Page:North Dakota Reports (vol. 3).pdf/443

 section worse than meaningless. Constitutional provisions empowering the governor to appoint officers by and with the advice and consent of the senate are found in many of the states, and always in the article defining the powers of the executive; yet such provision is wanting in the constitution of many of the western states, among which we may mention, in addition to our own state, Wisconsin, Michigan, Missouri, Kansas, and Iowa. While in each of these states the executive power is vested in the governor, yet their statute books are full of instances where offices have been created and made appointive by the governor “by and with the advice and consent of the senate.” The constitutionality of these provisions has never been doubted in those states, so far as we know. We think it clear that the absence of that provision from our constitution has no effect whatever upon the power of the legislature to direct that appointments be confirmed by the senate.

Is the senate precluded from participating in the appointing power by reason of the exclusive executive nature of that function? Counsel for appellants, in discussing this point, lose sight of one very important distinction. The legislative department, as such, has not sought to exercise or to participate in exercising the appointing power. It has simply designated certain existing officers, to-wit, the senators, who should thus participate. Much of the labor of counsel is lost in this case by their failure to make this distinction, as will appear when the cases are examined. Mr. Mechen, in his work on Public Officers, says, at § 104: “So it is said that appointments to office, whether made by judicial, legislative, or executive bodies, are in their nature intrinsically executive acts.” He cites the following cases, all of which are relied upon by counsel in this case: Taylor v. Com., 3 J. J. Marsh. 401; State v. Barbour, 53 Conn. 76; Achley’s case, 4 Abb. Pr. 35; Mar- bury v. Madison, 1 Cranch, 137; Heinlen v. Sullivan, 64 Cal. 378, 1 Pac. Rep. 158. It would be an unwarranted use of space to review these cases at length. We are convinced none of them intended to assert the doctrine for which appellants contend.