Page:North Dakota Reports (vol. 3).pdf/436

 fill a vacancy is granted, but that power is conferred subject toa double limitation upon its exercise. The governor can only fill a vacancy in cases where neither the constitution nor the law has made provision to fill the same. As the governor can fill a vacancy, and can do no more than that, it will not, as we have already said, become necessary in this case to determine whether § 78 is to be construed as a limitation upon an inherent power in the executive, or whether it must be regarded as a grant of authority not before existing. The power to fill an existing vacancy is conferred by the constitution upon the governor, and in the case at bar the statute, also inexpress terms, authorizes the governor to fill all vacancies which occur in the offices of trustees of public institutions.

Just at this point it may naturally be asked, since the power of the governor to appoint to office extends only to cases of vacancies not otherwise provided for, and since there is no express grant of appointing power in the constitution to any other functionary or department. of government, where does the power of appointment of officers and their successors in office rest? The power to appoint to office is an attribute of sovereignty. All attributes of sovereignty essential to the administration of government must be vested in the several departments of government by the people; otherwise, the government founded by the people would not constitute a full grant of governmental power. Such government would, to that extent, be defective, for the reason that the people themselves, in their collective capacity, exercise no governmental functions. Now, we have seen that the power to appoint to the offices in question is not vested by the constitution in the governor. Neither is any appointing power vested in judicial department, except to appoint certain court officials. Un- less, therefore, this power resides in the legislature, it is lodged in no part of the government. As to this it will suffice to say that all governmental sovereign power is vested in the legislature, except such as is granted to the other departments of the government, or expressly withheld from the legislature by constitutional restrictions.