officer concurrently with a legislative or administrative body," although the existence of the power of appointment is not conclusive that the one to whom it is given is an executive or an administrative officer.50 The principle stated above does not prevent legislative or judicial officers or bodies from selecting their subordinate officers and employes; 51 although the objection has been raised at times to the exercise of such a power that it is a substantial encroachment upon the prerogatives and powers of other departments.52 The objection has not been sustained because the courts have held that every judicial or legislative body has the inherent power to avail itself of such implied powers or agencies as may be necessary to enable it to properly perform, without fear of outside compulsion, the functions and the duties which devolve poor house as to them may seem necessary. They may abolish the office or change the incumbent. Bakely v. Nowrey, 68 N. J. Law, 95, 52 Atl. 289. Where the power of appointment is attached to an executive office it can be legally exercised up to the very moment of the expiration of the term. Palmer v. Foley, 44 How. Pr. (N. Y.) 308; Sturgis v. Spofford, 45 N. Y. 446; People v. Leavy, 47 App. Div. 97, 62 N. Y. Supp. 161, affirming 28 Misc. 246, 59 N. Y. Supp. 408; People v. Board of Fire Com'rs, 73 N. Y. 437; People v. Comstock, 78 N. Y. 356; Griggs v. Weston County Com'rs, 5 Wyo. 274, 40 Pac. 304. 49 In re Marshalship for the Southern & Middle Districts of Alabama, 20 Fed. 379; Somerville v. Wood, 129 Ala. 369, 30 So. 280; People v. Bissell, 49 Cal. 407; State v. Rareshide, 32 La. Ann. 934; Taylor v. Hebden, 24 Md. 202; Merrill v. School Com'rs, 70 Md. 269, 16 Atl. 723, 2 L. R. A. 844; Calvert County Com'rs v. Hellen, 72 Md. 603, 20 Atl. 130, 11 L. R. A. 224; Hooper v. Creager, 84 Md. 195, 35 L. R. A. 202; Clarke v. City of Trenton, 49 N. J. Law, 349, 8 Atl. 509; People v. Tremain, 9 Hun (N. Y.) 573; People v. Kneissel, 58 How. Pr. (N. Y.) 404; Kip v. City of Buffalo, 123 N. Y. 152, 25 N. E. 165, 9 L. R. A. 493; State v. Tate, 68 N. C. 546; Brumby v. Boyd, 28 Tex. Civ. App. 164, 66 S. W. 874. 50 People v. Freeman, 80 Cal. 233; People v. Hoffman, 116 Ill. 587; State v. Peelle, 124 Ind. 515, 8 L. R. A. 228; City of Baltimore v. State, 15 Md. 376; Kimball v. Alcorn, 45 Miss. 151; Ex parte Lucas, 160 Mo. 218; State v. Swift, 11 Nev. 128; In re Brenner, 35 Misc. 212, 70 N. Y. Supp. 744; State v. George, 22 Or. 142, 16 L. R. A. 737; Eddy v. Kincaid, 28 Or. 537. 51 Horan v. Lane, 53 N. J. Law, 275, 21 Atl. 302; Gouldey v. Atlantic City, 63 N. J. Law, 537, 42 Atl. 852; O'Rourke v. City of Newark, 66 N. J. Law, 109, 48 Atl. 578; People v. McDonald, 69 N. Y. 362. The legislative appointment of commissioners authorized to widen a designated highway, sustained. Willis v. Angell, 19 R. I. 617, 35 Atl. 677. 52 Doyle v. Aldermen of Raleigh. 89 N. C. 133; Shaw v. Jones, 4 Ohio N. P. 372. 53 upon it under the three-fold assignment of sovereign duties and powers. The power of appointment may depend also upon somesudden exigency or emergency such as the unexpected failure of a public official to perform the duties of his office.54 To entitle one under these circumstances to legally perform the duties of the office, the act of appointment should specify the existence of the conditions which authorizes the exercise of the appointive power.55 Where the power of appointment is vested in a designated board or number of public officers, ordinarily the concurrent action as a board of a majority is sufficient for a legal appointment,5 56 al 53 State v. Westfall, 85 Minn. 437, 89 N. W. 175, 57 L. R. A. 297. "Judicial power includes the authority to appoint all necessary subordinate officers and assistants essential to the conducting of judicial business. The examiners provided for by this act are subordinate officers or assistants of the ccurts, to aid them in the discharge of the judicial duties imposed upon them by the act. It was, therefore, competent and proper for the legislature to provide for their appointment by the courts, as much so as would be a statute authorizing them to appoint a stenographer or a receiver in insolvency." 54 State v. Lovell, 70 Miss. 309, 12 So. 341; State v. Mayhew, 21 Mont. 93, 52 Pac. 981. The power to fill legislative appointment county offices temporarily is an implied power accompanying the express grant of the legislative power to create new counties. King v. Duryea, 45 N. J. Law, 258; People v. Hall, 104 N. Y. 170, 10 N. E. 135; Pippin v. State, 34 Tenn. (2 Sneed) 43. 55 Pippin v. State, 34 Tenn. (2 Sneed) 43. 56 Benson v. People, 10 Colo. App. 175, 50 Pac. 212. Where the law authorizes the majority of a board consisting of ten members to fill vacancies, the election of a member at a meeting where five members. are present is void. State v. West, 62 Neb. 461, 87 N. W. 176. "The only question involved in the controversy is as to the proper appoint. ing power when a vacancy occurs by resignation in a board of supervisors in a county under township organization. It appears from the information that a vacancy occurred in the board of supervisors of Cuming county on account of the resignation of the number from the third supervisor district of said county. After this vacancy occurred, the county clerk, the county treasurer and the county judge attempted to fill the vacancy by the appointment of Owen Kane, who immediately filed his bond, subscribed to the oath of office and demanded the office. The remaining members of the board of supervisors refused to recognize the appointment so made, and proceeded to appoint the respondent, Frank West, who immediately qualified and entered upon the discharge of his duties under the appointment made by the members of the board. * Section 7 of this act (township organization) provides: "The county commissioners of any such county having adopted township organization shall each be assigned to though some authorities maintain that their unanimous action is necessary.57 A substantial compliance with the provisions of the appointing law is generally all that is necessary on the part of such a board to validate action by them in appointing subordinate officials.58 § 602. Confirmatory action. The appointing power when once granted may consist of the right to make an appointment or selection without securing directly or indirectly the approval of some designated body.5 The assent, however, of some confirmatory legislative body may be required by law. Under the United States government the presi the supervisor district in which he may reside, or if two reside in one district then the one residing nearest the center of such district shall be the supervisor of such district and the other shall be the supervisor for the district nearest to his residence and the three shall forthwith appoint four supervisors to fill the vacancies in the other four supervisor districts, and the newly appointed supervisors shall duly qualify and file their oath of office and bond with the county judge within ten days after such appointment. Any vacancy shall be filled by appointment by the remaining supervisors.' We think that a fair construction of this section makes the concluding sentence confer the authority on the remaining members of the board to fill any vacancies that may occur in the board." 57 Keyser v. Upshur, 92 Md. 726, 48 Atl. 399, 404. 58 Bath County v. Daugherty, 24 Ky. L. R. 350, 68 S. W. 436; State V. Seavey, 22 Neb. 454. "An act providing that 'in each city there shall be a board of fire and police to consist of the mayor and four electors to be appointed by the gov ernor not more than two of whom shall be of the same political party,' is directory merely and an appointment made irrespective of the political qualifications is legal." State v. Bennett, 22 Neb. 470, 35 N. W. 235; Bohan v. Weehawken Tp., 65 N. J. Law, 490, 47 Atl. 446; People v. Mills, 32 Hun (N. Y.) 459. 59 People v. Perry, 79 Cal. 105, 21 Pac. 423; Gilboy v. City of Detroit, 115 Mich. 121; Attorney General v. McCabe, 172 Mass. 417; States Prison v. Day, 124 N. C. 362, 32 S. E. 748, 46 L. R. A. 295; Burch v. Hardwicke, 23 Grat. (Va.) 51. Go People v. Fitch, 1 Cal. 519; People v. Mizner, 7 Cal. 519; People v. Addison, 10 Cal. 1; People v. Freese, 76 Cal. 633, 18 Pac. 812; Wetherbee v. Cazneau, 20 Cal. 503; People v. Bissell, 49 Cal. 408. Action by a confirmatory board is nec essary to the validity of the appointment. People v. Tyrrell, 87 Cal. 475; Monash v. Rhodes, 27 Colo. 235, 60 Pac. 569, affirming 11 Colo. App. 404, 53 Pac. 236; State v. Churchman, 3 Pen. (Del.) 361, 51 Atl. 49; State v. Murphy, 32 Fla. 138; In re Inman, 8 Idaho, 398, 69 Pac. 120; Calvert County Com'rs v. Helen, 72 Md. 603, 20 Atl. 130; Com. v. Ginn, 23 Ky. L. R. 521, 63 S. W. 467; dent has, through the Federal constitution, the right to make designated appointments to office but these appointments or selections must be confirmed by the United States senate.1 The greater number of instances of a delegation of the appointing power by the people grant to designated officials the right to make the prescribed appointments or selections of subordinate officials and employes without securing the consent directly or otherwise of a confirming body.62 Where action by a confirmatory board is Shepherd v. Haralson, 16 La. Ann. 134; Hooper v. New, 85 Md. 565, 37 Atl. 424; Hooper v. Creoger, 84 Md. 195, 35 L. R. A. 202; Lynch v. Raymond, 45 Miss. 151; State v. Page, 20 Mont. 238, 50 Pac. 719; Hoell v. City Council of Camden, 68 N. J. Law, 226, 52 Atl. 213. It is the duty of a confirmatory board to act in good faith upon pending nominations. Fryer v. Norton, 67 N. J. Law, 537, 52 Atl. 476; State v. Manson, 105 Tenn. 232, 58 S. W. 319. The appointment by the governor of insane hospital trustees for an unexpired term is independent of any control by the legislature, under Tenn. Code, §§ 2585, 2586. Brumby v. Boyd, 28 Tex. Civ. App. 164, 66 S. W. 874. See, also, cases cited under § 601, ante. 61 U. S. Const. art. 1, § 2, par. 2. In re Marshalship for the Southern and Middle Districts of Alabama, 20 Fed. 379. Where the senate of the United States rejects the nomination of a person for an office made by the president, this action is conclusive. Matter of Farrow, 3 Fed. 112; Gould v. United States, 19 Ct. Cl. 593. 62 People v. Hammond, 66 Cal. 654; Union Depot & R. Co. v. Smith, 16 Colo. 369; Matter of Executive Communication, 25 Fla. 426; Taylor v. Stevenson, 2 Idaho, 180; Rowley v. People, 53 Ill. App. 298; State v. Allen, 21 Ind. 516. The commission of an executive possessing the appointive power is the only legal evidence of the right of an incumbent to the office. Stingley v. Nichols, Shepard & Co., 131 Ind. 214, 30 N. E. 34. Where a county board of supervisors is authorized to appoint a deputy surveyor whenever his services are needed, the necessity for such an appointment cannot be questioned in a collateral proceeding. State v. Hyde, 121 Ind. 20; Carson v. State, 145 Ind. 348; Berry v. McCollough, 94 Ky. 247; Walsh v. Knickerbocker, 18 La. Ann. 180; Burton v. Kennebec County, 44 Me. 388; Ash v. McVey, 85 Md. 119; Russell v. Wellington, 157 Mass. 100; Tower v. Welker, 93 Mich. 332, 53 N. W. 527. The city clerk has the power to appoint a deputy to act during his ab sence. Speed v. Common Council of Detroit, 97 Mich. 198, 56 N. W. 570. Where the power to appoint an officer is vested in the mayor, upon his making and filing an appointment, it is then beyond his recall. Attorney General V. Corliss, 98 Mich, 372; State v. Lovell, 70 Miss. 309; Ter. v. Rodgers, 1 Mont. 252; State v. Weston, 4 Neb. 234; People v. Angle, 47 Hun (N. Y.) 183; People v. Murray, 70 N. Y. 521; People v. Andrews, 104 N. Y. 570; People v. Bledsoe, 68 N. C. 457; necessary, it is customary, however, to give executive officials the power to appoint officers to fill vacancies caused by death, resig nation or removal after the adjournment of the confirmatory board; such appointments hold good until their confirmation or its failure at the next meeting of the confirming board.63 § 603. Appointments; manner of making. 65 64 An appointment to public office should be made in writing, although in some cases action has been valid not made in this manner. The weight of authority and the better reason calls, however, for the existence of title to office in some form more definite and more permanent than memory. A public officer exercises for the sovereign certain functions of government and transacts the business of the government committed to his charge. In this the rights of the government and the people are affected and it is highly important, if not absolutely necessary, to the safety and peace of society, that the rights of such an officer to perform these duties and functions should be evidenced in a substantial manner. The authority authorizing an appointment 66 Briggs v. McBride, 17 Or. 640, 5 L. R. A. 115; Com. v. Oellers, 140 Pa. 457; State v. Sheldon, 8 S. D. 525; State v. Manson, 105 Tenn. 232; In re Fourth Judicial Dist., 4 Wyo. 133. 63 In re Marshalship of the Southern and Middle Districts of Alabama, 20 Fed. 379; Matter of Farrow, 3 Fed. 112; Gould v. United States, 19 Ct. Cl. 593; People v. Cazneau, 20 Cal. 503; People v. Forquer, 1 Ill. 104; State v. Rareshide, 32 La. Ann. 934; State v. Jones, 116 N. C. 570, 21 S. E. 787; Com. v. Waller, 145 Pa. 235. 64 Conger v. Gilmer, 32 Cal. 75; State v. Crawford, 28 Fla. 441, 14 L. R. A. 253; State v. Allen, 21 Ind. 516; Justices of Jefferson County v. Clark, 17 Ky. (1 T. B. Mon.) 82; Phelon v. Inhabitants of Granville, 140 Mass. 386; State v. Meder, 22 Nev. 264, 38 Pac. 668; People v. Willard, 44 Hun (N. Y.) 580; People v. Keller, 30 Misc. 52, 61 N. Y. Supp. 746; People v. Fitzsimmons, 68 N. Y. 514; People v. Murray, 70 N. Y. 521; Jeter v. State, 1 McCord (S. C.) 233. A commission is evidence only of an officers appointment. State v. Barber, 4 Wyo. 409, 34 Pac. 1028, 27 L. R. A. 45. 65 Carter v. Sympson, 47 Ky. (8 B. Mon.) 155. A public officer acting and recognized as such will be presumed to have been legally appointed until the contrary appears. Hoke v. Field, 73 Ky. (10 Bush) 144. 66 People v. Murray, 70 N. Y. 521. "It would be unfortunate if the title to office of one upon whose official acts public interests and private rights hinged, did or could be made to depend upon the verbal declarations and statements of the person having the power to make the ap |