at the expiration of Adam's term they had not been delivered and the new secretary of state, James Madison, refused to deliver them. Thereupon action was brought by Marbury and others to compel the delivery of the commissions. It was claimed that their appointments had never been completed, but Chief Justice Marshall, speaking for the court said: "The last act to be done by the president is the signature of the commission; he has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed: he has decided. His judgment on the advice and consent of the senate, concurring with his nomination, has been made and the officer is appointed. This appointment is evidenced by an open unequivocal act; and, being the last act required from the person making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction. 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. And this power has been exercised, when the last act required from the person possessing the power has been performed." Generally this last act is, as in Marbury's case, the signing of a commission, but in some states, especially when the appointment is by a legislative body or by a board, a commission is not required and the last act may be the announcement of the result of a ballot (25). It has been held that an oral announcement made to the appointee in

the presence of the tribunal charged with the duty of taking the bond and administering the oath of office is a sufficient "open, unequivocal act" (26), but on the other hand the validity of oral appointments has also been denied (27).

§ 36. Time of appointment. It is a common practice to appoint to office before the term of the appointee is to commence, but this may not be done if the term of the appointing power does not overlap that of the appointee. Thus in the case of Ivy v. Lusk (28) the term of office of the incumbent expired February 25, 1853, and an appointment of his successor was made March 12, 1852, for the reason, as urged by counsel, that there was no session of the legislature in 1853 and that, if the appointment were not made earlier, a merely temporary appointment would have to be made until the end of the next session of the legislature; but the court held that, as a new governor and legislature came into office prior to the commencement of the new term, it was plain that an appointment thus made by anticipation had no other basis than expediency and convenience, and could only derive its binding force and effect from the supposition that there would be no change of person and consequently of will on the part of the appointing power, between the date of the exercise of that power by anticipation and that of the necessity for the exercise of such power by the vacancy of the office.

(26) Hoke v. Field, 10 Bush (Ky.) 144. (27)

People v. Murray, 70 N. Y. 521.

SECTION 3. 'ACCEPTANCE AND QUALIFICATION.

§ 37. Duty to accept. In the case of People v. Williams (29), decided in 1893, mandamus was brought to compel Williams to accept and qualify for the office of town clerk, as required by law. The question presented was as to the power of the courts to compel the acceptance of municipal office. No case directly in point could be found in this country, but the court referred to the English cases making the acceptance of office obligatory and considered that the principle at the bottom of the English cases applied with even greater force in this country. It said: "All citizens owe the duty of aiding in carrying on the civil departments of government. In civilized and enlightened society men are not absolutely free. The burden of government must be borne as a contribution by the citizen in return for the protection afforded. The sovereign, subject only to self-imposed restrictions and limitations, may, in right of eminent domain, take the property of the citizen for public use. He is required to serve on juries, to attend as witness, and, without compensation, is required to join with posse comitatus at the command of the representative of the sovereign power. He may be required to do military service at the will of the sovereign power. These are examples where private right and convenience must yield to the public welfare and necessity." The lack of adjudicated cases, however, shows that this duty is not often enforced, and, with the generally prevalent desire to hold office, there is little need that it should be. It is sometimes stated that ac

ceptance will not be enforced where there is no salary attached to the office or where the appointee already holds other office.

§ 38. What constitutes acceptance. It has been held that acceptance of a nomination is not acceptance of an office (30), but that the actual occupation and exercise of an office will raise a presumption of acceptance. The best evidence of acceptance, however, is qualification, and, if qualification within a given time is a condition precedent to holding office, the failure to qualify within that time is deemed a refusal of the office (31).

§ 39. Oaths and bonds. It is usual to require that an officer-elect take an oath of office before entering on the duties of his office, and "public officers to whom are entrusted the collection and custody of public money, and public ministerial officers whose actions may affect the rights and interests of individuals are usually required to secure the faithful and proper discharge of their duties by giving bonds conditioned to that effect. As a rule, political, judicial, military, and naval officers are not required to give bonds" (32). It generally depends on the construction of constitutional or statutory provisions whether the taking of the oath and the giving of the bond are conditions precedent to the holding of the office or merely necessary to perfect legal title. The inclination of the courts, however, is against forfeitures.

SECTION 4. TERM OF OFFICE AND VACANCIES.

§ 40. Beginning of term. The limits of a term are Me usually fixed by the constitution or statute, the beginning of the term being ordinarily placed at such a time after the election or appointment as to give reasonable time for the newly chosen officer to arrange his affairs and qualify. Where no date is fixed, however, the term will commence from the date of election or appointment.

§ 41. Expiration. The term of office ordinarily expires at the date fixed by law, but it has been held, where no successor has been appointed or elected, that the old incumbent holds over until the selection and qualification of his successor, and in many states this rule has been embodied in the constitution or statutes. Thus in State v. Bulkeley (33) the term of the respondent as governor of Connecticut was until the Wednesday following the first Monday of January, 1891, and until his successor was duly qualified. Morris, the claimant to the office, urged that he had received a majority of the votes at the recent election; but the court held that the declaration of the result of the election was an essential part of it, that this declaration had to be made by the general assembly, that the general assembly had made no such declaration and that at least until it had or until it was shown that the general assembly had become unable to decide upon the election, the court would not interfere; and that in the meantime the respondent held both as de jure and de facto governor.

§ 42. When vacancies exist. Where a term of office