appointment to office is an act executive in its nature, yet not every such appointment involves executive functions, as appointments by judicial officers in the discharge of their duties, or appointments by the legislature in the discharge of its duties as an independent body. Such appointments are necessary to maintain the independent existence of the departments, and are not an encroachment upon the executive department.1 That nomination to office is an executive act was earnestly maintained by Thomas Jefferson. In one of his letters he says: "Nomination to office is an executive function. To give it to the legislature as we do, is a violation of the principle of the separation of powers. It swerves members from correctness by temptation to contract for office for themselves and to a corrupt barter for votes, and destroys responsibility by dividing it among a multitude. By leaving nomination in its proper place among executive functions, the principle of the distribution of powers and responsibility weighs with its heaviest force upon a single head."2 On the other hand, a large majority of decided cases maintain the view that all the powers usually denominated executive by theoretical writers, were not intended to be included in the grant to the governor of the executive power, and that the enumeration of specific powers which the executive might exercise was intended to operate as a limitation of the general grant.3 The power of appointment to office is not generally, under any system of checks and balances, regarded as a function intrinsically executive in the sense that it is inherent in and necessarily belongs to the executive department. Webster says: "First, the denomination of a department does not fix the limit of the powers conferred on it, nor even their exact 1 State vs. Denny, 21 N. E. Rep. 252; State vs. Hyde, 30 Am. and Eng. Corp. Cases, 318, 321 n, and 334 n. nature; and second (which indeed follows from the first), in our American government, the chief executive magistrate does not necessarily, and by force of his general character of supreme executive, possess the appointing power." Where this view of the distributing clause prevails, it has been held that under a constitutional provision like the one above considered, the legislature may, in cases not provided for by the constitution, prescribe by general law the manner in which all public officers shall be elected or appointed, and that this power includes the power to designate the agent or person who shall appoint as well as the formality with which it shall be done. Were a literal construction of the clause in question to be insisted upon, the time of the senate would be taken up in acting upon the governor's nominations.' Where the appointment is to a statutory office, it is competent for the legislature to provide in a different way than that proposed by the constitution, the manner of making original appointments, the terms of office and how all vacancies shall be filled. Vesting the executive power of the commonwealth in the governor does not include the power to fill vacancies in offices created by act of the legislature.3 The legislature may provide for the appointment of a civil service commission to make rules and regulations to govern the qualifications and appointment of all statutory officers.+ But the constitution of New York, for the purpose of fixing responsibility, confers on the Superintendent of Public Works of the state power to select and appoint his subordinates. This, it has been held, gives him exclusive power in his appointments, so that the civil service statute, so far as it attempts to restrict him in his choice to persons certified to him by commissioners, is unconstitutional.5 1 People vs. Osborne, 7 Col. 605. 2 Bridges vs. Shallcross, 6 W. Va. 562. 3 Briggs vs. McBride, 17 Ore. 9. 4 Opinions of Justices, 138 Mass. 601. "This is not the delegation of power to enact laws; it is merely a delegation of administrative powers and duties." 5 People vs. Angle, 109 N. Y. 564. The legislature, having power to prescribe the rule of selection, whether it shall be by election or appointment, may itself make the selection. So, for the legislature to name, in an act of incorporation of a city, trustees to organize the city government and conduct its affairs through the first year, is not regarded as an assumption of executive powers. To avoid legislative appointments, provisions are frequently inserted into the constitutions, declaring that no appointing power shall be exercised by the general assembly, except as prescribed in the constitution.3 Where the question, whether an officer shall be elected or appointed, is left to the discretion of the general assembly, a law directing his election or appointment may be changed at the will of the legislature. The legislature may withdraw the power of appointment to statutory office from the governor 5 and vest it in any administrative board or officer. And in New York it has been held that the power of appointment may be granted to unofficial persons,7 as chambers of commerce and presidents of insurance companies. The legislature may change the time of the election of the successor of an officer, so as to prolong the term of such officer till a successor is appointed. This does not amount to a legislative appointment to office. In the absence of express constitutional prohibitions, where a particular office has been created by statute, the legislature may, in its discretion, abolish the office without regard to the tenure or expectations of the incumbent. It may pass an act lengthening or abridging the 1 1 Mayor vs. State, 15 Md. 376; People vs. Freeman, 22 Pac. Rep. 173. 2 State vz. Rosenstock, 11 Nev. 128. 3 Bridges vs. Shallcross, 6 W. Va. 562; State vs. Kennon, 7 Ohio St. 546. State vs. Covington, 29 Ohio St. 102; People vs. Draper, 15 N. Y. 532. 5 Davis vs. State, 7 Md. 151. 7 Sturgis v. Spofford, 45 N. Y. 446. People vs. Shallcross, 6 W. Va. 562. term of such an officer. It may declare such office vacant and appoint another person to fill the vacancy.2 When the constitution confers the power of appointment to or removal from office upon the executive department alone, it is evident that such appointment or removal cannot be made directly or indirectly by legislative enactment.3 It has been held that a constitutional right of the appointing power to remove at pleasure cannot be abridged by an act providing for the removal in a certain way or for a certain cause. Although a statute which provides for a board, authorizing it to appoint or remove officers, or to fill vacancies, is valid, and although the legislature cannot appoint the officers of such board without exercising the power of appointment,5 yet where the legislature creates a board of public works of which certain officers of the state are ex officio the members, and authorizes such board to appoint to or remove from office, or to fill vacancies, such act does not operate as a legislative appointment to another or different office, but only annexes additional powers and duties to be performed by persons already elected by the people. It does not amount to a legislative appointment to an office created by law." The Constitution of the United States requires certain officers to be appointed by the President by and with the advice and consent of the Senate. But as, when officers become numerous and sudden removals necessary, inconveniences might otherwise arise, it is provided that Congress may by 1 Territory vs. Pyle, 1 Ore. 149. 2 People vs. Barnard, 27 Cal. 470; Att'y Gen'l vs. Squires, 14 Cal. 13; Bryan vs. Cattell, 15 Ia. 538. 4 People vs. Hill, 7 Cal. 97. 3 Hood vs. United States, 15 Ct. of Cl. 151. 5 State vs. Kennon, 7 Ohio St. 546. Bridges vs. Shallcross, 6 W. Va. 562. 7 Generally the President and the governors are empowered to fill all vacancies happening during the recess of the Senate. U. S. Const., art. 2, sec. 2. This provision is regarded as applying to vacancies happening during the session and continuing after adjournment. In re Farrows, 4 Woods (C. C.) 491; State vs. Kuhl, 17 Atl. Rep. 102. law vest the appointment of other officers in the President alone, in courts of law, or in the heads of departments. Congress, however, has no power to confer authority to appoint to office upon any persons not named to that end in the Constitution.1 Although the Constitution of the United States is silent as to the whereabouts of the general power of removal from office, Congress in 1789 affirmed that it was vested in the President, as a power executive in its nature and indispensable to a due execution of the laws and the regular administration of public affairs. This was acquiesced in as the true construction of the Constitution until the passage by Congress from political motives of the Tenure of Office Act of March 2, 1867, which made the consent of the Senate necessary to the removal of civil officers, even of the heads of the several departments. This act was greatly modified on April 5, 1869, .and was with general approval repealed in 1887. It remains doubtful whether the President has the sole power of removal by virtue of the Constitution or by virtue of the act of Congress.2 The commonwealths have placed a similar construction upon their constitutional provisions, and hold that the fact that the consent of the senate is necessary to authorize the governor to appoint does not prohibit him from removing officers at his pleasure.3 But there are some decisions to the contrary. On the ground that the power of removal is incident to the power of appointment, it has been held that an officer cannot be removed by the governor without the consent of the senate, where he is to hold during the pleasure of the power appointing him.+ 1 United States vs. Germain, 99 U. S. 508. 2 Story's Commentaries on the Constitution, vol. 2, p. 363. 3 Wilcox vs. People, 90 Ill. 186; Lane vs. Commonwealth, 103 Pa. St. 481; Harman vs. Harwood, 58 Md. 1; Keenan vs. Perry, 24 Tex. 253; People vs. Hill, 7 Cal. 97. People vs. Freese, 83 Cal. 453. See Field vs. People, 3 Ill. 82. |