Page:North Dakota Reports (vol. 3).pdf/447

 there is any express provision of the constitution which authorized the governor in direct terms to make the appointment in question, but that it is included in the grant in § 1. Art. 5, of the constitution. That section declares: “The chief executive power of the state shall be vested in the governor.” Now, if it could be shown that the power to appoint all officers which are not expressly made elective by the people is a part of ‘the chief executive power of the state,’ the appellant's contention would be sustained. But no authority whatever has been cited to sustain this view, nor is it believed that any exists. On the contrary, the provisions of the fifth article of the constitution, which relates to the executive department, all seem at variance with this view. The framers of this instrument evidently designed that no prerogative powers should be left lurking in any of its provisions. No doubt, they remembered something of the history of the conflicts with perogatives in that country from which we inherited the common law. They therefore defined the powers of the chief executive of the state so clearly and distinctly that there ought to be no controversy concerning the method of filling the same, or in some cases of changing the method of filling an existing office.” It is proper here to state that the constitution of Oregon contains the express prohibitive language quoted from Indiana, and the section granting the governor the express power of appointment is much broader that our § 78. In this case, also, the appointment was made by the legislature. In People v. Freeman, 80 Cal. 233, 22 Pac. Rep. 173, it is said: “The contention on the part of the relator is that appointing to office is intrinsically, essentially, and exclusively an executive function, and therefore cannot be exercised by the legislature.” The court then quotes the constitutional provision dividing governmental functions, which is practically the same as in Indiana, and adds: “If the making of appointments to office is a function which, in the sense of the constitution, appertains to the executive department of the state government, there would seem to be no escape from the conclusion that the appointment of the respondent by the members of