Page:North Dakota Reports (vol. 3).pdf/444

The case from Kentucky, which seems to be a leading case, and which asserts that the power to appoint to office is inherently executive, still upheld an appointment made by a court exercising judicial powers. The cases from Connecticut and Abbott's Practice were instances where appointments were made by city councils which were upheld, and which in no manner involved the power of the governor. The case from Cranch involved an appointment made by the president, “by and with the advice and consent of the senate.” The commission had been signed by the president, and sealed by the secretary of state, and the action was brought to compel delivery. -It is only by inference that the opinion states the appointment to office to be an executive function. The case from California is entirely foreign to the point. Much reliance is placed upon the case of State v. Kennon, 7 Ohio St.547. The case is not applicable. It deals entirely with the lack of power in the legislature, and not with the exercise of power in the executive. The constitutional provison in that state declared: “But no appointing power shall be exercised by the general assembly except,” etc. As said by Swan, J., in that case: “Appointing power by the general assembly is thus cut up by the roots, except only in the special cases in which it is expressly given by the constitution itself.” Then the constitution contained ‘negative words to limit the legislative authority.” Nevertheless, the general assembly enacted a law creating a board to do certain work and appoint certain officers, and named the members of the board in the act. This was held to be an exercise of the appointing power, and void. But the court declined to say, even under the prohibitive language of their constitution, that the legislative assembly might not create a board of appointers to office and direct the manner of their induction into office, but held that “directing by law the manner in which an appointment shall be made, and making an appointment, are the exercise of two different and distinct powers,—the one, prescribing how an act shall be done, being legislative; and the other, doing the act, being administrative.” Judge Swan in his concurring