Document Type


Publication Date



At no other time in the judicial history of this country, if the evidence of the reported cases is to be relied upon, have there been so many and so bitter contests over all of the questions growing out of the title to public offices, as during the last ten or twelve years. This is undoubtedly largely accounted for by the fact that within that period a large number of the states have put in operation radically changed methods of conducting elections, based upon or practically incorporating what is popularly known as the Australian ballot system. In making these changes, the several states have retained enough of general similarity to attest the likeness of their respective methods to the original type, but at the same time they have introduced so much of local variation and addition as to give rise to a great number of new and perplexing questions of interpretation and application. During this same period, also, an apparently increasing anxiety to secure the emoluments of office has given birth to numerous con- tests over the title to official salaries and fees; and it is doubtless true that this seemingly sharpened appetite for the spoils of office has lain at the foundation of much other litigation in which the right to salary or fees was only incidentally involved. Among the many questions relating to public office which in this period have thus attracted the attention of our courts, is the one to which attention will be given in this paper,-the question, Where does the power to appoint to public office reside, and what are the limitations which attend its exercise? It may seem, on its first statement, that there ought to be but little room for doubt upon this question, but the fact that it has proven to be one of great inherent difficulty, as well as the paramount importance of the question in itself, are the excuses for its discussion at the present time. Lying immediately back of this question, and closely allied to it, is the question which I shall content myself with suggesting but not discussing;-Whether under the system of republican government to which we are pledged, and which the United States is bound to guarantee to every State, there exist any limitations upon the power of the people to exercise the power of appointing their officers generally, rather than electing them. Whether, in other words, it is competent for the people to provide for one or two great elective officers who shall themselves appoint the residue of the vast number of officers required, instead of leaving them all to be elected at popular elections. Passing this question by as one of no present consequence, at least, I shall assume that we will all agree that the power to determine what officers shall be chosen to exercise the functions of government, and by what method they shall be chosen-whether by popular election or by appointment by other officers,-is vested in the people themselves; and that in framing their systems of government and forming their constitutions, they may make such provisions and adopt such methods, as to them may seem expedient and proper. For present purposes, therefore, I shall assume that the people, in their constitutions, may determine what officers shall be appointed, and how, and by whom; and that wherever express provisions of this sort are found, they will be deemed conclusive.1 Strange as it may perhaps seem, however, many of our state constitutions, the constitution of Michigan included, contain exceedingly meagre provisions upon this subject, and the question is therefore open for discussion: What provisions are to be implied? For the purpose of clearing the ground for the main subject, it may be well at the outset to consider briefly some incidental and collateral phases which the courts have had occasion to deal with.