verbal statement of an individual in any form which by the bystanders should be understood as expressing a present intent to make the appointment; and a liberal interpretation will be given to the statutes bearing upon the subject if necessary to avoid any such conclusion.

The Constitution and the laws of the State create or provide for the creation of all the offices, and prescribe the mode of election or appointment, the terms and duration of office, as well as regulate the duties and emoluments. Offices in certain cases, may be for a term of years, during the pleasure of the appointing power, or during good behavior; but whatever may be the term or tenure of office, the appointment must be in conformity with the statutes of the State. An appointment in the general sense of the term may be by deed or in writing without seal or verbal, depending upon the subject-matter of the appointment and the terms of the authority under which it is made. But an appointment to office by the person or persons having authority therefor, as distinguished from an election, can only be made verbally, and without writing when permitted by the terms of the statute conferring the power. Affecting the public, and not merely private rights, and being done under the authority of the sovereign power and not under individual authority, it should be authenticated in a way that the public may know when and in what manner the duty has been performed.

The statute (1 R. S. 118, sec. 19) clearly contemplates a commission, the form of which is not prescribed, which shall be the conclusive evidence of an appointment to a civil office. The article in which the section is found is entitled, "Of nominations to offices and the commissions of officers," and after making provision for officers appointed by the Governor and Senate, and by the Governor, and all the elective officers, and commissioners of deeds (then appointed by the county judges and boards of supervisors in joint convention), it provides in the last section that "the commissions for all other offices, when no special provision is made, shall be signed by the presiding officer of the board or body, or by the person making the appointment." The language includes every civil office within the State not excepted from its operation by statute, and was clearly intended to prescribe the mode of appointment. The appointment under this delegated authority is inchoate until the last act to be done by the appointing power is completed,

and that is the signing of the writing or the commission. The appointment is then,and not before, "evidenced by an open unequivocal act." Ch. J. Marshall in Marbury v. Madison, supra, says: "Some point of time must be taken when the power of the executive over an officer not removable at his will must cease; that point of time must be when the constitutional power of appointment has been exercised; when the last act required from the person possessing the power has been performed. The last act is the signature of the commission." It is not discretionary with a person having the power to appoint to office; whether there shall be a commission; the signing of the commission is an integral part of the duty of the delegated power, and necessary to a perfect and complete execution of the power entitling the appointee to assume the duties of the office.

Johnston v. Wilson, 2 N. H. 202, related to an elective office, and Mr. Justice Woodbury says: "On general principles, the choice of a person to fill an office constitutes the essence of his appointment. After the choice, if there be a commission, an oath of office, or any ceremony of inauguration, these are forms which may or may not be necessary to the validity of any acts under the appointment, according as usage and positive statute may or may not render them indispensable." But in the case of an appointment by one representing the public, the choice can only be made under our statute by the commission by which it is evidenced. That is the making of the choice; the act which is effectual, as unequivocal and final.

The relators have no title to the office in dispute. The defendants hold the office by statute "until others shall be appointed in their places." No such appointment has been made, and they have not resigned, or in any way vacated their offices. They could not, by their act or assent, transfer the office to the relators, or relieve them selves, except in one of the ways designated by statute. Johnston v. Wilson, supra, 1 R. S. 122, Sec. 34.

The office is not vacant, and the defendants are the legal incumbents. The judgment must be reversed, and judgment given for the defendants.

All concur.

Judgment accordingly.

But see Hoke v. Field, 10 Bush. Ky. 144, which holds that an oral appointment in open court is good where the law does not require that the appointment shall be in writing.

3. When Exercised.

MARBURY V. MADISON.

Supreme Court of the United States. February, 1803.

1 Cranch 137.

At the last term, viz., December term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their counsel, Charles Lee, Esq., late Attorney-General of the United States, severally moved the court for a rule to James Madison, Secretary of State of the United States, to show cause why a mandamus should not issue commanding him to cause to be delivered to them respectively their several commissions as justices of the peace in the District of Columbia.

On the 24th of February, the following opinion of the court was delivered by the Chief Justice (Marshall).

Opinion of the court.

At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the Secretary of State to show cause why a mandamus should not issue, directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the District of Columbia.

In the order in which the court has viewed this subject, the following questions have been considered and decided:

1st. Has the applicant a right to the commission he demands? 2ndly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

3dly. If they do afford him a remedy, is it a mandamus issuing from this court?

The first object of inquiry is,

1st. Has the applicant a right to the commission he demands? His right originates in an act of Congress passed in February, 1801, concerning the District of Columbia.

It appears, from the affidavits, that in compliance with this law, a commission for William Marbury, as a justice of the peace for the county of Washington, was signed by John Adams, then President of the United States; after which the seal of the United States

was affixed to it; but the commission has never reached the person for whom it was made out.

In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property.

The 2d section of the 2d article of the Constitution declares, that "the President shall nominate, and by and with the advice and consent of the Senate, shall appoint, ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for."

The 3d section declares, that "he shall commission all the officers of the United States."

An act of Congress directs the Secretary of State to keep the seal of the United States, "to make out and record, and affix the said seal to all civil commissions to officers of the United States, to be appointed by the President, by and with the consent of the Senate, or by the President alone, provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States."

These are the clauses of the Constitution and laws of the United States, which affect this part of the case. They seem to contemplate three distinct operations:

1st. The nomination. This is the sole act of the President and is completely voluntary.

2d. The appointment. This is also the act of the President and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate.

3d. The commission. To grant a commission to a person appointed, might, perhaps, be deemed a duty enjoined by the Constitution. "He shall," says that instrument, "commission all the officers of the United States."

The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the same; since the power to perform them is given in two separate and distinct sections of the Constitution: The distinction between the appointment and the commission will be rendered more apparent by adverting to that provision in the second section of the second article of the Constitution, which authorizes Congress "to vest, by law, the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of de

partments;" thus contemplating cases where the law may direct the President to commission an officer appointed by the courts, or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which, perhaps, could not legally be refused.

Although that clause of the Constitution which requires the President to commission all the officers of the United States may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence, the constitutional distinction between the appointment to an office and the commission of an officer who has been appointed, remains the same as if in practice the President had commissioned officers appointed by an authority other than his own.

It follows, too, from the existence of this distinction, that if an appointment was to be evidenced by any public act, other than the commission, the performance of such public act would create the officer; and if he was not removable at the will of the President, would either give him a right to his commission, or enable him to perform the duties without it.

These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration.

This is an appointment made by the President, by and with the advice and consent of the Senate, and is evidenced by no act but the commission itself. In such a case, therefore, the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise than by proving the existence of a commission; still the commission is not necessarily the appointment, though conclusive evidence of it.

But at what stage does it amount to this conclusive evidence?

The answer to this question seems an obvious one. The appointment being the sole act of the President, must be completely evidenced, when it is shown that he has done everything to be performed by him.

Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself; still it would be made when the last act to be done by the President was performed, or, at furthest, when the commission was complete. The last act to be done by the President is the signature of the commission. He has then acted on the advice and consent of the Senate to his own nomination. The time for deliberation has then