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Obviously here is an arm of the government endowed with enormous power. It is substantially at the disposal of the governor who appoints the superintendent of elections, and may remove him. It may readily become a partisan instrument because the deputies are uncontrolled by either by bi-partisan provisions or the restrictions of the civil service law. As such it may be used as unfairly as were the federal marshals and their deputies under the "force bills" of Reconstruction days, who became so odious throughout the country that the whole system was abandoned. At all events no effective and unpartisan state supervision of elections has yet been devised. Charges of maladministration in the work have been constant. It remains to be seen whether the present law will prove more satisfactory than past measures and whether attempts at state supervision of elections are not more dangerous (where not futile) than the practice of trusting to local officers, party rivalry and non-official efforts in every community. '



Provisions of Law Governing the Qualifications, Method of Selection, Tenure, Compensation, and Welfare of Persons Employed in the Public Service.

Lest it may be thought that the word "official" is here employed in the narrow sense recognized by courts in distinguishing the administrative officers from members of the legislature, it is to be first noted that the use here made is to differentiate those who are in the organized public service from the "electorate."

As was pointed out in the preceding chapter, the public agents other than the "electorate" consist of the personnel charged with the duty of "representing" the electorate between elections, and the "administration —a personnel charged with the duty of conducting the business of the state.

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Subdivisions of Subject

The problem of selecting such official agents, determining their qualifications and personal rights, and maintaining those conditions requisite for the full and satisfactory discharge of their duties, is a fundamental problem which should be dealt with concretely in constitutional and statutory provisions governing the government. Any quest, therefore, for responsible and efficient government must go deeply into the establishment of:

1. Proper methods for selecting official agents-election or ap


2. Tenures of office adapted to the ends sought.

3. Adequate tests to be applied in determining the fitness and qualifications of public servants.

4. Satisfactory conditions governing the treatment, promotion and dismissal of public servants.

Importance of Separate Consideration

The solution of these problems with reference to standards of responsiveness, responsibility, and efficiency has never been undertaken in a systematic and thorough manner by any convention or other body of representatives in this state. There are many provisions in the present constitution governing the choice, qualifications, removal, rights, and disabilities of public agents (see Appendix, Pages 199 to 210, but the subject as a whole has received no extended treatment. On the contrary, temporary expedients and partisan consideration have been too

often the decisive factors in determining what officers should be elected, what officers should be appointed, and what conditions should be attached to public employment. Where attempts have been made to regulate the conditions of official employment in the public interest, they have usually been negative in character-that is, designed to prevent known evils such as the so-called spoils system rather than to promote efficiency. How to obtain advantage for some partisan group or to prevent official agents from doing harm-not a reasoned effort to formulate a constructive. program has been the predominating consideration in shaping a very large number of provisions in the present law governing elections, appointments, qualifications and removals.

METHODS OF SELECTING PUBLIC AGENTS-ELECTION OR APPOINTMENT When tested by constructive standards, the present constitution reveals a remarkable absence of consistency. Obviously, in determining what agents should be elected by popular vote and what appointed, both the purpose of the "electorate and the demands which are to be made of the official personnel, as a means of making the government responsive and responsible, are to be taken into account. But it is not apparent that these considerations have been the determining factors in the organization of the existing government. In adapting methods to the purpose of the "electorate," it is desirable that they shall be such that popular will may be accurately reflected in the government, but it does not appear that the preceding conventions have sought to discover what and how many agents should be chosen by the popular vote, in order to attain this result.

Election of Members of the Legislature and the Governor

With respect to certain governing agents, the method of choice has, of course, been easily determinable. The representative principle itself requires that the legislature should be chosen by popular vote, but as is pointed out in another relation (below, pp. 60-64), the decision as to the method of determining what is the popular choice is not so easily reached. Similar considerations of responsiveness and responsibility have likewise brought about the popular election of the governor. serious criticisms of that process of selection have ever been made and the other states which originally provided for the choice of the governor by the legislature or by an electoral college have abandoned them to follow the example of New York and Massachusetts.

Election of Other Officers


At this point, agreement among publicists and statesmen on the matter of election versus appointment and consistency in our state constitutions disappear. In determining the methods of selecting all of

the remaining agents of government, historical, negative and apparently accidental considerations, have had a preponderating weight. The possible exception is the lieutenant-governor who is, in New York, chosen by popular vote, but who is dispensed with altogether in other states, for example, the neighboring state of New Jersey.

Provisions in Constitutions of New York

The statement that historical, negative, and accidental considerations have had a determining weight in deciding whether other public servants should be elective or appointive requires elucidation. Under the constitutions of 1777 and 1821, several high executive officers of the state were chosen by the legislature.

Choice By Legislature and “the Albany Regency"

It was found, however, by practical experience that this method did not establish responsibility or efficiency in all branches of the government, and that an unofficial system dominated by "bosses" known as "the Albany Regency," had sprung up outside of the government for the purpose of controlling all of the patronage of the state, and had practically taken out of the hands of the legislature and the governor the selection of the high public officers as well as the minor officers.


Direct Election as a Cure for “Invisible Government "

This condition of "invisible" government was largely responsible for the demand for the revision of 1846. One of the tasks which the constitutional convention of that year regarded itself as called upon to accomplish was the "abolition" of the system of irresponsible government so far as it was connected with the choice of executive officers under the constitution of 1821. In other words, negation, as before, was uppermost in the minds of the delegates. It happened about the same time that Western Europe was disturbed by the agitation against royal and imperial despotism which broke out in 1848 in a series of violent revolutions in France, Germany, Austria, and Italy. This agitation was in one significant respect similar to that which had accompanied the American revolution; that is, it was aimed at the destruction of the arbitrary power of hereditary despots. The obvious remedy seemed to be the destruction of the executive. That was the primary task before rising democracies. was not possible to talk about controlling the executives in the name of efficient democracy until democracy had reduced the executive to such a constitutional position that he could be controlled by law. It was under these circumstances—the clamor for the abolition of the unofficial despotism of the Albany Regency and the wide-spread agitation against official despotism of European monarchs which reached our shoresthat the convention of 1846 made the secretary of state, comptroller,

treasurer, attorney general, state engineer, and the judges elective by popular vote. The one was aimed at the abuse of legislative power, the other was aimed at the abuse of executive power. Both sought to accomplish their ends by giving to the electorate a larger sphere of power.

General Acceptance of Theory as Democratic

It is true, the proceedings of the convention of 1846 record a demand that these high officers be made responsible to the people by the establishment of popular election, but it is likewise true that abolition of certain evils was uppermost in the minds of the delegates. They evidently assumed that by transferring the right of election from the legislature to the people the irresponsible and unofficial boss system, which had hitherto controlled the choice in fact, would disappear, on the general theory that leadership is not essential to intelligent operations in such matters. That which was a historical accident then became a dogma, namely, that all high officers, no matter what their duties, must on democratic principles, be elected by popular vote. And the theory has been carried to such a great length that a governor of a western state solemnly declared not long ago that the appointment of the state veterinarian by the chief executive savored of monarchy.

Need for Principle Consistent with Requirements of Responsible Government

Yet those who have applied this dogma so confidently have shown neither consistency nor the courage of their convictions. To speak more concretely, no conclusion or guiding principle has ever been put forth for determining what officers should be elected and what officers should be appointed. No official or determining body has given a reasonable answer to the question: "Why should the state engineer and surveyor be elected by popular vote and the superintendent of public works be appointed by the governor and the senate?"

kind cannot be theories They must come from No sensible business

Standards for judgment in matters of this evolved in the closet of the political philosopher. experience in the successful conduct of affairs. man who has a large staff of employees under him regards it an invasion of his sovereignty when he surrenders to an expert engineer whom he has selected the power to choose employees who are to work under him. No one who is familiar with practice in governments which are responsive and responsible, will contend that appointment of subordinates by those who are to be held responsible for results, has operated to destroy the principle of representative government. So it is absurd to claim that the people lose their sovereignty if they surrender to the governor whom they elect the right to appoint the state engineer. An obvious retort is: that they lost it when they surrendered the right to elect all the other

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