Page:North Dakota Reports (vol. 3).pdf/440

 the adjournment of the legislative assembly, upon the theory that a vacancy existed by reason of the expiration of the terms of office of Donnelly and Van Horn, is abandoned, and it is admitted that, if there existed in the senate any power of confirmation, then no vacancies existed, and the attempted appointment of Ward and Taylor was a nullity. But it is urged that a ruling upon this question of appointing power to which we adverted, but upon which we expressly declined to rule in the original opinion, is necessary to the proper disposition of this case, and that the power of appointment to office is so necessarily and inherently an executive function that it passed to the governor by plenary grant of executive power, to be divested only by express words, and that § 78 of the constitution, quoted in the orginal opinion, is not necessarily a limitation upon that power, but is a grant of power to fill a vacancy occurring in an elected office, which the governor would not have in the absence of such section. An attempt to answer this position places this court at once in that delicate and embarrassing situation from which all courts may well be excused from shrinking. Individuals and individual interests become as ciphers when passing upon the conflicting claims to power put forth by two co-ordinate and independent departments of a sovereign state. The great difference due from us to the executive department, not more than the high esteem we entertain for the gentlemen who has honestly sought to exercise this power, makes it eminently proper that, in denying the petition for a rehearing, we should succinctly state our objections to those views that have been so learnedly pressed upon us. Appellant takes the position that when the people of this state adopted their present constitution, § 71 of which declared that “the executive power shall be vested in a governor,” thereupon there passed to and vested in the governor the exclusive, unrestricted, and uncontrollable power to fill all appointive offices, and that such power must remain in full force unless limited by express words in the constitution, the presence of which is broadly denied; and that, while it is a legislative function to direct