Page:Harvard Law Review Volume 10.djvu/334

308 by such local authorities as the legislature shall name, the legislature cannot, by designating the class out of which the officers shall be chosen, interfere with the freedom of choice which it was clearly intended that the local electors should exercise.

One may well hesitate before dissenting absolutely from this opinion. But it should be observed that there is something to be said in favor of the opposite view. It will of course be granted that the legislature cannot appoint municipal officers. (See the leading case of People v. Hurlbut, 24 Mich. 44.) Nor can it, by arbitrarily limiting the field of candidates, attain practically the same result. It has been laid down, to be sure, in general terms, that the legislature can prescribe the qualifications of city, town, or village officers. (State v. Von Baumbach, 12 Wis. 310.) But this must be taken in a limited sense. While the legislature cannot, for example, forbid the election to a municipal office of a Republican negro as such (Tuck, J., in Mayor of Baltimore v. State, 15 Md. 376, 468), it would seem that it can prescribe the mental qualifications which the candidate must possess, as well as other qualities reasonably essential to fitness. (See, for instance, the statute under discussion in People v. Warden of City Prison, 144 N. Y. 529.) It is clearly a question of degree. The legislature can create a new municipal office, and it hardly seems beyond the scope of its power to establish such reasonable qualifications for candidates as shall be essential to the attainment of the end for which the office was created. In the case of the Albany Police Commissioners, may it not have been a reasonable requirement, considering the nature of the office, that the two leading political parties should be equally represented on the board? If so, it may fairly be argued that there is no such manifest conflict between the law in question and the constitutional provision for local self-government as to warrant holding the former a nullity.

It is on the other point, however, that O'Brien, J., in his concurring opinion, lays most stress, namely, that the law disqualifies for the office all who are not members of one of the two leading political parties, and is unconstitutional for that reason. This view finds support in the cases of Attorney-General v. Board of Councilmen of the City of Detroit, 58 Mich. 213, and City of Evansville v. State, 118 Ind. 426. Here too it may be urged that it is only a question of degree. The legislature might disqualify illiterate or dishonest persons from holding the office of mayor of a city on the ground that the nature of the office demanded it. May it not be said that in these days, when the proportion of citizens belonging to one of the two large political parties is so very great, it is reasonably necessary to leave other parties out of consideration in establishing a non-partisan board of only four officers?

—P. promoted a company for the purpose of purchasing from him and working a mining property. C. signed an underwriting letter addressed to P., by which he agreed, in consideration of a commission, to subscribe for a specified number of shares in the company, and by which he authorized P. to apply for the shares on behalf of C, and the company to allot them. He further agreed that this application should be irrevocable. P. by letter accepted these terms. Later C. wrote to P. and to the secretary of the company repudiating