we have knowledge, for claiming that an appointment to any civil office can be made verbally or without a proper writing evidencing the fact.” The only exception we know to this rule is that of an oral appointment in open court. Here the reason for the rule does not hold and consequently the rule can be safely modified. 26. The commission.-So long as there is evidence in writing of the appointment, the courts do not insist that this writing shall be in any particular form, unless a particular form has been made necessary by statute. This writing is commonly called a commission and usually given under seal. The latter is not, however, unless made so by statute, a prerequisite to the validity of the commission. In general, any form of writing which shows clearly an intent on the part of the proper authority to appoint a certain individual to a given office for which he is eligible, constitutes a sufficient commission. The signature of the appointing power is, of course, necessary. As said by the court in the case of Babcock v. Murray, above: "The signing of the commission is an integral part of the duty of the delegated power and necessary to a perfect and complete execution of the power entitling the appointee to assume the duties of the office." 27. When appointment is complete.-Appointment is inchoate until the last act to be performed by the appointing power is completed. This act is the signing of the writing or commission. The appointing power has then committed itself by an unequivocal act, the effect of which is a matter for interpre tation and enforcement by the courts. The leading case upon this question is that of Marbury v. Madison.45 This case was an action for a mandamus to compel the Secretary of State to deliver a commission signed by President Adams appointing Marbury a justice of the peace. The Supreme Court of the United States, speaking through Chief Justice Marshall, says: "Some point of time must be taken when the power of the executive over an officer not removable at his will must cease; that point of time must be when the constitutional power of appointment has been exercised; when the last act required from the person possessing the power has been performed. The last act is the signature of the commission. The time for deliberation has then passed. He has decided. His judgment has been made and the officer is appointed." 28. Title to office determined by quo warranto.— Where a question arises as to the title of an officer to his office his right is determined by a quo warranto proceeding unless the statutes have provided some other method. The granting of this writ rests in the sound discretion of the court, if the application is by a private person;46 but if the application is by the attorney general the court has no discretion, unless otherwise provided by statute. Where the application is made by a private person he must show that he has some interest in the question to be decided; but it has been held that the interest which a tax 47 45 1 Cranch 137 (U. S.), LEADING ILLUSTRATIVE CASES. 46 Commonwealth v. Jones, 12 Pa. St. 365. 47 Commonwealth v. Allen, 128 Mass. 308. payer has in the due administration of public affairs is sufficient, if he is merely asking to have the one ousted who is unlawfully holding the office.48 But if the relator is seeking to put himself into the office from which he is asking that another be ousted, he must, in order to entitle him to the writ, show that he has, prima facie, a better title.49 It must also appear that the controversy relates to the title to a public office and not to a mere employment.50 Again it must appear further that the alleged usurper has or has had actual possession and user of the office, a mere claim by him is not a sufficient basis. But, if he has been in possession, his abandonment of it will not defeat the issuance of the writ.51 48 Commonwealth v. Meeser, 44 Pa. St. 341. CHAPTER III. POWER TO FILL VACANCIES. 29. Elective offices.-As the process of selecting a public officer is by popular election or by bodies not always in a position to act promptly, and as it is desirable to avoid an interregnum so that the public business may not suffer by reason of there being no one duly authorized to perform the duties of a given office, provision is made for filling vacancies in elective offices by appointment. This appointment is only temporary and lasts only until the emergency is over, i. e., until it is practicable to hold an election. Where the body having the power to elect has had an opportunity to fill the vacancy but has failed to do so, there is a difference of opinion as to the effect of such action. The United States Senate has adopted the policy of interpreting this to mean that a failure to elect where there has been an opportunity is equivalent to an expression of the will of such body that the office continue vacant. Hence, where a state legislature has had an opportunity to elect someone to fill a vacancy in the United States Senate, but has failed to do so either because of a deadlock or for whatever reason, the Senate will not seat one appointed by the governor to fill such vacancy. The cases of W. A. Clark, of Montana, and M. S. Quay, of Pennsylvania, are, perhaps, the best known cases followed as prece dents by the Senate. The same view is not, however, followed by all the states, in the case of state officers. The governor is allowed to fill a vacancy even though the legislature has, by its action, expressed itself in favor of having the vacancy continue. 30. When a vacancy happens.-The Constitution of the United States provides: "The President shall have power to fill all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." The constitution of New Jersey contains a similar provision. Mr. Sanderson, judge of Hunterdon Pleas, died while the senate was in session. The governor nominated Mr. Kuhl as his successor and the senate refused to ratify the nomination, thus leaving the office vacant. During the recess of the legislature, the governor appointed Mr. Kuhl to fill the vacancy. An action was brought to determine the legality of this appointment by the governor. The decision turned upon the interpretation of the word "happen." It was admitted that if "happen" meant to "take place, arise, or originate," the vacancy could not be filled by the governor because it did not arise during the recess of the legislature. If, upon the other hand, it meant to "exist," the governor would have the power to fill it. The court decided that while the first seemed most accordant with the letter of the Constitution, the latter was most accordant with its reason and spirit. It therefore decided in favor of the governor's appointee.52 52 Fritts v. Kuhl, 51 N. J. L. 191. |