Page:North Dakota Reports (vol. 3).pdf/448

 the legislative department was invalid, unless by some specific provision of the constitution such appointment is expressly directed or permitted. On the part of the respondent, it is contended that such specific provision is found in § 4 of Art. 20, which reads as follows: ‘Section 4. All officers or commissioners whose election or appointment is not provided for by this constitution, and all officers or commissioners whose offices or duties may hereafter be created by law, shall be elected by the people, or appointed as the legislature may direct.’ But we cannot construe this section as an express direction or permission to the legislature to exercise the power of appointment to office, if that is essentially an executive function. It would upon such an assumption amount only to this: that, with respect to newly created offices, or offices not provided for in the constitution, the legislature may direct whether they shall be filled by popular election or by executive appointment; in other words, that the legislature may prescribe the rule of selection, but may not itself make the selection. State v. Kennon, 7 Ohio St. 561. Our decision, therefore, must depend upon the solution of the question whether appointment to office is essentially an executive function.” And, on a review of the authorities, the court holds that it is not an executive function. The language in the Nevada cases cited is even stronger, but we will not take space to quote it. Mechem on Public Officers (§ 110) reads as- follows: “The power of appointment may be absolute or conditional. Where it is absolute, the choice of the appointing power, if it falls upon an eligible person, is conclusive. But frequently the power of appointment is conditional, and may be exercised, as in the case or the president of the United States, ‘by and with the consent of the senate’ or some other body only, and this requirement of assent or confirmation is found in all grades of municipal offices.” But the grant of executive power to the governor is never conditional. The condition is always found in a subsequent provision granting express appointing power. But, if the grant of executive power carries with it appointing power, then these well nigh