power to appoint to office was not vested in the governor by the grant of executive power, then this result would not follow.
Is the power to appoint to office necessarily an executive function? A solution of this one vital point must rule this case. It is first argued that it is not competent for the senate to share the appointing power with the governor, by reason of the absence of certain provisions in our constitution. It is provided in § 2, Art. 2 of the Federal Constitution, that the president of the United States shall have power, by and with the advice and consent of the senate, to appoint certain officers, Section 1857, Rev. St. U.S., which, as § 61 of the organic law of Dakota Territory, was in force when Ch. 93, Laws 1889, was enacted, gave the governor power to appoint certain officers by and with the advice and con- sent of the council. Our constitution contains no similar provision. It is urged that these provisions were adopted for the express purpose of conferring upon the senate a share in the appointing power which it does not possess in the absence of such provisions. No authority is cited to support the position, and we deem it radically wrong. The provision in the Federal Constitution was adopted for the purpose of conferring upon the president a power which he did not have. We think this is clear, for several reasons. The provision appears in the article granting and defining the powers of the executive, and not in the article defining legislative powers. It purports on its face to be a grant of power to the executive. The phrase “by and with the advice and consent of the senate” was not contained in the original draft of the section, but came in by way of amendment. See Journal of Convention, p. 225. The sole object of the original draft was to confer power upon the president. The object of the amendment was to put a limitation upon that power. See opinion of Mitchell, J. in Hovey v. State, 119 Ind. 4o1, 21 N. E. Rep. 21; also Mechem, Pub. Off. § 110. The section in the organic law to which we have referred is too long for insertion here, but the plain purpose of the language is a grant of qualified power to the executive. Any other construction is strained, and renders a large portion of the
