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officers is generally, by the American consti- shall have occurred in any other state office, tutions, vested in the chief executive." or in the office of judge of any court, the
We come now to the other branch of the governor shall fill such vacancy by appointquestion: Does the constitution confer upon ment, which shall expire when a succesthe legislature express power to fill a vacancy sor shall have been elected and qualified.” in an office of the character of the one under Article 15, § 1: “All officers whose appointconsideration, or like that of director of the ments are not otherwise provided for in this department of geology and natural resources, constitution shall be chosen in such manner with such authority? If there is such a con- as now is, or hereafter may be, prescribed by stitutional provision, we have failed to find law.” it, and none such has been called to our at All of the foregoing sections except the last tention. The word “expressly,” being the one are, as will be observed by reading them, word that is employed in the constitutional so foreign to the question under consideraprovision, (section 1, art. 3,) Worcester de- tion that we need call attention to none of fines as follows: “In direct terms; plainly.” | them except the last one. It is quite clear, He defines the word “express” as follows: we think, that under the provisions of this “Given in direct terms; not implied; not section, where the constitution does not produbious; clear; definite; explicit; plain; man- vide otherwise for the filling of a vacancy ifest." The word "expressly” is defined by in an office, the legislature.may provide the Zell as follows: “Not by implication; plainly; manner in which it shall be filled. But, undistinctly." The word “express” he defines less it is an office created for the purpose of as follows: "To set forth in words; clear; enabling one of the other departments the betplain; direct; not ambiguous.” Webster's ter to perform its functions, the power of apdefinition of “expressly” is: “In an express, pointment must be lodged with the executive direct, or pointed manner; in direct terms; department. This constitutional provision plainly." His definition of the word “ex- confers no appointing power on the legislapress” is: “Directly stated; not implied or ture except as to offices in existence when left to inference; distinctly and pointedly the constitution came into force. The power given; made unambiguous by special inten- to create an office is one thing, and the power tion; clear; plain.” The only constitutional to appoint the incumbent is another. The provisions that in any way relate to the sub- one is a legislative act, and the other, as we ject under consideration are the following: have seen, an executive function. In Jones Section 13, art. 2, which reads as follows: v. Perry, 10 Yerg. 59, it is said: “The fact “All elections by the people shall be by bal- that the constitution may prescribe that the lot; and all elections by the general assem- mode of appointing the judges shall be by bly, or by either branch thereof, shall be viva the legislature does not constitute the legisvoce.' Section 30, art. 4: “No senator or lature the constituent.” See State v. Kenrepresentative shall, during the term for non, 7 Ohio St. 560; Evansville v. State, suiwhich he may have been elected, be eligible pra; State v. Denny, supra; State v. Noble, to any office, the election of which is vested supra. To hold otherwise would be to wipe in the general assembly; nor shall he be ap- out by judicial construction article 3, § 1. pointed to any civil office of profit which The legislature, like other departments of the shall have been created, or the emoluments of state government, can only exercise such which shall have been increased, during such powers as have been delegated to it; and, when term; but this latter provision shall not be it steps beyond that boundary, its acts, like construed to apply to any office elective by those of the most humble magistrate in the the people.” Section 10, art. 4: “Each house, state who transcends his jurisdiction, are utwhen assembleil, shall choose its own officers, terly void. Taylor v. Porter, 4 Hill, 140; (the president of the senate excepted,) judge Pumpelly v. Village of Owego, 45 How. Pr. the elections, qualifications, and returns of 247; Campbell's Case, 2 Bland, 209. And the its own members, determine its rules of pro- following from State v. Noble, which is ceeding, and sit upon its own adjournment. equally as applicable to the executive as the But neither house shall, without the consent judicial department: “The domain of the of the other, adjourn for more than three judiciary is not so extensive as that of the days, nor to any place other than that in other departments; but no other power can which it may be sitting.” Section 5, art. 5: enter that domain without a violation of the “The persons, respectively, having the high- constitution, for within it the power of the est number of votes for governor and lieu-judiciary is dominant and exclusive." In tenant governor shall be elected; but, in case Wright v. Defrees, supra, it was said: “The two or more persons shall have an equal and powers of the three departments are not the highest number of votes for either office, merely equal. They are exclusive in respect the general assembly' shall, by joint vote, to the duties assigned to each.” And Wright forth with 'proceed to elect one of the said v. Wright, supra, is to the same effect. "In persons governor or lieutenant governor, as 3 Amer. & Eng. Cyclop. Law, 685, it is said: the case may be.” Section 18, art. 5: “When, “Such powers as are specially conferred by during a recess of the general assembly, a the constitution upon the executive departvacancy shall happen in any office, the ap- ment, or upon any designated officer, the legpointment to which is vested in the general islature cannot require or authorize to be assembly, or when, at any time, a vacancy performed by any other officer or authority.
Where the constitution confers the considered it. We refer to section 16, art. power of appointment to office upon the ex- 4, of the constitution. Because of the abecutive department, appointments cannot be sence of an averment in the complaint that made by legislative enactment.” But as the the relator had been appointed by, and held a opinions delivered in the cases of State ex commission from, the governor of the state, rel. Holt v. Denny, supra; State ex rel. Jame- the complaint is bad, and the court did not son v. Denny, supra; and Evansville v. State, err in overruling the demurrer thereto. supra,-discussed and passed upon the power Judgment afirmed, with costs. of the legislature to create offices and fill vacancies therein, and in this particular were COFFEY, J., (concurring.) I concur in the concurred in by a majority of the court, we reasoning and conclusion reached in this case, do not understand that the power of the ex- as well as in the case of State v. Peelle, ecutive department to appoint to offices like post, 654. the one involved in this case is longer an Under the constitution of 1816, the legisopen question. As the writer of this opinion lature of the state possessed the power to elect said in Evansville v. State, and says now, the administrative state officers, and the prespeaking merely for himself: “Practical con- siding judges of the circuit courts, while the struction is of very little consequence when governor of the state possessed the power to it is exercised in violation of the plain pro- appoint, with the concurrence of the senate, visions of the constitution.” It is of more the judges of the supreme court. The hisimportance and consequence when it is in tory of the state, I think, fully demonstrates accord with the constitution; but whether that the people were dissatisfied with this arentitled to much or little weight, to the ex- rangement, and regarded it as an enr-roachtent that there has been such construction, ment upon their rights, and demanded the it seems to have been in favor of the power right to elect their own public servants. of the executive department to appoint offi- One of the objects sought in calling the concers belonging to the class in question. But vention which framed our present constitusutlice as to this.
tion was to effect a revolution in this particuSection 5152, Rev. St., fixed the term of lar. There is, in my judgment, abundant office of the state inspector of oils at two evidence, both in the constitution itself and years; and as section 1868, Acts 1889, (El- in the debates attending the framing of that liott's Supp.,) refers to the former act for instrument, that the convention adjourned the duties and emoluments of said officer, we under the full conviction that it had fully are inclined to the opinion that it still gov- performed the mission for which it had been erns as to the term of his office, as no term is called into existence. Every state officer fixed by the later act. As all the officers pro- who,
As all the officers pro- who, by the constitution of 1816, was vided for in the present constitution were elected by the legislature, was, by our presmade elective by the qualified voters, which ent constitution, made elective by the people. is in this respect radically different from the If there is any provision in the constitution provisions of the old constitution, and in which confers upon the legislature the power view of the fact that soon after the adoption to elect any officer falling strictly within the of the present instrument other state offices definition of a state officer, charged with duwere created and made elective, we must ties affecting the whole people of the state, I presume that it was and is the spirit and in- have been unable to find it, and my attention tention of the present constitution that all has not been called to any such provision. such offices as relate to the public at large, The fart that no such provision can be found either district or state, are elective, and that, is to my mind conclusive evidence that it when a vacancy occurs, the executive depart- was not intended to confer any such power. ments may appoint and commission until the It is a rule elementary in its character that next following general election, at which statutes and constitutional provisions are to time the people may elect an incumbent to be construed in the light of the history atsaid office. The complaint fails to allege tending their passage or adoption; and they that the governor of the state had thereto- must be so construed, if possible, as to effect fore appointed and commissioned the relator the object songht to be attained. I believe it to fill the said vacancy in said office, and is, to be a fact not denied that one of the objects for that reason, technically bad. The said sought to be attained in calling the convenoffice being a state office, the legislature could tion which framed our present constitution not delegate the power to some other state of- was, to effect a complete revolution in the ficer to appoint and commission the relator, manner of electing state officers, by deprivthough that officer may have been duly ap- ing the legislature of that right, and reservpointed and commissioned. In so far as the ing it to the people. To say that the convenact of the legislature seeks to deprive the ex- tion did not accomplish that object is in my ecutive of the state of bis constitutional pre- opinion equivalent to asserting that it adrogative to fill by appointment vacancies in journed without accomplishing the object for the offices named in said act of February 26, which it was called. History teaches us that 1889, it is unconstitutional and void. The successful revolutions never go backwards, said act may antagonize another provision of and that it is much more likely to go beyond the constitution, but, as the question is ig- the objects first sought than to fall short. nored in the briefs of counsel, we have not In my opinion, the constitutional convention
which framed our present constitution did | appointment. In a very recent case—that of not fail to accomplish the things which called Biggs v. McBride, 21 Pac. Rep. 878—the suit into existence, and that it has left to the preme court of Oregon had before it the same people of the state the exclusive power to question which faces us, and the court said: elect all state officers whose duties are of a “Now, if it could be shown that the power general character, like those under considera- to appoint all officers which are not expressly tion. The history of the state since that made elective by the people is a part of the time, in my judginent, confirms this view. chief executive power of the state,' the appelAlthough the legislatiire has created many lant's contention would be sustained; but no state offices since 1851, I am unable, at this authority whatever has been cited to sustain time, to call to mind a single instance in this view, nor is it believed that any exists. which it attempted to fill such office by its On the contrary, the provisions of the fifth own election for much more than a quarter article of the constitution, which relates to of a century after the adoption of our present the executive department, all seem at variconstitution. The claim to such right is of ance with this view. The framers of this recent origin, and in my opinion no such instrument evidently designed that no preright exists. I am of the opinion that the rogative power should be left Jurking in any people at large have the right to elect, at any of its provisions. No doubt, they rememgeneral election, the state gologist and state bered something of the history of the constatistician. The moinent the legislature flicts with prerogative in that country from creates such office, the right to fill it by elec- which we inherited the common law." The tion vests in the people, and they cannot be same question was before the supreme court constitutionally deprived of such right. The of California within the last three months, claim that the fact that the legislature and it was said by the court, in speaking of created these offices, and attached to them the view of Jefferson, that "no doubt these peculiar or particular duties, gave them the views as to the intrinsic nature of the power right to fill such offices, would app!y, I of appointment or of nomination to office, think, as well to the office of attorney general and the expediency of confining it to the exand reporter of the supreme court as to these ecutive department of the government, are offices. The truth is that, by delegating to entitled to the highest consideration. But the people the right to elect their circuit and the question here is not what the constitution supreme juciges and superintendent of public ought to be, but what it is; or, in other instruction, the convention furnishes us with words, what was the intention of its framers unequivocal evidence of its abiding faith in as to this particular maiter? Of course, if the discriminating intelligence of the people, there had been, at the time of its adoption, and their ability to select their own officers, a general consensus of opinion in harmony however difficult or complicated the duties with the views of Mr. Jefferson, we should might be. Our general election laws are be forced to conclude that its framers intendbroad enough to authorize the election of these ed to forbid to the legislature the exercise of officers, as well as any other state officer; the power of appointment to office. But there and, until such time as the people shall have was no such consensus of opinion. On the an opportunity to fill them by an election, the contrary, it had not only been decided in governor of the state has the right, in my other states of the Union, under constitujudgment, to fill the vacancy by appointment. tions containing provisions substantially The officer so appointed would be entitled to equivalent to the sections above quoted from hold his office until his successor, is elected our own, that the legislature could fill offices and qualified, and no longer.
by itself created; but our own supreme court,
construing identical provisions of our old ELLIOTT, C. J., (dissenting.) I am fully constitution, had come to the same conclupersuaded that the legislature ought not to sion. People v. Langdon, 8 Cal. 16.” People have the general power to create and to fill v. Freeman, 22 Pac. Rep. 174. In the case offices of its own creation, and that, if the of People v. Hurlbut, 24 Mich. 44, it was opinions of the great thinkers of our country urged that the legislature had no appointing had been given full force, it would have no power, and, in considering the argument, it such power: kut, while I am persuaded that was said: “This view of the nature of legislait should not have this power, my judgment tive power, as urged by the counsel for the reis thoroughly convinced that it does have spondents, struck me at first with considerapower to create and to fill a class of offices, ble force; but reflection and further examinaand that the office in controversy belongs to tion have satisfied me that, though true as to that class. I regret the conclusion, but I the great mass of legislative power,-that cannot escape it. I have searched with ail which is most broadly distinguished from possible care, but I can find no decision which both judicial and executive, - yet it does sustains the contention of the relator that not include the whole field of what is genthe appointing power resides in the governor. erally recognized as legislative power, not 1 find no conflict, but entire unanimity; for only in England, but in most of the states of in every case that I have seen it is affirmed the Union. Besides the power to make genthat, unless expressly prohibited by constitu- eral rules for the government of officers and tional provisions, there is a class of officers persons, and regulating the rights of classes of which the legislature may create and fill by persons, or of the whole community, there is
a large class of powers recognized as legisla- | Ind. 434, 16 N. E. Rep. 384; Hovey v. State, tive, occupying an intermediate space between 119 Ind. 395, 21 N. E. Rep. 890; Hovey v. those general rules and regulations and those State, 119 Ind. 286, 21 N. E. Rep. 21. of a judicial character on the one side, and The conclusion deducible from these auexecutive on the other, and which are not, thorities is, so far as is here necessary to asand cannot be, marked off from these by certain it, that where the legislature has. any clear and palpable iines." In 1839 the power to establish a scientific department, or supreme court of Illinois discussed and de- to establish any public institution, it has, as cided the question which we are considering. an incident of that power, the right to select In the course of the opinion of the court, the means and agencies it deems necessary to Wilson, C. J., said: “The next grant of carry into effect the law it has enacted. The power relied on is that the executive power case of State v. Kennon, 7 Ohio St., 551, is not of the state shall be vested in a governor.' in point, for the reason that the constitution This clause is treated by the court below as of Ohio, wisely, as I think, forbids the legisconferring numerous and ample powers upon lature from appointing any officers. The the governor. All that are usually dominat- cases which I have cited from other states ed executive powers by theoretical writers are all founded on constitutions similar to are supposed to be included in this grant to ours; some of them, indeed, are based on the governor, except such as are expressly constitutions in words the same as our own. conferred upon other departments. This, I If the question were one dependent upon authink I shall be able to show, is a mistaken thority alone, it would be my duty as a judge view of the subject." Field v. People, 2 to yield to the law as it has long existed, Scam. 79. In Clarke v. Irwin, 5 Nev. 111, the however much my inclination as a citizen court said, perhaps rather too strongly, that may oppose; but the conclusion established "in the constitution of the state of Nevada by authority is the only one which, in my the appointing power of the legislature is nei-judgment, can be vindicated on principle. ther cut up by the roots, nor in any manner No other can be reached save by trampling hampered, save where the constitution itself, upon long-settled and well-known principles. or the federal constitution, provides for filling With much more of brevity than the ima vacancy. The former prescribes the mode portance of the question merits, I shall refer for filling vacancies only as to state officers and to some of the principles which control my merbers of the legislature; the latter as to judgment. United States senators and representatives in If the power to appoint is exclusively excongress. In every other case the power is in ecutive, the provisions of our constitution the legislature, to be by it regulated by law, expressly designating the cases in which the as is evident from the fact that no provision governor may appoint are meaningless; but is made save as to vacancies." This doc- the words of an instrument of such a solemn trine, broad as it is, the same court approved and high nature as that of the organic law of in a later case. State v. Rosenstock, 11 a sovereign state cannot be disregarded. Nev. 128. Perhaps the principle has never Courts have no right to treat them as dead been more clearly stated than by the great and unmeaning; on the contrary, each word constitutional lawyer whose statements, as is to be deemed one of life and strength. Emerson says, “lay in daylight.” That law- Giving force to the various provisions of the yer said: “The inferences which, I think, constitution whicli designate the cases in follow from those views of the subject are which the governor may appoint to office, it two: First, that the denomination of a de- must be held that he can appoint in no partment does not fix the limits of the power others; for it is a rudimental principle that conferred on it, nor even their exact nature; the express mention of one thing implies the and, second, (which indeed, follows from the exclusion of all others. It cannot be held first,) that in our American governments the that words were vainly placed in such an inchief executive magistrate does not neces- strument as the constitution of a state; for sarily, and by force of his general character that, principle and authority sternly forbid. of supreme executive, possess the appointing Nor can it be held that words written in such power. He may have it, or he may not, ac- an instrument are fruitless. If the governor cording to the particular provisions applica- possesses the power of appointment as an inble to each case in the respective constitu- herent and exclusive attribute of executive tions."
Webster's Speech on the Presiden-power, then the many provisions—for there tial Protest. But I cannot, without unduly are many of them-designating the cases in prolonging this opinion, make further quota- which he may appoint are vain and fruitless; tions, and I must therefore refer, without since, if the power is an inherent executive comment, to some of the many decisions element, these provisions are utterly meanwhich, as I interpret them, support my con- ingless. If it be true that the vesting of the clusion: Mayor, etc. v. Board, 15 Md. 376; executive power of itself carried the right to State v. Lusk, 18 Mo. 332; Bridges v. Shall- appoint to office, then there are many proviscross, 6 W. Va. 562; Kilbourn v. Thomspon, ions in our constitution to which no force 103 U. S. 168; Walker v. Cincinnati, 21 Ohio can be ascribed. Word after word, and St. 14; State v. Harmon, 31 Ohio St. 250; clause after clause, must be treated as mere Com. v. Baxter, 35 Pa. St. 263; Baker v. waste matter, if the power to appoint is inKirk, 33 Ind. 517; State v. Harrison, 113' herently and exclusively executive. In writ
ten constitutions there are no meaningless | legatee. What does not go elsewhere goes words. I do not believe that the power to to it, under the general delegation of power. appoint to office is essentially legislative; Sharpless v. Mayor, 21 Pa. St. 147-161. In but I do believe that the people, who are ab- a work of an elementary character, but, for solutely and inherently sovereign rulers, may all that, a very valuable one, Judge Cooley make it legislative. I believe that to a lim- says: “And whenever a power is not, disited extent they have done so. Section 18 of tinctly, either legislative, executive, or juarticle 5 does so by the clearest implication. dicial, and is not by the constitution distinctIt declares that “when, during a recess of the ly confided to a department of the governgeneral assembly, a vacancy shall happen in ment designated, the mode of its exercise and any office, the appointment to which is vested the agency must necessarily be determined in the general assembly,
the gov- by law; in other words, must necessarily be ernor shall fill such vacancy by appointment.” under the control of the legislature.” Const. This provision cannot mean strictly legisla- Law, 44. "The authority that makes the tive ollices,—that is, such offices as are di- laws,” says this eminent author in another rectly and immediately connected with legis. work, "has a large discretion in determining lative action; for the legislature has an in the means throngh which they shall be exeherent right, by virtue of its departmental cuted; and the performance of many duties Bovereignty, to appoint such officers, and the which they may provide for by law they may predominant principle which separates the refer either to the chief executive of the departments of government precludes the ex- state, or, at their option, to any other exececutive from appointing a purely legislative utive or ministerial officer, or even to a perofficer. There is, however, a plainer provis- son specially named for the duty. What can ion of the constitution, and that provision is be definitely said on this subject is this: that this: "All officers whose appointment is not such powers as are specially conferred by the otherwise provided for in this constitution constitution upon the governor, or upon any shall be chosen in such manner as now is, or other specified officer, the legislature cannot may hereafter be, prescribed by law.” This require or authorize to be performed by any confers some power and a broad discretion-other officer or authority; and from those neither an unlimited power, nor an unfet- duties which the constitution requires of him tered discretion, to be sure—upon the gen- he cannot be excused by law. But other eral assembly, and it is within the power and powers or duties the executive cannot exerthe discretion of that body to enact such a cise or assume, except by legislative authorlaw as will authorize it to itself appoint a ity; and the power which, in its discretion, class of officers, or in vest another department it confers, it may also, in its discretion, withwith that authority. If, in other words, that hold, or confide to other hands." Const. body can, as the constitution ordains it may, Lim. (5th Ed.) 136. The application of this provide by law for the appointment of a class principle is not difficult. For example, the of officers, it may enact a law providing that legislature has power to establish a scientific it may itself appoint. This, it seems to me, department or an agricultural department, must be so, for the reason that no limit is and, baving this power, it may select its own placed upon that body as to the means it shall means and instruments; that is, appoint the select, but all is confided to its discretion in officers who are to take charge of the departcases where it may enact a law establishing ment created. I cannot, for the reasons I a scientific bureau or department,
have outlined, assent to the conclusion that The question, as I conceive, is not what, the act under consideration is void because it in the abstract, is a legislative or an execu- assumes to invest the legislature with au. tive power, but what does our constitution thority to appoint to office. ordain shall be a legislative power? What
I have no doubt that the act does violate the people in constitutional convention as- section 19 of article 4 of the constitution. sembled declared a legislative power is such, That section reads thus: “Every act shall for their decision is beyond review by any de- ernbrace but one subject, and matters properpartment of government. That the consti- ly connected therewith, which subject shall tution does invest the general assembly with be expressed in the title; but, if any subject some powers beyond that of enacting laws, shall be embraced in an act which shall not and therefore with something more than be expressed in the title, such act shall be purely or abstract legislative power, I, for void only as to so much thereof as shall not my part, cannot doubt. One of the powers, be expressed in the title.” The act assumes neither abstract nor purely legislative, thus to assemble in one group offices of a radically conferred, is that of appointing to office in a different character; some of them offices un. limited class of cases. Our present constitu- der the police department; others offices in a tion intended to limit, and does materially lim- department of a purely scientific nature. The it, the power of the legislature to appoint to department of geology is in itself a complete office, but it does not entirely destroy it. It subject, and the provisions of the act relative is to be remembered that, where delegated to coal-oil inspectors and mine inspector regovernmental authority is not expressly or late to different subjects. The inspection of impliedly lodged elsewhere, it resides in the mines is a subject of itself, and so is the inlegislature. The legislature, if the figure be spection of coal oil; and regulations on these not too bold, may be likened to a residuary 'subjects, since they necessarily interfere with