Page:North Dakota Reports (vol. 3).pdf/434

appoint a trustee to fill such vacancy, such appointee to hold office until the end of the next ensuing session of the legislative assembly, and no longer. But, before we proceed to discuss the question of the existence of a vacancy in the offices of Donnelly and Van Horn, we will briefly consider a broad and sweeping proposition advanced by the learned attorney general, who argues —and it is his principal contention—that neither the senate nor the legislative assembly, under’ the state constitution, has or can acquire the power to confirm any appointments to office made by the governor unless the office is strictly legislative or judicial in its nature. The claim is made that the right to appoint to office and to fill vacancies; except to legislative and judicial offices, is an implied executive function, and that the governor, as the sole repositary of executive power under the state constitution, possesses the inherent right to name the officers, and to fill all vacancies therein, and that such right exists by implication of law, and independently of express constitutional or statutory authority. The further claim is made that, inasmuch as the state constitution has not expressly declared that the power to appoint to office shall be shared by the governor with the senate or legislature, the whole power inheres in the executive alone. From these premises the attorney general draws the conclusion that, inasmuch as the limited term of two years had run before Ward and Taylor were appointed, the power existed in the governor, and that it was his duty, to appoint successors, and to do so with- out consulting the senate or allowing the senate to act upon his appointments. These views of course, imply necessarily that all parts of the statute creating the office of trustees of our state institutions which purport to confer upon the senate the right to confirm appointments made by the governor to such offices are unconstitutional and void. We have stated the proposition of the attorney general thus fully because it has been strenuously contended for and urged upon our attention with great force and earnestness; but, after careful consideration, we are unanimously of the opinion that the exigency of this case does not demand a