Page:North Dakota Reports (vol. 3).pdf/441

 the manner of induction into office created by the legislature, yet that such function extends only to the right to declare such office elective or appointive; and that, when so declared appointive, the volition of the governor in filling such office can no more be influenced, limited, or thwarted by the legislative assembly that could the volition of an elector in filling an elective office; and, further, that, as the legislative assembly has no appointing power in itself, neither can it confer such power in whole or in part upon any person, persons, or body, except the governor. This last claim, while not made in words, is the logical and necessary result of the claim of exclusive appointing power in the executive. The fundamental necessity, under the genius of our government, for the separation of the three great: governmental functions and their distribution to the executive, legislative, and judicial departments, has been so often demonstrated, and so much more forcibly than the writer could do it, that it becomes us to accept the necessity without recapitulating the reasons for its existence. We accept without question the proposition that when our constitution vested executive power in the governor, and legislative power in the legislative assembly, and judicial power in the judiciary, these grants were in their nature exclusive, and that neither department, as such, could rightfully exercise any of the functions necessarily belonging to another department. With this statement of the exclusive nature of the powers of the different departments, if appellants’ contention that the power to appoint to office passed to the governor by the grant of executive power, and that there is nothing in the constitution in any manner limiting or controlling such grant, be correct, then the conclusion is obvious that so much of Ch. 93, Laws Dak. T. 1889, cited in the original opinion, as required the appointment of the members of the board of directors of the penitentiary to be made “by and with the advice and consent of the council,” was repugnant to the constitution, and was by § 2 of the schedule to that instrument nullified by the adoption of the constitution. If, however, the exclusive

N. D. R.—26.