highest on the list, was questioned. The court says:

"If the civil service commissioners have power to certify to the appointing officers only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final, or if where more are certified the one graded highest must be appointed, then the civil service commission becomes and is the actual appointing power. To reach such a result, however, it must be held that the word 'appointment' as used in the Constitution is not to be given its usual and ordinary meaning, but may be so limited and restricted as to leave in the local authorities a mere ministerial duty, with no discretion, nor choice, nor responsibility in respect to the person to be appointed. Such a construction would

43 163 N. Y. 32.

completely nullify the provision of the Constitution which confers the power of appointing city officers upon the local authorities of the municipality. A fair reading of the Constitution leads to no such result."

The court then quotes with approval from the United States Attorney-General as follows:

"If to appoint is merely to do a formal act, that is, merely to authenticate a selection not made by the appointing power, then there is no constitutional objection to the designation of officers by a competitive examination, or any other mode of selection which Congress may prescribe or authorize. But if appointment implies an exercise of judgment and will, the officer must be selected according to the judgment and will of the person or body in whom the appointing power is vested by the Constitution, and a mode of selection which gives no room for the exercise of that judgment and will is inadmissible. If the President in appointing a marshal, if the Senate in appointing its secretary, if a court or head of a department in appointing a clerk, must take the individual whom the civil service board adjudge to have proved himself the fittest by the test of a competitive examination, the will and judgment which determine that appointment are not the will and judgment of the President, of the Senate, of the court, or of the head of the department, but are the will and judgment of the civil service board, and that board is virtually the appointing power."

25. Form of appointment. The courts hold that an oral appointment is not sufficient. The reason for this rests in no mere technical rule of law. It would lead to no end of confusion if several per

sons might contest the right to exercise the duties of an office, each claiming title upon the basis of a verbal appointment by the appointing power. Verbal statements are too easily misunderstood, misinterpreted, or forgotten, to form any adequate basis for laying claim to an office the functions of which are of vital importance to the public. In other words, the state has too great an interest in the prompt performance of official duties to risk the confusion and delay which might result from a multiplication of contests for office, and especially if such uncertainty and confusion may be avoided by the exercise of reasonable precautions upon the part of the appointing power. Nor can it be said that the requiring of written evidence of the appointment is an unreasonable requirement either as regards the appointing power or the claimant. This is true whether the act of the appointing officer is final or needs ratification, although in the latter case the absence of written evidence would not be productive of so much mischief, as it could be much more easily corrected. If there is sufficient reason for enacting the Statute of Frauds requiring written evidence of transactions between private individuals which do not affect the public except remotely, there is much stronger reason for requiring written evidence of acts which affect the public directly.

In discussing this question the Court of Appeals of New York says in People ex rel. Babcock v. Murray: "There is no color in the opinion, or in the statutes of this state, or any custom or usage of which

44 70 N. Y. 521.

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