§ 48. Appointment.

The second method, then, is appointment. Certain divisions of the subject must be made at the outset. The appointing power vested in the administration may be distinguished as primary and secondary. The one is the power of original appointment; the other is the power of appointment to fill a vacancy. Primary appointment is the ordinary case; secondary appointment, the extraordinary case. A power to appoint to an office includes theoretically the power to make the appointment in case of vacancy. Expediency has given to the executive in practice an exceptionally broad power of secondary appointment to fill the vacancies in offices which were originally filled by election. This is very common in our public law. We continually find the power to fill vacancies for a limited period or for the rest of the term in offices falling vacant in which the executive had no power of original appointment. A great deal of public law has grown up about the word "vacancies" and the term "appoint"; and these have received various shades of interpretation.

Again, the power of appointment may be either absolute or conditional. If the choice requires nothing more than the commission of the appointing power to make it perfect, the appointment may be called absolute. If there is confirmation or consent of some other body required previous to a commission of the appointing power, it may be termed conditional. Example of the former is the power of the President to appoint to inferior office; and of the latter is the constitutional reDavis, 5 Allen, 393; Thomas v. Burrus, 23 Miss. 550; People v. Thomas, 33 Barb. 287; Haight v. Love, 10 Vroom. 14; Territory v. Ashenfelter, 4 N. M. 93; State v. McCollister, 11 Oh. 46; State v. Barber, 4 Wyo. 409.

quirement of the advice and consent of the Senate in the larger executive appointments.

Of whatever sort, appointment is an executive function. It may be defined as the act of designation by the executive of a person to an office in the administration. In such appointment the executive has an inherent power. As the function is executive, it is independent; no dictation to the department can be made without violation of the rule of separation of powers. Qualifications upon the eligibility of officers may be made, but directions as to the choice of officers may not be made. Since appointment is an executive function, these results follow.

The primary rule is that of the previous case: that the executive must have the right to appoint to an office. The limitation upon that is in the last case: that the legislature may prescribe as to the office itself. The result of the interaction of these two principles upon each other is that the one may prevail, which results in a discretionary system, or the other may prevail, which results in a civil service system. In the one case the appointing officer may designate whom he pleases upon any basis of preference. In the other case the appointing officer is limited in his choice to a certain number of men certified to him upon some basis of merit.

The constitutional limitations must be observed in any case. The power of appointment conferred by the constitution is a substantial and not merely a nominal function, and the judgment and will of the constitutional depository of that power should alone be exercised or have legal operation in filling offices created by law. The right of the legislature to prescribe qualifications

for office is limited by the necessity of leaving scope for the judgment and will of the person or body in whom the constitution vests the power of appointment. The legislature cannot vest such appointment elsewhere directly or indirectly. Accordingly, an act requiring the executive to appoint to office the persons designated by an examining board as the fittest would be at variance with the constitution, inasmuch as it would virtually place the power of appointment in that board. But, although the result of an examination before such a board cannot be made legally conclusive upon the appointing power, against its own judgment and will, yet it may be resorted to in order to inform that power. And notwithstanding that the appointing power alone can designate an individual for an office, still, either the legislature by direct legislation, or the executive by authority derived from the legislature, can prescribe qualifications, and require that the designation shall be out of a class of persons ascertained by proper tests to bear those qualifications.

A provision invalid according to these limitations is seen in People v. Roberts, 148 N. Y. 360 (1896). The relator was appointed clerk to the collector of canal statistics by the Superintendent of Public Works upon his own motion. When he applied for his salary the Comptroller of the state refused to audit the same. The ground of refusal was that the relator was appointed to the position without having taken the civil service examination, and, of course, therefore without certifi cation of his name by the Civil Service Commission.

O'BRIEN, for the majority judges, held: It is quite clear that the civil service statutes constitute a general

system of statute law applicable to appointments in every department of the civil service of the state. It is therefore apparent that a new principle, far reaching in its scope and effect, has been firmly imbedded in the constitution. That this must, if fairly and honestly administered, go far to suppress very grave evils and abuses that have become peculiarly rife and acute in our political system, no intelligent person who has given the matter much attention can doubt. Our conclusion is that, as the commission had not certified to this relator, his appointment is invalid.

A provision invalid according to these limitations is seen in Brown v. Russell, 166 Mass. 14 (1896). This was a petition for mandamus to the Civil Service Commissioners of Massachusetts praying that they be required to restore the petitioner to the highest place upon the list of candidates eligible for certification and appointment to a position on the district police for the commonwealth, a preference for certification and appointment having been given to one Bean in conformity with a statute of 1895 which required that a veteran of the civil war, who should make application, should be certified first to the Governor, which had the effect of requiring the Governor to appoint him if he appointed anybody.

The Chief Justice, FIELD, gave the decision upon the grounds: We think that it is inconsistent with the nature of our government and particularly with our constitution that the appointing power should be compelled by legislation to appoint to public offices persons of a certain class in preference to all others without the exercise on its part of any discretion, and without the

favorable judgment of some legally constituted board designated by law to inquire and determine whether the persons to be appointed are actually qualified to perform the duties which pertain to the offices. In our form of government it is fundamental that public offices are a public trust; and that the persons to be appointed should be selected solely with a view to the public welfare.

This is a period of distrust in the free discretion of the executive in appointment. The alternative is this civil service system. The civil service reform has fought its way to recognition. It has passed through the stages of, first, pass examinations; second, limited competitive examinations; and third, present form of open competitive examinations. Among those few thus qualified the executive must now choose most officers, except the highest. Far from perfect as the system is, it is, on the whole, the best that has been devised. Administration will be better than it ever has been, because it will be a permanent provision; but in the process the administration may become a bureauocracy. At all events, something of the old will be gone that was of advantage together with all that was of disadvantage.37

$ 49. Removal of officials.

As the selection for office is different in appointment and in election, removal from office is different in the

37 APPOINTMENT.-United States v. Perkins, 116 U. S. 483; State v. Askew, 48 Ark. 82; Wickersham v. Brittan, 93 Cal. 34; State v. Dillon, 32 Fla. 545; Franklin v. Kaufman, 65 Ga. 260; Kreitz v. Behrensmeyer, 149 Ill. 496; Boone Co. Com'rs v. State, 61 Ind. 379; Miner v. Olin, 159 Mass. 487; Attorney General v. May, 99 Mich. 538; State v. Squire, 39 Oh. St. 197; DeWalt v. Bartley, 146 Pa. St. 529; Flatan v. State, 56 Tex. 98; Bean v. Territory, 3 Wash. Ter. 129.