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constitution and from the authority of which no mere act of legislation may operate as a dispensation. Congress may, however, indirectly limit the exercise of this power by refusing the appropriations to sustain it, and thus hamper a function which it is not competent to destroy. The authority to requite such services cannot safely be implied from the general terms of an appropriation law in view of the qualifying enactments.
This special power to employ agents is a general inference from the constitution and from the constant practice in all administration. The administration has certain executive functions and certain large administrative functions. It is obvious that the President, in whom these powers are vested, must perform them largely through agents. Hence, he must have incidentally the power to appoint officers and employ employees for these purposes if Congress do not furnish them or if Congress do not furnish such as he wishes. The same applies to his principal subordinates. The check is that these agents cannot be paid unless there be general or special appropriation by Congress that is applicable 34
$ 46. Selection of officials.
There are two methods of selection for office: first, by election; second, by appointment. In every admin
34 EMPLOYE.—United States v. Mouat, 124 U. S. 303; Auffmordt v. Hedden, 30 Fed. 360; State v. Gardner, 43 Ala. 234; McDaniel v. Yuba Co., 14 Cal. 444; Perkins v. New Haven, 53 Conn. 215; State v. Spaulding, 102 Ia. 639; Maxwell v. McIlvoy, 2 Bibb 211; Farwell v. Rockland, 62 Me. 296; Trainor v. Board, 89 Mich. 162; Lindsey v. Attorney-General, 33 Miss. 508; Whitehouse v. Langdon, 10 N. H. 331; State v. Broome, 61 N. J. L. 115; Eliason v. Coleman, 86 N. C. 237; State v. Anderson, 57 Oh. St. 429; Sawyer v. Corse, 17 Grat. 230; Matter of Janitor, 35 Wis. 410.
istration, both methods are found, the officers are in part elected; in part, appointed. Whether election or appointment preponderates is the question. In one way or another it all comes back to the people. In the case of election the selection of the people is direct; each officer is designated by the electorate. In the case of appointment, the highest officer is elected by the people, and that officer designates the others. In the case of election it comes from the people directly; in the case of appointment, indirectly; but all is derived from the sovereignty of the people in either case.
If it becomes necessary to draw a distinction between election and appointment, from the very nature of the case the distinction between election and appointment becomes one of degree. This test may help: when an officer appointed is an inferior, the action will be appointment. Election is a designation by the people putting someone over them; appointment is the designation by an officer putting someone under him.
This distinction between appointment and election is, perhaps, the most consequential in the law of administration. It is the question between centralization and decentralization. Whatever bonds there are between officers experience proves are determined by the question of origin. The theory of the law is that the responsibility of the official is to the electorate; that is, the responsibility of an elected official is political only. The responsibility of an appointed official to a superior may be fairly called, for distinction, administrative. Unity in administration cannot exist when an inferior can plead against the order of a superior his common designation by popular will. Every officer who is elected by the people is upon equal terms with every other officer.35
$ 47. Election.
The first method, then, is election. The law of election is an external law to the administration. The election of a governor and of a judge are conducted according to the same law. The official becomes a subject of administrative law strictly only when the election is finished, when he comes with his valid credential. The officer, then, is taken into the administration. What follows is law of the administration. What precedes is not. Whether there was a nomination in legal form; whether voters were qualified; whether there was a proper election; whether a fair count—these are questions of the complex law of elections which governs these matters.
The right to office is not a natural right. It is limited in various ways, although, broadly speaking, it is the principle of our law that the right to office is coextensive with the right of suffrage. There are few positive qualifications for office. There are some expedient negative limits. The usual qualifications for office concern citizenship, age, sex, or property. The usual disqualifications are, in addition, the holding of another office and criminal practices. The question of the qualifications and disqualifications for office are largely bound up in the question of appointment or election. The tendency of the law is to reduce the qualifications for election to a minimum and increase the qualifications for appointment to a maximum.
35 CREATION OF OFFICERS.—Quackenbush v. United States, 177 U. S. 27; Ex parte Lambert, 52 Ala. 79; State v. Askew, 48 Ark. 82; Conger v. Gilmer, 32 Cal. 75; People v. Osborne, 7 Colo. 605; State v. Barbour, 53 Conn. 76; Matter of Executive Communication, 25 Fla. 426; Bradford y. Justices, 33 Ga. 332; People v. Dutcher, 56 Ill. 144; Cleveland, etc., R. R. V. Backus, 133 Ind. 513; Whittam v. Zahorik, 91 Ia. 23; Taylor v. Commonwealth, 3 J. J. Marsh, 401; State v. Abbott, 41 La. Ann. 1096; Silver v. Magruder, 32 Md. 387; Speed v. Crawford, 3 Met. (Ky.) 207; Lawrence v. Hanley, 84 Mich. 399; State v. Lovell, 70 Miss. 309; Wilson v. Lucas, 43 Mo. 290; Prather v. Hart, 17 Neb. 598; State v. Hadley, 64 N. H. 473; Ransom v. Black, 54 N. J. L. 446; People v. Bull, 46 N. Y. 57; State v. Constantine, 42 Oh. St. 437; State v. Briggs, 15 R. I. 425; Kottman V. Ayer, 3 Strob. 92; Brewer v. Davis, 9 Humph. 208; Pearson v. Supervisors, 91 Va. 322.
When an office is an appointive one there cannot be election to it. A case that recites the elementary principle is State v. Hyde, 121 Ind. 20 (1889). The legislature of Indiana established a division of mineral oils in the department of geology, and the office of inspector of mineral oils was established. The same act which constituted this department provided that the general assembly, immediately after the taking effect of it, should elect a head of the department, who should appoint a chief of division. The constitutionality of this act was attacked by these proceedings upon the ground that this was an encroachment by the legislature upon the executive.
Mr. Justice BERKSHIRE held that it was: The powers of government under our constitution are divided into three separate departments—the legislative, the executive, and the judicial. That the power to appoint to office is not a legislative function it seems there can be no question. Is it an executive function? That the power to appoint to office is intrinsically an executive function has been decided over and over again. Therefore the legislature cannot do what it has attempted in this case: take upon itself the appointment of a head of a department, as the appointment to office is an executive function.
The other side of this question is seen in Shoemaker v. United States, 147 U. S. 282 (1893). Congress in legislating for the creation of a commission for a park provided that three of the members of it should be appointed by the President by and with the consent of the Senate, and that two of its members should be two existing officers of the United States, already so appointed. The question was whether such organization of such a commission was constitutional.
Mr. Justice HARLAN disposed of this point in this manner: It is pointed to as invalidating the act that while Congress mạy create an office, it cannot appoint the officer. As, however, the two persons whose eligibility is questioned, were at the time of the passage of the act and of their action under it, already officers of the United States who had been heretofore appointed by the President and confirmed by the Senate, we do not think that because additional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted and it has frequently been the case, that Congress may increase the power and duty of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed.36
36 ELECTION.-Blake v. United States, 103 U. S. 232; Ex parte Lusk, 82 Ala. 519; Wickersham v. Brittan, 93 Cal. 37; State v. Peelle, 124 Ind. 515; Baltimore v. State, 15 Md. 376; Webber v.