constitutional electoral commission was created to determine what returns should be counted; and as a result Mr. Hayes was declared the president. Provision has since been made by statute (1887) for another method of counting the electoral vote. Whatever difficulties may arise on the subject must be settled by the two houses of Congress, in whose presence the president of the Senate is directed to count the returns. No question relating to the result of the election can be raised in the courts.

41. Term and Qualifications of President; Vacancy in Office.

The president and vice-president hold office during the term of four years, and it is required that the president be a natural-born citizen who shall have attained the age of thirtyfive years and been fourteen years a resident within the United States (Art. II, § 1, ¶ 4).

"In case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of said office, the same shall devolve on the vice-president" (Art. II, § 1, ¶ 5). Congress is authorized by law to provide "for the case of removal, death, resignation, or inability both of the president and vice-president," and this it has done by statute (1886), providing that in such case the secretary of state, the secretary of the treasury, the secretary of war, the attorney-general, the postmaster-general, the secretary of the navy, and the secretary of the interior, shall, in the order named, act as president (each of course only in the event of the removal, death, resignation, or inability, or ineligibility of those named earlier in the list). In the event of the removal, death, resignation, or inability of the president, the vice-president becomes president by virtue of the provision of the constitution, and so serves for the remainder of the term for which the president was elected. But when one of the executive officers acts as president, the position remains vacant and is to be filled by a special election provided for by Congress.

CHAPTER VII.

JUDICIAL DEPARTMENTS.

42. References.

Joseph Story, Constitution, §§ 1599-1636; J. R. Tucker, Constitution, ch. xiii; James Kent, Commentaries on Am. Law, Lect. xiv; The Federalist, No. 78; James Bryce, American Commonwealth, I, chs. xxii, xlii; J. W. Burgess, Political Science and Constitutional Law, II, 322-325; A. B. Hart, Actual Government (Amer. Citizen Series), ch. xvii.

43. Selection of Judges.

The powers of the judicial departments of the state and federal governments are exercised by courts provided for in their respective constitutions or created by the legislative departments for the purpose of exercising such judicial powers. The general functions of courts and the apportionment of powers among them will be considered later. In describing the organization of such departments for present purposes, it is sufficient to say that courts are presided over by judges; and that these judges are selected by election or appointment, as may be provided in the state or federal constitution, respectively. In England the judges are appointed by or under the authority of the king, and the term of office is unlimited. In some of the older states the judges are appointed by the executive, in others they are elected by the state legislatures. In much the larger number of states, however, judges, like legislative or executive officers, are chosen by a popular election for fixed terms. But the desirability of securing the complete independence of the judiciary and removing the judges from all party influence was a sufficient argument with the framers of the federal constitution to induce them to provide that the judges of the federal courts shall hold office dur

ing good behavior and receive a compensation which shall not be diminished during their continuance in office (Art. III, § 1). This means that they are appointed for life and can be removed only by impeachment. Their appointment is by the president, by and with the advice and consent of the Senate (Art. II, § 2, ¶ 2).

Even in the states in which the judges are elected there has been a tendency to secure independence of party influences by providing for long terms, or for choice at an election distinct from that at which other state and federal officers are elected, or by continuing the incumbents in office by repeated re-elections.

Part III.

Legislation.

CHAPTER VIII.

STATE LEGISLATION.

44. References.

Joseph Story, Commentaries on the Constitution, §§ 531-544; J. W. Burgess, Political Science and Constitutional Law, II, 41-185; James Bryce, American Commonwealth, I, ch. xl; A. B. Hart, Actual Government (Amer. Citizen Series), ch. vii.

45. Nature of Legislative Power.

Bearing in mind the difference between the powers of a state government which are general in their scope, and those of the federal government, which has only the enumerated powers conferred upon it by the federal constitution and those which are implied therefrom (see above, § 17) it is apparent that the general powers of legislation are vested in the legislatures of the states, while Congress has legislative authority only as to limited classes of subjects. It will be useful, therefore, to consider first the scope of state legislation. But it is not easy to be exhaustive in this respect, for the original state constitutions and some of a later period contain very few specifications as to the matters about which laws may be enacted.

The difficulties which bring before courts questions in regard to state legislation concern limitations on, rather than the extent of, the powers of the state governments. The general

object of legislation is to provide for the public good and the health, good order, education, and morals of the people; and any statutes in furtherance of these purposes, and not in violation of limitations upon powers of the state government or its legislative department, will in general be valid. In determining the extent of legislative power we may properly have in mind the history of constitutional government in Great Britain and the United States, and especially the fact that in Great Britain Parliament is the legislative power, and we may safely say that those subjects with reference to which in the course of English history Parliament has been in the habit of dealing by way of legislation are within the scope of legislative power under our form of government, unless some constitutional restriction has been imposed. Out of this mass of potential powers, seldom enumerated in state constitutions, three classes of subjects for legislative power may be distinguished.

(1) All legislation relating to the carrying on of the operations of government, not only legislative, but also executive and judicial; for the general laws in accordance with which the functions of the judicial and executive departments are to be discharged must be provided by the legislative power. Thus legislation will provide for the election and appointment of judicial officers and apportion their duties to them, so far as their selection and duties are not directly controlled by the constitution. As to this kind of legislation, very little need be said by way of explanation or illustration, for the whole matter is left largely to the discretion of the legislatures.

(2) Legislation relating to the providing and expenditure of the revenues essential to the carrying on of the operations of the government; and this may be described in a general way as an exercise of the taxing power.

(3) Legislation relating to the control of the personal and property rights of those who are subject to the government, with a view to securing and promoting their general welfare; for this is the main object of government. Such legislation is an exercise of the so-called police power, which will be more fully explained in the next chapter.