Concurring in Part and Dissenting in Part. — (1) I am unable to concur in the final conclusion reached by the majority of the court. I do concur, however, in the conclusion that the legislature may create an office not provided for by the constitution, and may provide for the filling -of the same by appointment to be made by some person or persons other than the Governor. That is, the Governor has not the constitutional power or authority to make appointments to an office created by the legislature where the legislature has otherwise provided for such appointments.
(2) I also concur in the conclusion reached that the Secretary of State may refuse to issue a commission of appointment to certain persons appointed to office by the Governor.
(3) I cannot concur in the construction placed upon sec. 1310, Rev. Codes, as amended by Laws of 1909, p. 322, and Law's of 1911, p. 151. As I view it, the legislature has the power to authorize the appointment of the members of a board by the Governor in connection with others, and not leave the appointment entirely in the hands of the governor. That was clearly the intent and purpose of the legislature in providing for the appointment of members of the board of horticultural inspection.
That part of said sec. 310 applicable to this question is as follows:
*141“The state board of horticultural inspection shall consist of five (5) members; who shall be appointed by the Governor of the state, and shall hold their office for a term of two (2) years or until their successors are appointed and qualified and in making said appointments the Governor shall consider the recommendations of the ‘State Horticultural Association’ as the proper persons to be so appointed.”
The legislative intent was to make said board as effective as possible in performing the duties imposed upon it and remove it as far as possible from politics and the mutatious whims of the Governor. To me that intent is clearly shown by the language used in that part of the section above quoted, and that language has been so construed by former Governors and the appointment of the members of said board made from those recommended by the State Horticultural Association “as the proper persons to be so appointed,” ever since the passage of the first horticultural act in 1897 (Sess. Laws, p. 109). As I understand it, history shows that no Governor has refused to appoint the members of such board from those recommended by the association until the present Governor refused to do so.
Said horticultural act has been amended and changed a number of times since its first enactment. In 1899 (Sess. Laws, p. 122) said law was re-enacted without any amendments whatever. It was re-enacted with some amendments in 1903 (Sess. Laws 1903, p. 347), and the first section of that act contains, among other things, the following provision, which is substantially the sa^e as the provision above quoted: “And in making said appointments, the Governor shall consider the recommendations of the State Horticultural Society as to the proper persons to appoint.” The two ex-officio members of the board provided for were here changed and said two members were in the act of 1903 fixed as the Director of the Experiment Station and the Professor of Zoology of the University of Idaho. This, however, makes no change in the manner or method of appointing the three members of said board who were to be appointed.
*142In 1907, the legislature amended said act to some extent (Sess. Laws 1907, p. 448), and sec. 1 of the former acts was so amended that the three appointive members of the board should be appointed by the Governor, and failed to provide that said members should be appointed on the recommendation of the State Horticultural Society or Association.
The code commissioner, in preparing the Revised Codes of 1909, copied therein as sec. 1310 the provisions of the horticultural act as passed by the legislature in 1907. Those codes were adopted early in the session of 1909 and later in that session the legislature again revised the horticultural inspection act by amending sec. 1310- as it appeared in the new codes. That amendatory act is found at page 322, Sess. Laws 1909. The act of 1909 amending sec. 1310 leaves that part of said section involved in this controversy as above quoted. It does away with the ea>-officio members of said board and provides for the appointment of the five members thereof, and also provides that “in making such appointments, the Governor shall consider the recommendations of the State Horticultural Association as the proper persons to be so appointed. ’ ’
It will thus be observed that in the amendment of 1907, the words of limitation upon the appointive power of the Governor were omitted entirely and were inserted and slightly modified in the amendment of 1909, as above indicated, and restored in exactly the same language and words in which the provision first appeared in the act of 1897, except that in the amendment of 1909 the word “association” is used instead of the word “society.” Under the act of 1909, for the first time in the history of the horticultural statute the entire membership of the board was made appointive. After the statute of 1907 had repealed all limitation imposed on the Governor in appointing said members, the amendment of 1909 placed the same' restrictions upon him in making such appointments as were placed upon the Governor by the first horticultural act passed by the legislature of the state in 1897.
*143In 1911 (Sess. Laws, p. 152) said section 1310 was amended, but the sentence before us for construction was not changed in any manner.
The fact that said provision was entirely left out of the amendment of 1907, leaving the Governor to appoint without requiring him to appoint from recommendations made by the horticultural association, and then in the amendment of 1909 and 1911 said provision was included, requiring that the Governor shall consider any persons recommended by the State Horticultural Association as proper persons to be appointed on said board, is significant, to say the least, and clearly indicates to my mind that the legislative intent was to require the Governor to make such appointments from those recommended by the horticultural association, provided it made such recommendations.
It is clear to me from the purview, object and purpose of said act that the legislature considered that there1 was great danger to the horticultural interests of the state from the very things and diseases there songht to be checked and stamped out. The eighteenth section of said act contains the following: “Whereas there is great danger to the horticultural interests of the state of Idaho from pests and other causes for which no adequate remedy has been provided, ’ ’ and it is those pests and other causes that the legislature sought to have destroyed by the enactment of said law and it did not intend that appointments to said board of horticultural inspection should be made by the Governor for political or for any other purpose than that which was clearly intended by the provisions of said act. It was intended to put a check upon the Governor in that regard by requiring him to make such appointments from persons selected by the horticultural association, which association was presumed to have the horticultural interests of the state within its knowledge and comprehension more than any other men or body of men.
It is also clear to me from the provisions of said act that the legislature did not intend to place the appointment of the members of said board with the State Horticultural Association and make it their duty to appoint, said associa*144tion being a voluntary association of unofficial persons; but did intend to authorize said association to submit a list of names to the Governor for these appointments, should it desire to do so, which has been done since the enactment of said law. Such list of names might be equal to, greater, or even smaller, than the number of places to be filled, but if the association desired, as has been its custom, to submit a list of names of a much greater number than the number required to be appointed, as in the case at bar, where they submitted nine names where only three were to be selected, they were authorized to do so. The legislature did not desire to say that the Governor must make appointments from a list submitted, for the association might neglect to provide such list, and in that case the Governor was left free to make the necessary appointments without the recommendations which might not be forthcoming and which it would be difficult, if not impossible, to compel. That is, it was not intended that the association should defeat such appointments by a failure to furnish a list of names. The legislature evidently intended to leave the matter open to the Governor to make such appointments as he might desire to make in case no recommendations were made by said association.
Recurring to the language used in said sec. 1310, I think it fully justifies the conclusion just suggested; it is that “in making said appointments the Governor shall consider any recommendations made by the State Horticultural Association as to the proper person[s] to be so appointed.”
This construction of that statute gives force and effect to the evident intent of the legislature, and is in harmony with every known rule of statutory construction applicable thereto, and would not in any manner infringe any provision of the constitution. Any other construction would render useless and meaningless the words of the statute which provide that the “Governor shall consider any recommendations made by the State Horticultural Association as the proper persons to be so appointed.”
Under our form of government such associations and private persons have the right and privilege to recommend per*145sons for appointment to appointive positions without legislative authority so to do, and the appointive power is supposed to consider such recommendations. If the language quoted from said section means nothing and gives no right but that which the association already had, it certainly was a work of supererogation on the part of the legislature and adds nothing to the act. But in my view of the matter, the legislature intended something by said provision more than an attempt to confer on the horticultural association a right which it already had. The legislature provided that the Governor “shall” consider the persons so recommended by the association “as the proper persons to be appointed” to such office, and it is his bounden duty to appoint the members of said board from a list of persons recommended by such association, provided it makes recommendations. It is not to be presumed that such recommendations would not be made, as they have been so made since the passage of the first horticultural act in 1897.
If the members of this board are to be appointed because of their partisan politics and in order to reward partisan workers by the Governor, the efficiency of said department will no doubt be greatly impaired. It is clear that the legislature recognized this and intended to require the Governor to appoint the members of said board from those recommended by the State Horticultural Association and thus make effective the provisions of said act in promoting the very best interests of the fruit industry of the state in appointing competent men possessed of proper horticultural knowledge and experience. I think history shows that no Governor prior to the present one has ever ignored the recommendations of the State Horticultural Association in making such appointments, and it is the duty of this court to construe said act in accordance with the intent of the legislature, since the intent of the statute is the law, and the statute ought to be construed in accordance with such intent.
(4) The opinion of the majority concludes that although the State Horticultural Association has recommended nine *146persons to the Governor for appointment to positions on said board, such association has not had a reasonable time to make such recommendations, and that the question of reasonable time is a question of law, and holds that the horticultural association shall have sixty days in which to make other recommendations, and in case the Governor refuses to appoint any persons recommended by such association, although they might recommend a thousand or more, the Governor may then appoint whom he pleases. Under that conclusion it would not surprise me in the least if the Governor should refuse to appoint every man recommended by the association, unless it should recommend the two men he has already attempted to appoint to that position, or others who would agree with the Governor that they would vote or support for the office of state horticultural inspector the person whom the Governor would suggest, since he has already attempted to appoint the plaintiff Ingard, and one Blackman, who have not been recommended by said association. Evidently the Governor not' only intends to appoint the board, but intends to compel the board to permit him to appoint the state horticultural inspector, which officer, under the law, should be appointed by said board and not by the Governor.
The majority concludes that the writ of mandate ought not to issue for sixty days. I concur with them so far as the sixty days is concerned, but in my view of the matter the writ should not issue at all. The majority opinion holds that it is beyond the authority of this court to make judicial amendments to said sec. 1310. I concur in that view of the matter, but the difficulty is, the majority opinion, as I understand it, proceeds to amend said section by adding something thereto that is not contained in the section, and fails to construe said section in accordance with the clear intent of the legislature. The Governor not only violates the clear intent of the act by refusing to appoint those recommended, but violates another intent, namely, that of taking said appointments out of partisan politics, and proceeds to appoint three of his partisans, two of whom were not recommended by said association.
The writ should be denied.