While the legislature is created by the State, all its powers are not derived from, nor are all its duties enjoined by the State. The moment the State brings the legislature into being, that moment certain duties enjoined, and certain powers conferred, by the nation, attach to it. Among the powers and duties of the legislature, which spring from the national constitution, is the power and duty of determining how the State shall appoint presidential electors. The Constitution of the United States declares in the most explicit terms that the State shall do this "in such manner as the legislature may direct." In the case of Ex-Parte Henry E. Hayne, et al., reported in volume 9, at page 106, of the Chicago Legal News, the Circuit Court of the United States for the district of South Carolina, in speaking of the authority upon which a State legislature acts in providing for the appointment of presidential electors, says:
Section 1, article 2 of the constitution provides that electors shall be appointed in such manner as the legislature of each State may direct. When the legislature of a State, in obedience to that provision, has, by law, directed the manner of appointment of the electors, that law has its authorities solely from the Constitution of the United States. It is a law passed in pursuance of the constitution.
Hon. James A. Garfield, who was a member of the Electoral Commission, in discussing before that body the source of the power to appoint electors, said:
The constitution prescribes that States only shall choose electors. * * * To speak more accurately, I should say that the power is placed in the legislatures of the States; for if the constitution of any State were silent upon the subject, its legislature is none the less armed with plenary authority conferred upon it directly by the national constitution.—[Electoral Commission, p. 242.
That this section of the national constitution has always been understood to lodge an absolute discretion in the legislature, is proved by the practice in the different States. Chief Justice Story, in his "Commentaries on the Constitution of the United States," in speaking of this section of the constitution and the practice under it, says:
Under this authority, the appointment of electors has been variously provided for by the State legislatures. In some States the legislatures have directly chosen the electors by themselves; in others they have been chosen by the people by a general ticket throughout the whole State, and in others by the people in electoral districts fixed by the legislature, a certain number of electors being apportioned to each district. No question has ever arisen as to the constitutionality of either mode, except that of a direct choice by the legislature. But this, though often doubted by able and ingenious minds, has been firmly established in practice ever since the adoption of the constitution, and does not now seem to admit of controversy, even if a suitable tribunal existed to adjudicate upon it.—[2 Story on Constitution, section 1,472.
Judge Strong, one of the justices of the Supreme Court of the United States, and a member of the electoral commission, in discussing the subject of this section, says:
I doubt whether they [the framers of the national constitution] had in mind at all [in adopting this section] the idea of a popular election as a mode of appointing State electors. They used the word appoint, doubtless thinking that the legislatures of the States would themselves select the electors, or empower the governor or some other State officer to select them. The word appoint is not the most appropriate word for describing the result of a popular election. Such a mode of appointment, I submit is allowable, but there is little reason to think it was contemplated. * * * It was not until years afterward that the electors were chosen by vote.—[Electoral Commission, p. 252.
Senator Frelinghuysen, also a member of the Electoral Commission, thus speaks of the practice in the several States: